Inchoate crimes; parties - Inchoate offenses

Learning Outcomes

This article details inchoate criminal offenses tested on the MBE, focusing on elements, defenses, and merger, including:

• the elements of solicitation, conspiracy, and attempt, with actus reus and mens rea requirements for each;
• distinctions between common-law and modern (including MPC) rules, especially for conspiracy and attempt;
• analysis of how impossibility, abandonment/withdrawal, and other defenses apply across inchoate offenses;
• explanation of the merger doctrine and how inchoate crimes interact with lesser-included and completed offenses;
• connections between inchoate liability, co‑conspirator liability, and accomplice liability in multi‑party crimes;
• the role of specific‑intent doctrines and defenses (e.g., voluntary intoxication, mistake of fact) in inchoate offenses;
• worked examples illustrating common MBE fact patterns and traps involving incomplete crimes;
• techniques for distinguishing inchoate liability from accomplice liability and tracking which charges remain after merger;
• guidance on reading fact patterns for timing issues, such as when each inchoate crime is complete and when withdrawal or renunciation can still operate.

MBE Syllabus

For the MBE, you are required to understand the law pertaining to crimes that are committed prior to the completion of the intended, substantive offense, with a focus on the following syllabus points:

• Define solicitation, including the actus reus (incitement) and mens rea (specific intent).
• Explain conspiracy, covering the agreement requirement, the specific intent needed for both the agreement and the target crime, and the overt act requirement under modern statutes.
• Distinguish between the bilateral (common law) and unilateral (MPC/modern) approaches to conspiracy, including the effect of undercover officers or feigned agreement.
• Understand the scope of liability for crimes committed by co-conspirators (Pinkerton liability), and how foreseeability and “in furtherance” limits apply.
• Analyze the requirements and effect of withdrawal from a conspiracy, including differences between common law and MPC approaches.
• Define attempt, including the requisite specific intent and the overt act requirement (proximity vs. substantial step tests).
• Distinguish between legal impossibility and factual impossibility as defenses to inchoate offenses, and know the modern trend (MPC) on legal impossibility.
• Apply the merger doctrine to inchoate offenses and completed crimes, including how solicitation and attempt merge but conspiracy does not.
• Recognize the relationship between inchoate offenses and accomplice liability for parties to a crime.
• Identify when the mental state of the substantive crime (recklessness, negligence, strict liability) prevents an attempt charge (e.g., no attempted involuntary manslaughter or attempted felony murder).
• Spot multi‑stage fact patterns involving solicitation, conspiracy, attempt, and the completed crime, and determine which offenses remain after applying merger.
• Understand how double jeopardy principles interact with inchoate and completed offenses (e.g., prior conviction for attempt vs. later prosecution for completed homicide on victim’s subsequent death).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Defendant asked Accomplice to steal a specific painting from a museum. Accomplice refused. Under the common law, Defendant is guilty of:
   1. Attempted Larceny
   2. Conspiracy to commit Larceny
   3. Solicitation to commit Larceny
   4. No crime
2. Ann and Ben agree over the phone to break into Victim's house and steal jewelry. Ben immediately drives to a hardware store and purchases a crowbar to pry open a window. In a jurisdiction requiring an overt act for conspiracy, at what point is the crime of conspiracy complete?
   1. When Ann and Ben agree over the phone.
   2. When Ben purchases the crowbar.
   3. Only when they begin to break into the house.
   4. Only when the jewelry is actually stolen.
3. Which of the following offenses does NOT merge into the completed substantive crime at common law?
   1. Solicitation
   2. Attempt
   3. Conspiracy
   4. Both Solicitation and Attempt
4. Donna, intending to kill Paul, shoots at him but misses because her gun jams due to a faulty firing pin she was unaware of. Donna is likely guilty of:
   1. No crime due to legal impossibility.
   2. No crime due to factual impossibility.
   3. Attempted Murder.
   4. Assault only.

Introduction

Inchoate offenses are incomplete crimes, where the defendant has taken steps toward committing a target offense but has not fully completed it. These preliminary actions are themselves criminalized due to the danger they pose and the demonstrated firmness of criminal intent. The MBE tests three main inchoate crimes—often remembered with the mnemonic CATS: Conspiracy, Attempt, and Solicitation.

Key Term: Inchoate Offense
A crime that punishes conduct directed toward the commission of another (target) offense, even though the target offense is not completed.

The three inchoate offenses share several features:

• They all require a specific intent to bring about the target crime.
• They all involve some step beyond mere thoughts or vague planning.
• They are all subject to the merger doctrine, but in different ways.

A simple way to visualize inchoate crimes is as a timeline of criminal planning and execution. Consider a defendant who decides to rob a bank:

• At the moment of mere daydreaming about robbing the bank, there is no crime.
• When the defendant asks a friend to join in, solicitation has occurred.
• When they reach an agreement, conspiracy is formed (and, in most modern jurisdictions, conspiracy becomes complete once any conspirator commits an overt act).
• When the defendant personally takes a substantial step toward the robbery (e.g., entering the bank with a weapon), attempt exists.
• When money is actually taken by force or intimidation, the completed crime of robbery occurs, and some inchoate offenses merge.

