Attempt
What are attempt crimes and its elements?
ATTEMPT CRIMES – criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. In order to be guilty of an attempt crime, ∆ must go beyond just mere preparation of committing the crime of committing the crime and enter the zone of perpetration.
ELEMENTS of Attempt Crimes
1. A specific intent to commit the crime/a target offense
2. An overt act in furtherance of that intent. Overt act can either determined by a)“substantial step” or b) “dangerous proximity to success test”
When does a solicitation turn into a conspiracy?
If the person solicited actually (subjectively) agrees to the criminal proposal, then a conspiracy exists.
The crime of solicitation merges into the crime of conspiracy
The practical effect of the merger is that a ∆ cannot be convicted of, and sentenced for both, the solicitation and the conspiracy.
What is conspiracy?
Conspiracy is an agreement (express or implied) between two or more persons to accomplish some unlawful purpose by unlawful means. Conspiracy is a separate crime in itself and does not merge into the substantive crime, unless under MPC. Conspiracy is a specific intent crime.
What are the 4 common law degrees of participants?
Principals in the 1st Degree
Persons who actually engage in the act or omission that constitutes the criminal offense (i.e. a guy who points a gun and says “stick em’ up”).
Principals in the 2nd Degree
Persons who aid, command, or encourage the principals and are present at the crime (i.e. a look-out guy, screaming “hit em’ again” while watching a fight)
Aiders and Abettors Before the Fact
Persons who aid, abet, or encourage the principal prior to the crime, but are not present at the time the crime takes place (i.e. providing blueprints to criminals prior to a burglary).
Aiders and Abettors after the Fact
Persons who assist the principal after the crime (i.e. giving a hiding place.)
No longer liable for substantive crime. (at previous common law he was).
What are the factors to consider when evaluating if someone is an accomplice?
Factors to Consider when evaluating if someone is an accomplice;
1. Level of Relationships/Association
2. Proximity
3. Knowledge of Crime being committed.
For defenses of attempted crimes, what are the differences between voluntary abandonment and involuntary abandonment?
Under the substantial step test the D may raise the complete defense of voluntary abandonment. The complete renunciation to complete the crime must be voluntary rather than because of the intervention of a third party. Even when the D had taken a substantial step, the defense can be raised if the D abandons any effort to commit the crime and the D’s conduct constitutes a complete and voluntary renunciation to commit the crime.
However, involuntary abandonment is when defendant abandons his plans because of the difficulty of completing the crime or because of an increased risk of apprehension and is never a defense in any jurisdiction.
What is solicitation?
RULE – Asking someone to commit a relatively serious crime is a crime in itself.
Consists of recruiting, encouraging, directing, counseling or inducing another person to commit a crime. Even if no further steps are taken towards the commission of that crime, purposely promoting the commission of the crime is enough to constitute solicitation.
Elements of the crime:
Actus reus: may be purely verbal. It includes any command, request, or encouragement to another to commit a crime
Mens rea: defendant must have the purpose to promote or facilitate the commission of a crime.
CA RULE (Majority) – In order to find ∆ guilty, you need either two witnesses OR one witness plus some type of corroborating evidence (like tape recording)
How do you prove conspiracy in terms of the state of mind?
Under the subjective rule there must be an actual and subjective meeting of the minds between the parties capable of being found guilty of the crime.
Under the objective rule, an attempt to create a conspiracy makes you a conspirator. It is good enough to charge conspiracy if the person thinks another is agreeing to a conspiracy, such as an undercover cop.
What is the theory of accomplice liability?
Not a crime in itself - A theory in which a person can be found guilty of the substantive crime that someone else committed.
What is the rule of accomplice liability?
Defendant must have actually done something with the intent to assist in a criminal enterprise. The actus rea is an act of encouragement and the means rea is knowingly and intentionally aiding for the act to succeed.
Co-conspirators are vicariously liable for any crimes committed in furtherance of the conspiracy (majority) co-conspirator only guilty for the crime they intended to commit (Minority)
For defenses of attempted crimes, what are the differences between legal impossibility and factual impossibility?
Legal impossibility is a complete defense where a person believes he is committing a crime, but the act in fact is lawful. Attempting to do that which is not a crime is not attempting to commit a crime.
On the other hand, factual impossibility is where it is physically impossible to perform the prohibited crime, and is never a defense. If when a ∆ has done everything he physically planned on doing and a crime would have occurred, except ∆ just got a fact wrong
What is the Co-Conspirator Exception to the Hearsay Rule?
Co-Conspirator Exception to the Hearsay Rule – all things said and done in furtherance of the conspiracy or while the conspiracy is still going on, either before or after you join the conspiracy, can be admissible against all of the co-conspirators. This is one of the primary motivations for the prosecution to go for the conspiracy charge because it improves their chances since it allows into evidence things (i.e. statements made outside of court by one conspirator can be used against another conspirator) that would not be allowed with another crime.
