1 Book Cover Here Copyright © 2010, Elsevier Inc. All rights Reserved Chapter 4 Preparatory Activity Offenses Criminal Law Ninth Edition

2 Copyright © 2010, Elsevier Inc. All rights Reserved Introduction The most common preparatory activity crimes are Attempt Conspiracy Solicitation 4.1

3 Attempt An attempt to commit a crime has been defined as an act done with intent to commit a crime, beyond mere preparation, but falling short of its actual commission. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

4 Attempt Common Law No crime was committed until the defendant carried out the actus reus of a substantive crime. Then, common law decisions and early court cases recognized attempts as crimes separate from the substantive crime, but considered them misdemeanors. Statutes were created that ascribed the same level of seriousness to the attempt as the crime attempted. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

5 Attempt Common Law The traditional elements of an attempt to commit a crime are A specific intent to commit a crime, An overt act toward its commission, The apparent possibility of commission, and Failure of consummation. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

6 Attempt Specific Intent Prosecutors must show specific intent; that is proof must be offered that the offender intended to do the act; and intended the outcome. Can be inferred from circumstantial evidence. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

7 Attempt Tests for Overt Act An overt act is an element of attempt, a concrete act. The tests can be remembered as: Any act Substantial step Act beyond mere preparation All but the last step Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

8 Attempt Apparent Ability Factual impossibility does not constitute a defense. Legal impossibility may be a defense. If it is not a crime to do what the person is attempting to do, then the attempt is not indictable. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

9 Attempt Failure of Consummation Abandonment or withdrawal is a defense if the attempt to commit a crime is freely and voluntarily abandoned before the final execution of the crime, and if there is not outside cause prompting the abandonment. Abandonment is no defense if failure to complete the crime is due to extraneous intervening circumstances. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

10 Attempt Model Penal Code The substantial step test is used to determine whether an overt act has been committed sufficient to create criminal culpability. Does not recognize the defense of legal impossibility. Attempt is defined in terms of conduct that would constitute the crime if circumstances were as the defendant believed them to be. Recognized only if it is free, voluntary, and unrelated to extrinsic circumstances. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

11 Attempt State Statutes, Codes, and Cases Many states have created general attempt offenses that replace scores of statutes creating special attempt crimes. State v. Miller Elements of attempt to commit any crime are Intent to commit the substantive offense An overt act done for a purpose that goes beyond mere preparation Falls short of a completed offense. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

12 Attempt Summary The offense of criminal attempt is especially important to enforcement officials. It is often overlooked and no action is taken when the intended offense is not consummated. Legislatures in all jurisdictions have recognized that a person who goes as far as possible in implementing a criminal purpose manifests dangerousness sufficient to warrant some sanctions. The rationale for including attempt as an offense is that other crimes might be prevented by taking action against the person who has indicated this criminal purpose. Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

13 Attempt A/R An overt act toward the completion of a crime; apparent ability; non-completion of the crime. M/R Specific intent Copyright © 2010, Elsevier Inc. All rights Reserved 4.2

14 Criminal Solicitation Common Law The common law crime of solicitation is defined as to solicit another to commit a felony. The offense of solicitation was punishable at common law without regard for the nature of the substantive crime solicited. Elements of solicitation An intent to promote or facilitate the commission of a particular criminal offense. Some over act, such as the initiatory act of solicitation, request, command, or encouragement. Copyright © 2010, Elsevier Inc. All rights Reserved 4.3

15 Criminal Solicitation Model Penal Code It is necessary to show intent plus asking another to engage in specific conduct. Includes a specific defense of renunciation, provided the renunciation is complete and voluntary. Renunciation is defined as the act by which a person abandons a right acquired without transferring it to another. Copyright © 2010, Elsevier Inc. All rights Reserved 4.3

16 Criminal Solicitation Model Penal Code Solicitation is defined as an offer or invitation to another to commit a crime; it does not, by itself, constitute an attempt, but may escalate into an attempt to commit a crime after the offer or commits a direct, unequivocal act toward committing the crime. Copyright © 2010, Elsevier Inc. All rights Reserved 4.3

17 Criminal Solicitation State Statutes, Codes, and Cases In some states, there are specific solicitation statutes attached to certain crimes. Copyright © 2010, Elsevier Inc. All rights Reserved 4.3

18 Criminal Solicitation Summary The crime of solicitation under common law was a misdemeanor and carried the same punishment regardless of the seriousness of the crime solicited. States often tie solicitation to the specific crime, or they have gradations of solicitation depending on the seriousness of the crime. Copyright © 2010, Elsevier Inc. All rights Reserved 4.3

19 Criminal Solicitation Solicitation A/R Request, solicit, encourage, incite another to commit a specified crime M/R Specific intent Copyright © 2010, Elsevier Inc. All rights Reserved 4.3

20 Conspiracy Is basically an agreement between individuals to commit a crime. Copyright © 2010, Elsevier Inc. All rights Reserved 4.4

21 Conspiracy Common Law An intentional agreement Between two or more Wharton Rule In crimes that require at least two people, a conspiracy charge cannot be based solely on the agreement of only the two people necessarily involved in the crime. The Wharton Rule has been rejected in some states. To commit criminal act or commit lawful act in an unlawful manner Copyright © 2010, Elsevier Inc. All rights Reserved 4.4

22 Conspiracy Common Law Some overt act by one of the parties Pinkerton Rule Any co-conspirator is culpable for all natural and foreseeable acts committed by co-conspirators within the scope of the conspiracy. This rule has been rejected by the states and the Model Penal Code. Withdrawal as a defense Traditionally, withdrawal from the criminal conspiracy did not constitute a defense to the crime. Copyright © 2010, Elsevier Inc. All rights Reserved 4.4

23 Conspiracy Model Penal Code The offense is committed if there is: An agreement with another person or persons to engage in such conduct that constitutes a crime or an attempt or solicitation to commit such crime Or when the agreement is to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. Copyright © 2010, Elsevier Inc. All rights Reserved 4.4

24 Conspiracy Summary Conspiracy was a crime at common law and is a crime in all states. While it is not a crime to think about committing a crime; and it is not a crime to discuss committing a crime, once that discussion changes to an agreement among the parties and at least one party commits at least one overt act, the crime of conspiracy has occurred. Copyright © 2010, Elsevier Inc. All rights Reserved 4.4

25 Conspiracy A/R Agreement by one party with another, to commit a criminal act or a lawful act in a criminal manner, and an overt act by at least one of the parties M/R Specific intent Copyright © 2010, Elsevier Inc. All rights Reserved 4.4