Inchoate Crimes & Parties — Criminal Law & Constitutional Protections

Nix intends to rob a Franklin credit union. He parks outside in a stolen car, pulls a mask over his face, and walks to the door. Then he panics and drives off. He never went in. He never took a dollar. Nobody was hurt. Is he guilty of anything?

Yes. Attempted robbery, complete the moment he reached that door. Whether his change of heart saves him is a different question, and the answer depends entirely on which statute you are handed. That is the skill this topic is really testing. By the end of this episode you will read any attempt, conspiracy or accomplice provision like a checklist.

Here is the route. First the two themes that run through everything, a demanding mental state and the word merger. Then attempt, its elements and defenses. Then conspiracy, which behaves the opposite way and can put you on the hook for your partner's crimes. Then parties, where the question is who else is guilty.

Inchoate simply means unfinished. Most crimes punish harm that has already landed, but attempt and conspiracy let the law step in earlier, while a plan is still forming. Paired with that is parties to a crime, which decides which helpers around an offense are on the hook.

Two themes run through all of it. First, mens rea does the heavy lifting, because we punish people before real damage occurs, so the law demands a high level of intent. Second, watch the word merger. Whether a lesser crime folds into the finished one differs sharply between attempt and conspiracy.

Attempt first. An attempt is a failed or interrupted try at a crime. The defendant meant to commit a specific offense and took real steps, but bad aim or a locked door stopped it. Two building blocks. Specific intent, and an act beyond mere preparation. Miss either and there is no attempt.

Start with the mental element, because it eliminates most wrong answers. Attempt is a specific-intent crime even when the target offense is not. Attempting a battery still requires the purpose to bring it about. The classic trap is attempted murder.

Completed murder can rest on several mental states. Intent to kill, intent to cause serious bodily harm, or a depraved heart, meaning extreme recklessness. Attempted murder requires the intent to kill, and nothing less. Quick challenge. A defendant fires wildly into a crowd and happens to hit nobody. Attempted murder?

No. Reckless, certainly, but without a purpose to kill it is not attempted murder. The same logic gives a second rule. You cannot attempt a crime that is by definition unintentional. There is no attempted involuntary manslaughter, because you cannot intend to commit an accident.

Now the physical element. Thinking about a crime is not a crime, and neither is idle planning. Buying a weapon may still be preparation. Older tests demanded the defendant get very close, doing the last act or reaching dangerous proximity. Those are narrow and rarely used today.

The modern majority is the Model Penal Code's substantial-step test, and it reaches conduct much earlier. Under § 5.01, a person is guilty of attempt if they purposely take a substantial step in a course of conduct planned to end in the crime. The step counts only if it strongly corroborates the actor's criminal purpose.

Strongly corroborative is the key phrase. The conduct must confirm the defendant is going through with it, not just toying with the idea. The MPC lists what can qualify. Lying in wait. Luring the victim. Casing the place to be robbed. Unlawfully entering the target building.

Which brings us back to Nix. Masked, staged in a stolen car, standing at the credit union door. That is casing and equipping, strongly corroborative of a plan to rob, so the attempt was complete before he lost his nerve. Does that help him? Here jurisdictions split, and this is where you read the statute you are given.

The Franklin Criminal Code, § 12, says a person is guilty of attempt if, with intent to commit a specific offense, he does any act constituting a substantial step. And it adds that abandonment afterward is not a defense. Under that statute Nix is convicted. His change of heart came too late.

The MPC is more forgiving. It recognizes renunciation as an affirmative defense, but only when the abandonment is complete and voluntary. Voluntary is the catch. A genuine change of heart counts. Quitting because you spotted a police car, or decided to try again next week, does not. That is a strategic retreat.

Second defense, impossibility. What if the crime was never going to work? The pocket was empty, the drugs were baking soda. The law splits this two ways and they come out opposite. Factual impossibility, where a fact unknown to the defendant made success impossible, is no defense. We punish what he intended to do.

True legal impossibility is a defense, but narrow. There the defendant did exactly what he set out to do, and that act simply is not a crime, like smuggling goods that turn out to be legal. Between them sits hybrid impossibility, where the goal is criminal but a mistaken fact gives the act a legal character.

A buyer pays $4,000 for a crate of laptops believing they are stolen. They are not. Modern law and the MPC treat that like factual impossibility, so no defense. Here is the reliable question. If the facts had been as the defendant believed, would it have been a crime? If yes, no defense.

Finally, attempt merges into the completed crime. Succeed, and you are guilty of the finished offense, not both. Attempt is a lesser included offense, so a jury charged with the completed crime can convict of the attempt instead. Hold on to that merger rule.

