INCHOATE OFFENSES
*definition: is not or may not be an ultimate harm; punishing the act itself
1.
Attempts – attempts to commit a crime may be a crime itself
a. to be guilty on an attempt, must have the intent to commit the substantive
crime and some act in furtherance of that intent
b. punishment usually less than for the completed offense, but not always:
i. MPC: punishes attempt and completion the same
1. Exception: 1st degree murder attempt = second degree felony
c. Rationale for punishing attempts even though no harm resulting:
i. Punish the mens rea/criminal intent
ii. Don’t always need a harm anyway! (forgery, conspiracy, DUI,
possession)
iii. Utilitarian view: identify dangerous people w/ guilty mind to commit
crime, incapacitate and deter them to prevent completed crime
iv. Retributivist view: attempting a crime is bad in itself and deserves
punishment; focus on the requisite criminal intent
v. COUNTERARGUMENTS: against punishing inchoate offenses:
1. Proctor problem: don’t punish bad thoughts (act not complete!)
a. No opportunity to change your mind
b. Tough to prove the mens rea
c. Sanctity of private thought and speech of 1st
amendment
d. 3 types of attempts
i. screw-ups – when you set out to do the crime but fail
1. ex: intent to shoot and kill but miss (no problem here)
2. ***problem: when the mens rea required for substantive crime
is less than intent (e.g. shooting into a crowd and missing
everyone – abandoned and malignant heart)
3. usually no Proctor problems in this category
ii. impossibility – some crimes impossible despite intent to commit the
crime
1. ex: A thinks he’s shooting at B but not does actually see B,
actually hits a pillow or dummy
2. despite best efforts, cannot commit the crime because
impossible
3. ex: Booth – D charged w/ receiving stolen property but the
coat had already been recovered so no longer stolen
a. impossible to know something stolen that wasn’t!
(statute required knowing – would be different if statute
said it was a crime if you believed goods stolen)
b. could be charged w/ conspiracy though
c. a hybrid legal impossibility
4. 2 types of impossibility at common law + a 3rd : now largely
disregarded
a. factual impossibility – not a defense (less D-friendly)
i. rationale: person who has mens rea for the crime
does not deserve exoneration because factual
circumstances beyond his control
ii. if Booth had been factual, would be guilty
b. legal impossibility – a defense (more D-friendly)
i. pure legal impossibility – where D set out to do
something that wasn’t actually a crime even
though he thought it was
1. mens rea w/o actus reus
2. not guilty of attempt regardless of whether
act completed!
a. If not a criminal act, mens rea
cannot make it one after the fact
ii. hybrid – D intended to commit a crime but some
legal technicality (like overly strict reading of
statute) prevents him from completing the
offense – like Booth
1. *uses rule of lenity
c. inherent impossibility – where reasonable person
would view D’s acts as totally inappropriate in light of
the objective sought
i. ex: murder by voo-doo
ii. some courts dismiss as impossibility, others say
D was serious about it and deserves punishing
5. Modern view: disregard the old common law categories
because often illogical
a. Objective equivocality (“rational motivation”) test –
ask whether a rationally motivated law-abiding person
would have engaged in the conduct if they knew all the
facts – if not, guilty of an attempt
b. MPC subjectivity test – focus on what D actually
thought he was doing
i. If believed he was committing a crime, would the
act be punishable as a crime? If yes, guilty
c. *under these tests, legal impossibility is not a defense
(Booth would come out different under either)
iii. actus interruptus – D sets out to commit the crime but is stopped
before its completion
1. *biggest PROCTOR PROBLEM here
a. but the later you draw the line for the interruption, the
father from the Proctor Problem
2. mens rea not usually the problem here but the actus reus
3. ex: Murray
e. general rule: it’s impossible to intend to be reckless ~ a logical contradiction
i. Lyerla – classic road rage case, D got mad and started shooting at
the other car, hit one
1. Convicted of 1 count of 2nd degree murder (mens rea of gross
recklessness) and 2 attempts of 2nd degree murder
2. Falls into the “screw-up” category (tried to hit them and did)
3. *dissent: if you attempt an act that risks death, it is attempting
reckless murder; to say otherwise would make criminal liability
depend on luck of marksmanship
a. note: some courts find extreme recklessness as
“constructive intent”
4. illustrates the problem when attempt has mens rea below
intent
f. distinguish “mere preparation” (Proctor territory – time to change your
mind) from “actual attempt” ~ a factual question for the jury
i. Murray – convicted of attempt of incestuous marriage, conviction
reversed because found mere preparation
ii. all courts distinguish this, but vary in what test they use:
1. last step test – proximity doctrine; has D taken the last step
before the commission of the ultimate crime?
2. Indispensable element test – anything indispensable to the
crime not yet under the actor’s control? (if yes, preparation, no
conviction but if no, guilty of attempt)
3. but for the interruption test – but for the interruption, would
the D have completed the offense? (criticized because
speculates on what D would have done)
4. abnormal step test – did D cross some boundary a lawabiding person would not?