Once you have been arrested, your participation in the conspiracy is over and anything you say is not in furtherance of the conspiracy. Therefore, it is not admissible under the exception. For example, confessions to the police are not admissible due to this.
when is the conspiracy complete and established?
Under Pinkerton, the conspiracy is complete with the agreement.
Under the Majority (CL/MPC), the conspiracy is complete with the agreement and an act in furtherance of the conspiracy.
What are the accomplice liability rules in regards to suppliers?
When defendant provides lawful good or services with knowledge of its illegal use. The knowledge can be sufficient to hold defendant criminally liable when he has knowledge of a serious dangerous crime and when he becomes a participant in the crime and has a stake in the outcome.
Factors to consider for participation are 1) profiting by overcharging, 2) the continuing nature of the relationship, 3) the quantity of the sales involved, 4) encourages the crime, and 5) nature of the good being provided, such as being inherently dangerous.
Explain the significance of the cases of Falcone and Direct sales in the Laurie case.
Explanatory case in which both suppliers knew their products were being used for illegal purposes and the differences lie on the dangerous nature of the substantives and the dangerous violent consequences:
Falcone case: supplier was a seller of non-inherently illegally dangerous goods(sugar and yeast), and they guy buying the sugar and yeast used it to make illegal alcohol – court held supplier was not an accessory
Direct sales case: supplier sold drugs (dangerous substance) in large quantities and violated narcotics laws – court held supplier as an accessory because selling drugs is inherently dangerous
When providing something inherently dangerous, this can be sufficient. It is less likely that someone will be deemed to have been guilty of the eventual crime if they are providing a relatively innocent product such as sugar; whereas they may very well become liable if they had been providing a controlled substance such as morphine. [Falcone case and Direct Sales case seen in the Laurie case]
Explain the Dangerous Proximity to Success Test.
The dangerous proximity test requires that the D be within a dangerous proximity of success to committing the crime. Unlike the substantial step test, this test looks forward at what the D has left to do. The more the D has left to do the less you can say the D attempted to commit the crime. Three factors to look at (1) nearness of the danger, (2) the greatness of the harm, and (3) degree of apprehension felt.
Explain the Gebardi rule and Wharton's rule.
Wharton’s RULE (old common law rule)– An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. This rule prohibits double counting (i.e. Dueling, Adultery, Incest, Statutory Rape).
Gebardi RULE – you CANNOT be convicted of conspiring with a victim of a crime. The rationale is because the victim cannot be convicted of the crime themselves, and a criminal and a victim cannot conspire together since their minds don’t agree. (Ex. Statutory Rape.)
When is there guilt of the substantive crime?
CL/MPC: Conspiracy itself is not enough to prove guilt of a crime. Defendant must have actually done something with the intent to assist in a criminal enterprise.
Pinkerton: Conspiracy is enough to prove guilt of the substantive crime. By merely agreeing to do something you are guilty of all substantive crimes committed under an accomplice liability theory by virtue of being a conspirator. There is no requirement to intentionally aid. Membership in a conspiracy would be sufficient.
What is the chain rule under conspiracy?
Under the chain theory rule, conspirators participate in a single conspiracy by performing different roles along a single distribution line. It is an ongoing and continuous relationship between the parties. Each conspirator plays a different role at his or her stage of the criminal plan. Although they might not know each conspirator’s identity, they know that there must be someone at the various stages to ensure that the scheme works. Everyone on the chain is considered to be part of one conspiracy and can be charged with all of the substantive crimes committed by the conspirators. There is generally a chain of product passing between all of the conspirators that helps us link them together.
**This rule applies when you should reasonably know that others are involved in the ongoing relationship, and you become responsible for their crimes, even if they are on the same level in the conspiracy (i.e. tavern, distributor, or manufacturer) and even when they do not know each other. The reason is that the operation is dependent on all of them making their sales.
Explain the Kessler case and how Pinkerton applies.
People v. Kessler
FACTS - ∆, the getaway driver, waiting in the car while his accomplices broke into the tavern, were supposed by the owner, subsequently shooting the owner with a gun they found inside and then shot a police officer.
HOLDING – Court held ∆ was guilty of burglary and attempted felony murder because he was a principle in the second degree by acting as a look-out and getaway driver.
Majority Opinion Rules (ACTUAL MINORITY RULE) – When ∆s have a common design to do an unlawful act, all ∆’s can be held liable for any act done in furtherance of the criminal act – Majority basically created “attempted felony murder”; basically followed Pinkerton.
Dissent’s Opinion Rule (Actual MAJORITY RULE) – Actually the MAJORITY RULE in the States ∆ wouldn’t gain the liability for a specific intent crime that he doesn’t have intent for. In order to find someone guilty like the guys inside, you have to show that the guy actually shot (ACT) and the intent to KILL (MENTAL STATE) ***Goldman agrees with DISSENT.