This “timeline” framework is extremely useful on the MBE. Many fact patterns quietly move the defendant along this continuum and then ask about a particular moment: when was the crime complete, could the defendant still withdraw, does an impossibility defense apply, or which charges merge when the target crime actually occurs? Always orient yourself: at which stage is the defendant when the question is asking you to evaluate criminal liability?

The timeline is also helpful for multi‑actor questions. One person might be at the solicitation stage while another has already taken steps amounting to attempt. For example, A may have merely asked B to commit arson, while B has agreed (creating a conspiracy) and then purchased gasoline (an overt act). The exam can then ask about A’s liability (solicitation and conspiracy) separately from B’s (conspiracy and attempt). Keeping track of where each actor is on the timeline prevents you from over‑ or under‑charging.

Inchoate offenses are part of the classic group of specific‑intent crimes, often remembered with the mnemonic FIAT: First‑degree (premeditated) murder, Inchoate offenses (conspiracy, attempt, solicitation), Assault with intent to commit a battery, and Theft‑type offenses (larceny, burglary, robbery, etc.). This matters for the MBE because some defenses—such as voluntary intoxication and certain mistakes of fact—apply only to specific‑intent crimes. If a question involves CATS, you should immediately think “specific intent” and ask whether such defenses are available.

Key Term: Specific Intent Crime
A crime that requires not only doing an act, but doing it with a particular purpose or objective (e.g., intent to steal, intent to kill). Solicitation, conspiracy, and attempt are all specific intent crimes.

Specific intent sits at the top of the mental state hierarchy. Under the Model Penal Code, purpose and knowledge are the highest mental states, followed by recklessness and negligence. Inchoate crimes always require purpose: the conscious objective that the target offense be committed. A defendant who recklessly creates a risk that a crime might occur, or who negligently fails to perceive such a risk, does not commit an inchoate offense unless they also have the purpose that the target offense occur.

This has several important consequences:

• A person cannot “attempt” to commit a crime that is defined in terms of negligence or recklessness (e.g., attempted involuntary manslaughter is generally not recognized).
• For crimes like felony murder, which do not require an intent to kill, there is generally no “attempted felony murder,” because the inchoate offense would require a higher mental state (intent to kill) than the completed strict or malice crime.
• For strict liability crimes (such as statutory rape), many jurisdictions allow attempt liability if the defendant intentionally engages in the proscribed conduct (e.g., intentional intercourse), even though no mental state is required as to the victim’s age for the completed offense.

Because inchoate offenses are specific‑intent crimes, some otherwise unavailable defenses may come into play. For example:

• Voluntary intoxication may be a partial defense if it actually prevented the defendant from forming the specific intent required for solicitation, conspiracy, or attempt. This is a narrow and fact‑dependent defense, but the MBE sometimes tests it.
• A mistake of fact that would be unreasonable for a general‑intent crime may nevertheless be a defense for a specific‑intent inchoate offense, so long as the mistake actually negated the specific purpose to bring about the target crime.

Conversely, voluntary intoxication is not a defense if the defendant became intoxicated precisely to work up the nerve to commit a specific‑intent crime. If D drinks to steel himself for a burglary and then breaks in, most jurisdictions will not allow D to rely on his self‑induced intoxication to claim he lacked intent to steal.

A key concept in this area is merger, which dictates whether a defendant can be convicted of both an inchoate crime and the completed target offense.

Key Term: Merger Doctrine
A rule limiting multiple convictions when one offense (e.g., attempt, solicitation) is considered part of another (the completed crime). When crimes merge, the defendant may be convicted of only the greater offense.

There are two broad categories of merger you should keep distinct:

• Merger of lesser‑included offenses into greater offenses (e.g., larceny into robbery).
• Merger of inchoate offenses into completed offenses.

For the second category, remember the following:

• Attempt merges into the completed offense: if D completes the crime, D is convicted of the completed crime, not both attempt and the completed crime.
• Solicitation merges into the completed offense (or into conspiracy if an agreement is reached).
• Conspiracy does not merge into the completed offense; D may be convicted of both conspiracy and the substantive crime.

Be careful not to over‑generalize merger. The fact that attempt merges into the completed offense does not mean every lesser crime merges into every greater crime. To decide whether one offense is a lesser‑included offense of another, apply the Blockburger test: if each offense contains an element that the other does not, they are not lesser‑included offenses and both convictions can stand. Attempt, by definition, does not add any extra element beyond the target crime, so it is always a lesser‑included offense of that crime.

On the MBE, inchoate crimes frequently appear in combination with:

• Substantive offenses (e.g., larceny, robbery, homicide).
• Party liability questions (accomplices and co‑conspirators).
• Defenses (impossibility, intoxication, withdrawal, abandonment).
• Double jeopardy and lesser‑included offense issues (e.g., whether a prior conviction for attempt bars a later prosecution for the completed offense if the victim later dies).

