Ch 7: Attempt, Conspiracy, and Solicitation
When Defendant was arrested, he was wearing unbuttoned and unzipped pants and had a jar of petroleum jelly in his pocket. A neighbor saw him peeking through the bathroom window at 10pm when the victim was taking a bath. There was no evidence that the window or screen had been tampered with. Defendant was convicted of attempted burglary with intent to commit sexual assault. The conviction was reversed and remanded to trail court for a new punishment hearing for conviction of the Class B misdemeanor of criminal trespass due to insufficient evidence to prove the felony but sufficient evidence for the misdemeanor
Bolton v. State
Ruled that Defendant's sawing through the bars and gathering of tools indicated a clear intent to escape from prison and constituted a substantial step under the MPC. However, they noted that these same acts would not constitute an attempt under a physical proximity test, because a number of additional steps were required to escape form the prison
Commonwealth v. Gilliam
authorized by the king to maintain order by modifying common law rules where necessary and began to introduce the concept of attempt into the law by punishing threats and verbal confrontations that were likely to escalate into armed confrontations, challenges, and attempts to enter into duels
Court of Star Chamber
provides that an individual who is in a class of persons who are excluded from criminal liability under a statute may not charged with a conspiracy to violate the same law
Gebardi rule
The most frequently cited case illustrating a wheel conspiracy. Defendant, the hub, assisted 31 independent individuals to obtain separate fraudulent loans from the gov. Ruled that although the defendants were engaged in the same type of illegal activity, there was no common purpose or overall plan, and defendants were not liable for involvement in a single conspiracy
Kotteakos v. US
the defendant's acts are sufficient to clearly indicate that they possess an intent to commit the crime
MPC or substantial step toward the commission of a crime test
what are two cases that establish factual impossibility?
People v. Dlugash; State v. Curtis
case that rejected that searching for a "contemplated victim" constituted an attempt
People v. Rizzo
all criminal acts undertaken in furtherance of a conspiracy or that are reasonably foreseeable as the necessary or natural consequences of the conspiracy are attributable to each member by virtue of their membership
Pinkerton rule
case where defendant was convicted of unsuccessfully soliciting a servant to steal his master's goods
Rex v. Higgins
English case in which the court fully recognized and accepted the law of attempt and the US courts accepted this and ruled that it was a misdemeanor to attempt to commit any felony or misdemeanor; what was the year?
Rex v. Higgins; 1801
English case in which attempt was finally recognized at common law; what was the year?
Rex v. Scofield; 1784
case that is an example of a wheel conspiracy. Several gamblers independently agreed to subscribe to an illegal horse racing service that provided racing results and information. The customers realized that the success of this financially expensive venture depended on the willingness of each of the other gamblers to support the service
State v. McLaughlin
case in which 88 defendants were indicted for conspiracy to import, sell and possess narcotics. Petitioners appealed stating there were 3 conspiracies rather than one large one. Court ruled that each member of the conspiracy knew that the success of that part with which he was immediately concerned, was dependent upon the success of the whole
US v. Bruno
a rule that prohibits the prosecution of two persons for conspiracy to commit a particular offense when the offense in question can only be committed by at least two persons
Wharton's rule
what must be present in order for abandonment to be proven?
a complete and voluntary renunciation of criminal purpose
MPC provides that an individual is guilty of solicitation even in instance in which what?
a letter asking others to commit a crime is intercepted by prison authorities and does not reach gang members outside of prison
What are defendants generally punished with for solicitation?
a punishment slightly less severe than or equivalent to the punishment that is usual for the crime solicited
what does mens rea of solicitation require?
a specific intent of purpose that another individual commit a crime
the conviction of an individual for an inchoate crime requires what two elements?
a specific intent or purpose to accomplish a criminal offense and an act to carry out the purpose
a defense to attempt when an individual freely and voluntarily undergoes a change of heart and abandons the criminal activity
abandonment
what type of liability is solicitation?
accomplice liability
What are 5 examples of the Wharton's rule?
