1. Chapter 7 Attempt, Conspiracy, and Solicitation

2. Introduction
Inchoate (“beginning”) crimes provide that individuals can be convicted & punished for an intent to commit a crime when accompanied by a significant step toward the commission of the crime.

3. Three Types of Inchoate Crimes
Attempt—punishes an unsuccessful effort to commit a crime
Conspiracy—punishes an agreement to commit a crime & an overt act in furtherance of this agreement
Solicitation—punishes an effort to persuade another individual to commit a crime

4. Elements Required for All Inchoate Crime Convictions
A specific intent or purpose to accomplish a criminal offense.
An act to carry out the purpose.

5. ATTEMPT Two types of attempts:
Complete attempts (“imperfect”)
Incomplete attempts
Complete attempts occur when an individual takes every act required to commit a crime & yet fails to succeed.
Incomplete attempts occur when an individual abandons or is prevented from completing a crime due to the arrival of the police or as a result of some other event outside his/her control.

6. ATTEMPT (cont.)
Complete attempts—an individual takes every act required to commit a crime & yet fails to succeed
Incomplete attempts—an individual abandons or is prevented from completing a crime due to the arrival of the police or as a result of some other event outside his/her control
Impossible attempts—arise when the perpetrator makes a mistake, such as aiming & firing the gun only to realize that it is not loaded

7. History of Attempt Early common law did not punish attempts.
The law of attempt was recognized by the common law in the Rex v. Scofield (1784) decision.

8. Public Policy & Attempt
Three primary reasons for punishing acts that do not result in a crime (attempts):
Retribution
Utilitarian
Incapacitation

9. Elements of Criminal Attempt
An intent or purpose to commit a crime,
An act or acts toward the commission of the crime,
A failure to commit the crime.
The criminal law provides for both general & specific attempt statutes.

11. Attempt: Mens Rea A criminal attempt involves dual intent:
An individual must intentionally perform acts that are proximate to the completion of a crime.
An individual must possess the specific intent or purpose to achieve a criminal objective.
Smallwood v. State (1996)

12. 7.1. You Decide: Terrell
Is Terrell correct in arguing that he should have been convicted of burglary instead of attempted armed robbery?
Did Terrell possess the necessary intent to be held liable for attempted armed robbery?
Would you confirm the attempted robbery conviction? What about attempted burglary or attempted murder?
What about the hypothetical scenario regarding attempted intentional murder?

13. Attempt: Actus Reus Two legal approaches used in attempt cases:
Objective approach to criminal attempt—requires an act that comes extremely close to the commission of the crime
Subjective approach to criminal attempt—focuses on an individual’s intent rather than on his/her acts

14. Attempt: Actus Reus (cont.)
The objective approach distinguishes between preparation (planning; purchasing of materials) from acts taken to perpetrate the crime.
The objective approach stresses the danger posed by a defendant’s acts.
The subjective approach focuses on the danger to society presented by a defendant who possesses a criminal intent.

15. Attempt: Three Legal Tests
All three (modern) tests ask whether an individual’s actions so clearly indicate an intent to commit a crime that we can confidently charge him/her with an attempt.
The common law followed the “last step” approach & provided that an attempt only occurs when an act is “very near” or “dangerously close” to the completion of a crime.

16. Attempt: Three Legal Tests (cont.)
Physical Proximity to the Commission of a Crime
Unequivocality or Clarity of Purpose to Commit a Crime
Model Penal Code or Substantial Step Toward the Commission of a Crime

17. Modern Physical Proximity Test
Employed by some state courts
Slightly less demanding than the common law “last step” approach
Follows an objective approach & provides that an attempt occurs when an act is “very near” or “dangerously close” to the completion of a crime.
An individual must possess the immediate ability to complete the crime.

18. Modern Unequivocality Test
Also known as the clarity test or res ipsa loquitur (“the thing speaks for itself”)
Asks whether an ordinary individual observing the defendant’s acts would conclude that the defendant clearly & indisputably intends to commit a crime.
The focus is on what an individual has “already done.”
This test is criticized for lacking clear guidelines & providing jurors with considerable discretion.

