Class Name, Instructor Name

Schmalleger/Hall, Criminal Law Today, 5th edition • Chapter 4: Extending Criminal Liability: Inchoate Offenses and Parties to Crime Class Name,Instructor Name Date, Semester

CHAPTER OBJECTIVES 4.1 Identify the elements of attempt, conspiracy, and solicitation. Identify and distinguish between the various tests used to determine if there has been adequate action to establish the crimes of attempt and conspiracy. 4.2 Explain why courts are hesitant to punish a person for “evil thoughts” alone. 4.3 Distinguish between a conspiracy and a criminal solicitation. 4.4

CHAPTER OBJECTIVES Distinguish between a principal in the first degree, a principal in the second degree, and an accomplice. 4.5 Describe the history and contemporary law of corporate criminal liability, including the punishments that are imposed on corporations. 4.6 Describe the conditions under which a corporation may be held liable for the acts of its officers or its employees. 4.7

Learning Objectives • After this lecture, you should be able to complete the following Learning Outcomes • 4.1 Identify the elements of attempt, conspiracy, and solicitation.

4.1 Criminal Attempt Joshua Dressler, one of the country’s most respected authorities on criminal law and criminal procedure, suggests that it takes six steps for a person to intentionally commit a crime. The individual conceives the idea of the crime He/she evaluates the idea He/she forms the intention to go forward He/she prepares to commit the crime He/she begins the acts necessary to complete the crime He/she finishes the actions defined by law as necessary to complete the crime

4.1 The Act Requirement • For an attempt to be charged, an act of some sort is necessary. • Generally speaking, courts have held that mere preparation to commit an offense is not sufficient to support a charge of attempted criminal activity and that some specific action must be taken toward the actual completion of the intended offense. • As mentioned, the Model Penal Code provides that conduct is not an attempt unless it involves a substantial step toward the commission of the offense and is strongly corroborative of the actor’s criminal purpose.

4.1

4.1 Defenses to Charges of Criminal Attempts Abandonment • The defense of abandonment claims that the defendant voluntarily decided to renounce continued attempts to commit the crime. Impossibility • A defense to a charge of attempted criminal activity that claims the defendant could not have factually or legally committed the envisioned offense even if he or she had been able to carry through the attempt to do so.

4.1 Completed Offense • In most jurisdictions, if a defendant is charged with a substantive crime but evidence indicates that the defendant only completed an attempt, he or she may be found guilty only of the lesser included offense of an attempt. • If the crime is completed, however, then the attempt is usually considered to have merged into the completed offense, and the defendant would be guilty only of the substantive offense – not of both the substantive offense and an attempt to complete that offense.

4.1 Punishment for Criminal Attempts • At common law, all attempts were punishable as misdemeanors. • Accordingly, offenders convicted of attempt were punished less severely than they would have been had the contemplated crime been completed. Over the years, legislatures in this country have struggled to establish appropriate punishments for criminal attempts.

4.1 Criminal Conspiracy A criminal conspiracy is an agreement between two or more people to commit or to effect the commission of an unlawful act or to use unlawful means to accomplish an act that is not unlawful.

4.1 Criminal Conspiracy • Doctrine of Complicity • Elements of the Crime • The crime of conspiracy has three elements: • An agreement between two or more people • The intention to carry out an act that is unlawful, or one that is lawful but is to be accomplished by unlawful means • A culpable intent on the part of the defendants • Plurality Requirement • Wharton’s Rule

4.1 Required Intent • Conspiracy is a specific intent crime, and someone who appears to conspire to commit a crime may not be guilty of conspiracy if intent to commit the crime is lacking. • Hence, to prove the crime of conspiracy, the government is required to prove that the defendant specifically intended to effect the commission of an unlawful act.

4.1 Types of conspiracies

4.1 Duration For purposes of the law, the duration of a conspiracy may be a critical issue. The longer a conspiracy continues, for example, the greater the chances of successful prosecution, since most statutes of limitation do not begin measuring time until a crime is complete. Also, in most jurisdictions, declarations of conspirators are admissible against other conspirators if the declarations are made while the conspiracy is still in progress.

4.1 Criminal Solicitation Under common law, criminal solicitation occurs when one person requests or encourages another to perform a criminal act.

Learning Objectives • After this lecture, you should be able to complete the following Learning Outcomes • 4.2 Identify and distinguish between the various tests used to determine if there has been adequate action to establish the crimes of attempt and conspiracy.

4.2 Criminal preparation, criminal attempt, and crime commission

4.2 Tests to Determine Attempt • Courts have used various formulations to distinguish between preparation and a substantial step: • The last act test, which asks whether the conduct completed is dangerously close to completing the crime itself • The notion that the more serious the threatened harm, the more justified the court would be in examining acts further back in the series of acts that would lead to crime completion • The idea that the clearer the intent to commit the offense is, the less proximate the acts need to be to the completion of the crime to constitute the crime of attempt

4.2 Tests to Determine Attempt Alternatives to the Proximity Approach Model Penal Code Approach Proximity Approach

4.2

4.2 Tests to Determine Conspiracy • Overt Act • One or more overt acts must be proven. • Pinkerton’s Rule • Conspirators are responsible for acts of co-conspirators that are taken in furtherance of the conspiracy. • Co-Conspirators’ Hearsay Rule • Hearsay evidence by co-conspirators is admissible. • Multiple Conviction Rule • At least two defendants must be convicted for any conviction to stand.

