CRIM LAW
10.21.09
BOOK NOTES
CLASS SLIDES
State v. McCarthy
 Inmate was charged with stalking by writing letters to ex-girlfriend
 Victim felt threatened and inmate violated protective order by continuing
contact with ex
o Convicted of attempted stalking
Solicitation- The crime of asking another person to join in a course of criminal
conduct, with the intent that the other person commit the crime or participation in
its commission.
 Specific intent crime
 Asking or urging another to commit a felony (actus)
 With intent that the person commit the solicited crime (mens)
 If an individual commits a crime without actually knowing they are being
solicited into it then they are nothing more than innocent instrumentality
 Solicitation is prepatory to the crime of conspiracy
 Definition
o A person is guilty of solicitation to commit a crime if with the purpose
of promoting or facilitating its commission he commands, encourages
or requests another person to engage in specific conduct that would
constitute such crim or an attempt to commit such crime or would
establish his complicity in its commission or attempted commission.
 Uncommunicated solicitation
o It is immaterial under subsection(1) of this Section that the actor fails
to communicate with the person he solicits to commit a crime if his
conduct was designed to effect such communication.
 Renunciation of Criminal Purpose
o It is an affirmative defense that the actor, after soliciting another
person to commit a crime, persuaded him not to do so or otherwise
prevented the commission of the crime, under circumstances
manifesting a complete and voluntary renunciation of his criminal
purpose.
People c. Saephanh (p.454)
 PH
o Inmate charged with solicitation for murder
 Appeals altered conviction to not guilty
 ISSUE
o Whether inmate is guilty of committing solicitation even though there
was no completed communication to the intended solicited party
 FACTS
o Inmate sent letter to friends trying to solicit them to take care of his
pregnant girlfriend, intending a miscarriage
 REAS
o Inmate says he is not guilty of anything because there was never a
form of communication
 Appeals agree
State v. Disanto (p.459)
 PH
o  argues against the state’s denial for acquittal on the grounds of
insufficient evidence for three counts of attempted murder
o Appeals acquitted individual of all charges because attempt was not a
viable charge
 ISSUE
o Whether there was evidence that, in fulfilling his murderous intent, 
committed an “act” toward the commission of first degree murder
 FACTS
o  told a bunch of people that he intended to kill his ex-girlfriend and
her new boyfriend.
 He wanted intended victim shot twice in the head
o Police officer posed as contract killer and arrested  for solicitation
 He informed officer to kill a child if the situation called for it
o Shortly thereafter,  communicated with an intermediary that he
wanted to “halt” the murders, saying “I’m not backing out of it, I just
want to put it on hold.”
 REAS
o The court declared that the very act of hiring a contract killer is an
overt act directed toward the commission of the target crime
o The solicitation was fulfilled with the telling of the intended murder
but the acts of attempt were shown when  gave the police officer
(presumed contract killer) pictures of ex, her car, home, and schedule.
 These were physical acts toward the commission of the murder
Solicitation
Common Law
o Target offense: a felony
o Request must be received
o A misdemeanor (old) but now can
be felony
o No defense of renunciation
o Defenses
o Renunciation was not a defense
 But it can be under MPC
Model Penal Code
o Target offense: any “crime”
o Request need not be received
o Solicitation of felony is a felony (=
degree)
o Renunciation is a defense if stops
crime
o Impossibility was NEVER a defense
o EXEMPTION—if the solicitor is in a special class to be protected by the
statutes, no liability
 E.g. minor seductress can’t be guilty of soliciting statutory rape
o Most common scenario…
o Undercover sting operations
Conspiracy- an inchoate crime that protects the public from concerted criminal
activity (“In union there is strength”).
 Agreement between 2 or more persons
 Intent to enter an agreement
 Intent to accomplish some unlawful purpose
o Common law historically, this did not need to be a crime
o Most statute now say purpose must be criminal
 Requires an agreement between two or more people, although it is not a
contract in any legal sense of the term
o Does not need to be in writing
o Can be inferred from the “facts and circumstances of the case.”
o Some conspiracy statutes require an overt act
United States v. Fitz (p.467)
 PH
o Trial found  guilty of conspiracy to distribute and possess with intent
distribute methamphetamine and possession with intent to distribute
and distribution of the same
o Appeals found there was insufficient evidence to support s
convictions
 ISSUE
o Was  a knowing participant of conspiracy
o Do all the individuals during the commission of a crime have to be
charged for conspiracy as well?
 FACTS
o Two groups of individuals in separate cars are found to have drugs
and  is charged, although not in same car and not able to speak
English, with conspiracy to distribute and possess with intent
distribute methamphetamine and possession with intent to distribute
and distribution of the same
 REAS
o In a conspiracy case, the government must prove there was a
conspiracy with an illegal purpose, that the § was aware of the
conspiracy, and that he knowingly became apart of it.
o It is not necessary to prove an overt act in furtherance of a conspiracy
o Government failed to prove that Fitz was aware of conspiracy or that
he knowingly agreed to it.
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Plurality
o It is not necessary that the government charge all parties to the
agreement
o In recent years
 Courts have moved away from prohibiting inconsistent
verdicts where one defendant is found not guilty and another
guilty of making the requisite conspiratorial agreement
 Courts rely on the fact that a jury may feel particular sympathy
for a  that could explain the inconsistent verdict
Wharton’s Rule
o When the conspiracy by its very nature requires two people, courts
have precluded use of conspiracy
 One could not prosecute the crime of adultery as a conspiracy
when the crime itself required two individuals
Unlawful object of the agreement- COMMON LAW
o To do either an unlawful act or a lawful act by criminal or unlawful
means
o The object of the conspiracy need not be a single criminal act
o It can encompass a continuing course of illegal acts
 Drug distribution
 Prostitution
 Loan sharking
Overt act
o Many conspiracy statutes require that there be an overt act and that
the overt act be in furtherance of the conspiracy
 NOTE: Fitz did not require an overt act because it is common
for federal drug conspiracy statutes not to require and overt
act
 Allowing for prosecution merely on grounds of mens
rea
Merger (majority rule)
o Conspiracy can be charged and punished in addition to any
punishment for the object(s) of the conspiracy
o A  can be found not guilty of a crime but guilty of a conspiracy to
commit that offense because it is the agreement that constitutes the
actus reus of conspiracy and not the actual or attempted commission
of the substantive crime
Abandonment
o If the accused abandons the agreement and withdraws from the
conspiracy, avoiding criminal liability may be possible.
o Some courts require communicating withdrawal to all the coconspirators or
o Convince others to cease conspiracy
o Notification to police authorities may also be required