Acts by the Victim

o       VERY SIMILAR RULES TO TORTS

·        Solicitation – asking somebody to either commit a crime for you, or commit a crime with you, or to carry out a crime

o       Mens Rea – Specific Intent

o       Actus Reus – Requesting, arguing, or commanding someone to commit a crime

§        Can have attempted solicitation (A mails letter to B asking him to kill X – but the never letter arrives b/c it is intercepted by the police)

o       The target crime to be committed MUST BE COMMUNICATED for solicitation

o       DOES NOT merge with conspiracy

·        Attempt – Attempt has both actus reus and mens rea like all other crimes

o       MENS REA – Specific intent that the target crime be carried out (same for all inchoate crimes)

o       ACTUS REUS - Requires an overt act in furtherance of the crime – an act beyond mere preparation for the offense

o       Synonymous Terms

§        Anticipatory Crimes

§        Relational Crimes

§        Inchoate Crimes

·        Attempt, Solicitation, Conspiracy

o       Elements:

§        Specific Intent to Commit the Crime

·        Result of attempt, if achieved, MUST be a crime

§        Cannot attempt a designate, statutory intent crime

§        Attempt to commit strict liability crimes still requires intent

·        Although strict liability crimes do no require criminal intent, but merely an intended result

§        CANNOT convict somebody of both attempting the target crime and the committed crime itself.  Attempt merges in the consummated crime

§        Must be in the realm of PERPETRATION and not PREPARATION

o       Tests for Attempt

§        Proximity Test – What the Δ has done toward accomplishment of his criminal purpose, and what remains to be done

§        NY Dangerous Closeness - Typically requires an act that is dangerously close to success

§        Equivocally Test – Act by itself must demonstrate that the Δ had an unequivocal intent to commit the crime

·        Rarely followed by courts

§        Model Penal Code – Requires that the act or omission constitute a “substantial step in a course of conduct planned to culminate in the commission of a crime.” 

·        An act will not qualify as a substantial step unless it is a strong corroboration of the actor’s criminal intent

o       Defenses to Attempt

§        Impossibility

·        Pure Factual Impossibility – involved in cases where the intended act is criminal and where the crime would be committed if the Δ was successful.  But the Δ cannot accomplish the crime because of physical facts unknown at the time

o       Ex. Attempt to pick an empty pocket

o       Ex. Attempt to kill with an unloaded gun

§        Not a good defense

·        Inherent Impossibility – Δ plans to commit a crime, but chooses means that are obviously incapable of accomplishing the criminal purpose

o       Ex. Man shoots at his wife while in a plane, thousands of feet in the air, with a bow and arrow

·        Legal Impossibility – When the Δ thinks he/she is committing a crime, but the very act they aim to accomplish is not a crime

o       Is a good defense

·        Mixed Fact Law Impossibility – While no crime is actually committed, the Δ meant to perform acts that would constitute a crime – if the facts he believed were true

o       Major Policy Arguments

§        Abandonment

·        Model Penal Code Test

o       VOULUNTARY – change of heart rather than a change of mind

o       COMPLETE – Must either (1) prevent the target crime, or (2) produce one’s best effort to prevent the commission of the crime

·        If the target crime is committed, then you cannot have abandonment

o       Smallwood v. State – Δ was convicted of assault with intent to murder his rape victims because of his awareness of being HIV positive

§        Without the Mens Rea (intent), then there can be no conviction of a target crime.  Here, the Δ pled guilty to rape and robbery, but had no intent to kill

o       People v. Rizzo – Δ had the intent to rob a man, but never found him.

§        Courld hed there can be no attempt to rob man because he never found him, though it conceded once they would have seen the man, attempted robbery could’ve occurred

o       United States v. Jackson – Δs were brought on two charges; (1) conspiracy to commit an armed robbery and (2) attempted robbery

§        Development of the Model Penal Code Test and the substantial step towards commission

o       McQuirter v. State – Δ was found guilty of an attempt to commit an assault with intent to rape

§        Determines the equivocally test as “looking not to how far the Δ has gone, but to how clearly his act bespeak his intent.”

o       State v. Davis – Δ sought help from an ex-convict to murder his lover’s husband to collect on the insurance, and live together.

§        Solicitation, unaccompanied by an act moving directly toward the commission of the intendedcrime, is not an overt act constituting an element of the crime of attempt

o       People v. Jaffe – Stolen goods given in a sting operation.  Δ received goods that he believed were stolen, and they were not b/c the owner allowed them as bait

§        Not factually impossible b/c (1) there is a good defense and (2) you cannot tell with the five sense  if the clothing was stolen