Specific Crimes Outline

SECTION TWO: SPECIFIC CRIMES

Part One: Inchoate Crimes

1. @Grading

   1. Rule

      1. (MPC)

         1. Attempt, solicitation, and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted, solicited, or an object of the conspiracy (§5.05), unless

            1. the offense is a capital crime, in which case these are a degree lower.

         2. Δ cannot be convicted of more than one of these offenses for the same crime.

      2. (CL)

         1. Attempt, solicitation, and conspiracy typically receive significantly lower punishments than the completed crime, e.g. in California, half the time, and in New York, a degree less.

2. @Criminal Attempt

   1. Rule

      1. (MPC)(²/₃ of jurisdictions)

         1. Δ is guilty of criminal attempt if Δ acts with the kind of culpability otherwise required for the offense,

            1. purposefully engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be (i.e. mistake of fact is not a defense),

            2. does anything with the purpose or with the belief that the material element will result, or

            3. purposely does anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step toward committing the crime (§5.01), unless

               1. Δ voluntarily renounces his criminal purpose (§5.01(4)).

      2. (CL) (¹/₃ of jurisdictions)

         1. Δ is guilty of attempted X if Δ intends to commit X and

         2. Δ takes a substantial step toward the offense (Kraft).

   2. Analysis

      1. Culpability otherwise required / intends?

         1. This requires purpose, even if the offense itself is satisfied by knowledge or less (Kraft)(Thacker).

            1. “Attempted voluntary manslaughter” is possible if Δ intends to act recklessly (Thomas).

            2. “Attempted felony murder” has been rejected by all states but Arkansas.

            3. “Attempted involuntary manslaughter” is a contradiction (S. v. Holbron (Haw. 1995)).

            4. “Attempted rape” requires same mens rea as rape: Δ intends to have sex with knowledge of no consent; the only difference is whether sex happens (R. v. Khan (Eng. 1991)).

            5. “Attempted statutory rape” does NOT require awareness of age, since mistake of age is irrelevant to the offense and therefore irrelevant to the attempt (C. v. Dunne (Mass. 1985)).

      2. Mistake of fact / impossibility?

         1. Old rule was legal impossibility (shooting stuffed dummy Δ thought was real) was defense whereas factual impossibility (shooting through window when intended target not home) was not.

         2. Modern rule: impossibility is never defense (Dlugash);

            1. if Δ thought Δ was committing crime and Δ meets requirements for attempt, guilty.

      3. Substantial step?

         1. (MPC)

            1. Satisfied by conduct “strongly corroborative” of Δ’s criminal purpose, e.g.:

               1. soliciting an innocent agent, lying in wait, possessing materials, etc (§5.01(2));

                  1. unlike CL, this includes hiring a hitman (Church) or

                  2. casing a bank and bringing weapons (Jackson).

            2. Also satisfied if Δ aids/abets another who does not actually complete or even attempt the crime (§5.01(3)).

         2. (CL)

            1. Satisfied if Δ is in “dangerous proximity” to committing crime (Rizzo); NOT:

               1. going to location to meet 12 y/o to have sex with (S. v. Duke (Fla. Ct. App. 1998));

               2. making an appointment with a potential victim (Harper).

               3. soliciting a hitman (Davis);

                  1. these jurisdictions believe solicitation is never an attempt since Δ doesn’t plan to commit act personally (U.S. v. American Airlines (5th Cir. 1984)).

            2. The problem is anything too early, where there is not much evidence and where Δ still has time to reasonably repent (S. v. Robins (Wis. 2002));

               1. Must be more than preparation, but does not have to be the final step before the commission (King v. Barker (N.Z.L.R. 1924));

      4. Voluntarily renounces?

         1. (MPC)

            1. Doesn’t count if Δ only did it because the odds of getting caught were higher, or Δ wanted to postpone (§5.01(4)).

         2. (CL)

            1. Repentance has to come before the offense, even if

               1. Δ robs victim but doesn’t take money and apologizes (P. v. Johnston (N.Y. App. Div. 1982);

               2. Δ intends to rape girl but repents after she resists (P. v. McNeal (Mich. App. 1986));

            2. So Δ who intended to rape girl but who voluntarily repented before doing so not guilty (Ross v. S. (Miss. 1992).

      5. Attempt to aid?

         1. is complicity under MPC §2.06(3)(a)(ii).

   3. Cases

      1. P. v. Kraft (Ill. App. Ct. 1985, AM 96)

         1. Δ, after driving victims off the road, shot at them. Afterwards, remorseful, Δ shot at police. But, Δ never intended to hurt anyone. Even though murder only requires knowledge of a high probability of death resulting, attempted murder requires intent to kill.

      2. P. v. Rizzo (N.Y. 1927, 555)

         1. Δ tried to rob victim but they never found victim before cops intercepted them. Since they had never reached the person they intended to rob, they are not guilty of attempted robbery.

      3. U.S. v. Harper (9th Cir. 1994, 569)

         1. Δ waited for ATM repairman after rigging machine. Cops found them early. Not yet attempt.

      4. U.S. v. Jackson (2d Cir. 1977, 565)

         1. Δs searched bank, planning to rob it, but had bad timing. They rescheduled, but the second time they were caught. This was “strongly corroborative” of a substantial step.

      5. S. v. Davis (Mo. 1928, 571)

         1. Δ hired undercover cop to kill lover’s husband. Since under common law solicitation by itself is not a substantial act, Δ is not guilty of attempted murder.

      6. P. v. Dlugash (N.Y. 1977, 577)

         1. Δ intended to kill victim who looked like he was dead; unclear whether the victim actually was dead, however. Regardless, if what Δ thought he was doing was killing, he is guilty of attempted murder.

      7. Squibs

         1. Thacker v. C. (Va. 1922)

            1. Δ shot at tent not intending to kill victim, and his bullet missed. Even though a hit would be murder, since Δ did not intend to kill, not attempt.

         2. P. v. Thomas (Colo. 1986)

            1. Δ accidentally shot victim, but didn’t intend to kill. Δ is guilty of an attempt to commit reckless manslaughter.

         3. U.S. v. Church (A.C.M.R. 1989)

            1. Δ who was videotaped paying undercover cop to kill wife and who, after, told cop “thank you” guilty of attempt....

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