adultery, bigamy, sale of contraband, bribery, dueling
what is an example of impossible attempt?
aiming and firing the gun only to realize that it is not loaded
all conspirators are held responsible for what?
all criminal acts and statements made by any co-conspirator in furtherance of the conspiracy
what are the two steps of the test used in the MPC or substantial step toward the commission of a crime test?
an act must be a clear step toward the commission of a crime and the act must be strongly corroborative of the actor's criminal purpose
what is the safety valve for attempted crimes that is built into the MPC?
an act should be treated as a minor offense in those instances in which neither the offender nor their conduct presents a serious threat to the public
most modern statutes require what for conspiracy
an affirmative act, however slight, toward carrying out the conspiracy
what kind of defense is abandonment under MPC?
an affirmative defense
conspiracy was complete under common law when what happened?
an agreement to commit a crime
what does actus reus of solicitation require?
an effort to get another person to commit a crime
what two types of intent are included in dual intent?
an individual must intentionally perform acts that are proximate to the completion of a crime and an individual must posses the specific intent or purpose to achieve a criminal objective
what is not included in the abandonment defense? why?
an individual who abandons an attempt to commit a crime based on the intervention of outside or extraneous factors; abandonment was not voluntary
What did Plato say about attempted murder in 360 BC?
an individual who possesses the purpose and intention to slay another should be regarded as a murderer and tried for murder
What is included as an overt act to prove conspiracy?
an insignificant act that is far removed from the commission of a crime
3 elements of criminal attempts
an intent or purpose to commit a crime, an act(s) toward the commission of the crime, and a failure to complete the crime
why is factual impossibility not permitted as a defense to an attempt to commit a crime?
an offender who possesses a criminal intent and who takes steps to commit an offense should not be free from legal guilt
the law of conspiracy permits law enforcement to do what?
arrest individuals at an early stage of criminal planning
what are 3 ways in which conspiracy may be punished?
as a misdemeanor; sentence of conspiracy is the same as the target offense; conspiracy to commit a felony is a felony and conspiracy to commit a misdemeanor is a misdemeanor
what is the focus of the MPC or substantial step toward the commission of a crime test?
asking whether an individual has taken affirmative acts toward the completion of a crime that, in combination with other evidence, indicate a defendant possesses a criminal intent
punishes an unsuccessful efforts to commit a crime
attempt
what are the 3 types of inchoate crimes?
attempt, conspiracy, and solicitation
Early common law did not punish _____, but did prohibit _____
attempts; activities that may result in crimes
why does society approve of punishing inchoate crimes?
because at this point, society is confident that the individual presents a threat and that society is justified in acting to protect itself
How do prosecutors typically prove the actus reus of conspiracy?
by pointing to circumstances that strongly indicate that the defendants agreed to commit a crime
involves communication and cooperation by individuals linked together in a vertical structure to achieve a criminal objective
chain conspiracy
involves a single person or group that serves as a hub, or common core, connecting various independent individuals or spokes
circle or wheel conspiracy
what are the three types of attempt?
complete (but imperfect); incomplete; impossible attempt
an individual takes every act required to commit a crime and fails to succeed
complete attempt
type of attempt that occurs when an individual takes every act required to commit a crime and yet fails to succeed
complete but imperfect
criticism of RICO Act
concern over the government's power to bring a counterfeiter to trial for murders committed by individuals involved in an unrelated component of a criminal enterprise
an agreement between two or more persons to commit a criminal act
conspiracy
punishes an agreement to commit a crime and an overt act in furtherance of this agreement
conspiracy
How is conspiracy generally punished?
conspiracy to commit a felony is a felony and conspiracy to commit a misdemeanor is a misdemeanor
3 reasons to punish solicitation
cooperation among criminals: individuals typically encourage and support one another, which creates a strong likelihood that the crime will be committed; social danger: an individual who is sufficiently motivated to enlist the efforts of a skilled professional criminal clearly poses a risk to society; intervention: permits the police to intervene before a crime is fully implemented
What are the two steps when considering the actus reus of attempt?
