Criminal Law CJ 220 Chapter 6

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Criminal Law CJ 220Chapter 6

• Uncompleted Crimes
• Attempt, Conspiracy, and
• Solicitation
• Andrew Fulkerson, JD, PhD
• Southeast Missouri State University

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Incomplete crimes (inchoate offenses)

• Attempt (attempting to commit an offense)
• Conspiracy (agreeing with another person to
  commit a crime)
• Solicitation (encouraging someone to commit a
  crime)

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Elements of Incomplete Crimes

• Specific intent to commit a crime
• Some acts toward completion of the crime
• Punish incomplete crimes less severely than
  completed crimes

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Attempt

• Early common law maxim
• "The will shall be taken for the deed."

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Common Law Attempt Elements

• Purpose
• Substantial acts to carry out criminal purpose
• Some injury

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Common Law Attempt

• English common law developed law of attempt in an
  effort to prevent criminal behavior. Threats
  were punished to stop violence.
• By 19th century common law attempt was well
  defined.
• All attempts to commit a felony or misdemeanor
  were punishable as misdemeanors.

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Elements of Criminal Attempt

• Intent to commit a specific crime
• Act or acts to carry out the intent and
• Failure to complete the crime

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Attempt

• Mens reaspecific intent to commit the crime

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Attempt Mens Rea

• People v. Kimball, 109 Mich.App. 273, 311 N.W.2d
  343 (1981)

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Attempt Mens Rea

• State v. Harrell, 811 So.2d 1015 (La.App. 2002)

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Attempt

• People v. Moreland, WL 459026, (Cal.App. 2 Dist.)

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Attempt

• Actus Reus
• More than mere intent
• Less that completed crime
• Interruption
• Extraneous (stroke of luck)
• Internal (voluntary abandonment)

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Attempt Actus reus

• Criminal attempt does not require a completed
  crime
• Preparation is not attempt

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Tests to Distinguish Attempt From Preparation

• Physical proximity test (nearness to completion)
• Unequivacality (Probable desistance) test
• Substantial steps, or the Model Penal Code test

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Physical Proximity Test

• Time
• Space
• Number of necessary acts remaining to complete
  the crime

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Probable Desistance Test

• Whether act in ordinary course of events would
  result in crime, but for timely interference.

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Equivocality Test

• When act can have no other purpose than
  committing the crime

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Model Penal Code Approach Substantial Steps

• Requires substantial steps toward completion of
  the crime
• Acts that are strongly corroborative of the
  persons criminal purpose

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Substantial Steps

• Young v. State, 303 Md. 298, 493 A.2d 352 (1985)

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Attempt

• Commonwealth v. Gilliam, 273 Pa.Super. 586, 417
  A.2d 1203 (1980)

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Attempt Actus Reus

• People v. Rizzo, 158 N.E.2d 888 (N.Y.App. 1927)

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Attempt Actus Reus

• Commonwealth v. Peaslee, 59 N.E. 55 (Mass. 1901)

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Criminal Law CJ 220Chapter 6

• Uncompleted Crimes
• Attempt, Conspiracy, and
• Solicitation
• Andrew Fulkerson, JD, PhD
• Southeast Missouri State University

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Legal and Factual Impossibility

• Legal impossibility D intends to commit crime,
  and does everything possible to carry out the
  act. However, law does not prohibit the acts.
  Legally impossible to commit this crime.
• Factual impossibility person intends to commit
  the crime, but an extraneous factor prevents the
  act.

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Impossibility

• State v. Damms,
• 9 Wis.2d 183, 100 N.W.2d 592 (1960)

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Impossibility

• State v. Robins, 646 N.W.2d (Wis. 2002)

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Impossibility

• State v. Kordas, 528 N.W.2d 483 (Wis.1995)

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Attempt

• State v. Wagner, 528 N.W.2d 85 (Wis.App. 1995)

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Abandonment

• Voluntary abandonment- D changes his mind about
  the crime and ceases before completion.
• It is an affirmative defense in some states,
  and Model Penal Code
• Requires a voluntary and complete renunciation
  of the crime
• Must not be caused by facts that make detection
  more likely

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Abandonment

• LeBarron v. State,
• 32 Wis.2d 294, 145 N.W.2d 79 (1966)

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Abandonment

• People v. Johnson, 750 P.2d 72 (Colo. App. 1987)

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Criminal Law CJ 220Chapter 6

• Uncompleted Crimes
• Attempt, Conspiracy, and
• Solicitation
• Andrew Fulkerson, JD, PhD
• Southeast Missouri State University

33
Conspiracy

• Common law conspiracy combination of two or
  more persons formed for the purpose of doing an
  unlawful act or a lawful act by unlawful means.
• a partnership for criminal purpose Holmes

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Conspiracy

• elements
• actus reus agreement
• mens rea the purpose of achieving either
• an unlawful objective, or
• lawful objective by unlawful means

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Conspiracy Actus reus

• agreement
• may be informal
• includes giving aid
• law uses vague definitions for this agreement
• most jurisdictions require an overt act toward
  completion

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Conspiracy

• U.S. v. Garcia, 151 F.3d 1243 (9th Cir. 1998)

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Conspiracy mens rea

• Not clearly defined at common law, leaving courts
  to define
• Purpose may be inferred from the circumstances

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Conspiracy mens rea

• Specific intent crime"
• Intent to do what?
• Intent to enter in agreement to commit crime,
• or intent to achieve specific criminal objective?

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Objective of the Conspiracy

• Agreements to commit felonies (some states)
• Agreements to commit any crime, misdemeanors or
  felonies.
• Agreements to commit a lawful act by unlawful
  means.
• Some courts have extended the term unlawful to
  include civil wrongs.
• Example unfair trade practices
• Model Penal Code attempts to limit conspiracy to
  agreements or combinations with criminal
  objectives.

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Parties to Conspiracy

• Common law and most jurisdictions require two
  or more parties to make a conspiracy. A group
  can do more harm than an individual.

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Parties to Conspiracy

• Crimes that include two or more
• Whartons Rule requires one more person than
  the underlying crime to be a conspiracy.
• Example bribery takes two persons. Conspiracy
  to commit bribery requires three persons.
• Some jurisdictions and the Model Penal Code
  abolish this requirement.

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Withdrawal From Conspiracy

• Completely abandon the enterprise
• Withdraw all support
• Give notice of withdrawal to co-conspirators
• Some jurisdictions (Missouri) require the
  co-conspirator to renounce crime and prevent the
  crime from occurring.

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Solicitation

• Common law definition a
• command, urging or request to
• another person to commit a crime.
• Even if the other person refuses, it
• is a solicitation.

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Actus reus of solicitation

• Words which provide an inducement to crime
• Simple approval of crime not enough
• The solicitation need not be directed to a
  specific person

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Mens rea of criminal solicitation

• purpose or specific intent
• Attempt to conspire

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Solicitation

• State v. Cotton, 790 P.2d 1050 (N/M.App. 1990)

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Solicitation

• Ganeson v. State, 45 S.W.3d 197 (Tex. 2001)