Inchoate crimes; parties - Inchoate offenses

Learning Outcomes

This article details the principles governing inchoate criminal offenses tested on the MBE: solicitation, conspiracy, and attempt. You will learn the distinct actus reus and mens rea requirements for each crime, understand the differences between common law and modern (including MPC) approaches, particularly for conspiracy, and understand the application of defenses like impossibility and withdrawal. Furthermore, you will understand the doctrine of merger and its applicability to these preparatory crimes in relation to completed offenses, enabling accurate analysis of MBE scenarios involving incomplete criminal conduct.

MBE Syllabus

For the MBE, you are required to understand the law pertaining to crimes that are committed prior to the completion of the intended, substantive offense. This involves analyzing the elements and scope of solicitation, conspiracy, and attempt. You should be prepared to:

  • Define solicitation, including the actus reus (incitement) and mens rea (specific intent).
  • Explain conspiracy, covering the agreement requirement, the specific intent needed for both the agreement and the target crime, and the overt act requirement under modern statutes.
  • Distinguish between the bilateral (common law) and unilateral (MPC) approaches to conspiracy.
  • Understand the scope of liability for crimes committed by co-conspirators (Pinkerton liability).
  • Analyze the requirements and effect of withdrawal from a conspiracy.
  • Define attempt, including the requisite specific intent and the overt act requirement (substantial step vs. proximity tests).
  • Distinguish between legal impossibility and factual impossibility as defenses to attempt.
  • Apply the merger doctrine to inchoate offenses.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Defendant asked Accomplice to steal a specific painting from a museum. Accomplice refused. Under the common law, Defendant is guilty of:
    1. Attempted Larceny
    2. Conspiracy to commit Larceny
    3. Solicitation to commit Larceny
    4. No crime
  2. Ann and Ben agree over the phone to break into Victim's house and steal jewelry. Ben immediately drives to a hardware store and purchases a crowbar to pry open a window. In a jurisdiction requiring an overt act for conspiracy, at what point is the crime of conspiracy complete?
    1. When Ann and Ben agree over the phone.
    2. When Ben purchases the crowbar.
    3. Only when they begin to break into the house.
    4. Only when the jewelry is actually stolen.
  3. Which of the following offenses does NOT merge into the completed substantive crime at common law?
    1. Solicitation
    2. Attempt
    3. Conspiracy
    4. Both Solicitation and Attempt
  4. Donna, intending to kill Paul, shoots at him but misses because her gun jams due to a faulty firing pin she was unaware of. Donna is likely guilty of:
    1. No crime due to legal impossibility.
    2. No crime due to factual impossibility.
    3. Attempted Murder.
    4. Assault only.

Introduction

Inchoate offenses are incomplete crimes, where the defendant has taken steps towards committing a target offense but has not fully completed it. These preliminary actions are themselves criminalized due to the danger they pose. The MBE tests three main inchoate crimes: solicitation, conspiracy, and attempt. Each has distinct elements regarding the required act (actus reus) and mental state (mens rea). A key concept is merger, which dictates whether a defendant can be convicted of both the inchoate crime and the completed target offense.

Solicitation

Solicitation involves asking, inciting, urging, or commanding someone else to commit a crime.

Key Term: Solicitation The crime of asking, commanding, urging, or advising another person to commit a crime, with the specific intent that the person solicited commit the crime.

The actus reus is the communication inviting the other person to commit the crime. The mens rea is specific intent: the solicitor must intend for the person solicited to actually commit the target crime.

The crime of solicitation is complete the moment the communication is made. Whether the person solicited agrees, refuses, or fails to complete the target crime is irrelevant to the solicitor's guilt for solicitation itself.

Merger: Under common law and modern statutes, solicitation merges into the target offense if it is completed by the person solicited. If the person solicited agrees to commit the crime, solicitation merges into conspiracy. Thus, a defendant generally cannot be convicted of both solicitation and the completed crime, or both solicitation and conspiracy based on the same incident.

Worked Example 1.1

David, wanting revenge on his neighbor, offers Eric $500 to slash the neighbor's car tires. Eric thinks David is joking and walks away laughing. Is David guilty of solicitation?

Answer: Yes. David requested that Eric commit a crime (destruction of property/vandalism) and David had the specific intent that Eric carry out this crime. The solicitation was complete when David made the offer, regardless of Eric's reaction or refusal.

Conspiracy

Conspiracy is an agreement between two or more persons to commit an unlawful act or to accomplish a lawful act by unlawful means.

Key Term: Conspiracy An agreement between two or more persons to commit a crime, requiring (in most jurisdictions) an overt act in furtherance of the conspiracy.

Elements of Conspiracy

  1. Agreement: There must be an agreement between two or more persons to commit a crime. This agreement can be express or inferred from conduct showing a mutual understanding to achieve an unlawful objective.
  2. Intent: Conspiracy is a specific intent crime. This requires proof of two distinct intents:
    • Intent to agree (form the partnership in crime).
    • Intent to achieve the criminal objective of the conspiracy. Mere knowledge of the conspiracy is not enough; the defendant must intend to further its goals.
  3. Overt Act (Majority Rule): At common law, the agreement itself constituted the crime. However, a majority of jurisdictions now require proof of an overt act performed by any conspirator in furtherance of the conspiracy. This overt act need not be criminal itself; any small act, even mere preparation, suffices (e.g., buying supplies, scouting a location).

Approaches to Agreement

  • Bilateral Approach (Common Law): Required a true "meeting of the minds" between at least two genuinely culpable individuals. If one party merely feigned agreement (e.g., an undercover officer), there was no conspiracy.
  • Unilateral Approach (MPC/Modern Trend): Requires only that the defendant genuinely agreed to commit the crime, regardless of the intent of the other party(ies). This allows for conviction even if the defendant conspired only with an undercover officer.

