Chapter 7: Attempt, Conspiracy, and Solicitation
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Abandonment - Abandonment: of a criminal act because of an extraneous factor is not a defense because abandonment was not voluntary. (1) Renunciation is not voluntary when motivated by a desire to avoid apprehension. provoked by the realization that the crime is too difficult to accomplish, or where the offender decides to postpone the crime to focus on another victim.
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Abandonment case: - Ross v. State
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Acrus Reus of Solicitation (1)Actus reus- an effort to get another person to commit a crime - Crime is complete the moment the statement requesting another to commit a crime is made. - Solicitation may be direct or indirect. Jokes and other instances where there is no intent to actually encourage another to commit a crime in not sufficient - Under the Model Penal Code, solicitation needs to actually be communicated. Some states that DO NOT follow the Model Penal Code require an individual to have actually received the solicitation.
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Actus Reus of Attempt: - There are two steps in considering the actus reus of attempt. First, determine the legal test to be applied. Second, apply the legal test to the facts.
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Actus Reus of Conspiracy - Entering into an agreement to commit a crime - Under some modern statues, an overt act in furtherance of the agreement is required (1) Satisfied by even an insignificant act that is far removed from the commission of a crime.
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Approaches to the Actus Reus of Attempt: - The objective approach to criminal attempt requires an act that comes extremely close to the commission of the crime. - The subjective approach to criminal attempt focuses on an individual's intent rather than on his or her acts.
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Attempt = step toward the completion of a crime + specific intent or purpose to commit the crime attempted + failure to complete the crime.
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Complete Attempt: A complete,but imperfect, attempt occurs when an individual takes every act required to commit a crime and yet fails to succeed.
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Conspiracy Prosecutions - Conspiracy constitutes a powerful and potential tool for prosecuting and punishing defendants - In 1970, Congress passed the Racketerr Influenced and Corrupt Organizations Act (RICO)- holds defendants responsible for all acts of racketeering undertaken as part of an "enterprise"
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Conspiracy: The crime of conspiracy comprises an agreement between two or more persons to commit a criminal act. There are several reasons for punishing an agreement: 1. Intervention: protectinf society by arresting individuals before they commit a dangerous crime 2. Group Activity: crimes committed by groups have a greater potential to cause social harm. 3. Deterrence: group pressure makes it unlikely that the conspirators will be deterred from carrying out the agreement.
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Conspiracy= Agreement (or agreement and overt act in furtherance of agreement) + specific intent or purpose to commit a crime. ( Some courts employ a knowledge standard.)
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Criminal Objectives - U.S. Supreme Court recognized the danger that broadly defined conspiracy statues may fail to inform citizens of the acts that are prohibited and may provide the police, prosecutors, and judges with broad discretion in bringing charges. - Wharton's Rule provides that an agreement by two persons to commit a crime that requires the voluntary and cooperative actions of two persons cannot constitute a conspiracy. - Gebarbi Rule provides that an individual who is in a class of persons that are excluded from criminal liability under statue may not be charged with a conspiracy to violate the same law
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History of Attempt - Plato- "the purpose and intention to slay another...should be regarded as a murderer and tried for murder." - Early common law did not punish attempts - English law prohibited activities that may result in crimes - Court of Star Chamber began to introduce the concept of attempt in order to discourage escalation of crimes. - Rex. v. Scotfield (1784) - Rex v. Higgins (1801)
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Impossibility - Factual Impossibility occurs when a criminal act is prevented because of an extraneous factor. (1) It is not a defense to an attempt to commit a crime (2) Not recognized by the Model penal code - Legal impossibility occurs when an individual mistakenly believes that he or she is acting illegally. This is considered a defense. - Inherent impossibility occurs in rare situations in which a defendant could not possibly achieve a desired result. (ex: trying to commit murder by using a voodoo doll).
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Impossibility case: - State v. Glass
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Inchoate Crimes: - Inchoate or "beginning" crimes provides individuals can be convicted and punished for an intent to commit a crime when this intent is accompanied by a significant step towards the commission of the offense. - The conviction of an individual for an inchoate crime requires: a. a specific intent or purpose to accomplish a criminal offense, and b. an act to carry out the purpose
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Legal Test of Actus Reusus of Attempt: - Balton vs. State
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Mens Rea of Attempt: - A criminal attempt involves a 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.