Double jeopardy interacts with inchoate offenses in a predictable way. If D is tried and convicted of attempted battery, and the victim later dies from the same incident, D can later be tried for homicide because the homicide had not occurred at the time of the first trial. Similarly, a later prosecution for the greater offense is allowed if a necessary element (like death) had not yet transpired, despite due diligence, at the time of the first prosecution. However, if D is tried for the completed offense first, a later attempt prosecution based on the same conduct is barred because attempt is a lesser‑included offense of the completed crime.

Understanding the precise elements and defenses for each inchoate offense, and how they interact with completed offenses and accomplice liability, is essential for accurate MBE analysis. The exam often uses subtle timing or mental state variations—for example, a defendant who initially agrees to a plan but then tries to back out—to test whether you can distinguish:

• When an inchoate offense has already been completed (so withdrawal is too late), versus
• When timely withdrawal or renunciation can cut off liability for later substantive crimes by others.

The sections that follow deepen each inchoate crime in turn—solicitation, conspiracy, and attempt—and then connect them to party liability doctrines.

Solicitation

Solicitation involves asking, inciting, urging, or commanding someone else to commit a crime.

Key Term: Solicitation
The crime of asking, commanding, urging, or advising another person to commit a crime, with the specific intent that the person solicited commit the crime.

Solicitation is often the earliest inchoate offense to arise along the criminal timeline. It punishes efforts to recruit others into criminal activity even before any agreement is reached or any step toward the target offense is taken.

Elements of Solicitation

• Actus reus (the act):
  The actus reus is the communication inviting another person to commit a crime. The request can be:

  • Spoken, written, or communicated by electronic means (text, email, social media).
  • Direct (“Please kill X”) or phrased as encouragement (“You should really burn his house down”).
  • Conditional (“If you see him tonight, punch him for me”) or unconditional.

  The communication can be explicit or implicit. A statement like “Here’s $500; it would be great if that rival’s store burned down this week” may count as solicitation if the context shows it was intended as a serious request, not mere venting or sarcasm. Courts look at surrounding circumstances (e.g., prior threats, provision of accelerant) to decide whether a reasonable listener would understand the request as genuine incitement rather than hyperbole.

  A key limit: mere approval of another’s existing plan, or a prediction that a crime will occur, is not enough. Saying, “If you rob that bank you’ll be rich,” without intending the listener to do it, is not solicitation, even though the words could encourage crime. The actus reus requires purposeful urging, asking, commanding, or advising.

  The solicitation can be made:

  • To a single person or to multiple people (“I’ll pay anyone here $500 to beat up my rival”).
  • Directly or through an intermediary (telling C to relay a request to B to commit a crime can be solicitation of both C and B, depending on the circumstances).

  Some jurisdictions require that the solicitation be directed at a particular person; others allow liability for public calls to commit crime (e.g., posting on a forum asking “anyone” to commit a specific offense). On the MBE, the facts usually identify a specific person solicited; focus on the intent behind the communication.

  Note that “asking” is interpreted broadly. Offering to pay, promising to help, or providing step‑by‑step instructions can all be treated as solicitation if they are intended to persuade someone else to commit a crime. The solicitor’s own role can be entirely off‑site.

• Mens rea (mental state):
  Solicitation is a specific intent crime. The solicitor must:

  • Intend to make the communication; and
  • Intend that the person solicited actually commit the target offense.

  It is not enough that the defendant knows the statement might influence someone; they must have the conscious objective that the crime be committed. This mental state requirement explains why joking statements—if genuinely meant as jokes—do not constitute solicitation even if poorly timed or phrased.

  Conditional intent is sufficient. A person who says, “If my ex shows up at the party, stab him,” intends that a crime be committed if the condition occurs. The law treats this as an intent that the crime be committed, not as absence of intent.

The crime of solicitation is complete the moment the communication is made. Whether the person solicited:

• Agrees or refuses,
• Does nothing, or
• Actually commits the target crime,

is irrelevant to the solicitor’s guilt for solicitation itself (though it affects what other offenses, such as conspiracy or accomplice liability, might also arise).

Key Term: Overt Act
A step taken in furtherance of a crime. For conspiracy and attempt, an overt act is generally required; for common‑law solicitation, no overt act beyond the communication is needed.

Under the common law, no additional step is required. The solicitor need not pay money, supply tools, repeat the request, or take any other action. The actus reus is the asking itself. Modern statutes sometimes require more, but on the MBE, unless a statute explicitly demands an overt act for solicitation, assume the common‑law rule: the words alone are enough.

If an exam question includes a statute that adds an overt‑act requirement for solicitation, apply the statute as written. A statute might, for example, require “solicitation plus some act in furtherance, such as a payment or delivery of tools.” In that case, a bare statement—“Please kill X”—would not yet be solicitation under the statute, but would typically be treated as attempted solicitation.