Because conspiracy works the opposite way. It is an agreement between two or more people to commit a crime. The law treats group crime as specially dangerous, because people are bolder in a group and a standing agreement can spawn many crimes. So conspiracy is punished as its own offense.

Four elements. An agreement, which need not be written or even spoken, since a tacit plan inferred from conduct is enough. Intent to agree, meaning the parties actually joined minds, not merely shared a goal. Intent that the criminal objective be achieved, which makes conspiracy a specific-intent crime. And in most modern jurisdictions, an overt act in furtherance.

That second intent does real work. Merely knowing your conduct helps a scheme is usually not enough. A supplier who sells ordinary goods knowing the buyer might misuse them is not a conspirator unless he shares the criminal objective.

The overt act is a low bar. At common law none was needed. Most modern statutes require some act in furtherance by any conspirator, but it can be trivial and lawful, like buying a ski mask. The MPC, in § 5.03, requires one too, except for a felony of the first or second degree.

Now a heavily tested wrinkle. What if your only partner was never really agreeing, because he was an undercover officer? The older bilateral approach needs two genuinely guilty minds, so a feigning partner means no conspiracy. The modern majority and the MPC take the unilateral approach, asking only whether this defendant believed he was agreeing to a crime. That also answers the plurality problem, since acquitting the others no longer undoes his conviction.

So a man agrees to deliver stolen parts to a fence who will pay $30,000. The fence is secretly a detective. In a unilateral jurisdiction he is guilty of conspiracy anyway.

Scope matters, because it decides who answers for whose acts. A chain conspiracy runs in a line, like a drug pipeline, and courts often treat the whole chain as one. A wheel has one hub dealing separately with spokes who never deal with each other, and without a rim joining them it is usually several conspiracies.

Now conspiracy's sharpest edge, often called Pinkerton liability. Under the federal rule and that of many states, each conspirator is liable for the substantive crimes his coconspirators commit. The crimes must be in furtherance of the conspiracy and a reasonably foreseeable consequence of it. He need not have committed the crime, been present, or known of it in advance.

Note the two limits, because that is where the answers hide. In furtherance, and reasonably foreseeable. Ana and Beto agree to rob a jewelry store and Beto pistol-whips a clerk. Ana is liable, because violence against someone who resists furthers the robbery and is foreseeable when a gun is along. But if Beto slips away to settle an unrelated grudge, Ana is not.

Not every jurisdiction goes this far. The MPC rejects Pinkerton, holding that agreeing to a conspiracy is not by itself enough to make you guilty of your partners' separate crimes. You must independently qualify as an accomplice.

And here is the contrast the exam loves most. Conspiracy does not merge. Agree to commit a robbery and then commit it, and each member can be convicted of both. The agreement is a distinct wrong. So attempt merges, one conviction. Conspiracy does not, two convictions possible.

Can a conspirator get out? To withdraw, he must take an affirmative act abandoning the conspiracy and communicate it, notifying every coconspirator or informing authorities in time. But the conspiracy was complete once the agreement and any overt act existed, so withdrawal does not undo the charge.

What it does is cut off liability for the group's future crimes, so no more Pinkerton afterward, and start the limitations clock. The MPC demands more. Renunciation requires actually thwarting the conspiracy, for instance tipping off police so the crime is prevented. Meet that, and even the conspiracy charge falls away.

One narrower rule finishes conspiracy. Wharton's Rule says that if a crime by definition requires two participants, those two alone cannot be charged with conspiring to commit it. The agreement is already built into the crime. Dueling, bigamy, a buyer and seller. Add a third participant, and conspiracy is back on.

Last section, parties. The common law used four categories and the labels still appear. Principal in the first degree, who commits the crime. Principal in the second degree, present and aiding, like a lookout. Accessory before the fact, who helps beforehand. And accessory after the fact, who helps the criminal escape.

Modern law collapses the first three. Anyone who helps bring about the crime before or during it is an accomplice, guilty of the crime itself and punished the same as the person who pulled the trigger. Only the accessory after the fact is treated differently.

To decide whether someone is an accomplice, ask two questions. What did they do, and what did they intend? On the act, did the defendant aid, abet, encourage or facilitate? The help can be small, a word of encouragement, standing guard, providing a tool. But mere presence is not enough.

Second quick challenge. Three friends are at a party when Cort starts beating another guest. Dev stands nearby watching. Efi shouts, get him, don't stop. Which one is an accomplice?

Efi. Her words are encouragement given with the purpose that the beating continue. Dev, without more, is not, because mere presence, even silent approval, is not enough. Same room, very different liability, and the difference is an act of encouragement plus the intent behind it.