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Mens Rea of Solicitation - The mens rea of solicitation requires a specific intent or purpose that another individual commit a crime. - A person is guilty of solicitation even if the individual being solicited rejected the offer accepts the offer buy does not commit the crime. State Vs. Cotton
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Mens Rena of Conspiracy: - Intent to achieve the object of the agreement (1) Knowledge standard- the conspirator must be aware of the illegal activity that another is engaging in. (2) Purpose standard- the conspirator must posses the intent to further the illegal activity.
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Parties: - Plurality Requirement- two or more persons intentionally enter an agreement with the intent to achieve the crime that is the objective of the conspiracy. - Joint or bilateral conception of conspiracy (1) There must be at least two people in agreement and all parties involved must posses the required mens rea - 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.
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Public Policy and Attempt (1) Retribution (2) Utility- lesser punishment for attempt provides an incentive for individuals to half before completing a criminal act (3) Incapacitation- an individual demonstrated that he or she poses a threat to society.
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Solicitation - 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 purposes that other person commit the crime.
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Solicitation = Intent or purpose for another person to commit a crime (felony) + words, written, statements, or actions inviting, requesting, or urging another to commit a crime.
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Solicitation: is defined as commanding, hiring encouraging another person to commit a crime and is a form of accomplice liability. - Rex v. Higgins
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The Elements of Criminal Attempt: Criminal attempt comprises three elements: - intent or purpose to commit a crime, - act or acts toward the commission of the crime - a failure to complete the crime.
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The Structures of Conspiracies - Chain Conspiracy (1) Involves communication and cooperation by individuals linked together in a vertical chain to achieve a criminal objective (2) Typically arises in the distribution of narcotics and other contraband (3) United States V. Bruno - Circle or Wheel Conspiracy (1) Involves a single person or group that serves a hub, or common core. connecting various independent individuals or spokes (2) Spokes interact with the hubs rather than with one another (3) Kotteakos v. United States - Wheel Conspiracy where each spoke is independent of all the other spokes and are not concerned with the success of other spokes- multiple conspiracies (State v. McLaughlin): - Wheel Conspiracy where the success of the whole depends on the success of each spoke- single conspiracy
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The Three Major Legal Test for the Actus Reus of Attempt: 1. Physical Proximity to the Commission of the Crime- the defendant's acts come close to completing the crime.. The focus is on the remaining steps required to complete the crime. 2 Unequivocality or Clarity to Commit a Crime- without any other information, an ordinary person looking at the defendant's acts would conclude without a doubt that the defendant intends to commit the crime. Re ipa loquitur ( The thing speaks for itself) 3. Model Penal Code or Substantial Step Toward the Commission of a Crime- the defendant's acts are sufficient to clearly indicate that the or she possesses an intent to commit the crime.
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The three inchoate crimes: - Attempt: punished an unsuccessful effort to commit a crime. - Conspiracy: punishes an agreement to commit a crime and an overt act in futherance of this agreement. - Solicitation: punishes an effort to persuade another individual to commit a crime.
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Types of Attempt: - Complete attempt (but "imperfect"): occurs when an individual takes every act required to commit a cimre and yet fails to succed. - Incomplete attempt: occurs when an individual abandons or is prevented from completing a crime - Impossible attempt: occurs when a individual makes a mistake.
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Why punish solicitation? (1) Cooperation among criminals- individuals typically encourage and support one another, which creates a strong likelihood that the crime will be committed. (2) Social Danger- an individual who is sufficiently motivated to enlist the efforts of a skilled professional criminal clearly poses a continuing social danger. (3) Intervention- solicitations permits the police to intervene before a crime is fully implemented. The police should not be placed in the position of having to wait for an offense to occur before arresting individuals intent on commuting a crime.
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Why recognize the defense of abandonment? (1) Lack of purpose- an individual who abandons a criminal enterprise lacks the firm commitment to complete the crime and should be permitted to avoid punishment. (2) Incentive to renounce crime- abandonment defense provides an incentive for individuals to renounce their criminal conduct before completing the crime.