Attempt Defenses
Does the MPC allow "impossibility" for the commission of a crime to be a defense?
NOTE: Remember the focus of the MPC is on the culpable mental state of the defendant (purpose/belief)
True or False
The crime of solicitation is not complete with simply the act of asking/enticing/encouraging.
FALSE
The crime of solicitation is complete with the act of asking/enticing/encouraging.
Under the traditional CL, what mens rea must a defendant have for the crime of conspiracy?
Under the traditional common law a defendant must have the following mens rea: 1) intent to agree/combine with other(s); (2) specific intent to commit crime at issue
True or False.
Mere presence at time of the crime, even with knowledge of the crime, IS enough to convict even without some evidence of advising, instigating, encouraging, or intentionally aiding in crime
FALSE
Mere presence at time of the crime, even with knowledge of crime, is NOT enough to convict without some evidence of advising, instigating, encouraging, or intentionally aiding in the crime.
**State v. V.T.
Two burglars agreed to break into a house to steal the occupants’ valuables. When the burglars broke into the house, an occupant confronted the burglars. One of the burglars shot and killed the occupant. The burglars were charged with, among other things, conspiracy to commit murder.
Under the traditional CL, does the burglars’ conduct subject them to liability for conspiracy to commit murder?
A. No, because only one burglar committed the murder.
B. No, because conspiracy is a specific-intent crime.
C. Yes, because the murder was a reasonably foreseeable consequence of burglary.
D. Yes, because burglary is an inherently dangerous felony.
B. No, because conspiracy is a specific-intent crime.
Common-law conspiracy is a genuine and sincere agreement between at least two people to commit a crime. A conspiracy defendant must have a mens rea of specific intent. Specific intent in a conspiracy context requires that the defendant have both an intent to agree with someone else and an intent to commit a crime. Under Pinkerton, participants in a conspiracy are criminally liable for other substantive crimes that are the natural and probable consequences of the underlying conspiracy. However, the participants are not guilty of conspiracy to commit those further substantive crimes, because they did not agree to commit them.
Here, the burglars are not guilty of conspiracy to commit murder. The burglars agreed only to commit a burglary, not to commit murder. Because murder was a reasonably foreseeable consequence of an armed burglary, in many jurisdictions both burglars can be convicted of murder. However, the burglars cannot be convicted of conspiracy to commit murder, because they did not agree to commit murder.
Under the traditional common law, when does "impossibility" arise?
When is "impossibility" an attempt defense under the traditional CL?
Under the traditional CL, "impossibility" arises when due to some kind of mistake on the part of the defendant, the crime that the defendant attempted ("tried" to commit) was "impossible" to commit
Under the traditional CL, alleging "legal impossibility" is a defense to an attempt charge BUT factual impossibility is not.
Define "solicitation"
Solicitation = asking/enticing/encouraging another to commit a crime with the specific intent that the other person commit the crime at issue
How is the traditional CL different from the MPC as it relates to merger and conspiracy?
Under the traditional CL, there is no merger thus the conspiracy is a separate crime that does NOT merge with the crime of attempt or completed crime(s). Thus, a defendant can be convicted of BOTH conspiracy and crime(s) that are the goal and are done in furtherance of the conspiracy.
The MPC on the other hand, does allow for the crime of conspiracy to be merged with the completed crime. MPC § 1.07(1)(b)
What are the 2 basic types of criminal complicity liability under the traditional common law?
1) accomplice or accessory liability
2) co-conspirator liability (Pinkerton liability)
NOTE: Under accomplice liability, focus on distinction between "primary party" and "secondary party"
A defendant wished to murder a rival. The defendant obtained a substance that he believed was ricin, a deadly poison, and mailed it to the rival.
Which of the following facts, if true, would most support acquitting the defendant of attempted murder in a Model Penal Code (MPC) jurisdiction?
A. The defendant had a change of heart and intercepted and destroyed the envelope before it reached the rival.
B. The defendant mistakenly did not place enough postage on the envelope, causing it to be returned to him.
C. Unbeknownst to the defendant, the substance the defendant mailed was actually a harmless powder, not poison.
D. The rival recognized that the envelope looked suspicious and reported it to the police without opening it.
A. The defendant had a change of heart and intercepted and destroyed the envelope before it reached the rival.
Under the MPC §5.01(4), if a defendant abandons his effort to commit the crime or otherwise prevents the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, this is an affirmative defense to an attempt charge. This renunciation defense is about a change of the heart which the defendant in this case had causing him to retrieve and destroy the package before his rival received it.
