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Chapter 4
Preparatory Activity Offenses
Copyright © 2010, Elsevier Inc. All rights Reserved
1

4.1
Introduction
The most common preparatory activity crimes
are



Attempt
Conspiracy
Solicitation
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4.2
Attempt

An attempt to commit a crime has been defined
as an act done with intent to commit a crime,
beyond mere preparation, but falling short of its
actual commission.
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4.2
Attempt

Common Law
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No crime was committed until the defendant carried
out the actus reus of a substantive crime.
Then, common law decisions and early court cases
recognized attempts as crimes separate from the
substantive crime, but considered them
misdemeanors.
Statutes were created that ascribed the same level of
seriousness to the attempt as the crime attempted.
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4.2
Attempt

Common Law

The traditional elements of an attempt to commit a
crime are
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
A specific intent to commit a crime,
An overt act toward its commission,
The apparent possibility of commission, and
Failure of consummation.
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4.2
Attempt

Specific Intent


Prosecutors must show specific intent; that is proof
must be offered that the offender intended to do the
act; and intended the outcome.
Can be inferred from circumstantial evidence.
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4.2
Attempt

Tests for Overt Act
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
An overt act is an element of attempt, a concrete act.
The tests can be remembered as:
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Any act
Substantial step
Act beyond mere preparation
All but the last step
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4.2
Attempt

Apparent Ability
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
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Factual impossibility does not constitute a defense.
Legal impossibility may be a defense.
If it is not a crime to do what the person is attempting
to do, then the attempt is not indictable.
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4.2
Attempt

Failure of Consummation
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
Abandonment or withdrawal is a defense if the
attempt to commit a crime is freely and voluntarily
abandoned before the final execution of the crime,
and if there is not outside cause prompting the
abandonment.
Abandonment is no defense if failure to complete the
crime is due to extraneous intervening circumstances.
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4.2
Attempt

Model Penal Code
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The substantial step test is used to determine whether
an overt act has been committed sufficient to create
criminal culpability.
Does not recognize the defense of legal impossibility.
Attempt is defined in terms of conduct that would
constitute the crime if circumstances were as the
defendant believed them to be.
Recognized only if it is free, voluntary, and unrelated
to extrinsic circumstances.
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4.2
Attempt

State Statutes, Codes, and Cases

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Many states have created general attempt offenses
that replace scores of statutes creating special
attempt crimes.
State v. Miller
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Elements of attempt to commit any crime are
Intent to commit the substantive offense
An overt act done for a purpose that goes beyond mere
preparation
Falls short of a completed offense.
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4.2
Attempt

Summary
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The offense of criminal attempt is especially important
to enforcement officials.
It is often overlooked and no action is taken when the
intended offense is not consummated.
Legislatures in all jurisdictions have recognized that a
person who goes as far as possible in implementing a
criminal purpose manifests dangerousness sufficient
to warrant some sanctions.
The rationale for including attempt as an offense is
that other crimes might be prevented by taking action
against the person who has indicated this criminal
purpose.
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4.2
Attempt

Attempt
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A/R
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An overt act toward the completion of a crime; apparent
ability; non-completion of the crime.
M/R

Specific intent
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4.3
Criminal Solicitation

Common Law
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The common law crime of solicitation is defined as to
solicit another to commit a felony.
The offense of solicitation was punishable at common
law without regard for the nature of the substantive
crime solicited.
Elements of solicitation


An intent to promote or facilitate the commission of a
particular criminal offense.
Some over act, such as the initiatory act of solicitation,
request, command, or encouragement.
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4.3
Criminal Solicitation
Model Penal Code
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It is necessary to show intent plus asking another to
engage in specific conduct.
Includes a specific defense of renunciation, provided
the renunciation is complete and voluntary.
Renunciation is defined as the act by which a person
abandons a right acquired without transferring it to
another.
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4.3
Criminal Solicitation

Model Penal Code

Solicitation is defined as an offer or invitation to
another to commit a crime; it does not, by itself,
constitute an attempt, but may escalate into an
attempt to commit a crime after the offer or commits a
direct, unequivocal act toward committing the crime.
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
4.3
Criminal Solicitation
State Statutes, Codes, and Cases

In some states, there are specific solicitation statutes
attached to certain crimes.
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
4.3
Criminal Solicitation
Summary

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The crime of solicitation under common law was a
misdemeanor and carried the same punishment
regardless of the seriousness of the crime solicited.
States often tie solicitation to the specific crime, or
they have gradations of solicitation depending on the
seriousness of the crime.
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
4.3
Criminal Solicitation
Solicitation

A/R
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
Request, solicit, encourage, incite another to commit a
specified crime
M/R

Specific intent
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
4.4
Conspiracy
Conspiracy

Is basically an agreement between individuals to
commit a crime.
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
4.4
Conspiracy
Common Law
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An intentional agreement
Between two or more
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Wharton Rule
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In crimes that require at least two people, a conspiracy charge cannot
be based solely on the agreement of only the two people necessarily
involved in the crime.
The Wharton Rule has been rejected in some states.
To commit criminal act or commit lawful act in an
unlawful manner
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
4.4
Conspiracy
Common Law
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Some overt act by one of the parties
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Pinkerton Rule
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Any co-conspirator is culpable for all natural and foreseeable acts
committed by co-conspirators within the scope of the conspiracy.
This rule has been rejected by the states and the Model Penal Code.
Withdrawal as a defense

Traditionally, withdrawal from the criminal conspiracy did not
constitute a defense to the crime.
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
4.4
Conspiracy
Model Penal Code
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The offense is committed if there is:
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An agreement with another person or persons to engage in
such conduct that constitutes a crime or an attempt or
solicitation to commit such crime
Or when the agreement is to aid such other person or
persons in the planning or commission of such crime or of
an attempt or solicitation to commit such crime.
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4.4
Conspiracy

Summary
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Conspiracy was a crime at common law and is a
crime in all states.
While it is not a crime to think about committing a
crime; and it is not a crime to discuss committing a
crime, once that discussion changes to an agreement
among the parties and at least one party commits at
least one overt act, the crime of conspiracy has
occurred.
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4.4
Conspiracy

Conspiracy
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A/R
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Agreement by one party with another, to commit a criminal
act or a lawful act in a criminal manner, and an overt act by at
least one of the parties
M/R

Specific intent
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