Explain the Substantial Step Test.
The substantial step test requires that the D take a substantial step towards the commission of the crime. This test looks back in time to see the steps the D has already committed rather than the steps that the D still has to take. The more steps you have taken towards the commission of the act the more dangerous you reveal yourself.
What are the defenses of conspiracy?
Abandonment of a conspiracy is presumed to have occurred if, during a significant long period of time after the agreement, none of the conspirators is engaging in any action to further the conspiratorial objectives.
Under the common law, a co-conspirator can end his responsibility for later acts and statements of his co-conspirators by withdrawing from the conspiracy. However, still liable for an already formed conspiracy.
Under the MPC, a co-conspirator can withdraw when he either informs his co-conspirators or notifies the authorities that he is terminating his association with the conspiracy. A complete and voluntary renunciation of his criminal purpose is an affirmative defense to the crime of conspiracy is if the defendant successfully thwarts the success of the conspiracy.
The withdrawal requires defendant to 1) inform all the other co-conspirators that they now no longer intend to cooperate or assist in the conspiracy; 2) communicate in such a way that the withdrawal would be understood by a reasonable person; and 3) communicate far enough in advance so that all other co-conspirators have sufficient time to reconsider the target offense
What is the best checklist for conspiracy/Accomplice liability?
Elements of the crime:
1. actus reus - are thee two or more eligible persons agreeing to commit a crime?
a) express or implied agreement. Is there an express agreement or concerted action demonstrating an implied agreement?
b) eligible parties. - Gebardi rule: is the potential defendant a person the substantive law was designed to protect?; Wharton rule: does the crime necessarily involve only two people and are there only two people involved?
2. mens rea - does the defendant join the conspiracy with intent to commit a particular crime?
a) knowledge v. purpose. in most jurisdictions, the mens rea for conspiracy is purpose, not mere knowledge. Purpose can be inferred from knowledge when the defendant: has a stake in the venture; provides goods or services that serve no legitimate use; commits a grossly disproportionate amount of business to the illegal endeavor.
3. overt act - at common law, no overt act was required. Now most state require an overt act. Did any of the conspirators take any step toward effectuating the conspiracy.
Co-conspirator liability:
A conspirator is guilty of both conspiracy and all acts of her co-conspirators in furtherance of the conspiracy.
1. in furtherance. Were the crimes of the co-conspirators reasonably foreseeable?
2. scope of the conspiracy. How far does the defendant's co-conspirator liability extend? is this a chain or wheel conspiracy? if there's a wheel, is there a rim?
Abandonment or renunciation:
At common law, withdrawal from a conspiracy only limits ongoing co-conspirator liability. Under the MPC, withdrawal can also provide a defense to the general conspiracy charge, if the defendant successfully thwarts the conspiracy's criminal act.
What is the Wheel and Hub rule under Conspiracy?
Wheel and Hub Theory – All of the conspirators are tied together through the same middleman or “hub.” Although the individual conspirators do not know each other, they are all connected to the same conspiracy because they are operating through the same middleman.
If the separate spokes of this wheel have vested interest in the success of one another’s illegal conduct, then there is a single wheel conspiracy, and each individual member is responsible for the crimes of every other member of the conspiracy. However, if the only connection among the spokes is that they know the same middleman, there are multiple small conspiracies, and the spokes of the wheel are not liable for one another’s acts.
Explain the differences between the Parker case and the Bailey case.
State v. Parker
FACTS - ∆ and some associates were accused of beating and robbing a law student. ∆ was only present at the crime, but did nothing to stop it.
HOLDING – Court held that even though ∆ did not overtly act, his non-opposition to the crime, his close association with the other offenders before and after the crime, and the fact that he was caught fleeing from the victim’s stolen car all justify the conclusion that his presence aided the primary actors, making him liable as a principal in the second degree.
RULE – Presence can be considered participation because it can be seen to provide assistance by intimidation, making one guilty of the substantive crime.
Bailey v. US
FACTS - ∆ was seen with a robber prior to a robbery. ∆ was only ten feet away when the robbery occurred and ∆ was seen running from the scene of the crime with the robber.
HOLDING – Court held that ∆ could not be liable for the robbery because his presence alone was not enough to find a reasonable belief that ∆ was knowingly, attempting to assist the robber in the commission of the crime.
RULE – Mere presence and knowing the criminal is NOT enough; there needs to be evidence to show beyond a reasonable doubt that the person intended to provide assistance.
DIFFERENCES FROM PARKER
Hitchhiking together (PARKER) as opposed to gambling together (BAILEY) – more of a connection with hitchhiking
Lots of people on the street (BAILEY) versus the smaller amount in the car (PARKER) – proximity.
In Parker, seemed to be running away together whereas in Bailey, could’ve been innocent and running away when it was yelled on the street.