Scope of “Crime” for Solicitation

At common law, solicitation typically applied only to felonies or certain serious misdemeanors. Modern statutes vary:

• Some limit solicitation to felonies or listed serious offenses (e.g., murder, kidnapping, drug distribution).
• Others cover any crime, including misdemeanors, so long as the defendant intends that the offense be committed.

On the MBE, unless a specific statute is quoted, assume that solicitation is valid if the defendant is clearly asking someone to commit conduct that is criminal in the jurisdiction.

A subtle point: a defendant can solicit another to commit an inchoate offense, such as attempt. For example:

• “Try to burn his house down tonight; I know the police patrol is light” is solicitation to commit attempted arson.
• If the solicited conduct (attempted arson) would itself be a crime, soliciting that conduct is solicitation.

Similarly, a defendant can solicit another to commit a crime that would be strict liability as to some element, as long as the defendant intends the conduct. For example, asking a friend to have intercourse with a person known to be underage is solicitation to commit statutory rape, even though the completed crime does not require a mental state as to age for the completed offense.

What is not solicitation? Asking someone to do something that is not a crime, even if the solicitor mistakenly believes it is illegal. In that scenario, legal impossibility (discussed below) prevents a solicitation conviction.

The “crime” element also excludes mere civil wrongs. Urging someone to breach a contract or commit a tort (like defamation) may be actionable in civil law, but unless the conduct is criminal, it cannot be the subject of solicitation. Exam questions may tempt you with choices that wrongly treat encouragement of purely civil wrongdoing as criminal solicitation.

Communication and Jurisdictional Variations

At common law, most courts required that the solicitation reach the person solicited to be complete. If a letter asking someone to commit a crime was never delivered (e.g., lost in the mail), there might be attempted solicitation but not solicitation.

Modern and MPC‑influenced statutes can be broader. Under the MPC, solicitation can be complete even if the request is not actually communicated, so long as the defendant acts with the purpose that it be communicated. For example:

• Writing and mailing a letter asking a friend to commit a crime can suffice even if the letter is intercepted.
• Leaving a voicemail or encrypted message that is never actually played might still complete solicitation if the defendant believed it would be received.
• Giving a sealed note to an intermediary to deliver to a would‑be hitman can be solicitation the moment the note is handed over, even if the intermediary destroys it.

On the MBE, unless the facts emphasize that the message was lost or intercepted, assume the solicitation was communicated and focus on the defendant’s intent. If the exam specifies that a jurisdiction follows the MPC approach, then even an intercepted or undelivered solicitation can be enough.

An important detail is that the person solicited does not need to be capable of committing the crime. Soliciting a minor or someone insane to commit a crime still constitutes solicitation if the solicitor has the required intent. The incapacity of the solicited party does not protect the solicitor.

Similarly, it does not matter whether the person solicited has the required mens rea. If D urges E to kill V, but E does not seriously intend to do it, D is still guilty of solicitation. The focus remains on D’s mental state and conduct, not on E’s actual willingness.

Relationship to Accomplice Liability

If the person solicited actually commits the crime, the solicitor typically becomes liable as an accomplice for the completed offense, provided the original solicitation contributed to the commission of the crime. The same act can therefore:

• Constitute solicitation at the moment of the request; and
• Serve as the act of aiding or encouraging that makes the solicitor an accomplice to the completed offense.

This does not mean the defendant will be convicted of both solicitation and the completed offense; solicitation merges as discussed below.

Importantly, there is no requirement that the solicitor be present at the scene of the crime. A remote hirer who pays a hitman but stays home can still be an accomplice to murder because the solicitation is a form of assistance.

Even if the solicited person only attempts the target offense and fails, the solicitor can be an accomplice to the attempt. For instance:

• A offers B money to burn down a rival’s store.
• B goes to the store and pours gasoline, but is arrested before lighting a match.
• B is guilty of attempted arson; A is an accomplice to attempted arson based on the original solicitation.

The MBE sometimes tests this by asking about “liability for crimes of the principal” where the only “assistance” given was a request, promise, or encouragement.

One more point: if the principal commits a more serious crime than solicited, accomplice liability generally depends on foreseeability. If D solicits a beating and the principal commits a killing in the course of that assault, D may be liable for homicide as an accomplice if a death was a natural and probable consequence of the solicited assault.

Merger: Solicitation

Under common law and modern statutes:

• Solicitation merges into the completed target offense if the target offense is committed.
• If the person solicited agrees to commit the crime, solicitation merges into conspiracy (assuming the other elements of conspiracy are met).
• A defendant generally cannot be convicted of both:
  • Solicitation and the completed crime; or
  • Solicitation and conspiracy based on the same solicitation.