5. Unequivocality test – was D’s intent to commit the crime
established unequivocally by his action? Was it clear from the
actions what was intended?
6. MPC SUBSTANTIAL STEP TEST – does the attempt involve
a substantial step toward the completion of the crime strongly
corroborating with criminal purpose?
a. Ex: waiting for victim, casing or entering the location,
possessing material useful for crime but no lawful
purpose, soliciting another to commit a crime
b. *clarifies what evidence can get to the jury ~ solves
speculation problem but requires less jury speculating
c. GA uses this test
iii. The test matters because it can affect the outcome
iv. GOAL: distinguish those who are morally indistinguishable from those
who successfully complete criminal acts
g. Abandonment: an affirmative defense to attempt (always a defense while
in mere preparation stage but may not be after…depends on which view)
i. Common law view: once the attempt has begun, abandonment is
not a defense
1. Staples – guy tried to break into a bank, bought the tools,
accused of attempted burglary
a. Court uses the unequivocal step test – satisfied by
drilling, beginning of the breaking element = more than
mere preparation, crosses the threshold
b. Can only abandon in the mere preparation stage
(common law)
ii. Modern view: allow abandonment defense even after mere
preparation stage but only if D changed his mind because of genuine
remorse, not because of risk of arrest or fear of being caught or task
more difficult than he anticipated
1. Rationale: once someone starts down the path, give them the
opportunity to change their mind
iii. Which policy is better?
1. If goal is deterrence, common law better
2. The later the state draws the line (e.g. if they have last step
test), the greater the tendency to adhere to common law view
(do not allow abandonment defense) – rationale:
a. No appreciable time for D to be able to abandon under
last step test anyway
iv. MPC: permits D to introduce evidence of abandonment but limited in
several ways:
1. Requires proper purpose – “complete and voluntary
renunciation of the criminal purpose”
2. Only available where the target offense has a result (e.g.
killing) or a circumstance (e.g. statutory rape) as a material
element of the offense
a. *NOT available where conduct is the only element of
the offense like for conspiracy or solicitation
3. the abandonment must be voluntary
4. the abandonment must be complete
5. *GOAL: induce abandoning the attempt
v. note: even in states where abandonment is allowed as a defense (like
Cal.), usually considered in sentencing phase as mitigating factor
2.
Complicity
a. Definition: accomplice liability for those who help aid or assist in the
crime itself
i. Involves more than 1 person ~ group criminality
ii. Criminal liability on an individual (accomplice or secondary actor) for
a crime committed by another because they intentionally helped or
encouraged the primary actor (the principal) to commit the crime
iii. *compare to attempts:
1. Like attempts, no precisely defined actus reus – various
possibilities
2. Unlike attempts, not a separate claim but rather a theory of
liability
iv. Buzz words: aiding, abetting, soliciting, procuring
b. Common law: used degrees of principals and accessories
i. 1st degree principals: someone who personally committed the crime
or used an innocent agent to commit the crime (e.g. attack dog)
ii. 2nd degree principals: someone who helped or encouraged the
principal in the 1st degree and who was present at the scene of the
crime, or constructively present (e.g. getaway driver, lookout)
iii. accessories before the fact: helped or encouraged the principal
before the crime but was not present or nearby when the crime was
committed (e.g. buying the weapon)
iv. accessories after the fact: not present for the planning or commission
of the offense but intentionally rendered aid after the crime by helping
the principal, making it harder to apprehend the principal (e.g. hiding
the loot, destroying evidence ) ~ usually guilty of obstruction of justice
v. *problems with these degree distinctions:
1. if principal died, escaped or was acquitted, accessory had no
liability at all!
2. If D was charged with 1 offense, could not be charged with
another so could appeal the charge and claim he was
something different
a. Here, you could appeal and say you were a principal so
could not be convicted as an accessory
c. Modern view: abolishes the old common law degree procedural rules
i. All principles and agents are simply parties to the crime
1. No more delineation between principal and accessory – both
generally liable to the same extent
a. EXCEPTION: for old accessories after the fact who are
usually treated less harshly than those who helped
before the crime (e.g. guilty of obstruction of justice
instead of murder)
ii. General rule: causation requirement relaxed with accomplice
liability, BUT MERE PRESENCE ALONE IS NOT ENOUGH – need
some overt manifestation of approval of the crime ~ as long as D
played some causal role, can usually be found guilty of the offense
1. Ochoa – follows the general rule – sheriff killed while Ds
attacked the deputy
a. *found Ds acted with community of purpose – alleged
accomplice must act with intent to assist the principal in
the crime and must perform some act contributing to
that crime
i. **mere presence not enough, but does not take
much to get to community of purpose ~ presence
as assurance/emboldening of principal is enough
ii. state could not prove accomplice liability beyond
a reasonable doubt
iii. *note: can be liable as accomplice even if their
acts do not meet but-for causation (e.g. if deputy
could not have helped sheriff anyway)
2. Gains – D drove his companions to and from bank where they
committed robbery – 2 counts of armed robbery as accomplice
reversed because insufficient evidence…
a. Weak and circumstantial evidence
i. Driving not unusual
ii. Nothing to show agreement
iii. = at most guilty as accessory after the fact but
was charged with actual armed robbery (friends
did not rat him out)
3.
