CRIMINAL LAW 1 NOTES (PART II)


*DISCLAIMER*

The notes below are adapted from the Kenyatta University Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

ATTEMPT

 Attempt, Generally
A criminal attempt occurs when a person, with the intent to commit an offense, performs any
act that constitutes a substantial step toward the commission of that offense. Criminal
attempts are of two varieties: “complete” (but “imperfect”); and “incomplete.” A complete,
but imperfect, attempt occurs when the defendant performs all of the acts that he set out to
do, but fails to attain his criminal goal. In contrast, an incomplete attempt occurs when the
defendant does some of the acts necessary to achieve the criminal goal, but he quits or is
prevented from continuing, e.g., a police officer arrives before completion of the attempt.

 Mens Rea of Criminal Attempts
[A] General Rule – The defendant must intentionally commit the acts that constitute the
actus reus of an attempt, i.e., acts that bring him in proximity to commission of a substantive
offense or which otherwise constitute a substantial step in that direction, and he must perform
these acts with the specific intention of committing the target crime. An attempt is a specificintent
offense, even if the substantive crime is a general-intent offense.
[B] “Result” Crimes – When the target crime is a “result” crime, the general rule is that a
person is not guilty of an attempt unless his actions in furtherance of the target crime are
committed with the specific purpose of causing the unlawful result.

 Actus Reus of Criminal Attempts
Courts have developed a number of tests to determine the point at which a defendant passes
beyond the preparation stage and consummates the criminal attempt.
(1) “Last act” test – an attempt occurs at least by the time of the last act but this test
does not necessarily require that each and every act be performed on every occasion.
(2) “Physical proximity” test – the defendant’s conduct need not reach the last act but must be “proximate” to the completed crime.
(3) “Dangerous proximity” test – an attempt occurs when the defendant’s conduct is in
“dangerous proximity to success,” or when an act “is so near to the result that the danger of
success is very great.”
(4) “Indispensable element” test – an attempt occurs when the defendant has obtained
control of an indispensable feature of the criminal plan.
(5) “Probable desistance” test – an attempt occurs when the defendant has reached a
point where it was unlikely that he would have voluntarily desisted from his effort to
commit the crime.
(6) “Unequivocality” (or res ipsa loquitur) test – an attempt occurs when a person’s
conduct, standing alone, unambiguously manifests his criminal intent.
Defences
 Defense of Impossibility
At common law, legal impossibility is a defense; factual impossibility is not. However, today, most jurisdictions no longer recognize legal impossibility as a defense.

 Factual Impossibility – “Factual impossibility” exists when a person’s intended result
constitutes a crime, but he fails to consummate the offense because of an attendant
circumstance unknown to him or beyond his control. Examples of factual impossibility are a
pickpocket putting his hand in the victim’s empty pocket; shooting into an empty bed where
the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at a
person.

 “Inherent” Factual Impossibility – Although largely academic, the doctrine of
inherent factual impossibility has been recognized as a statutory defense in at least one state
(Minnesota). Where recognized, the defense applies if the method to accomplish the crime
was one that a reasonable person would view as inadequate to accomplish the criminal
objective.

Pure Legal Impossibility – “Pure legal impossibility” arises when the law does not
proscribe the result that the defendant seeks to achieve.

 Hybrid Legal Impossibility – Hybrid legal impossibility (or “legal impossibility”)
exists if the defendant’s goal is illegal, but commission of the offense is impossible due to a
factual mistake (and not simply a misunderstanding of the law) regarding the legal status of
an attendant circumstance that constitutes an element of the charged offense, e.g., receiving
unstolen property under the belief that such property was stolen, or shooting a corpse
believing it is alive. Today, most states have abolished the defense of hybrid legal
impossibility on the theory that a defendant’s dangerousness is plainly manifested in such
cases.

Defense of Abandonment
Many courts do not recognize the defense of abandonment. Where recognized, it applies
only if the defendant voluntarily and completely renounces his criminal purpose.
Abandonment is not voluntary if the defendant is motivated by unexpected resistance, the
absence of an instrumentality essential to the completion of the crime, or some other
circumstance that increases the likelihood of arrest or unsuccessful consummation of the
offense, or if the defendant merely postpones the criminal endeavor until a better opportunity
presents itself

CONSPIRACY


General Principle
Generally speaking, a conspiracy is an agreement by two or more persons to commit a
criminal act or series of criminal acts, or to accomplish a legal act by unlawful means.

[A] The Agreement

[1] Common law – At common law, a conspiracy need not be based on an express
agreement. Furthermore, an agreement can exist although not all of the parties to it have
knowledge of every detail of the arrangement, as long as each party is aware of its essential
nature. [Blumenthal v. United States, 332 U.S. 539, 557–58 (1947)] Moreover, a “conspiracy
may exist even if a conspirator does not agree to commit or facilitate each and every part of
the substantive offense.”[Salinas v. United States, 522 U.S. 52, 63 (1997)] It is enough that
each person agrees, at a minimum, to commit or facilitate some of the acts leading to the
substantive crime.

 Four types of agreement fall within the definition of conspiracy.
A person is guilty of conspiracy if he agrees to:
(1) commit an offense;
(2) attempt to commit an offense;
(3) solicit another to commit an offense; or
(4) aid another person in the planning or commission of the offense.


