Inchoate crimes and parties to crime
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The Line to Attempt: When Preparation Becomes Punishable
Attempt requires the specific intent to commit the target offense plus conduct that crosses the legally required line between preparation and execution. A person ordinarily cannot attempt an offense requiring only recklessness or negligence because attempt demands an intent to bring about the criminal result or to perform the prohibited conduct. For a result crime, ask whether the actor intended the result, not merely whether the actor took a dangerous risk.
Run the attempt decision procedure in this order:
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Identify the target and intent. What offense did the actor mean to complete? If the actor intended only a lesser offense, attempt liability is ordinarily limited accordingly. A statute may define the required purpose more precisely.
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Identify the act threshold. Under a statute using a substantial-step test, the conduct must be a substantial step toward commission of the crime and must strongly corroborate the criminal purpose. Buying a tool, researching a location, or possessing ordinary materials may remain preparation unless joined with facts showing execution. Under a dangerous-proximity test, the conduct must be very near completion. Reaching the victim’s house, loading the weapon, or beginning the unlawful entry may qualify, depending on the supplied rule and facts.
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Test impossibility. Factual impossibility exists when an outside fact prevents completion-for example, the gun is unloaded or the intended victim is not present. It generally does not defeat attempt when the actor has the required intent and has crossed the act threshold. Legal impossibility traditionally applies when the intended conduct, even if completed exactly as planned, would not be criminal. Modern statutes often reject that defense or define attempt by the facts as the actor believes them; the supplied provision controls.
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Test abandonment or renunciation. At common law, abandonment after an attempt is complete does not erase liability. Where a statute recognizes renunciation, it usually requires a complete and voluntary abandonment, not a pause caused by fear of arrest, difficulty, or police intervention. Some provisions also require the actor to prevent the crime or take reasonable steps to undo the danger. Stopping because the victim arrives, the alarm sounds, or the police appear is not voluntary abandonment.
The sequence matters: do not decide abandonment before deciding whether the act threshold was crossed, and do not call conduct preparation merely because the crime ultimately failed.
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The floor for fast recognition is therefore: attempt, specific intent, substantial step, dangerous proximity, factual impossibility, legal impossibility, abandonment, and renunciation. You need to know that these terms name the questions and their order. You do not need to hold exact statutory wording, exception lists, or subsection numbers; the supplied rule supplies those contents.
Conspiracy Without Completion: Agreement Before the Crime
Conspiracy is an agreement to commit a crime, accompanied by the required criminal intent. The prosecution ordinarily must show both intent to agree and intent that the target crime be committed. Mere knowledge that someone else plans a crime, presence at a meeting, or association with criminals is not enough without agreement and the required intent.
Under the traditional bilateral approach, at least two persons must genuinely agree with the criminal purpose. A person who proposes a crime to an undercover officer who only pretends to agree therefore lacks a conspiracy under that approach. Under a unilateral approach, the defendant may be guilty by agreeing with another person even if that other person feigns agreement, because the defendant’s own agreement and criminal purpose are sufficient.
An overt act is required only if the governing statute says so. When required, the overt act may be lawful and may be committed by any conspirator. Buying supplies, arranging transportation, or sending a confirming message can qualify; the act need not itself be a substantial step toward the completed offense. Always distinguish the conspiracy’s agreement requirement from an overt-act requirement.
Conspiracy is ordinarily complete when the required agreement and any required overt act exist. The target crime need not occur. If it does occur, conspiracy ordinarily does not merge into the completed offense: the defendant may face liability for both, subject to the supplied statute’s merger or charging rules.
Withdrawal usually does not erase a conspiracy already formed. It may prevent liability for later acts of co-conspirators if the governing rule permits withdrawal and the defendant timely communicates withdrawal in the required manner. A secret change of heart is ordinarily insufficient. Withdrawal also does not retroactively undo the agreement or an overt act already completed.
The Pinkerton rule is a separate consequence of conspiracy. While the conspiracy continues, each conspirator may be liable for a substantive crime committed by another conspirator if that crime is in furtherance of the conspiracy and is reasonably foreseeable from its common plan. Pinkerton is not automatic liability for every later crime. The act must be connected to the conspiracy, foreseeable, and committed while the defendant remains legally part of it. Effective withdrawal before the substantive crime may cut off prospective Pinkerton liability under the governing rule.