Learning Objectives • After this lecture, you should be able to complete the following Learning Outcomes • 4.3 Explain why courts are hesitant to punish a person for “evil thoughts” alone.

4.3 Evil Thoughts Alone • Evil Thoughts Not Adequate for Liability • Human nature; everyone would be guilty • Inconsistent with freedom/U.S. Constitution

Learning Objectives • After this lecture, you should be able to complete the following Learning Outcomes • 4.4 Distinguish between a conspiracy and a criminal solicitation.

4.4 Solicitation vs. Conspiracy Solicitation is the crime of encouraging, requesting, or ordering another to commit a crime. Conspiracy is an agreement between persons to commit a crime and there is preparation, overt act, or a substantial act in furtherance, depending on the jurisdiction.

Learning Objectives • After this lecture, you should be able to complete the following Learning Outcomes • 4.5 Distinguish between a principal in the first degree, a principal in the second degree, and an accomplice.

4.5 Parties to Crime Common law developed a fairly complex scheme of labeling those involved in a crime, known as the parties to crime, according to their relationship to the criminal act. It distinguished between those who actually committed the crime and others who assisted the perpetrator either before, during, or after the crime had been committed.

4.5 Parties to Crime Common law categories included: • Principle in • the first degree • Principle in • the second degree • Accessory before • the fact • Accessory after • the fact

4.5 Parties to crime under common law

4.5 Parties to Crime • Accomplice Liability • Relationships of Complicity • Accessory • Criminal Liability of Corporations • Vicarious Liability

4.5 Parties to Crime • To be held guilty as an accomplice, a defendant must have intentionally aided or encouraged another person to commit a crime. • In this instance, “intentionally” means that: • The defendant must have intended to commit the acts that in fact gave aid or encouragement; and • By committing those acts, the defendant must have intended to bring about the other party’s commission of the offense.

Learning Objectives • After this lecture, you should be able to complete the following Learning Outcomes • 4.6 Describe the history and contemporary law of corporate criminal liability, including the punishments that are imposed on corporations.

4.6 Corporations: Criminal Liability • Corporations not liable for crimes at the common law. • Today, corporations may be liable for crimes, including traditional crimes against the person, e.g., murder and assault. This is the Model Penal Code approach. • Punishment of corporations includes revocation of charter, removal of officers, fines, restitution, and other administrative discipline. • Corporate officers and employees may be individually liable for acts.

Learning Objectives • After this lecture, you should be able to complete the following Learning Outcomes • 4.7 Describe the conditions under which a corporation may be held liable for the acts of its officers or its employees.

4.7 Corporations: Criminal Liability • According to Jeffrey Grogin, corporations may be liable: • Under traditional principal-agent theory • For the decisions of corporate leadership but not for the acts of all employees • For the decisions and acts of all employees

CHAPTER SUMMARY Inchoate offenses are incipient crimes that generally lead to other crimes. Inchoate means imperfect, partial, or unfinished. Inchoate crimes include (1) attempts, (2) conspiracies, and (3) solicitation. Almost any crime that can be envisioned can be attempted, and under the penal codes of most states, any crime defined by statute has as its adjunct an attempt to commit that crime. 4.1 To constitute an attempt, an act of some sort is necessary. Mere preparation to commit an offense is not sufficient to support a charge of attempted criminal activity. 4.1

CHAPTER SUMMARY The crime of attempt is a specific-intent crime. It has two elements: (1) the specific intent to commit a criminal offense and (2) a substantial step toward the commission of the intended offense. In most jurisdictions, anyone charged with an attempt may raise the defenses of abandonment and impossibility. Virtually all jurisdictions require that the abandonment be voluntary. The defense does not affect the criminal liability of an accomplice who does not join in the abandonment. 4.1 Different tests developed at the common law to determine if the acts of a defendant were adequate to establish attempt or conspiracy. The proximity test was a prominent test. Today, the Model Penal Code test is most common. 4.2

CHAPTER SUMMARY Evil thoughts may not be criminalized because it is inconsistent with the U.S. Constitution, American values, and because everyone would be guilty of some crime. 4.3 • The common law crime of conspiracy is an agreement between two or more people to commit an unlawful act or a lawful act by unlawful means. • The elements of the crime of conspiracy are (1) an agreement between two or more people, (2) the intention to carry out an act that is unlawful, or a lawful act that is to be accomplished by unlawful means, and (3) a culpable intent on the part of the defendants. • Under common law, criminal solicitation occurs when one asks or encourages another to perform a criminal act. 4.4

CHAPTER SUMMARY Under common law, a fairly complex scheme was developed for labeling those involved in a felony according to their relationship to the criminal act. Offenders could be classified as (1) a principal in the first degree, (2) a principal in the second degree, (3) an accessory before the fact, or (4) an accessory after the fact. 4.5 At the common law corporations could not commit crimes. Today, corporations may be held criminally liable in most jurisdictions and they may be punished with fines, having officers removed, and with revocation of charters. Corporate officers and employees may be individually charged. 4.6 Depending on the jurisdiction, a corporation may be held liable under principal-agent theory, for the decisions of its officers but not the acts of its employees, or for the decisions and acts of officers and employees. 4.7

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