[B] Overt Act
[1] Common and Statutory Law – A common law conspiracy is complete upon
formation of the unlawful agreement. No act in furtherance of the conspiracy need be proved.
[United States v. Shabani, 513 U.S. 10, 13 (1994)]
Today, many statutes require proof of the commission of an overt act in furtherance of the
conspiracy. In jurisdictions requiring an overt act, the act need not constitute an attempt to
commit the target offense. Instead, any act (and perhaps an omission), no matter how trivial,
is sufficient, if performed in pursuance of the conspiracy. A single overt act by any party to a
conspiracy is sufficient basis to prosecute every member of the conspiracy, including those
who may have joined in the agreement after the act was committed. Most states apply the
overt-act rule to all crimes.

C. The Pluralty Requirement
The law conspiracy requires proof that at least two persons possessed the requisite mens rea of a conspiracy. For example, no conspiracy conviction is possible if one of the two persons is an undercover agent feigning agreement, or lacks the capacity to form the agreement due to mental illness.
However, there is a jurisprudence that departs significantly from the common law by establishing a unilateral approach to conspiracy liability. The Code focuses on the culpability of the defendant whose liability is in issue, rather than on that of the larger conspiratorial group. Specifically, the Code provides, “A person is guilty of conspiracy with another person” if “he agrees with such other person” to commit an offense. The unilateral approach has been adopted in most states.


Mens Rea in conspiracy

[A] In General

In the penal code, conspiracy is a specific-intent offense, requiring that two
or more persons: (1) intend to agree; and (2) intend that the object of their agreement be
achieved. Absence of either intent renders the defendants’ conduct non-conspiratorial.
However, courts are divided over the interpretation of “intent.” Some require that the parties
have the unlawful result as their purpose and others allow conviction for conspiracy based on
the parties’ mere knowledge that such result would occur from their conduct.

Parties to a Conspiracy

[A] Liability of Parties for Substantive Offenses – Each party to a conspiracy is liable
for every offense committed by every other conspirator in furtherance of the unlawful
agreement. Thus, an important issue in conspiracy trials may be to determine the precise
confines of a conspiratorial enterprise.

[B] Overt-Act Requirement – The structure of a conspiracy is critical in jurisdictions
recognizing an overt-act requirement. In these jurisdictions, an act of one conspirator in furtherance of the agreement renders a prosecution permissible against every other party to
the same agreement.

[C] Analysis of the penal Code

[1] In General – To be regarded as a co-conspirator, a person does not need to know the
identity, or even of the existence, of every other member of the conspiracy, nor must he
participate in every detail or event of the conspiracy. However, to be a co-conspirator he
must have a general awareness of the scope and the objective of the criminal enterprise.

[2] Wheel Conspiracies – A “wheel” conspiracy is characterized by a central figure or
group (“the hub”) that engages in illegal dealings with other parties (“the spokes”) and there
exists a shared criminal purpose among all spokes and the hub. Parallel but separate
objectives between similarly situated people do not make a wheel conspiracy (instead this
would constitute multiple chain conspiracies).

In Kotteakos v. United States, 328 U.S. 750 (1946), a broker obtained fraudulent loans from
the government for thirty-one people. All were tried under a theory of “wheel” conspiracy.
However, evidence at trial demonstrated that the loan recipients were part of eight or more
independent groups, none of which had any connection with any other group except that each
used the same broker. Absent a single shared objective, the parties constituted eight or more
chain conspiracies and not a single wheel conspiracy.

[3] Chain Conspiracies – Chain conspiracies ordinarily involve a criminal enterprise that
cannot thrive unless each link successfully performs its part in the arrangement. In
Blumenthal v. United States, 332 U.S. 539 (1947), the owner of a liquor wholesale agency
distributed whiskey through two men, Weiss and Goldsmith, who arranged with Feigenbaum
and Blumenthal to sell the whiskey to local tavern owners at a price in violation of the law.
The Supreme Court held that the prosecutor’s charge of a single conspiracy was proper,
finding that each salesman “by reason of [his] knowledge of the plan’s general scope, if not
its exact limits, sought a common end, to aid in disposing of the whiskey.”

An opposite conclusion was reached in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938).
Peoni sold a small quantity of counterfeit money to Regno, who in turn sold the money to
Dorsey, who passed the money in commerce to innocent persons. No common interest was
found between Peoni and Dorsey, and thus the court concluded that there existed two
independent conspiracies, one between Peoni and Regno and another between Regno and
Dorsey.

22.05 Defenses

 Impossibility

Common Law – The majority, but not universal, rule is that neither factual
impossibility nor legal impossibility is a defense to a criminal conspiracy.

 Abandonment
The crime of conspiracy is complete the moment the agreement is formed or, in some jurisdictions, once an overt act is committed in furtherance of a criminal objective. However, if a person withdraws from a conspiracy, he may avoid liability for subsequent crimes committed in furtherance of the conspiracy by his former co-conspirators if he communicated his withdrawal to each co-conspirator.

Legislative-Exemption Rule

A person may not be convicted of conspiracy to violate an offense if his conviction would frustrate a legislative purpose to exempt him from prosecution for the substantive crime.

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