Under the traditional common law what is the key issue you are looking at for abandonment?
What question must you ask to resolve that key issue?
Under the traditional CL, the key issue you are looking at for "abandonment" relates to timing. To resolve this issue you must ask "had the defendant already moved from preparing to commit the crime (not yet an attempt) to perpetrating the crime (attempt)?
NOTE: "abandonment" is NOT a defense to a charge of attempt
Two teens were standing in a grocery-store line behind a customer who had a $100 bill protruding from his back pants pocket. One teen whispered to the other, “take it!” The second teen did not respond. The first teen continued to gesture at the bill while mouthing “take it” at the second teen. The second teen did not take the bill before the bill’s owner completed his business and left the store.
Does the first teen’s conduct constitute solicitation under the Model Penal Code (MPC)?
A. Yes, because the first teen encouraged the second teen to steal the bill.
B. Yes, because the second teen heard the first teen's words.
C. No, because theft of $100 is a misdemeanor
D. No, because the second teen did not steal the bill.
A. Yes, because the first teen encouraged the second teen to steal the bill.
Under the MPC, a defendant is liable for solicitation if, with the purpose of promoting or facilitating the target crime, he or she commands, encourages, or requests that someone act so as to commit the crime, attempt the crime, or else act as an accomplice in either the commission or the attempt. Solicitation does not require that the person solicited commit the crime. See Model Penal Code § 5.02(1). Therefore, that the first teen encouraged the second teen to steal the bill constitutes solicitation under the MPC.
For conspiracy what does it mean to have an overt act requirement?
Under the MPC § 5.03(5) and some jurisdictions, an overt requirement requires that at least one member of the conspiracy must commit "an overt act in pursuance of such conspiracy"
How is "accomplice liability" defined under the MPC?
Under MPC § 2.06(3): a person is an "accomplice" of another in the commission of an offense IF, "with the purpose of promoting or facilitating the [conduct constituting] commission of the offense," the person:
- solicits the other person to commit the offense
- aids or agrees or attempts to aid other in planning/committing offense (*attempt aid is enough)
- despite legal duty to prevent offense, fails to make proper effort to do so
A woman asked her boyfriend to pose as an intruder, enter her house, and kill her husband. The boyfriend agreed. The boyfriend entered the house as planned and was about to shoot the husband when the husband drew a gun, shot first, and killed the boyfriend.
Which of the following most accurately states the roles that the woman and her boyfriend held in the husband’s attempted murder under the traditional CL?
A. The woman and her boyfriend have no accomplice liability because the husband foiled their attempted murder plot.
B. The woman was an accessory before the fact and the boyfriend was a principal.
C. The woman was a principal and the boyfriend was an accessory.
D. The woman and the boyfriend were both principals.
D. The woman and the boyfriend were both principals.
Under the traditional CL, a Principal in the First Degree (PFD) is one who, with the required mens rea, physically commits the act(s) that constitute the offense OR who, with the requires mens rea, uses an "innocent instrumentality" to do so. Here, the boyfriend is the person actually committing the acts so he is a PFD. The woman is also a PFD because she has the required mens rea and is using an "innocent instrumentality" (the boyfriend) to do the crime.
Under the MPC, when is "abandonment" an affirmative defense?
Under the MPC § 5.01(4), IF a defendant abandons his effort to commit the crime or otherwise prevents the commission of the crime, under circumstances that manifest a complete and voluntary renunciation of his criminal purpose, then the defendant could allege abandonment as an affirmative defense to an attempt charge
NOTE: renunciation defense is about a change of heart, not about worrying about getting caught or failing
How does the MPC define "solicitation"?
For Criminal Solicitation under the MPC § 5.02, the defendant:
1) must have purpose of promoting or facilitating commission of a crime
2) must command, request, or encourage another to commit a crime or attempt a crime OR ask for help (complicity) in defendant's commission or attempt to commit a crime
Under the MPC, what types of conspiracy agreements are there?
