MBE 2015 CRIMINAL LAW ATTEMPT, CONSPIRACY, & SOLICITATION
SOLICITATION
*1. Asking someone to commit a crime.* --inciting, commanding/counseling, or urging. *2. SPI that the person commit & achieve the crime.* *3. Solicitation is a crime even if it is immediately rejected.* *4. Solicitation always MERGES with the target crime.*
ATTEMPT
*1. SPI to commit the crime + some step/overt act in furtherance.* -just thinking and talking about a crime is not enough. *2. NO withdrawal as a Defense* *3. Attempt MERGES with the completed crime.* --If the Target Crime is achieved then the "attempted crime" is Merged & can only be guilty of actual crime committed.
CONSPIRACY
*1. Two or More People with the SPI to Commit a Crime + Overt Act in Furtherance.* --the agmt may be inferred from joint activity, & mere preparation is enough. *2. Impossibility is NOT a Defense.* *3. No Merger: D can be convicted of conspiring & the target crime.*
CO-CONSPIRATORS LIABILITY
*Liability:* each conspirator is liable for all the crimes of co-conspirators if: Crimes were committed in furtherance of the conspiracy and were *foreseeable.*
ATTEMPT HYPO
*Make sure to spot that Attempt Question:* i.e.If charged with attempted murder will John be guilty. The Attempt Answer will be about the elements of attempt: 1. Does D have the Specific Intent to achieve the crime or 2. Whether D did some overt act to commit the crime.
NO CONSPIRACY IF:
--if only 2 are conspiring & one of the conspirators is an undercover cop, then no conspiracy b/c only one has the SI to commit the crime. --Similarly, if the D and another "agree" but the FACTS show that the other person merely pretended to go along and really did not intend to commit the crime but meant to warn police, then NO Conspiracy. --Or if one of the co-conspirators is a member of the intended protected class (statutory rape) then NO Conspiracy.
MPC UNILATERAL THEORY CONSPIRACY
Here all you need is one person to conspire. FACT SPECIFIC: The hypo will tell you it is a MPC Jurisdiction that has a unilateral theory, then the fact will have a lot of people and ask if "BOTH" agreed, but you only need one.
SOLICITATION MERGER
Solicitation *Always Merges* with the targeted crime. --If the person Solicited commits the crime, then both are *guilty of the completed Crime & NOT guilty of the Solicitation b/c it Merged.* --If the person Solicited only commits an act sufficient to be liable for attempt, then same as above both are liable for the Attempt but Not Solicitation. --If the Solicited only agrees to commit the act but does not do anything else, then same as above both are liable for Conspiracy but NOT Solicitation.
WITHDRAWAL OF SOLICIATION
Withdrawal is NOT a defense to solicitation. --It is also not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful.
WITHDRAWAL FROM THE CONSPIRACY
Withdrawal: D can never withdraw from the conspiracy itself. --BUT D can withdraw from liability of the other conspirator's subsequent crimes if: D performs an affirmative act that notifies all member of her withdrawal.
hypo 1
the conspiratorial agreement need not be proven through direct evidence, as long as the circumstantial evidence taken in the light most favorable to the prosecution is sufficient to allow a rational jury to find that there was a conspiratorial agreement beyond a reasonable doubt. Here, because a jury rationally could conclude beyond a reasonable doubt from all the circumstances (including the woman's statement about her discussion with her sister) that the woman and her sister had agreed to import cocaine, the issue is for the jury, and the woman is not entitled to a court-ordered acquittal.