Here is a supplied provision:
A person commits conspiracy when, with purpose that a felony be committed, the person agrees with another person that they or one of them will engage in conduct constituting the felony. No person is guilty of conspiracy unless an overt act in furtherance of the agreement is committed by one conspirator. A conspirator is guilty of a crime committed by another conspirator if the crime is committed in furtherance of the conspiracy and is a foreseeable consequence of it. Withdrawal is a defense to a later crime only if, before that crime, the conspirator gives timely notice of withdrawal to the other conspirators and makes a reasonable effort to prevent the later crime. Conspiracy does not merge with a completed felony.
Dana and Eli agree that Eli will rob a pharmacy. Both intend that the robbery occur. Dana then buys two masks for the plan, satisfying the required overt act. Before Eli enters the pharmacy, Dana tells Eli that she withdraws, but she does not contact the pharmacy or police, retrieve the masks, or take any other step to prevent the robbery. Eli later robs the pharmacy with a gun, an act that is in furtherance of the agreement and a foreseeable consequence of it.
Practice
Which is the most accurate statement about Dana’s liability under the supplied provision?
A quick attempt contrast:
Omar fires at a bed intending to kill the sleeping occupant, but the occupant left minutes earlier.
Omar stops only after firing and discovers the empty bed.
Omar is guilty of attempted killing because the missing victim creates factual impossibility, which ordinarily does not defeat an attempt after a dangerous act with specific intent.
Helping the Principal: Assistance With Criminal Purpose
Accomplice liability asks whether the principal committed the target offense and whether the defendant intentionally helped bring it about. Use this checklist:
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Principal conduct: Identify the completed or attempted target offense under the supplied statute. The accomplice need not personally perform every physical element, but there must be criminal conduct to which derivative liability can attach.
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Assistance: The defendant must aid, encourage, advise, procure, provide a tool, act as a lookout, or otherwise assist before or during the offense. Assistance need not be indispensable. Mere presence, friendship, or knowledge that a crime will occur is ordinarily insufficient without conduct that helps or encourages it.
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Intent to facilitate: The defendant must have the required purpose to help the principal commit the offense, or whatever mental state the supplied statute specifies. Intent may be inferred from coordinated conduct, warnings, payment, concealment, or repeated encouragement. Knowledge alone is not automatically purpose.
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Derivative limits: The accomplice is generally liable for the offense the assistance intentionally facilitated, even though the principal alone performed the final act. Liability does not automatically extend to every offense the principal later commits. For an additional offense, look for the statute’s required intent, causal connection, foreseeability rule, or other limit. A person is not an accomplice to conduct that is not criminal merely because the person helped it occur.
The principal and accomplice need not be tried together, and the principal need not be convicted first. But the prosecution must establish the underlying criminal conduct. A principal’s personal defense, lack of capacity, or immunity may affect the principal without necessarily eliminating an accomplice’s liability; a failure to prove that any crime occurred does eliminate the foundation for ordinary derivative liability.
Withdrawal depends on timing and the supplied rule. Stopping assistance before the offense may help, but merely changing one’s mind after providing the weapon or encouragement usually does not erase liability. A statute may require timely communication, retrieval of assistance, warning the victim, or reasonable efforts to prevent the crime. Apply every listed condition. Withdrawal from accomplice liability is distinct from withdrawal from conspiracy: an accomplice may withdraw from helping the offense even though a separate conspiracy already exists, and a conspirator may remain liable for the conspiracy despite withdrawal.
After the Crime: The Separate Liability of an Accessory
Accessory-after-the-fact liability punishes post-offense help aimed at allowing the offender to avoid arrest, conviction, or punishment. The usual checklist is:
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The underlying crime was completed.
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The defendant knew that the principal had committed that crime.
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After completion, the defendant intentionally assisted the principal, such as by hiding the principal, providing transportation, destroying evidence, or supplying a place to evade capture.
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The defendant acted with the purpose of helping the principal escape apprehension or punishment.
The timing separates this offense from accomplice liability. A person who supplies a getaway car before the theft to help the theft occur may be an accomplice. A person who, after learning of the completed theft, hides the driver to prevent arrest may be an accessory after the fact. The same person may have different liability for different acts: prior assistance can create accomplice liability, while later concealment can create accessory liability.