However:

• If the target offense is never committed and there is no agreement, the solicitor can be convicted of solicitation alone.
• If different target crimes are solicited in separate communications, multiple counts of solicitation may be possible (for example, asking one person to commit arson and another to commit burglary).
• If the defendant solicits A to commit a crime and, independently, solicits B to commit the same crime, each solicitation is a separate offense.

It is also possible for a single communication to embed multiple solicitations, such as “burn his house and slash his tires.” Each requested crime could support a separate solicitation count, subject to statutory drafting and prosecutorial discretion.

The merger rule for solicitation parallels the general rule for inchoate offenses: once the law punishes the more serious completed or agreed‑upon offense (conspiracy), it does not add a second conviction for the earlier request.

From a double jeopardy standpoint, if D is tried and convicted only of solicitation, and later the solicited party commits the crime, D can generally be prosecuted for the completed substantive offense because it is not the “same offense” under the Blockburger test. But the merger doctrine will prevent simultaneous convictions for both solicitation and the completed crime at the second trial.

Defenses to Solicitation

Several defenses intersect with solicitation. Examine both the timing and the nature of the alleged defect.

• Withdrawal / renunciation (common law):
  At common law, withdrawal is not a defense. The crime is complete upon making the request, even if the solicitor immediately changes their mind and begs the other person not to act. That change of heart might be morally significant but has no legal effect on the solicitation charge.

  A defendant’s post‑solicitation efforts can be highly relevant to other issues, however. If the solicitor later persuades the other party not to commit the crime, or notifies the police, that may:

  • Prevent a conspiracy from forming (if the other person never agrees), or
  • Cut off accomplice liability if the principal later acts without the solicitor’s continued support.

• Renunciation (MPC / some modern statutes):
  Some modern statutes and the MPC recognize a defense of renunciation if:

  • The defendant voluntarily and completely renounces criminal purpose; and
  • The defendant actually prevents the commission of the offense (for example, persuades the other not to do it or notifies authorities in time).

  The renunciation must not be motivated by fear of detection, by a decision to postpone the crime, or by a belief that the plan is no longer workable. The law rewards a genuine change of heart that leads the solicitor to thwart the crime, not merely self‑interested backtracking.

  Under the MPC, renunciation is a complete defense to the inchoate charge (e.g., solicitation), not merely a factor in sentencing. But on the MBE, unless the jurisdiction is specified as MPC‑based, assume the common‑law rule: no withdrawal defense.

• Impossibility:

  • Factual impossibility is not a defense. For example, soliciting an undercover officer who never intended to commit the crime does not excuse the solicitor: their purpose was still to have a crime committed.
  • Legal impossibility is a defense. If the defendant urges someone to engage in conduct that is not actually a crime—such as purchasing a substance the defendant mistakenly believes is contraband—there is no “crime” being solicited. On these facts, there may be no solicitation even though the solicitor believed they were encouraging criminal behavior.

  Apply the same question you use in attempt cases: if everything had gone as the defendant believed and intended, would the solicited conduct have been a crime? If yes, impossibility is factual (no defense); if no, impossibility is legal (defense).

• Lack of specific intent:
  Because solicitation is a specific intent crime, any defense that negates specific intent (e.g., an honest but unreasonable mistake of fact regarding the nature of the act being requested, or voluntary intoxication in some jurisdictions) may defeat the charge.

  Example: D, extremely intoxicated, jokingly tells a friend, “You should totally rob that bank tomorrow,” but the evidence shows D did not seriously intend that the friend act, and the friend took it as a joke. In a jurisdiction allowing voluntary intoxication to negate specific intent, D could argue that he lacked the purpose that the bank be robbed.

  Evidence about tone, context, and prior conduct will matter. The more planning and seriousness the facts reveal (e.g., providing a diagram of the bank or offering money), the harder it will be to argue the statement was not intended as solicitation.

• Protected class:
  When a statute is designed to protect a particular class (e.g., minors in statutory rape laws), members of that class cannot be guilty of solicitation to violate that statute. For example, a 15‑year‑old cannot be guilty of soliciting statutory rape by asking a 21‑year‑old to have sex; the statute is designed to protect the minor, not to punish them as a solicitor.

  The same principle can appear in other contexts. If a statute criminalizes only the sale of certain drugs (and not the purchase), buyers may be treated as a protected or exempted class. In that kind of statute, a buyer cannot be guilty of soliciting the seller to commit the offense, unless the statute clearly extends liability.

• Entrapment:
  Entrapment is a general defense, not unique to inchoate crimes, but it often arises with solicitation. If government agents induce a person who was not otherwise predisposed to commit a crime to solicit someone else, some jurisdictions might allow an entrapment defense. On the MBE, however, the focus in inchoate‑crime questions is usually on elements and merger, not entrapment, unless the facts clearly highlight government inducement and lack of predisposition.

Worked Example 1.1

David, wanting revenge on his neighbor, offers Eric $500 to slash the neighbor's car tires. Eric thinks David is joking and walks away laughing. Is David guilty of solicitation?

