Ch3. Inchoate Offenses and Complicity

Inchoate Offenses — Attempt

Completed Crime vs. Attempt:
Completed crime: all elements of the offense are satisfied.
Attempt: defendant had the requisite intent AND took
  a "substantial step" toward commission (MPC § 5.01)
  or came "dangerously close" (common law proximity test).

Types of Attempt Analysis:

Factual Impossibility:
Defendant's intended act would have been criminal but
  could not be completed because of a factual condition
  unknown to defendant (e.g., picking an empty pocket).
Generally NOT a defense — still guilty of attempt.

Legal Impossibility:
Defendant completed all intended acts but those acts do
  not constitute a crime.
Traditional legal impossibility IS a defense (the
  completed act is not criminal).
MPC abolishes the defense; most modern states follow MPC.

Voluntary Abandonment (MPC § 5.01(4)):
Defendant voluntarily and completely renounces criminal
  purpose before the crime is completed.
Complete defense under MPC; recognized in minority of
  common-law jurisdictions.
Policy: "Golden bridge" — incentivize withdrawal.
Punishment: attempt generally punished one grade lower
  than the completed offense under MPC.

Conspiracy and Solicitation

Solicitation:
Defendant invites, requests, or commands another to
  commit a crime with intent that the other person
  commit it (MPC § 5.02).
Crime is complete upon communication; no acceptance needed.
Generally punished one grade lower than completed offense.

Conspiracy (MPC § 5.03):
Agreement between two or more persons to commit a crime
  PLUS (in most jurisdictions) an overt act in furtherance.
Bilateral rule (common law): requires genuine agreement
  by two culpable parties.
Unilateral rule (MPC): one party's genuine agreement
  suffices, even if the other is an undercover officer.

Overt Act:
Most states and federal law require at least one overt
  act (even trivial) in furtherance of the conspiracy.
MPC requires overt act only for misdemeanors; felony
  conspiracy is complete upon agreement.

Punishment:
Generally treated as a separate substantive crime;
  defendant may be convicted of both conspiracy and
  completed crime (Pinkerton v. United States, 1946).

Accomplice Liability

Principal:
Person who directly commits the criminal act.

Accomplice / Aider and Abettor:
Person who assists, encourages, or facilitates the
  principal with intent that the crime be committed.
Punished to the same extent as the principal
  (18 U.S.C. § 2; most state codes).

Accessory Before the Fact:
Pre-crime assistance; traditionally punished same as
  principal under modern statutes.

Accessory After the Fact:
Assists the principal after the crime is complete
  (harboring, concealing, providing assistance to
  avoid arrest/prosecution).
Lesser offense — distinct from accomplice liability.

Innocent Agent:
Defendant uses an innocent person (e.g., a child, an
  unknowing carrier) as a tool to commit the crime.
Defendant is treated as the principal.

Special Complicity Problems

Pinkerton Liability:
Each co-conspirator is vicariously liable for the
  substantive crimes of co-conspirators committed in
  furtherance of and as a reasonably foreseeable
  consequence of the conspiracy.
(Pinkerton v. United States, 328 U.S. 640 (1946))

Conspiracy Exceeding the Scope:
If one co-conspirator commits an act beyond the scope
  of the agreed plan, only that person is liable for
  the excess (MPC § 2.06(3)).
Example: partners agree to rob; one commits murder
  during the robbery — murder liability depends on
  whether it was a reasonably foreseeable consequence.

Wharton Rule:
Where the crime by definition requires two participants
  (e.g., bigamy, dueling, incest, bribery), conspiracy
  cannot be charged unless a third party is involved.

Status Offenses and Complicity:
If the offense is defined to protect a class of persons,
  a member of that protected class cannot be an accomplice
  to the offense against themselves (e.g., a statutory rape
  victim cannot be prosecuted as accomplice).

Voluntary Abandonment = Complete Defense (MPC) ★★★★★ : Voluntary and complete renunciation of criminal purpose = full defense to attempt under MPC. Common-law: mere desistance generally not a defense. Memory tip: MPC = abandonment defense; common law = generally no.

Accomplice vs. Accessory After the Fact ★★★★★ : Accomplice = assists before/during crime = same punishment as principal. Accessory after the fact = assists after crime is complete = lesser offense. Memory tip: Accomplice = before/during; Accessory-after = after.

Pinkerton Liability ★★★★☆ : Co-conspirator liable for all foreseeable substantive crimes of co-conspirators done in furtherance of the conspiracy. Memory tip: Pinkerton = conspiracy + foreseeable crimes.

Practice Quiz

Q. Why does the MPC grant a complete defense for voluntary abandonment of an attempt?

The MPC’s policy rationale is to provide criminals with an incentive to stop before completing the harm — the so-called “golden bridge” theory. If withdrawal is a complete defense, a defendant on the verge of completing a crime has a legal reason to turn back. The common-law proximity tests, by contrast, generally do not recognize abandonment once the defendant has come “dangerously close” to completion.

Q. How does an accomplice’s liability differ from an accessory after the fact?

An accomplice assists, encourages, or facilitates the crime before or during its commission, and is punished as a principal (same crime, same penalty). An accessory after the fact renders assistance after the crime is complete (e.g., hiding the perpetrator, destroying evidence, providing a false alibi). This is a separate and lesser offense — in the federal system, punishable by not more than half the maximum sentence for the underlying crime (18 U.S.C. § 3).