determine the legal test to be applied and apply the legal test to the facts
an individual must intentionally perform acts that are proximate to the completion of the crime, and must possess specific intent of purpose to achieve a criminal objective
dual intent
what type of intent is required to prove mens rea for attempted crimes?
dual intent
Why does the MPC reject the Pinkerton rule?
each conspirator may be held liable for thousands of crimes of which they are completely unaware and did not influence at all
what are 2 elements of actus reus of conspiracy?
entering into an agreement to commit a crime, and under some modern statutes, an overt act in furtherance of the agreement
What was the consequence of the ruling of US v. Bruno?
every member of the conspiracy was liable for every illegal transaction carried out by their co-conspirators in TX and LA
An over act by any part to a conspiracy is attributed to who? What does it provide?
every member; sufficient basis for prosecuting all the participants
a factual circumstance that prevents an individual from actually completing a criminal offense is referred to in some state statutes as
extraneous factor
an event outside of an individual's control
extraneous factor
factual impossibility is a mistake of ____ and ____ a defense
fact; is not
when a criminal act is prevented because of an extraneous factor
factual impossibility
which type of impossibility is not recognized as a defense to an attempt to commit a crime?
factual impossibility
3 types of impossibility
factual, legal and inherent
defendants may be joined in a single trial in conspiracy cases which creates the potential for what?
guilt by association
how may coconspirators escape liability for future offenses?
if the individual abandons the conspiracy and the abandonment is communicated to the other conspirators. some statutes require that individuals persuade the other conspirators to abandon the conspiracy
when perpetrators would have successfully completed the offenses had the facts been as the individuals "believed them to be"
impossibility
type of an attempt in which an individual makes a mistake that makes completing the crime beyond their ability
impossible attempt
in what jurisdictions may individuals be prosecuted for conspiracy
in any jurisdiction in which the defendants entered into a conspiratorial agreement or committed an overt act
what kind of crimes provide that individuals can be convicted and punished for an intent to commit a crime when this intent is accompanied by a significant step toward the commission of the offense?
inchoate or "beginning" crimes
type of attempt when an individual abandons or is prevented from completing a crime
incomplete
occurs when the defendant could not possibly achieve the desired result under any circumstances
inherent impossibility
3 reasons for punishing conspiracy
intervention: society is protected by arresting individuals before they commit a dangerous crime; group activity: crimes committed by groups have a greater potential to cause social harm; deterrence: group pressure makes it unlikely that the conspirators will be deterred from carrying out the agreement
what is not required when proving an act is a clear step toward the commission of a crime for the MPC or substantial step toward the commission of a crime test?
is not required to come close the completion of the crime itself
advantage of MPC or substantial step toward the commission of a crime test
it allows the detainment of dangerous persons rather than with delaying an arrest until an individual comes close to committing a dangerous act
disadvantage of MPC or substantial step toward the commission of a crime test
it broadens the authority of the police to arrest individuals for an attempt to commit a crime
what is an advantage of the joint or bilateral conception of conspiracy?
it is consistent with the view that the law of conspiracy should be directed against group crime
what is a criticism of the unequivocality or clarity of purpose to commit a crime test?
it lacks clear guidelines and provides jurors with considerable discretion
what is a criticism of joint or bilateral conception of conspiracy?
it undermines the enforcement of conspiracy laws
there must be at least two people in agreement and all parties involved
joint or bilateral conception of conspiracy
what are the 2 standards for mens rea of conspiracy?
knowledge standard and purpose standard
the conspirator must be aware of the illegal activity that another is engaging in
knowledge standard for mens rea
2 reasons for recognizing the defense of abandonment
lack of purpose: defendant lacks a firm commitment to complete the crime and should be permitted to avoid punishment; incentive to renounce crime
provided that an attempt occurred only after the completion of the final step required for the commission of a crime
last step approach
what test is used at common law to prove actus reus for attempt?