Answer:
David requested that Eric commit a crime (destruction of property/vandalism), and David had the specific intent that Eric carry out this crime. The solicitation was complete when David made the offer, regardless of Eric's reaction or refusal. Eric’s belief that David was joking does not negate David’s intent; the focus is on the solicitor’s mental state, not the listener’s subjective perception. Because Eric did not agree, there is no conspiracy, and because no one slashed the tires, there is no accomplice liability for a completed offense—but the solicitation itself is fully established. Under the common‑law rule, David’s later change of heart (if any) would not undo the already completed solicitation.

Comparing Solicitation with Attempt and Conspiracy

It is useful to contrast solicitation with the other two inchoate offenses:

• Solicitation vs. Attempt:

  • Solicitation is about recruiting or urging another to commit a crime.
  • Attempt is about personally taking steps toward committing the crime.
  • A defendant who both recruits another and personally takes steps might be guilty of both solicitation and attempt, but solicitation will merge into either conspiracy (if an agreement is formed) or the completed offense (if the crime is carried out).

  For example, a person who hires a burglar and also drives to the scene and starts prying open a window has both solicited and attempted the burglary. If the burglary succeeds, they are guilty of burglary (as a principal or accomplice) and conspiracy (if there was an agreement), but not of separate solicitation or attempt.

  Exam trap: if the defendant only asks another to commit a crime but does not personally act, there is solicitation but not attempt. Many incorrect answer choices will label this “attempt” merely because the defendant expressed an intention to commit a crime.

• Solicitation vs. Conspiracy:

  • Solicitation requires one person asking another; it does not require agreement.
  • Conspiracy requires an agreement between two or more persons with the requisite intent.
  • Once the person solicited agrees, the conduct typically becomes a conspiracy (assuming the jurisdiction’s requirements are met), and the solicitation merges.
  • Under the MPC’s unilateral conspiracy approach, if the other “party” is an undercover officer who only pretends to agree, the solicitation does not merge into conspiracy in common‑law jurisdictions, but in MPC jurisdictions the defendant can be guilty of conspiracy despite the other party’s lack of true intent.

Keeping these distinctions in mind is critical on the MBE because answer choices may deliberately confuse solicitation with conspiracy, especially where there has been an apparent “agreement” with an undercover officer. Always ask:

• Is there an actual meeting of the minds between at least two genuinely guilty parties (common‑law conspiracy)?
• Or is the defendant dealing with an undercover officer (where only unilateral conspiracy may apply)?
• Or is there only one‑sided urging, with no agreement at all (pure solicitation)?

A further distinction: solicitation is complete as soon as the request is made, while conspiracy usually requires an overt act under modern statutes. Thus, at an early stage in a scheme, D might already be guilty of solicitation, but not yet of conspiracy, if no overt act has occurred.

Worked Example 1.2

Carlos wants to kill Victor. He buys poison, goes to Victor's house, and puts the poison in the sugar bowl, believing Victor uses sugar in his coffee every morning. Victor, however, has recently switched to artificial sweeteners and never uses the sugar. The poison remains untouched. Is Carlos guilty of attempted murder? Could he have been liable for solicitation instead?

Answer:
Carlos is guilty of attempted murder. He had the specific intent to kill Victor and took a substantial step toward that goal by placing poison where he believed Victor would ingest it. The fact that Victor did not use the sugar is a case of factual impossibility, which is not a defense to attempt. There is no solicitation here, because Carlos did not ask or encourage another person to commit the crime; he attempted to commit the homicide himself. If he had instead offered money to a third party to poison Victor, that would be solicitation, and if the third party agreed, a conspiracy would also arise. The fact pattern illustrates how the same end goal—Victor’s death—can produce very different inchoate offenses depending on whether the defendant acts personally (attempt) or through another person (solicitation and possibly conspiracy).

Conspiracy

Conspiracy is an agreement between two or more persons to commit an unlawful act or to accomplish a lawful act by unlawful means.

Key Term: Conspiracy
An agreement between two or more persons to commit a crime or to achieve a lawful objective by unlawful means, usually requiring an overt act in furtherance of the agreement.

Conspiracy is one of the most frequently tested inchoate offenses on the MBE because it combines elements of agreement, specific intent, party liability, and merger. It also acts as a gateway to expanded liability for substantive crimes committed by co‑conspirators.

Elements of Conspiracy

Courts break conspiracy down into several distinct components.

1. Agreement:

   There must be an agreement—express or implied—between at least two persons. The agreement can be shown by:

   • Explicit words (“Let’s rob the bank together”), or
   • Conduct that clearly indicates a common plan (coordinated actions to carry out a crime, profit‑sharing in a criminal enterprise, joint planning).

   Mere knowledge that another person plans to commit a crime, or mere presence when others discuss crimes, is not enough. There must be a meeting of the minds to pursue the criminal objective.

   The agreement need not be formal, written, or detailed. A simple understanding to engage in criminal conduct suffices. The conspirators do not need to agree on every detail (e.g., precise time or method) as long as they share a common unlawful purpose.