Key Term: Bilateral Conspiracy The common law requirement for conspiracy that at least two parties possess genuine criminal intent to agree and achieve the conspiracy's objective.

Key Term: Unilateral Conspiracy The modern (MPC) approach to conspiracy where only one party needs to possess genuine criminal intent, allowing conviction even if other parties feign agreement.

Liability for Co-Conspirators' Crimes (Pinkerton Liability)

Under the Pinkerton doctrine (followed in federal courts and many states), a conspirator is liable for crimes committed by other co-conspirators if those crimes:

  1. Were committed in furtherance of the conspiracy's objective; AND
  2. Were a foreseeable consequence of the conspiracy.

Defenses to Conspiracy

  • Impossibility: Factual impossibility is not a defense. Legal impossibility (what they agreed to do was not actually a crime) is a defense.
  • Withdrawal: Generally, withdrawal is not a defense to the conspiracy charge itself, because the crime is completed once the agreement (and overt act, if required) occurs. However, effective withdrawal can serve as a defense to liability for crimes committed by co-conspirators after the withdrawal.
    • Requirements for Effective Withdrawal: Must be an affirmative act that notifies all co-conspirators of the withdrawal. This notice must be given in time for the others to abandon the plan. If the withdrawing party provided assistance, they must attempt to neutralize that assistance. The MPC requires the withdrawing party to take actions to thwart the success of the conspiracy (e.g., contacting police).

Merger (Conspiracy)

Conspiracy does not merge with the completed substantive offense. A defendant can be convicted of both conspiracy and the completed target crime.

Attempt

Attempt involves taking a substantial step towards committing a target crime, coupled with the specific intent to commit that crime.

Key Term: Attempt An act, done with the specific intent to commit a crime, that constitutes a substantial step towards the commission of the crime but falls short of completion.

Elements of Attempt

  1. Intent: Attempt is always a specific intent crime. The defendant must specifically intend to bring about the proscribed result, even if the target crime itself requires a lesser mental state (e.g., recklessness or negligence). Attempted felony murder is generally not recognized because felony murder does not require intent to kill.
  2. Overt Act: The defendant must perform an act beyond mere preparation. Jurisdictions differ on how substantial this act must be:
    • Proximity Test (Traditional/Minority): Requires an act that is dangerously close to success or places the defendant in a position to commit the crime almost immediately.
    • Substantial Step Test (MPC/Majority): Requires conduct that constitutes a "substantial step" in a course of conduct planned to culminate in the commission of the crime. The substantial step must strongly corroborate the actor's criminal purpose. Acts such as lying in wait, enticing the victim, or possessing materials specially designed for the crime typically qualify.

Defenses to Attempt

  • Abandonment: At common law, abandonment is generally not a defense once the defendant has taken a substantial step. The MPC permits abandonment as a defense only if it is (1) fully voluntary (not motivated by unexpected difficulty or increased risk of apprehension) and (2) a complete renunciation of criminal purpose.
  • Impossibility:
    • Legal Impossibility: This occurs if what the defendant intended to do is not actually a crime, even if completed. Traditionally a defense, but abolished by the MPC and many modern statutes. Exam Tip: Assume legal impossibility is not a defense unless specifically told otherwise.
    • Factual Impossibility: This occurs when, due to some extraneous factor unknown to the defendant, the crime cannot be completed. Factual impossibility is never a defense to attempt.

Key Term: Legal Impossibility A defense (traditionally) to attempt where the defendant's intended acts, even if fully carried out, would not constitute a crime. Largely abolished.

Key Term: Factual Impossibility A circumstance where the defendant is unable to complete the crime due to some physical or factual condition unknown to her (e.g., attempting to pick an empty pocket). Not a defense to attempt.

Worked Example 1.2

Carlos wants to kill Victor. He buys poison, goes to Victor's house, and puts the poison in the sugar bowl, believing Victor uses sugar in his coffee every morning. Victor, however, has recently switched to artificial sweeteners and never uses the sugar. The poison remains untouched. Is Carlos guilty of attempted murder?

Answer: Yes. Carlos had the specific intent to kill Victor. He took a substantial step toward committing the crime by placing poison where he believed Victor would ingest it. The fact that Victor didn't use the sugar, making completion impossible under the circumstances, constitutes factual impossibility, which is not a defense to attempt.

Merger (Attempt)

Attempt merges into the completed substantive offense. A defendant cannot be convicted of both attempt and the completed target crime.

Key Point Checklist

This article has covered the following key knowledge points:

  • Inchoate offenses criminalize steps taken toward completing a crime.
  • Solicitation is asking or encouraging another to commit a crime with specific intent; it merges into conspiracy or the completed crime.
  • Conspiracy requires an agreement (bilateral or unilateral) with specific intent to commit the crime, plus (usually) an overt act; it does not merge.
  • Liability extends to foreseeable crimes of co-conspirators committed in furtherance of the conspiracy.
  • Withdrawal is generally not a defense to conspiracy itself but can limit liability for subsequent crimes if effective notice is given.
  • Attempt requires specific intent to commit the target crime plus a substantial step beyond mere preparation.
  • Factual impossibility is never a defense to attempt; legal impossibility generally is not a defense under modern law/MPC.
  • Attempt merges into the completed crime.

Key Terms and Concepts

  • Solicitation
  • Conspiracy
  • Bilateral Conspiracy
  • Unilateral Conspiracy
  • Attempt
  • Legal Impossibility
  • Factual Impossibility
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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