Conspiracy
a. ELEMENTS:
i. Agreement to commit a crime
ii. Intent to commit that crime
iii. Some overt act toward committing the crime
iv. *no particular act required – can even be a legal act!
b. Inchoate offense
c. Unlike complicity, conspiracy IS a separate offense but like complicity, it
allows you to be liable for the criminal acts of others
i. Some states say proof of the agreement is enough of an actus reus
to show conspiracy but others say the actus reus is a substantive
requirement that must be proven (but still don’t need much of an act)
ii. *agreement usually the tough part to prove w/ conspiracy, but
prosecution allowed to use indirect evidence to allow a jury to infer
prior agreement
d. General (modern) rule: conspiracy is a separate substantive offense
that is not considered a lesser included offense and so does not merge
with the substantive crime
i. Verive – D appealing on grounds he committed only 1 offense but
being punished for 2 (which would be double jeopardy violation)
1. At common law, his argument is correct – conspiracy, like
attempt, merged into the completed substantive offense
a. *note: still cannot be convicted of both attempt and
completed act under modern view but can be for
conspiracy
b. *some states like GA still adhere to merger rule!
2. but court here uses modern view – rationale:
a. conspiracy criminalizes agreement to commit crime and
punishes a separate wrong from the actual committing
of the target crime and so can be convicted of both (as
long as conspiracy not a lesser included offense)
3. BLOCKBURGER TEST applied– if each crime has at least 1
element not part of the statutory requirements of the other
crime, then the D can be convicted of and punished for
both crimes, provided neither is a lesser included offense of
the other
a. **Need enough evidence to establish each offense
separately…in Arizona, elements are:
i. ATTEMPT: intent + overt act + unequivocal step
test
ii. CONSPIRACY: intent + overt act + agreement
iii. Here, 2 acts alleged in indictment:
1. Going to witness’s home = enough to
support conspiracy
2. Beat the witness = enough for attempt and
unequivocal step
b. Result: D can be convicted w/o violating the
Blockburger test
i. Note: not all jurisdictions follow the Blockburger
theory – some say it is barred by double
conviction principle
1. *MPC: rejects double conviction
principle – says you can’t be convicted
of both (like GA view)
2. Verive in line w/ federal view
e. General rule: do not need actual agreement as long as there is
constructive agreement that can be implied from actions of alleged coconspirators (coordinated action in pursuit of a common criminal
objective is sufficient to show agreement)
i. Griffin – D assaulted police officer, joined by a mob
1. Problem: no proof of prior agreement
a. Solution: concert of action ~ D attacked the officer and
so encouraged others to do the same – agreement
need not precede the crime if the conspirators agree at
the time of the crime – otherwise, too hard for
prosecution to prove
b. *here, the constructive agreement was D’s challenge to
police serving as an invitation/encouragement to the
mob
2. advantages of charge of conspiracy rather than simple assault
a. expanded venue, way to get around hearsay rules
b. PINKERTON RULE – if you are in conspiracy, you
are liable for all acts of co-conspirators within the
scope of the agreement!
i. Stretches liability net – like for brother who was
incarcerated while his brother continued in their
tax violation agreement
ii. Must be reasonably foreseeable acts
3. Accomplice liability? – easier to establish conspiracy than
complicity because threshold of conspiracy occurs earlier –
here, maybe presence was encouraging, but mere presence
not enough for complicity! ~ so conspiracy easier here
f. Once you are in a conspiracy, can you get out?
i. Common law: once you were involved in conspiracy, not a defense
to attempt to withdraw (but could mitigate the sentence)
ii. Modern law: under some circumstances, may be possible to
withdraw, but once you have taken some act, guilty of the offense (no
way to undo – like common law), but if you withdraw,
1. 2 effects of withdraw:
a. *Ends your liability so that Pinkerton rule ceases to
apply
b. *starts running the statute of limitations so you may be
able to wait it out and avoid any liability
2. qualified or limited allowance to withdraw
a. but courts vary a lot on what is required…
i. some liberal: require only intention to withdraw
made clear to some, but not all co-conspirators
ii. some strict: require withdrawing party to
communicate intent to withdraw to ALL coconspirators
1. some courts even require successful
dissuasion or notification of the police
iii. MPC: withdraw is an affirmative defense to
conspiracy but,
1. must renounce criminal purpose
2. dissuade others – must negate the danger
of the agreement!
3. note: same rationale as attempt
abandonment ~ actor’s dangerousness
negated with withdrawal, want to provide
incentive to withdraw (so crime less likely)