An accessory after the fact is ordinarily liable for a separate offense, not for the underlying crime merely because of the post-crime assistance. A prior agreement to help after completion does not transform post-crime conduct into assistance that caused the completed offense. If the statute requires knowledge of a particular grade or type of crime, identify that requirement in the supplied text. Withdrawal is not a substitute for the elements: once post-crime assistance occurs with the required knowledge and purpose, ask whether the statute provides a specific withdrawal or termination defense.
High-Yield Points - ⚡ Biggest Takeaways
Attempt requires specific intent and conduct beyond preparation. Factual impossibility ordinarily does not defeat attempt. Conspiracy requires agreement plus any overt act required by statute. Pinkerton liability requires furtherance, foreseeability, and a continuing conspiracy. Post-crime escape assistance creates accessory liability, not automatic liability for the underlying offense.
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Practice Questions: Inchoate crimes and parties to crime
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3. Using only the supplied file and legal resources, prepare an advisory client letter evaluating the prosecution's murder theory, Jordan's self-defense argument, the causation issue, and the proposed manslaughter resolution. Explain the principal risks in plain language and recommend a negotiation position without predicting a certain verdict.
4. Using only the supplied file and legal resources, prepare an advisory letter explaining which charges the prosecution may retry. Address when jeopardy attached, the effect of the defense-requested mistrial, whether the prosecutor's conduct triggers the intent-to-provoke limitation, and the consequences of the firearm acquittal and robbery deadlock. Give realistic advice about the strength of a motion to bar retrial and identify the most useful remaining investigation concerning the prosecutor's intent. Do not use outside law.
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7. Police arrested a driver on probable cause for leaving the scene of a collision. At the station, an officer placed the driver in an interview room and said, without giving warnings, “The damaged car contained a child’s backpack.” The driver remained silent. Twenty minutes later, while transporting the driver to a detention facility, two officers discussed between themselves that the injured child might die without information about what happened. The officers knew the driver could hear them but had not planned the conversation to obtain a response. The driver interrupted and said, “I was looking at my phone when I hit the car.” The prosecution seeks to use the statement in its case-in-chief. The driver has not alleged coercion. Is the court likely to suppress the statement?
- A. Yes, because any statement made after an unwarned custodial remark is excluded from the prosecution’s case-in-chief.
- B. Yes, because the officers should have known that discussing the injured child was reasonably likely to elicit an incriminating response.
- C. No, because the officers’ conversation was not interrogation and the driver volunteered the statement.
- D. No, because warnings are required only after formal criminal charges have been filed.
Show answer
Answer: C. No, because the officers’ conversation was not interrogation and the driver volunteered the statement.
No, because the officers’ conversation was not interrogation and the driver volunteered the statement. - Miranda bars unwarned statements made during custodial interrogation, including its functional equivalent, but not volunteered statements. - As in Rhode Island v. Innis, the officers spoke to each other rather than questioning the driver, and the facts do not show they should have known their conversation was reasonably likely to elicit his interruption. Yes, because any statement made after an unwarned custodial remark is excluded from the prosecution’s case-in-chief. - The officer’s earlier remark about the child’s backpack drew no response from the driver. - That remark does not automatically exclude a later, volunteered statement; the driver has not alleged coercion. Yes, because the officers should have known that discussing the injured child was reasonably likely to elicit an incriminating response. - The reasonably likely to elicit standard can apply even when officers speak to each other within a suspect’s hearing. - Here, their unplanned conversation, without a stated reason to expect the driver to respond, does not establish the functional equivalent of questioning. No, because warnings are required only after formal criminal charges have been filed. - Miranda warnings are required before custodial interrogation, regardless of whether formal charges have been filed. - The statement is admissible because it was volunteered, not because the driver had yet to be charged.
8. During an argument, a man intentionally stabbed another person in the abdomen, intending to kill him. The victim was taken to a hospital, where a physician negligently failed to diagnose internal bleeding that ordinarily would have been detected and treated. The victim died from the combined effects of the wound and the untreated bleeding. A medical expert concluded that the victim would have survived with competent treatment, but the physician's negligence was not extraordinary or intentionally harmful. The prosecutor is considering a murder charge against the attacker. Which of the following is the strongest conclusion regarding causation?