last step approach
legal impossibility is a mistake of _____, and _____ a defense
law; is
occurs when an individual believes that he is acting illegally when in reality the behavior is legal
legal impossibility
what type of impossibility is recognized as a defense?
legal impossibility
how are individuals who commit inchoate offenses generally punished?
less severely than or as severely as they would have been punished had they completed the crime that was the object of the attempt, conspiracy, or solicitation
what are 6 factual examples offered in the MPC or substantial step toward the commission of a crime test?
lying in wait, searching for, or following the victim; enticing the victim to go to the place contemplated for the crime; surveillance of the site; unlawful entry of a building or vehicle; possession of materials designed for a specific crime; soliciting individuals to engage in criminal conduct
what approach does the physical proximity to the commission of a crime test use?
objective approach
what are the 2 approaches in determining actus reus for attempted crimes?
objective approach and subjective approach
requires an act that comes extremely close to the commission of the crime and distinguishes preparation from acts taken to perpetrate the crime
objective approach to determine actus reus for attempted crimes
Why do several state and federal courts not recognize the abandonment defense?
on the grounds that the crime of attempt is complete and cannot be renounced
2 criticisms of the unilateral approach of conspiracy
permits the prosecution of individuals for a conspiracy who have not actually entered into a criminal agreement; enables undercover agents to manufacture crime by enticing individuals into unilateral conspiratorial agreements
the defendant's acts come close to completing the crime and must possess the immediate ability to commit the crime
physical proximity to the commission of a crime test
What 3 major legal tests are used to prove the actus reus of attempt?
physical proximity to the commission of a crime; unequivocality or clarity of purpose to commit a crime; MPC or substantial step toward the commission of a crime
a conviction for 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
plurality requirement
what is an example of the subjective approach of attempt?
police arrest an arsonist as soon as the individual approaches the crime scene with the kerosene and matches
the planning and purchasing of any relevant materials to commit the crime
preparation
what do most states and the federal statute require for conspiracy?
proof of an overt act in furtherance of the conspiracy
the conspirator must possess the intent to further the illegal activity
purpose standard for mens rea
federal law that essentially eliminated the need to prove that individuals are part of a single conspiracy and instead holds defendants responsible for all acts of racketeering undertaken as part of an enterprise
racketeer influenced and corrupt organizations act (RICO)
"the thing speaks for itself"
res ipsa loquitur
what is another name for the unequivocality or clarity of purpose to commit a crime test?
res ipsa loquitur
3 reasons why the courts punish an act that does not result in the successful commission of a crime
retribution: they are morally blameworthy; utility: lesser punishment of attempt is an incentive for people to halt before completing a criminal act; incapacitation: they have shown they pose a threat to society
the facts of Gebardi v. US
reversed the conspiracy conviction of a man and woman for violation of the Mann Act that prohibited and punished the transportation of a woman from one state to another for immoral purposes. The Court reasoned that the statute was intended to protect women from sexual exploitation and was defined so as to solely punish the individual transporting the women. They reasoned that the two defendants could not enter into a criminal conspiracy
commanding, hiring or encouraging another person to commit a crime
solicitation
punishes an effort to persuade another individual to commit a crime
solicitation
the physical proximity to the commission of a crime is used by ____ state courts and is ____ than the last step approach
some; slightly less demanding
based on the belief that society should intervene as soon as an individual who possesses the required intent takes an act toward the commission of a crime
subjective approach
In 1614, Sir Francis Bacon prosecuted a case before the Star Chamber for dueling in which he argued what?
that acts of preparation for a sword fight should be punished in order to discourage armed confrontations
What trial do critics of conspiracy point to? why?
the Chicago Eight; because 8 anti-Vietnam War activists were prosecuted for conspiring to cross states lines to incite a riot at the 1968 Chicago Democratic Convention even though they didn't know each other
crime of solicitation was largely unknown until what? when?
the English case Rex v. Higgins; 1801
what is an example of the physical proximity to the commission of a crime test?
