Criminal Law Chapter 4
-preliminary, anticipatory, and inchoate (“underdeveloped”) crimes= criminal acts that lead to or
are attempts to commit other crimes
From a legal standpoint, communication can be the mens rea
→ in conspiracy, the “meeting of the minds”
→ in solicitation, the asking of someone to commit a crime
Just joking is not a defense, the law has no sense of humor (why bomb threats/jokes are illegal)
Prevention is better than cure for these types of crimes, law enforcement has to be able to
intervene prior to commission of underlying crime
Specific intent crimes created by the common law: conspiracy, solicitation, and attempt *
-solicitation= (incitement crimes) attempting to get another to commit a crime
→ the crime has been committed even if the person refuses, in prosecution requires
to show that the defendant did more than make a casual suggestion
-innocent instrumentality= the person being solicited (“instrument”) must be aware they’re being
asked to engage in an illegal act
-conspiracy= an agreement between 2 or more (3) persons (because of Wharton rule) to
engage in unlawful acts (requires a “meeting of the minds”); the crime of conspiracy cannot be
charged if the number of people involved only include those necessary to commit the crime
(usually why 2 isn’t enough) actus reus-overt act, mens rea-meeting of the minds
-Wharton Rule- the requirement that crimes needing more than one person for commision
require three or more people for a conspiracy conviction
→ bilateral approach- the state must prove involvement of two or more guilty
persons in the conspiracy (gov’t doesn’t like bilateral approach because if one
person is found guilty and one isn’t, the conspiracy charge falls through) *the bilateral
approach of conspiracy has largely been replaced by unilateral approach*
→ unilateral approach- crime is committed if the defendant agrees with another
person even if other person is feigning agreement or lacks capacity to agree and
the person with whom the defendant agreed (undercover cop) need not be guilty in
order to convict the defendant; conspiracy can also be proved if co-conspirator can’t
be found/identified under unilateral approach
-overt act= (required by Model Penal Code) criminal intent inferred, proof of overt act required to
show act done in furtherance of the criminal conspiracy charged (US v Fillabaum showed that
an overt act can be a phone call; overt act doesn’t have to be criminal)
-impossibility, abandonment, and withdrawal= types of defense; these defenses rarely work
because the crime of conspiracy already happened with the meeting of the minds and overt act,
United States v Jimenez Recio established that the impossibility defense rarely works
-Model Penal Code provides a defense to a conspiracy charge where a conspirator “thwarted
the success of conspiracy” (ie going to the cops); must be voluntary and cause conspiracy to fail
-preliminary, anticipatory, and inchoate (“underdeveloped”) crimes= criminal acts that lead to or
are attempts to commit other crimes
From a legal standpoint, communication can be the mens rea
→ in conspiracy, the “meeting of the minds”
→ in solicitation, the asking of someone to commit a crime
Just joking is not a defense, the law has no sense of humor (why bomb threats/jokes are illegal)
Prevention is better than cure for these types of crimes, law enforcement has to be able to
intervene prior to commission of underlying crime
Specific intent crimes created by the common law: conspiracy, solicitation, and attempt *
-solicitation= (incitement crimes) attempting to get another to commit a crime
→ the crime has been committed even if the person refuses, in prosecution requires
to show that the defendant did more than make a casual suggestion
-innocent instrumentality= the person being solicited (“instrument”) must be aware they’re being
asked to engage in an illegal act
-conspiracy= an agreement between 2 or more (3) persons (because of Wharton rule) to
engage in unlawful acts (requires a “meeting of the minds”); the crime of conspiracy cannot be
charged if the number of people involved only include those necessary to commit the crime
(usually why 2 isn’t enough) actus reus-overt act, mens rea-meeting of the minds
-Wharton Rule- the requirement that crimes needing more than one person for commision
require three or more people for a conspiracy conviction
→ bilateral approach- the state must prove involvement of two or more guilty
persons in the conspiracy (gov’t doesn’t like bilateral approach because if one
person is found guilty and one isn’t, the conspiracy charge falls through) *the bilateral
approach of conspiracy has largely been replaced by unilateral approach*
→ unilateral approach- crime is committed if the defendant agrees with another
person even if other person is feigning agreement or lacks capacity to agree and
the person with whom the defendant agreed (undercover cop) need not be guilty in
order to convict the defendant; conspiracy can also be proved if co-conspirator can’t
be found/identified under unilateral approach
-overt act= (required by Model Penal Code) criminal intent inferred, proof of overt act required to
show act done in furtherance of the criminal conspiracy charged (US v Fillabaum showed that
an overt act can be a phone call; overt act doesn’t have to be criminal)
-impossibility, abandonment, and withdrawal= types of defense; these defenses rarely work
because the crime of conspiracy already happened with the meeting of the minds and overt act,
United States v Jimenez Recio established that the impossibility defense rarely works
-Model Penal Code provides a defense to a conspiracy charge where a conspirator “thwarted
the success of conspiracy” (ie going to the cops); must be voluntary and cause conspiracy to fail
