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and statutes might also have changed or been repealed and the students are to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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