the arsonist has lit the match but has not put it to the accelerant yet
what happens under the joint or bilateral conception of conspiracy if one alleged conspirator is acquitted? why?
the charges of the other conspirator is dismissed; there must be at least two guilty conspirators or none
defendants may be prosecuted for both conspiracy and what else?
the commission of the crime that was the object of the conspiracy
There are a number of states that do not have solicitation statutes. What do they use instead?
the common law of solicitation
what does the objective approach of attempt emphasize?
the danger posed by a defendant's acts
what does the subjective approach emphasize?
the danger to society presented by a defendant who possesses a criminal intent
what is not included when using the unequivocality or clarity of purpose to commit a crime test?
the defendant's statements
who do the spokes interact with in a wheel conspiracy?
the hub
what is an example of the objective approach of attempt?
the individual can buy the kerosene and even pour it on the ground or building, but we do not truly know their intent until they light the match
what is an example of the last step approach?
the individual has to have pulled the trigger in order for it to be considered an attempt
what is mens rea of conspiracy?
the intent to achieve the object of the agreement
the crime of solicitation is complete when? even though what else is required to trigger the crime?
the moment the statement requesting another to commit a crime is made; an additional step, such as a phone call or payment of money
what does MPC of mens rea for conspiracy reflect?
the predominate view that a specific intent to further the object of the conspiracy is required
what does the physical proximity to the commission of the crime test focus on?
the remaining steps required to complete the crime
States that do not follow the MPC for solicitation require what?
the solicitation actually be received by the intended recipient
what happens in a wheel conspiracy in the event that each spoke is unconcerned with the success of the other spokes?
there are multiple conspiracies
3 criticisms of punishing solicitation
there is no necessity for the crime, bc it is not a threat until steps are taken to carry out the scheme. At this point, the agreement can be punished as a conspiracy; risk that individuals will be convicted based on false accusation or as a result of a casual remark; it interferes with freedom of speech
Why did conspiracy traditionally punish agreements to commit a broad range of objectives, many of which would not be criminal if committed by a single individual?
these acts were assumed to ad danger when engaged in by a group of individuals
2 disadvantages of Wharton's rule
these offenses already punish a cooperative agreement between two individuals to commit a crime, and there is no reason to further punish individuals for entering into a conspiratorial agreement; does not prevent conspiracy involving more than the required number of individuals
how do states typically protect individuals against wrongful conviction of solicitation?
they require corroboration or additional evidence to support a charge of solicitation such as email, voice recording or witnesses who overheard the conversation
who does the purpose standard of mens rea for conspiracy target?
those who intend to further criminal conduct
how may intent be revealed in the subjective approach?
through an individual's statements or actions
What was the purpose of the Court of Star Chamber?
to fill gaps in the law
What is the intention of requiring an overt act to prove conspiracy?
to limit conspiracy prosecution to agreements that have progressed beyond the discussion and that therefore present a social danger
the MPC or substantial step toward the commission of a crime test simplifies matters by providing what?
understandable and easily applied test for attempt
without any other information, an ordinary person looking at the defendant's act would conclude without a doubt that the defendant intends to commit the crime
unequivocality or clarity of purpose to commit a crime test
examines whether a single individual agreed to enter into a conspiracy rather than focusing on whether two or more persons entered into an agreement
unilateral approach
which approach to conspiracy is adopted by MPC?
unilateral approach
What are 6 activities that were prohibited by early common law because they may result in crimes?
unlawful assemblies; walking at night; unemployed persons wandering in the countryside; keeping guns or crossbows in the house; lying in wait; drawing a sword to harm a judge
what does the unequivocality or clarity of purpose to commit a crime test focus on?
what the individual has already done
when is the crime of solicitation complete?
when an individual attempts to solicit an individual to commit a crime
what must be proven in a wheel conspiracy in order to charge for a single conspiracy?
when each spoke shares a common purpose to succeed
what do some judges express uncertainty over when determining mens rea of conspiracy?
whether it requires a purpose to cause the result or whether it is sufficient that an individual knows that a result will occur
