1. Criminal Law for the Criminal Justice Professional Norman M. Garland Third Edition Copyright © 2012 The McGraw-Hill Companies, Inc. All Rights Reserved. C H A P T E R 5 Copyright © 2012 The McGraw-Hill Companies, Inc. All Rights Reserved. McGraw-Hill/Irwin

2. Slide 5-2 5.1Attempted Crimes 5.2Defenses to Attempt 5.3Solicitation 5.4Conspiracy C H A P T E R 5 Incomplete Crimes

3. Slide 5-3 CHAPTER OBJECTIVES 1. Explain the purpose of defining attempt as a crime. 2. Explain how the Model Penal Code test for the actus reus of attempt differs from all the other tests. 3. State the elements of an attempt. 4. Name the two principal defenses to attempt.

4. Slide 5-4 CHAPTER OBJECTIVES 5. Explain when the crime of solicitation can be charged. 6. Define the crime of conspiracy. 7. Define the actus reus requirement for conspiracy. 8. Explain the mens rea requirement for conspiracy. continued

5. Slide 5-5 5.1 Attempted Crimes Inchoate crimes also have actus reus and mens rea requirements inchoate crime A criminal act that is detected and punished before the ultimate or intended crime actually occurs. The principal modern inchoate crimes are attempt, conspiracy, and solicitation.

6. Slide 5-6 The Six Stages of Committing a Crime Six stages: 1.Conceives idea of committing the crime 2.Evaluates idea, considering whether or not to proceed 3.Forms intention to go forward 4.Prepares to commit crime 5.Commences commission of offense 6.Completes action, achieves goal

7. Slide 5-7 Historical Development Crime of attempt not recognized as a crime before the late 1700s – Rex v. Scofield Defendant charged with attempting to set rented house on fire – Rex v. Higgins accused solicited servant to steal his master’s property When a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense. attempt

8. Slide 5-8 Historical Development Model Penal Code (MPC), a person is guilty of attempt to commit a crime if: – Purposely engages in conduct that would constitute the crime – Does or omits to do anything with the purpose of causing such result without further conduct on his or her part – Purposely does or omits to do anything that constitutes substantial step to culminate in commission of the crime

9. Slide 5-9 Mens Rea of Attempt Requires specific intent to commit an act that would have resulted in a completed substantive crime Defendant must have had the intent to cause that result for crimes defined by prohibiting a certain result – Mens Rea and the MPC

10. Slide 5-10 Mens Rea of Attempt Mens Rea and the MPC – Section 5.01(1) Person is guilty of attempt if it was purpose to engage in conduct or to cause result that would constitute substantive offense, except: – Person may be guilty if s/he believes result will occur, even if it is not the actor’s conscious object to cause the result – Holding a person culpable for attempt does not require that mens rea of “purpose” or “belief ” apply to the attendant circumstances

11. Slide 5-11 5.1 Attempted Crimes Generally accepted defendants cannot be liable for attempt unless defendant has committed some act to further their plan to commit offense – Several tests to help measure when a person is guilty of the crime of attempt

12. Slide 5-12 Actus Reus of Attempt Opponents note that it defeats policy of making attempt a separate crime, because it prohibits arrest of a suspect until it is too late to prevent harm A test that determines that an attempt has occurred when a person has performed all of the acts that he or she believed were necessary to commit the underlying offense. last act test

13. Slide 5-13 Actus Reus of Attempt physical proximity test A test that determines that an attempt has occurred when the perpetrator’s conduct, though not having advanced so far as the last act, approaches sufficiently near to the completed crime as to be a substantial step toward commission of the offense. dangerous proximity test A test that determines that an attempt has occurred when the perpetrator’s conduct is in dangerous proximity to success, or when an act is so near to the result that the danger of its success is very great.

14. Slide 5-14 Actus Reus of Attempt Indispensable element test A test that determines that no attempt has occurred when a suspect has not yet gained control over an indispensable instrumentality of the criminal plan. unequivocality test A test that determines that an attempt has occurred when a person’s conduct, standing alone, unambiguously manifests his or her criminal intent.

15. Slide 5-15 Actus Reus of Attempt factual impossibility When a person’s intended end result constitutes a crime, but the person fails to consummate the offense because of an attendant circumstance that is unknown or beyond his or her control, making commission of the crime impossible.