   A recurring MBE trap involves the buyer–seller relationship. A supplier who sells goods, even knowing they will be misused, is not automatically a conspirator unless the circumstances show a shared stake in the venture, such as:

   • Inflated prices tied to the buyer’s resale.
   • Repeated large sales of narcotics to the same dealer with knowledge of the dealer’s distribution.
   • Advice on how to evade law enforcement or how to package the drugs to avoid detection.

   In such cases, a fact finder may infer an agreement to participate in the broader criminal enterprise, beyond a mere commercial transaction. But mere knowledge that the buyer will use the goods unlawfully, without more, is usually insufficient to make the seller a co‑conspirator.

   Another trap is the “silent partner.” Two people who independently commit similar crimes do not form a conspiracy simply because their actions overlap in time or style. Parallel conduct is not enough; look for evidence that they actually shared a plan.

2. Intent:

   Conspiracy is a specific intent crime requiring two distinct intents:

   • Intent to enter into the agreement (to form the partnership in crime); and
   • Intent that the object of the conspiracy be achieved (that the target crime actually be committed).

   Thus, a person who reluctantly agrees but still intends to help accomplish the crime is a conspirator. By contrast, a person who merely feigns agreement (such as an undercover officer) does not share the required intent.

   The conspirators must intend the unlawful objective, but they do not need to personally intend to commit the substantive offense themselves. For example, a person who agrees to provide weapons knowing that others will conduct an armed robbery, and who wants that robbery to succeed, can be a conspirator even if they plan to stay far from the scene.

   The target offense of a conspiracy is itself often a specific‑intent crime (e.g., burglary, robbery), but even if the target offense requires only general intent or recklessness, conspiracy still requires purpose that the offense be committed. It is not enough that the conspirator merely “knows” the plan; they must want it to succeed.

3. Overt Act (Modern / Majority Rule):

   • Common law: The agreement alone was sufficient; no overt act was required.
   • Modern majority / MPC: There must be an overt act in furtherance of the conspiracy, performed by any conspirator.

   The overt act:

   • Need not be criminal in itself.
   • Can be a very minor step (buying supplies, renting a car, casing a location, printing a map).
   • Once any conspirator commits an overt act, the conspiracy is complete as to all conspirators (even those who joined earlier but did not personally act).

   On the MBE, the default rule for conspiracy is the common law unless the question tells you otherwise. If the problem expressly states that the jurisdiction follows modern statutes or the MPC, you must also require an overt act. If the facts mention a clear overt act (e.g., purchase of weapons), you can often treat the overt act element as satisfied and focus on whether there was a true criminal agreement.

Key Term: Overt Act
Any act (even non‑criminal) taken by a conspirator that moves the plan forward. Under modern conspiracy statutes, an overt act is required to complete the crime of conspiracy.

Note that some jurisdictions require that the overt act be more than mere preparation (similar to attempt), but the MPC and many statutes accept very minor steps. On the exam, if any conspirator takes a real‑world step that is plausibly in furtherance of the plan, you should treat the overt‑act requirement as met unless the facts clearly suggest otherwise.

Approaches to Agreement: Bilateral vs. Unilateral

Two different conceptions of “agreement” are tested on the MBE.

Key Term: Bilateral Conspiracy
The common law requirement that at least two parties possess genuine criminal intent to agree and achieve the conspiracy’s objective.

Key Term: Unilateral Conspiracy
The modern (MPC) approach to conspiracy where only one party needs to possess genuine criminal intent, allowing conviction even if other parties feign agreement (for example, undercover officers).

• Bilateral Approach (Common Law / Default Rule):

  • Requires a true “meeting of the minds” between at least two actually guilty conspirators.
  • If one party is an undercover officer or feigns agreement, there is no conspiracy under this view.
  • Consequence: If all alleged co‑conspirators (except the defendant) are acquitted on the merits, the remaining defendant often cannot be convicted of conspiracy because the courts take the acquittals as conclusive evidence that there was no bilateral agreement.

  It is important to distinguish acquittals from uncharged parties:

  • If charges are dropped against a co‑conspirator (e.g., in exchange for testimony), that does not preclude conviction of the remaining conspirators.
  • If a co‑conspirator cannot be tried (e.g., because they are a minor, insane, or immune), the other conspirators can still be convicted.

• Unilateral Approach (MPC / Modern Trend):

  • Only the defendant’s genuine intent is required.
  • Conspiracy can exist even when the other “party” intends to frustrate the crime (e.g., undercover police posing as criminals).
  • Under this approach, there can be a “conspiracy” between the defendant and an undercover officer, or between a defendant and a party who is incapable of committing the offense (e.g., a child), so long as the defendant believes they are conspiring and has the purpose that the crime be committed.

On the MBE, if the question states that the jurisdiction follows the MPC or “modern” rule, a conspiracy between the defendant and an undercover officer is possible. If the question is silent, assume the bilateral, common‑law rule.

