Attempt and conspiracy

Attempt at the Edge: From Purposeful Step to Merger

Attempt punishes purposeful movement toward a completed offense before the target crime is finished, so the decisive questions are intent, conduct, interruption, and any statutory defense. A defendant ordinarily must intend to commit the target offense, not merely intend to perform the act that happened to be criminal. Thus, accidentally firing a gun at a person cannot be attempted murder, while intentionally firing at a person with an unloaded gun may be attempted murder.

Run the analysis in this order:

1. Identify the target offense and ask whether it was completed. If completed by the same defendant, prosecute the substantive offense; attempt ordinarily merges into the completed offense and is not a separate conviction. Attempt does not merge into conspiracy.

2. Ask whether the defendant had the required purpose. Buying burglary tools intending to sell them is not attempted burglary. Buying them intending to break into a particular house may establish the required mental state, even if the burglary never occurs.

3. Locate the act beyond preparation. Under a substantial-step formulation, the act must strongly corroborate the criminal purpose. Buying ordinary supplies, scouting generally, or merely discussing a plan may remain preparation. Arriving at the intended location with specialized tools, lying in wait for the victim, or taking a substantial step in the planned sequence is stronger evidence. If the supplied statute uses dangerous proximity or another formulation, apply its language.

4. Test interruption and renunciation. Police arrest, an arriving victim, a locked door, or a decision to postpone generally shows that the crime stopped because circumstances intervened. A statutory abandonment or renunciation defense usually requires complete and voluntary withdrawal before completion. Fear of detection, increased difficulty, or a desire to wait for a better opportunity is not voluntary abandonment. Some statutes additionally require the defendant to thwart the crime; the supplied provision controls.

Impossibility is a frequent near miss. Factual impossibility is ordinarily no defense: the defendant is liable when the intended conduct would have been criminal under the facts as the defendant believed them to be. An unloaded gun, an empty pocket, or a victim who was already dead can fit this principle. Legal impossibility traditionally exists when the facts as the defendant believed them would not constitute a crime at all. A statute that expressly rejects impossibility or covers circumstances as the defendant believed them to be eliminates that defense. Do not call every failed attempt “legal impossibility.”

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This chapter is not starred: legal resources may be supplied when it is tested, and where they are not, you need only demonstrate recognition that the topic is at issue.

Conspiracy and Its Reach: Agreement, Withdrawal, and Foreseeable Crimes

Conspiracy analysis begins with the agreement, not with how far participants advanced toward the planned offense. Look for facts such as “agreed,” “planned together,” coded messages confirming a shared objective, division of roles, or coordinated purchases. A completed target crime is unnecessary. Mere presence, knowledge of another person’s plan, or supplying ordinary goods without criminal purpose does not establish agreement.

Ask four questions:

1. Was there an agreement? It may be express or inferred from coordinated conduct, but the parties must share the unlawful objective. A seller who knows a buyer may misuse a product ordinarily lacks the required agreement.

2. Did the defendant intend the unlawful objective? The defendant must intend that the target offense be committed. Knowledge that others intend a crime is not enough. A feigning undercover officer can matter under a bilateral statute requiring a genuine agreement of two criminal participants; under a unilateral statute, the defendant’s belief that another agreed may suffice.

3. Was the required act performed? Many statutes require an overt act in furtherance, which can be lawful and minor, such as buying supplies or renting a vehicle. Any conspirator’s qualifying act may satisfy the requirement. Common-law conspiracy may not require an overt act, so read the supplied provision.

4. What consequence is being charged? Conspiracy is complete when its statutory elements are satisfied. It generally does not merge into the completed target offense. A defendant may therefore face both conspiracy and the substantive crime, subject to the supplied statute and applicable constitutional limits.

Withdrawal is not the same as denying that a conspiracy ever existed. Withdrawal after agreement ordinarily does not erase the completed conspiracy. It may terminate the defendant’s membership for later consequences if the defendant takes the steps required by governing law, such as communicating withdrawal to every conspirator or making reasonable efforts to prevent the crime. Mere silence, nonattendance, or saying “I changed my mind” may be insufficient.

Renunciation can be a statutory defense to conspiracy when it is complete and voluntary and when the statute requires the defendant to thwart the conspiracy’s success. Withdrawal motivated by fear of arrest or by the plan becoming inconvenient is ordinarily not voluntary. Impossibility usually does not defeat conspiracy when the parties agreed to pursue conduct they believed to be criminal. The narrow Wharton’s rule exception may apply when the target offense necessarily requires concerted participation by the same number of people as the alleged conspiracy; additional participants or a statute displacing the rule can change the result.

Coconspirator liability for substantive crimes is a separate inquiry from proving the conspiracy. Under the traditional rule, a conspirator may be liable for another conspirator’s substantive offense when the offense:

• occurs while the defendant remains a member of the conspiracy;
• is committed in furtherance of the conspiracy’s objective; and
• is reasonably foreseeable from the agreement.

The rule does not make a conspirator liable for every crime committed by a confederate. A planned robbery can support liability for the robbery, and perhaps a foreseeable use of force, but an unexpected personal vendetta or an unrelated crime falls outside the agreement’s foreseeable scope. Effective withdrawal before the later offense can also cut off this derivative liability, even though it does not undo the conspiracy already formed.

Supplied Text in Action: One Withdrawal That Does Not Work

Assume the supplied provision provides:

Attempt. A person commits attempt if, with purpose of committing an offense, the person takes a substantial step strongly corroborative of that purpose. It is no defense that the offense could not be completed because an attendant circumstance was as the person believed it to be. Renunciation is a defense only if the person completely and voluntarily abandoned the criminal effort before its completion; abandonment motivated by increased difficulty or risk of detection is not voluntary.

Conspiracy. A person commits conspiracy if the person agrees with another that one or more of them will commit an offense and intends that the offense be committed, and any conspirator performs an overt act in furtherance. Withdrawal is not a defense to conspiracy, but a conspirator who, before the substantive offense, completely and voluntarily withdraws by informing every other conspirator and makes reasonable effort to prevent it is not liable under the next paragraph for that later offense.

Coconspirator offenses. A conspirator is liable for another conspirator’s substantive offense if committed during the conspiracy, in furtherance of its objective, and reasonably foreseeable from the agreement. This liability does not include an offense committed after effective withdrawal.

Mara and Sol agree to rob a pharmacy, with Mara entering the pharmacy and Sol serving as lookout.

Mara obtains a fake employee badge and a handgun for the robbery.

Sol later learns that police patrols have increased and tells no one except Mara, “I am out; this is too risky.”

Sol does not contact the police, warn the pharmacy, or otherwise try to prevent the robbery.

Mara and Tessa, who has joined the plan, rob the pharmacy. Tessa unexpectedly shoots a guard who resists.

Pressure-Test Questions: Three Distinctions Under Time

High-Yield Points - ⚡ Biggest Takeaways

Attempt requires purposeful conduct beyond preparation; a completed target offense absorbs the attempt. Conspiracy turns on agreement, intent, and any required overt act, not completion of the planned crime. Coconspirator liability reaches only foreseeable offenses in furtherance while membership continues.