19. MPC Substantial Step Test
Created in order to simplify matters by providing an understandable & easily applied test for attempt (unlike earlier tests).
To constitute an attempt, an act must be a clear step toward the commission of a crime.
The step is not required to be close to completion of the crime itself; but must be “strongly corroborative of the actor’s criminal purpose.”
The focus is on the acts already taken by the defendant toward the commission of the crime.

20. Physical Proximity v. Substantial Step Tests
The fundamental question is whether the law of attempt should be concerned with a defendant’s intent or with the proximity of his/her acts to the completion of a crime.
People v. Rizzo (1927)
Commonwealth v. Gilliam (1980)
Bolton v. State (2003)

21. 7.2. You Decide: Williams & Cooper
Should Williams & Cooper have been arrested?
Even though they admitted they possessed the intent to commit the crime (robbery), did they satisfy the actus reus element of attempted robbery?
Should Williams & Cooper be convicted for attempted bank robbery even though they did not enter the bank?

22. Impossibilities to Criminal Attempts
Factual impossibility is based on the fact that an offender who possesses criminal intent & who takes steps to commit an offense should not be free from legal guilt.
Not a defense to an attempt prosecution
Legal impossibility arises when an individual mistakenly believes that he/she is acting illegally.
This is a defense to an attempt prosecution

23. Impossibilities (cont.)
General rule: a mistake concerning the facts is not a defense; a mistake concerning the law is
The principle of legality prohibits punishing an individual for a crime that is the product of his/her imagination.
Inherent impossibility occurs in rare situations in which a defendant could not possibly achieve the desired result.
State v. Glass (2003)

24. 7.3. You Decide: Duran
Was Duran guilty of an attempt to kill the President despite the fact that this was impossible given that President Clinton was not on the White House lawn when he began shooting?
What kind of impossibility defense (valid or not) might Duran put forth? Why?

25. Abandonment
An individual who abandons his/her attempt to commit a crime based on the intervention of outside or extraneous forces remains criminally liable.
Abandonment is a defense to attempt where an individual freely & voluntarily undergoes a change of heart & abandons the criminal activity.
Two main reasons for allowing this defense:
Lack of purpose
Incentive to renounce crime
Ross v. State (1992)

26. 7.4. You Decide: Herron
Is Herron guilty of attempted sexual battery? Why or why not?
Did Herron abandon his attempt? Why or why not?

27. CONSPIRACY
The crime of conspiracy is comprised of an agreement between two or more persons to commit a criminal act.

28. Reasons to Punish Criminal Conspiracies
Intervention (protect society from danger)
Group activity (greater potential for social harm)
Deterrence (group pressure makes deterrence from carrying out the agreement unlikely)

29. Conspiracy Issues
An individual may be prosecuted/convicted of both the substantive offense that is the object of the conspiracy & of a conspiracy.
The Pinkerton Rule states that an individual is guilty of all criminal acts committed by one of the conspirators in furtherance of the conspiracy, regardless of whether the individual aided or abetted or was even aware of the offense.

30. Conspiracy: Actus Reus
Entering into an agreement to commit a crime,
An overt act in furtherance of the agreement is required under some modern statutes.

31. The Agreement
At the core of a conspiracy offense/charge is the agreement.
Does not need (& often is not/cannot be) a formal contractual agreement to commit a crime.
Prosecutors typically are forced to point to circumstances that strongly indicate that the defendants agreed to commit a crime.

32. The Overt Act
Under common law, an agreement itself was sufficient to satisfy the actus reus element of attempt.
Today, most states & the federal statutes require proof of an overt act in furtherance of the conspiracy.
This requirement is satisfied by even an insignificant act that is far removed from the commission of the crime.
An overt act by any party to the conspiracy is attributed to every member & provides a sufficient basis for prosecuting all participants.

33. Conspiracy: Mens Rea
The intent to achieve the object of the agreement.
United States v. Falcone (1940)
People v. Lauria (1967)

34. Parties to a Conspiracy
The plurality requirement states that a conviction for a conspiracy requires that two or more persons intentionally enter into an agreement with the intent to achieve the crime that is the objective of the conspiracy.
This joint or bilateral conception of a conspiracy means that a conspiracy charge against one conspirator will fail in the event that the other party to the conspiracy lacked the required mens rea.