- A. The original attacker is liable for murder because the stabbing remained an actual and proximate cause of the victim's death.
- B. The original attacker is liable only for attempted murder because negligent medical treatment necessarily breaks the causal chain.
- C. The original attacker is liable only for manslaughter because the physician, rather than the attacker, performed the act immediately preceding death.
- D. The original attacker is not liable for homicide unless the prosecution proves that the physician's treatment complied with professional standards.
Show answer
Answer: A. The original attacker is liable for murder because the stabbing remained an actual and proximate cause of the victim's death.
The original attacker is liable for murder because the stabbing remained an actual and proximate cause of the victim's death. - The stabbing was an actual cause of death: without the wound, there would have been no wound-related bleeding to leave untreated. - Ordinary negligent treatment of the wound does not supersede the stabbing as a cause, and the attacker acted with intent to kill. The original attacker is liable only for attempted murder because negligent medical treatment necessarily breaks the causal chain. - Negligent treatment does not necessarily break the causal chain when the original wound remains a cause of death. - The expert’s view that competent treatment would have saved the victim does not erase the stabbing’s role in the death that occurred. The original attacker is liable only for manslaughter because the physician, rather than the attacker, performed the act immediately preceding death. - Causation does not depend on who acted last; the wound and untreated bleeding combined to cause death. - The attacker’s intent to kill supports murder rather than reducing the offense to manslaughter because of the physician’s later negligence. The original attacker is not liable for homicide unless the prosecution proves that the physician's treatment complied with professional standards. - The prosecution must prove the stabbing actually and proximately caused death, not that the physician provided competent care. - The physician’s negligent failure to diagnose bleeding does not preclude homicide liability when the stabbing remained a cause of death.
Flashcards: Inchoate crimes and parties to crime
1. What crimes may an accomplice be liable for beyond the crime he intended to facilitate?
Show answer
Under the majority/natural-and-probable-consequences approach, an accomplice is liable for the target crime and for other crimes committed by the principal that are reasonably foreseeable consequences of the aided conduct. The minority approach limits liability to crimes the accomplice intended to facilitate.
2. What are the majority-law elements of criminal attempt?
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Attempt requires intent to commit the target crime plus a substantial step toward its commission that strongly corroborates the criminal purpose. Mere preparation is insufficient.
3. What is the effect of withdrawal on liability for conspiracy or accomplice liability?
Show answer
Withdrawal from a conspiracy generally must occur before the conspiracy’s criminal objective is completed and must be communicated to all co-conspirators; it prevents liability for later acts but does not erase the conspiracy. For accomplice liability, timely repudiation that neutralizes the assistance or prevents the crime may avoid liability, but withdrawal after the crime is complete is ineffective.
4. What is the Pinkerton rule for a conspirator’s liability for another conspirator’s substantive crime?
Show answer
Under the majority rule, a conspirator is liable for a substantive offense committed by a co-conspirator if it was committed in furtherance of the conspiracy and was a reasonably foreseeable consequence of it. The conspirator need not personally participate in or know of the specific offense.
5. What is the majority rule on factual versus legal impossibility as a defense to attempt?
Show answer
Factual impossibility is generally not a defense: a person may be guilty when the intended crime could not be completed because of circumstances unknown to the person. Legal impossibility is a defense when the intended conduct, even if completed as intended, would not be criminal.
6. Under the majority rule, when can abandonment or renunciation defeat attempt liability?
Show answer
At common law, abandonment after the defendant has completed the acts required for attempt is generally no defense. Under the modern majority of statutes, abandonment may be a defense only if the defendant completely and voluntarily renounces the criminal purpose before the crime is completed.
7. What are the elements of being an accessory after the fact?
Show answer
An accessory after the fact, a separate offense from the underlying crime, knowingly assists the offender after the crime is completed with the purpose of helping the offender avoid arrest, trial, conviction, or punishment. The accessory must know that the offender committed a felony or, under some statutes, another specified serious offense.
8. Under the majority rule, when is a defendant guilty of conspiracy?
Show answer
Conspiracy requires an agreement between at least two persons to commit an unlawful act, plus intent to agree and intent to achieve the unlawful objective. Most jurisdictions also require an overt act in furtherance, although the overt act may be innocent.
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