Introduction
Saturday moves Criminal Law beyond the person who personally completes a substantive offense. Criminal responsibility does not necessarily begin only when the planned crime succeeds. The law may intervene earlier, and it may impose liability on people whose conduct occurs around the completed offense rather than through personal completion of every element.
The outline identifies several distinct sources of liability:
- Attempt asks whether a defendant who intends a crime has moved sufficiently far toward completing it.
- Solicitation asks whether a person intentionally encouraged, commanded, requested, or invited another to commit a crime.
- Conspiracy focuses on criminal agreement.
- Accomplice liability focuses on intentional assistance, encouragement, or facilitation of another person’s offense.
- Pinkerton liability can extend substantive liability from one conspirator’s acts to another conspirator under the conditions identified in the conspiracy doctrine.
- Accessory-after-the-fact liability concerns assistance given only after the underlying felony has already been completed.
These doctrines overlap factually but should not be collapsed analytically.
Integrated Hypothetical
Suppose A proposes a robbery to B. B agrees. A obtains a weapon. C knowingly drives A and B to the store as part of the plan. A enters the store and attempts the robbery but fails. Later, D, who had no advance knowledge of the plan, hides A from police after learning what occurred.
One event may therefore produce: Solicitation, Conspiracy, Attempt, Accomplice liability, Possible Pinkerton liability, and Accessory-after-the-fact liability.
The key lesson is that criminal responsibility extends beyond the actor who completes the substantive crime, but each source of liability has its own elements and timing rules.
I Attempt
Attempt, solicitation, and conspiracy are commonly described as inchoate crimes because they permit liability before the contemplated substantive offense is completed.
Attempt generally requires two central components:
- Specific intent to commit the target offense.
- A sufficient act toward completion.
Both are essential. A person who has formed the required intent but has done nothing beyond thoughts or insufficient preparation may not yet have crossed the attempt threshold.
Attempt Is a Specific-Intent Crime
Attempt requires specific intent to commit the target offense even when the completed crime itself can be committed without specific intent.
This is one of Saturday’s most important rules. The distinction means that a person can sometimes be guilty of the completed offense under a mental state that would not support attempt liability.
Attempted Murder Example
Attempted murder ordinarily requires intent to kill. Recklessness sufficient for depraved-heart murder ordinarily cannot, by itself, establish attempted murder because the defendant cannot attempt an unintended killing.
Suppose D engages in extremely reckless conduct showing indifference to human life. No one dies. The conduct may support some other offense depending on the governing law, but depraved-heart recklessness alone does not establish attempted murder. Now suppose D points a weapon at V and fires because D wants V dead, but misses. The required purpose is much clearer.
The Act Requirement (Tests for Attempt)
Intent alone does not establish attempt. The defendant must go beyond mere preparation.
Criminal plans develop along a continuum: Thought → discussion → preparation → movement toward commission → final act → completion.
1. Last-Act Test
A strict traditional approach requiring the defendant to perform virtually the final act necessary for completion.
2. Dangerous-Proximity Test
Asks how close D came to completing the offense (considering physical proximity, time, remaining steps, seriousness, and probability of completion).
3. Probable-Desistance Test
A common-law test evaluating if D's conduct has passed the point where a normal citizen would desist.
4. Unequivocality Test
Conduct qualifies when it strongly and unambiguously manifests criminal intent. The acts "speak for themselves."
5. MPC Substantial-Step Test
Attempt exists when D takes a substantial step strongly corroborative of criminal purpose. (e.g., lying in wait, possessing specially designed materials, reconnoitering, unlawful entry). This permits intervention earlier than stricter common-law tests.
Exam Tip
For attempt, use two separate headings: Specific Intent and Act Toward Completion. Then identify the jurisdiction’s act test. Never allow a strong intent showing to substitute for the required physical conduct.
II. Impossibility and Abandonment
Factual vs. Legal Impossibility
Factual impossibility generally is not a defense to attempt. The defendant possesses the criminal intent and takes sufficient action, but an unknown factual circumstance prevents completion. The classic example: D reaches into an empty pocket intending to steal a wallet. D may still be guilty of attempted larceny.