Under MPC § 5.03(a), there can be a conspiracy agreement to:
1) commit an offense;
2) attempt an offense;
3) solicit another to commit an offense; or
4) help/aid another person to plan, solicit, attempt, or commit offense
Define the following:
- Principal in the First Degree
- Principal in the Second Degree
- Accessory Before the Fact
- Accessory After the Fact
- Principal in the First Degree: one who, with the required mens rea, physically commits the act(s) that constitute the offense OR who, with the required mens rea, uses an "innocent instrumentality" to do so
- Principal in the Second Degree: one who counsels, encourages, or intentionally assists in commission of offense while in the presence (actual or constructive) of principal in first degree at crime
- Accessory Before the Fact: one who intentionally solicits, counsels, commands (but does NOT coerce), or assists in offense, but is not actually or constructively present when offense is committed
- Accessory After the Fact: one who, with knowledge of another's guilt in a prior crime, intentionally assists the other to avoid arrest, trial, or conviction
A defendant was part of a national conspiracy that stole luxury cars and resold them through the internet. As a result of the defendant’s involvement in the conspiracy, he was charged in federal court with multiple counts of conspiracy to (1) sell and receive stolen motor vehicles, (2) tamper with motor-vehicle odometers, and (3) alter motor-vehicle identification numbers. The defendant admitted guilt in connection with the conspiracy to sell and receive stolen motor vehicles but denied any knowledge of, or involvement in, the odometer and identification-number crimes.
If the defendant could prove that he had no knowledge of, or involvement in, the odometer and identification-number crimes, under what circumstances in a jurisdiction that follows Pinkerton, if any, could the defendant nonetheless be held liable for them?
A. If those crimes were foreseeable as a necessary or natural consequence of the conspiracy.
B. If those crimes were committed by a conspirator contemporaneous with the defendant's membership in the conspiracy.
C. If those crimes all arose from the same factual circumstances.
D. None.
A. If those crimes were foreseeable as a necessary or natural consequence of the conspiracy.
Pinkerton held that "where evidence establishes one continuous conspiracy and that all crimes were committed "in furtherance of" the conspiracy and were within its scope, partners can be convicted of crimes of each other, as long as such crimes were a reasonably foreseeable result of the conspiracy and the partner had not affirmatively withdrawn from the conspiracy at the time. Therefore, although the defendant claims to have no knowledge or involvement in the odometer and identification-number crimes if the court finds that those crimes were foreseeable as a natural or necessary consequence of the conspiracy then the defendant may still be held liable for them.
NOTE: Pinkerton exemplifies the common-law approach to conspiracy liability, which can be broader even than accomplice liability for the crimes of one's partner.
Define the following:
- Factual Impossibility
- Pure Legal Impossibility
- Hybrid Legal Impossibility
- Legal Impossibility: Can be either 1) pure legal impossibility; or 2) hybrid impossibility
- Pure Legal Impossibility: Where the criminal law does NOT actually prohibit the defendant's conduct or the goal sought; instead the defendant thinks intended goal is a crime (and acts anyway) but defendant is wrong about the law
- Hybrid Legal Impossibility: The defendant's intended goal (conduct/result) is a crime, but commission of the offense was impossible at time due to a factual mistake about the legal status of an attendant circumstance
Two people were walking through a parking garage when they spotted an unlocked car with keys in the ignition. Without saying anything, one of the people gestured to the other person to start the car’s ignition. The other person opened the car, started the ignition, and sped off, alone, unlawfully taking the car on a joy ride.
Could the gesturing person’s actions constitute solicitation under the traditional Common Law?
A. No, because the gesturing person did not verbalize taking the car for a joy ride.
B. No, because the gesturing person did not participate in the joy ride.
C. Yes, because the gesturing person's actions encouraged the other person to commit a crime.
D. Yes, because the other person unlawfully took the car on a joy ride.
C. Yes, because the gesturing person's actions encouraged the other person to commit a crime.
Under the traditional CL, solicitation occurs if someone deliberately incites another person to commit a crime with the intent that the other person completes the target crime. Usually, solicitation comes in verbal form. But conduct alone may also constitute solicitation. Once a solicitor makes the effort to solicit under the traditional CL, the crime of solicitation is complete. Therefore, because the gesturing person’s actions encouraged the other person to commit a crime, the gesturing person’s actions constitute solicitation.