16. Slide 5-16 Actus Reus of Attempt substantial step test The MPC’s test to determine whether the actus reus of attempt has occurred, which requires that the suspect must have done or omitted to do something that constitutes “a substantial step” in the commission of the substantive offense. – Person can be guilty of attempt if s/he has intent to commit a crime and takes steps that a jury finds sufficient to indicate that s/he was in the process of committing the act

17. Slide 5-17 Handling Multiple Counts of Attempt Multiple counts of attempt can arise from a single act that goes beyond mere preparation – Act must be sufficient to support an attempt to commit each substantive offense

18. Slide 5-18 Other Elements and Issues A crime may never get beyond the level of attempt because police may stop it before it happens A defendant’s plan to commit a crime may not work out A defendant may get concerned that police will intercept his actions and stops out of fear of being caught

19. Slide 5-19 Application Case – 5.1Regina v. Eagleton – 5.2People v. Rizzo – 5.3People v. Vizcarra – 5.4People v. Orndorff – 5.5People v. Kraft

20. Slide 5-20 Figure 5.1: The Six Stages of Committing a Crime

21. Slide 5-21 Figure 5.2: A Comparison of the Various Tests for Attempt Liability

22. Slide 5-22 5.2 Defenses to Attempt Defendant may have tried but could not commit the substantive crime – Would-be pickpocket reaches into pocket of another to remove money but discovers the pocket is empty. Attempted theft? – Man smokes what he believes to be marijuana, but it is a garden weed. Is this attempted possession of marijuana?

23. Slide 5-23 Impossibility factual impossibility When a person’s intended end result constitutes a crime, but the person fails to consummate the offense because of an attendant circumstance that is unknown or beyond his or her control, making commission of the crime impossible. legal impossibility When the intended acts, even if completed, would not amount to a crime. Legal impossibility is a common law defense to the crime of attempt.

24. Slide 5-24 Impossibility “hybrid” legal impossibility An ambiguous case in which impossibility could be considered either legal or factual, as distinguished from cases of true legal impossibility. genuine legal impossibility Where the law does not define as criminal the goal the defendant sought to achieve. This is a valid defense to the crime of attempt.

25. Slide 5-25 Abandonment Controversy over Abandonment Defense – Valid defense only when defendant has change of heart because of sincere belief that furtherance of act is wrong abandonment An affirmative defense to the crime of attempt that exists only if the defendant voluntarily and completely renounces his or her criminal purpose.

26. Slide 5-26 Abandonment Abandonment and the Common Law – Abandonment not a defense at common law – Argument against abandonment defense is it allows actor to undo criminal plans by renunciation and avoid punishment, a possibility that may encourage persons to take preliminary steps toward a crime

27. Slide 5-27 Figure 5.3: Defenses to Attempt Liability

28. Slide 5-28 Application Case – 5.6United States v. Thomas – 5.7United States v. Berrigan – 5.8Wilson v. State – 5.9People v. Kimball

29. Slide 5-29 5.3 Solicitation – Problems with solicitation Possible the individual will refuse Solicitor manifests a reluctance to commit the crime, and thus s/he is not “a significant menace” Unsuccessful solicitation far removed from societal harm and its punishment comes close to punishing evil thoughts or intentions alone Solicitation (incitement) The act of seeking to persuade someone else to commit a crime with the intent that the crime be committed.

30. Slide 5-30 Mens Rea of Solicitation Common law solicitation is a specific intent crime – Person can be convicted only if s/he requests, encourages, or commands another to commit a crime, with the specific intent that the other person successfully complete the solicited crime

31. Slide 5-31 Actus Reus of Solicitation Physical act of solicitation occurs when the solicitor takes any action, whether verbal or otherwise, to urge another to commit a crime

32. Slide 5-32 Defenses to Solicitation MPC Section 5.02(3) provides that “renunciation of criminal purpose” is a defense when 1.The solicitor “completely and voluntarily renounces his criminal intent.” 2.The solicitor “either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime.”

33. Slide 5-33 5.4 Conspiracy Conspiracy is agreement between two or more people to commit an unlawful act or acts or to do a lawful act unlawfully – Many called for reformation of conspiracy because the law is vague and requires defendants to do very little in order to be convicted of the crime

34. Slide 5-34 5.4 Conspiracy MPC (Section 5.03(1)) provides someone guilty of conspiracy if s/he: – Agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or agrees to aid such other person in the planning or commission of such crime or of an attempt or solicitation to commit such crime

35. Slide 5-35 Mens Rea of Conspiracy Mental state required for conspiracy: – Intent to agree and – Specific intent that object of the agreement be achieved Courts divided on the issue of whether knowledge alone is enough

36. Slide 5-36 Actus Reus of Conspiracy Actus reus of conspiracy is act of reaching an agreement – Such an act constitutes person’s advancement of the intent to further the criminal purpose – That advancement justifies the law’s intervention – Most jurisdictions require prosecutor prove that some overt act was committed in furtherance of conspiracy

37. Slide 5-37 Defenses to Conspiracy Most courts hold that impossibility is not a defense to a charge of conspiracy – Courts have imposed strict requirements of proof of abandonment – MPC’s approach provide that withdrawal is a valid defense if a conspirator notifies police of the criminal activity as a way to end the activity

38. Slide 5-38 Figure 5.4: Alaska’s Statute on Conspiracy

39. Slide 5-39 Application Case – 5.10United States v. Alvarez