Traditional legal impossibility may operate differently, serving as a defense where the intended conduct would not actually constitute a crime even if circumstances were exactly as D believed.
Common Trap
The Model Penal Code approach largely asks whether D would be guilty if the circumstances were as D believed them to be. Do not say simply, “The crime was impossible, so there is no attempt.” Determine why it was impossible and apply the jurisdiction’s treatment.
Abandonment and Renunciation
Traditional common law generally does not recognize abandonment once the attempt is complete (once the act threshold is crossed).
The Model Penal Code recognizes renunciation when it is: Complete, Voluntary, Not motivated merely by increased risk of detection, Not merely a postponement, and Not a plan to select another victim.
The doctrine distinguishes genuine abandonment of the criminal purpose from strategic retreat (e.g., stopping because police arrive).
III Solicitation
Solicitation generally occurs when a person: commands, encourages, requests, or invites another person to commit a crime, with intent that the crime be committed.
The offense is generally complete when the request or encouragement is made. The solicited person ordinarily need not agree, attempt the crime, or complete the crime. (Some modern statutes permit a renunciation defense if the solicitor completely and voluntarily renounces and successfully prevents the offense).
Intent in Solicitation
Suppose D says during an academic discussion: “Someone could rob that store by entering through the rear door.”
That statement alone does not establish solicitation because D lacks the intent that the crime occur.
Now suppose D says to B: “Rob that store tonight. I want you to take the money, and I will pay you afterward.”
The intent that B commit the crime is clear, establishing solicitation.
IV Conspiracy
Conspiracy generally requires:
- Agreement.
- Intent to agree.
- Intent that the unlawful objective be achieved.
- (Many jurisdictions also require an overt act, though traditional common law did not necessarily require one).
The agreement need not be formal. It can be inferred from coordinated conduct, repeated cooperation, division of proceeds, or planning. However, mere parallel conduct is not automatically conspiracy. The prosecution must establish an agreement.
Bilateral vs. Unilateral Conspiracy
Bilateral (Traditional Common Law)
Requires at least two genuinely culpable persons to agree. If D agrees with an undercover officer who is only pretending, conspiracy fails because there is no second guilty mind.
Unilateral (Model Penal Code)
One defendant may be guilty even if the supposed partner is an undercover officer pretending to agree. Focuses on D's own culpable agreement.
Conspiracy vs. Attempt
This distinction is important. A conspiracy may be complete even though the conspirators remain well short of attempt.
An overt act such as renting a car may be enough for conspiracy under the applicable rule but still be mere preparation for attempt under a stricter act test.
Scope of the Conspiracy
A major conspiracy problem is determining what agreement existed and who joined it. Students should distinguish single conspiracies from multiple conspiracies, and recognize structures like Chain Conspiracies and Wheel Conspiracies. A participant need not know every conspirator by name, but they must join the relevant agreement.
V. Pinkerton Liability
Under traditional federal conspiracy doctrine, a conspirator may be liable for substantive offenses committed by another conspirator when those crimes are:
- Committed during the conspiracy.
- In furtherance of the conspiracy.
- Within its scope.
- Reasonably foreseeable.
Pinkerton is distinct from ordinary accomplice liability. Accomplice liability is based on intentional assistance or encouragement. Pinkerton can apply because of the defendant’s conspiratorial relationship to the substantive offense, even if they provided no direct physical assistance.
VI. Withdrawal and Merger
Withdrawal from Conspiracy
Withdrawal ordinarily does not erase liability for the conspiracy that has already been completed. Once the required conspiracy exists, later departure does not make the earlier agreement disappear.
However, effective withdrawal (meaningfully communicating departure to co-conspirators) may terminate liability for future co-conspirator crimes (Pinkerton) and start limitations periods.
Merger Rules
- Attempt generally merges into the completed target offense.
- Solicitation generally merges into the completed target offense.
- Conspiracy generally DOES NOT merge into the completed substantive offense. A defendant may be convicted of both conspiracy to rob and completed robbery.
VII Accomplice Liability
An accomplice intentionally assists or encourages another person’s crime. The prosecution generally must prove assistance/encouragement, the required intent concerning that assistance, and the required culpability concerning the underlying crime.