Which is the second question, a dual intent. He must intend to assist the principal, and intend that the principal commit the crime. So a hardware clerk who sells a crowbar, even suspecting a burglary, is not an accomplice without the purpose that it occur. Knowledge is not purpose. The MPC states the same standard in § 2.06.

How far does that reach? The traditional majority rule is the natural-and-probable-consequences doctrine. An accomplice is liable not only for the crime he intended to help, but for any other crime that was a reasonably foreseeable result. The MPC and a growing number of states reject this as too harsh.

Then the odd one out, the accessory after the fact. Three elements. A completed felony. Knowledge it was committed. And personally aiding the felon to avoid arrest or conviction. Because this is not participation in the original crime, he is guilty of a separate, lesser offense, commonly hindering prosecution. Do not convict the person who merely hid the getaway car of the robbery itself.

Two more accomplice rules. An accomplice can escape liability by withdrawing before the crime, but a change of heart is not enough. He must undo his help, repudiating encouragement, neutralizing assistance, or alerting authorities in time. And the principal's fate does not control. An accomplice can be convicted even if the principal is acquitted or never caught.

One last word, on solicitation. It is intentionally asking or encouraging another to commit a crime, complete the instant the request is made, whether or not the other agrees. If they agree, it ripens into a conspiracy.

A word on authorities, because this episode named no case, and that was deliberate. The doctrines here carry famous names, and Pinkerton is one of them, but the exam will not ask who decided it. It hands you a statute and asks you to apply it. Treat the provided law as controlling, and these rules as your default only when nothing is provided.

If you keep only three things, keep these. The merger split, attempt yes and conspiracy no, the single most tested point here. The two reach doctrines, Pinkerton for conspirators and natural and probable consequences for accomplices, each with a foreseeability limit. And the mens rea filter, because knowledge is not purpose.

Now the traps. One. The merger split, worth saying twice. Attempt merges into the completed crime, conspiracy does not. Two. Attempted murder demands an intent to kill, not intent to injure and not recklessness, and there is no attempt of a crime that is by definition unintentional.

Three. Factual impossibility is not a defense. The empty pocket, the fake drugs, the unloaded gun. Only true legal impossibility is, and modern law has shrunk it nearly to nothing. Four. Under the unilateral approach and the MPC, you can be guilty of conspiracy even when the only other party was a feigning undercover officer.

Five. Mere presence at the scene, even approving presence, is not accomplice liability without an act or word of encouragement. Six. Knowledge is not purpose. Seven. An accessory after the fact is guilty of a separate lesser offense, not the underlying felony. And eight. Withdrawing from a conspiracy does not erase the conspiracy already formed.

Time for the quick check, and this one comes straight from the BARGO question bank. Two men agreed to break into an electronics warehouse at night and haul off merchandise. Ruiz knew his partner Salt was carrying a loaded pistol, just in case.

While Ruiz waited by the truck, a night watchman surprised Salt inside, and Salt shot and seriously wounded him. Ruiz never entered the building and never touched the gun. He is charged with the aggravated assault of the watchman, in a jurisdiction that follows Pinkerton. Is he liable?

Option one. No, because Ruiz agreed only to a burglary, not to any shooting. Option two. Yes, because a conspirator answers for every crime any partner ever commits. Option three. Yes, because the shooting furthered the burglary and was foreseeable. Pause here if you want a moment.

The answer is option three. Shooting a watchman who interrupts a nighttime burglary furthers the goal of getting away with the goods, and is a foreseeable outgrowth of bringing a loaded gun. Both limits are satisfied, so Ruiz is liable though he stayed outside and never fired.

The wrong answers fail from opposite directions. Option one is too narrow. Pinkerton's whole point is that liability reaches past the crime agreed upon. Option two is too broad. It drops both limits, and a conspirator is not liable for crimes that are unforeseeable or outside the conspiracy's purpose. There are more than thirty more questions on this topic, each explained like that.

Five things to take away. One. Attempt merges into the finished crime, conspiracy never does. Two. Test the mental state first, because it kills most wrong answers. Attempted murder needs intent to kill, and knowledge is not purpose for an accomplice or a conspirator.

Three. On the act, attempt needs a substantial step strongly corroborative of criminal purpose. Conspiracy needs an agreement plus usually an overt act. And accomplice liability needs aid or encouragement, never mere presence. Four. Run the defenses. Abandonment, impossibility, withdrawal, Wharton's Rule.

Five. Check the reach. Pinkerton for conspirators, natural and probable consequences for accomplices, and ask whether the jurisdiction follows the broad rule or the narrower MPC. Which brings us back to Nix at that door, guilty under Franklin's statute and possibly not under the MPC, on identical facts. Next time, Fourth Amendment searches.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.