35. Parties to a Conspiracy (cont.)
The Model Penal Code adopts a unilateral approach that examines whether a single individual agreed to enter into a conspiracy rather than focusing on whether two or more persons entered into an agreement (ex. undercover police officer).
Criticisms of both the bilateral & unilateral approaches to parties to a conspiracy…

36. The Structure of Conspiracies
Most complex conspiracies can be categorized as either chain or wheel conspiracies.
A chain conspiracy involves communication & cooperation by individuals linked together in a vertical chain to achieve a criminal objective.
A circle or wheel conspiracy involves a single person or group that serves as a hub or common core connecting various individuals or spokes.

37. Criminal Objectives of Conspiracies
Traditionally, the crime of conspiracy punished agreements to commit a broad range of objectives.
Modern statutes generally limit the criminal objectives of conspiracy to agreements to commit crimes.

38. Criminal Objectives (cont.)
Wharton’s rule provides that an agreement by two persons to commit a crime that requires the voluntary & cooperative actions of two persons cannot constitute a conspiracy.
The Gebardi rule provides that an individual who is in a class of persons that are excluded from criminal liability under a statute may not be charged with a conspiracy to violate the same law.

39. Conspiracy Prosecutions
Conspiracy constitutes a powerful & potential tool for punishing defendants.
The federal law of conspiracy expanded further through the passage, by Congress, of the Racketeer Influenced and Corrupt Organizations Act (RICO, 1970).
United States v. Handlin (2004)
Criticisms regarding the presence & expansion of conspiracy statutes…

42. 7.5. You Decide: Everritt
Was the murder of Roosevelt Cox “reasonably foreseeable as a necessary or natural consequence of the unlawful agreement?”
If so, should Everritt be held liable for the murder—that resulted from fear that Cox would not “keep quiet” about his role in the arson—as he played a key role in the arson conspiracy?
Why or why not?

43. SOLICITATION
Commanding, hiring, or encouraging another person to commit a crime.
Some states apply the common law of solicitation; other states, with solicitation statutes, have adopted various approaches to criminal solicitation—some punish solicitation of all crimes, some limit to felonies, particular felonies, or certain classes of felonies.
Solicitation generally results in a punishment less severe or equivalent to the crime solicited.

44. Public Policy & Solicitation
Solicitation is a controversial crime for various reasons including: no need, no threat, solicitor depends on the efforts of others (no danger), false accusations, & interference with freedom of speech.
However, there are several convincing reasons for criminalizing solicitation & punishing offenders:
Cooperation among criminals
Social danger
Intervention

45. The Crime of Solicitation
Involves a written or spoken statement in which an individual intentionally advises, requests, counsels, commands, hires, encourages, or incites another person to commit a crime with the purpose that the other individual commit the crime.
Persons are not held liable for comments intended as jokes or uttered out of momentary frustration.

46. Required Elements of Solicitation
Mens Rea—requires specific intent or purpose that another individual commit a crime
Actus Reus—requires an effort to get another person to commit a crime
The crime of solicitation occurs (is complete) the moment an individual urges, asks, or encourages another to commit a crime with the requisite intent.
A statement justifying or hoping that a crime occurs is not sufficient; there must be an effort to get another person to commit a crime.

47. Solicitation Issues An individual is guilty of solicitation even:
in instances in which the other person rejects the offer or accepts the offer & does not commit the crime.
in instances that a letter asking others to commit a crime is intercepted & does not reach the intended target (MPC).

50. 7.6. You Decide: McGrath
In the circumstances presented, do you think James McGrath was guilty of solicitation of a child for sexual conduct?
Think about/discuss these issues:
According to this statute, what “is” sexual conduct?
What does this specific solicitation statute mean?
What effect, if any, would introducing McGrath’s prior record of sex-related convictions have on your opinion about the case?

51. Key Issues Three main inchoate (beginning) crimes: Types of attempts
Conspiracies
Solicitations
Types of attempts
Historical issues regarding attempt
Public policy & attempt
Elements of criminal attempt
Approaches to & legal tests of attempt
Impossibilities to attempt
Abandonment of attempt

52. Key Issues (cont.) Reasons to punish conspiracy (public policy)
Elements of criminal conspiracy
Parties to conspiracy
Structures of conspiracy
Criminal objectives of conspiracy
Conspiracy prosecutions
The crime of solicitation
Solicitation & public policy
Elements of criminal solicitation