Forms of assistance include providing weapons, serving as lookout, driving a getaway vehicle, giving information, or encouraging the offense. The central question is whether D intentionally contributed to the commission of another's crime.
Mere Presence
Mere presence at a crime scene or mere knowledge that a crime is occurring is ordinarily insufficient to establish accomplice liability.
Presence becomes assistance when: the person intended presence to encourage, there was a prior agreement, the person had a legal duty to intervene and intentionally failed in order to assist (omission), or circumstances show purposeful facilitation.
Withdrawal from Accomplice Liability
A person may avoid liability for a future offense by effectively withdrawing before commission. The required action depends on the assistance supplied: repudiating encouragement, retrieving supplied tools, neutralizing prior assistance, or warning authorities.
VIII. Accessory After the Fact
Helping a felon after completion of the felony, with knowledge of the felony and intent to help the offender avoid arrest or punishment, generally constitutes a separate offense. It is not ordinary accomplice liability for the completed felony.
Timing is Key:
If B agrees before the offense to drive the getaway car, B's conduct is part of the criminal plan (Accomplice). If B has no advance knowledge, but later learns of the completed crime and hides the offender, B is an Accessory After the Fact.
IX. Integrated Multi-Party Hypothetical
"A wants V killed. A asks B to kill V and offers B money. B agrees. B buys gloves, obtains a weapon, and travels toward V’s home. C, knowing the plan, gives B information about V’s schedule specifically to help the killing. Before reaching the home, B sees police vehicles and decides to abandon the crime because B fears arrest. D knows nothing about the plan until later. After learning that police are looking for B, D hides B in a garage so police cannot find B."
- A (Solicitation & Conspiracy): A intentionally requested B commit the crime (Solicitation complete). Once B agrees, Conspiracy arises.
- B (Conspiracy & Attempt): B is a conspirator. Under MPC substantial-step test, buying weapons and moving to location strongly corroborates purpose (Attempt). B stopping because of police is not a valid voluntary renunciation.
- C (Accomplice): C intentionally supplies information to facilitate the target crime. C is an accomplice (mere knowledge isn't enough, but specifically giving info to help the killing is assistance).
- D (Accessory After Fact): D has no advance involvement. D learns post-crime and hides B. This is accessory-after-the-fact liability, not ordinary accomplice liability.
X. Saturday Exam Method
- Draw a Timeline (Planning → Completion → Escape).
- Analyze Each Defendant Separately. Do not write a collective paragraph about "the group."
- Test Attempt (Specific Intent + Act Test).
- Test Solicitation (Request + Intent crime occurs).
- Test Conspiracy (Agreement + Intent + Overt Act).
- Test Pinkerton Separately (Liability for co-conspirator acts).
- Test Accomplice Liability (Intentional assistance).
- Apply Merger (Attempt/Solicit merge; Conspiracy does not).
- Identify Post-Completion Assistance (Accessory after the fact).
Chapter Summary
Saturday focuses on criminal liability before, during, and around completion of a substantive offense.
Attempt requires specific intent to commit the target offense and a sufficient act toward completion. It is a specific-intent crime even when the completed offense is not (e.g., attempted murder requires intent to kill, not just recklessness). Act tests range from the strict traditional last-act test to the broader MPC substantial-step test. Factual impossibility is generally not a defense.
Solicitation occurs when a person commands or encourages another to commit a crime with intent that it be committed. It is complete when the request is made.
Conspiracy requires an agreement, intent to agree, and intent that the objective be achieved (often plus an overt act). Traditional law requires a bilateral agreement; the MPC allows a unilateral conspiracy. Under Pinkerton liability, a conspirator may be liable for substantive crimes committed by another conspirator if they are in furtherance of the conspiracy and reasonably foreseeable.
Withdrawal from conspiracy limits future liability but does not erase the completed agreement offense.
Merger: Attempt and solicitation generally merge into the completed target offense. Conspiracy does not merge.
Accomplice liability requires intentional assistance or encouragement of the crime. Mere presence or knowledge is generally insufficient unless intended as encouragement or violating a duty to act.
Accessory after the fact applies to assistance given with knowledge of the felony and intent to help the offender avoid arrest, but only after the felony is complete.