Chapter Eight

Inchoate Crimes

Defined
Imposing

criminal liability for crimes

that have not been completed

Inchoate

= Latin for to begin

Examples:

Attempt, Solicitation and

Conspiracy

Offenses of General
Application
A mix of the general and the specific:
General because they apply to
many crimes
Specific because they are specific
crimes: i.e. attempted rape,
conspiracy to commit murder

Attempt

Defined

An attempt to commit a crime, but

for some reason the crime did not
occur

Elements
1.
2.

Intent or purpose to commit a specific crime

and
Act(s) to carry out that intent

People v. Kimball

Attempt - Actus Reus

Where

does one cross the line into a

criminal act?

Preparation
Where

is not enough

is the line between preparation

and attempt?

Preparation - Attempt
Where is the line?

l_______________________________ l
/
Thinking
Wife

/
/
/
/
/
/
Research Orders Opens Makes tea Gives
Poison

drinks

package

to wife

Actus Reus Tests

Rooted in 1 of 2 Rationales:
1. The dangerous act rationale seeks to
prevent the harm from dangerous conduct
(looks at how close the D came to
completing his crime)
2. The dangerous person rationale seeks to
neutralize dangerous people (focuses on
how developed the criminal purpose is)

Dangerous Act Tests

Dangerous

Proximity to Success Test requires that D get very close to the

criminal act (i.e. the last act before
completing the crime)

Indispensable

Elements Test - focus on

whether the D has control over what
they need in order to commit the crime

Dangerous Person Tests

Unequivocailty Tests res ipsa loquitor (the act

speaks for itself) a.k.a. stop the film test can a ordinary person who saw the Ds acts,
w/o knowledge of their intent, believe the D
was determined to commit the intended crime?

Probable Desistance Test -Ds conduct has to

pass the point where most people would think
better of their conduct and go back to being
law-abiding citizens (focus on how much the D
has already done to show he is a dangerous
person)

Substantial Steps Test (MPC)

Goals:
1. Provide a more simplistic, clearer test
than the others
2. Draw a clearer line between preparation
and attempt (as well as to push it further
back down the timeline)
3. Neutralize dangerous persons not just
prevent dangerous acts

The Test
1.

Substantial steps toward completing

the crime; and

2.

Steps that strongly corroborate the

actors criminal purpose

ie. Substantial steps that show the

attempters are determined to commit
the crime

Young v. State

Preparation - Attempt
Where is the line?

l_______________________________ l
/
/
Driving around Parked behind
up (casing banks) the bank
bank and

/
/
Dressed in
Walks
bank robber kit
to the
tries to open

door

Abandonment

Distinguished from Attempt

Attempt

= some intervening force prevents

D from completing the crime

Abandonment

= the intervening force is the

D himself

Abandonment

is an affirmative defense

Must be voluntary
Not

because the circumstances are not

opportune (ie. to avoid detection or arrest);
or

Nor

a decision to postpone the criminal

conduct until another time or to substitute
another victim

ie.

not due to outside forces but a change of

heart (fear/lose your nerve will suffice)

Impossibility

Distinguish Between 2 Types

Legal

Impossibility

Factual

Impossibility

Legal Impossibility
D

intends to commit a crime, does

everything he can to complete the crime,
but what he intends to do isnt a crime

Can

be a defense to criminal attempt

Rationale:

We dont want to punish

someone for something that the law
permits

Factual Impossibility
D

intends to commit a crime and takes all

the steps necessary to complete it but a
fact makes it impossible to complete

Not

a defense to criminal attempt

Rationale:

we dont want people that are

bent on breaking the law to go free do to
a stroke of good luck

State vs. Damms

Conspiracy

Defined
2

or more people coming into an

agreement to commit a crime
Earlier on the timeline than Attempt
Elements:

Agreement/Act + Specific Intent =

Conspiracy

Mens Rea
Specific

Intent to commit object crime

or intent to enter into an agreement

No

conspiracy for crimes that werent

the intended result (criminal objective)

Actus Reus
Agreement

to commit the crime

Doesnt have to be formal (doesnt even

have to be spoken)
states require an over act in addition
to agreement
Solidifies

agreement
Makes it more than mere words

Actus Reus Cont

All of the parties dont have to continue to
participate in the agreement or have the same
intent all the way through to the criminal act. As
long as there was an agreement
Modern

Statutes: dont require all parties to

conspiracy be in agreement with each other or
even know each other

The

fact that one or more parties isnt charged

or tried and found not guilty does not prevent
other members from being tried and convicted

Circumstantial

Evidence

Solicitation

Defined

Asking or encouraging another to commit a

crime
The Elements
Actus Reus
+
Words that
advise, urge
entice another to
commit a crime
Does

Mens Rea = Solicitation

Purposeful

not have to be accepted or acted upon.

Anatomy of a Conspiracy

The Charges
Defendant
1

Defendant
2

Defendant
3

Defendant
4

Defendant
5

Conspiracy
to commit
(kidnapping,
grand
larceny,
murder)

Conspiracy
to commit
(kidnapping,
grand
larceny,
murder)

Conspiracy
to commit
(kidnapping,
grand
larceny,
murder)

Conspiracy
to commit
(kidnapping,
grand
larceny,
murder)

Kidnapping,
grand
larceny,
murder
Accomplice
Liability ???

Kidnapping

Kidnapping

Kidnapping

Kidnapping

Accessory

Agg Assault

Agg Assault

Agg Assault

Agg Assault

Grand
Larceny

Grand
Larceny

Grand
Larceny

Grand
Larceny

Attempted
Murder

Attempted
Murder

Attempted
Murder

Attempted
Murder

Solicitation

Murder