Another exam trap: a defendant may be charged with conspiring “with persons unknown.” As long as the prosecution proves that the defendant actually agreed with at least one other culpable person (even if that person’s identity is unknown), the bilateral requirement is satisfied. You do not need the names or convictions of all co‑conspirators.

Wharton’s Rule and Protected Classes

Certain limitations restrict conspiracy liability where the substantive offense necessarily involves multiple parties or is designed to protect a particular class.

Key Term: Wharton’s Rule
A rule providing that when a crime necessarily requires two participants (e.g., adultery, dueling), those two participants cannot be convicted of conspiracy to commit that crime, absent additional parties.

• Wharton’s Rule:
  • If a crime inherently requires at least two participants (e.g., adultery, incest, dueling, bigamy), those same two people generally cannot be prosecuted for conspiracy to commit that offense.
  • If more participants than logically necessary are involved—for example, three people carrying out an adultery scheme—the extra participants can be charged with conspiracy.
  • Wharton’s Rule is a rule of statutory interpretation, not a constitutional requirement. Legislatures can override it by statute.

Key Term: Statutory Protected Class
A group that a criminal statute is designed to protect (e.g., minors under a statutory rape law). Members of the protected class cannot be co‑conspirators or accomplices in violating that statute.

• Protected Class Rule:
  • When a statute is designed to protect a certain class (e.g., minors in statutory rape), a member of that class cannot be charged with conspiracy to violate that statute.
  • Example: In a statutory rape statute protecting minors under 18, a 16‑year‑old girl cannot be guilty of conspiracy to commit statutory rape with her 21‑year‑old boyfriend. She is the intended victim, not a co‑conspirator.
  • Consequence: Because the protected person cannot be a conspirator, there can be no bilateral conspiracy between the protected person and the defendant. However, the defendant can still be guilty of the substantive offense (statutory rape) and might still conspire with others outside the protected class (for example, people arranging the encounter).

The protected‑class rule also appears in other contexts, such as drug statutes that penalize only sellers but not buyers, or bribery statutes targeted at public officials. If the statute clearly intends to shield one side of a transaction from criminal liability, that side cannot be a conspirator or accomplice with respect to that offense.

The MBE occasionally tests this by presenting a fact pattern in which the only possible co‑conspirator is a protected party, and then asking whether a conspiracy exists. The correct answer will typically be that conspiracy is not possible, even though the substantive offense is.

Worked Example 1.3

Anna lives in a jurisdiction that follows the MPC’s unilateral approach to conspiracy. She agrees with Bob to rob a bank, not knowing that Bob is an undercover police officer. Anna purchases a toy gun to use during the robbery. Before anything further occurs, she is arrested. Is Anna guilty of conspiracy?

Answer:
Yes. Under the MPC/unilateral approach, only Anna must have genuine criminal intent to form the agreement. Bob’s status as an undercover officer and lack of intent do not prevent a conspiracy conviction. The purchase of the toy gun is an overt act in furtherance of the conspiracy, even though it is not illegal in itself. This fact pattern closely mirrors common MBE questions: do not be misled by the officer’s feigned agreement—under unilateral conspiracy, the defendant’s own intent is enough. Under the common‑law bilateral approach, in contrast, Anna could not be convicted of conspiracy because there would be no second, genuinely guilty party to form the agreement.

Structure and Scope of Conspiracies

Although not always explicit, many MBE questions turn on how many conspiracies exist and who is part of each. Two classic structures are:

• “Wheel” (hub‑and‑spoke) conspiracies:
  One central figure (the “hub”) deals separately with multiple others (the “spokes”), who may be unaware of each other.

  • There is one conspiracy if the spokes are linked to a common plan and depend on each other’s success—for example, a hub arranging multiple participants in a coordinated price‑fixing scheme that only works if all agree.
  • There are multiple conspiracies if each spoke’s agreement with the hub is independent and the spokes share no common criminal objective or awareness of each other—for example, a drug supplier who independently sells to several unconnected street dealers.

  This distinction matters for liability: a spoke in a multiple‑conspiracy scenario is not liable for crimes committed in other, unrelated spoke conspiracies.

  On the MBE, look for clues like shared profits, mutual dependence, or awareness of a common scheme to decide whether there is a single overarching conspiracy or several separate conspiracies.

• “Chain” conspiracies:
  Different steps in a distribution chain (e.g., smugglers → middlemen → street dealers) may form a single conspiracy if each link in the chain knows that it is part of a larger scheme, even without knowing all participants. For example, smugglers, wholesalers, and retailers in a drug operation may be part of a single overarching conspiracy if each is aware that there are other levels of distribution and they share a common goal of distributing drugs.

In both structures, conspiracy liability—and Pinkerton liability for substantive crimes—extends only within the conspiracy to which a defendant belongs. If D is part of one spoke arrangement that is entirely independent of others, D will not be liable for crimes stemming from the other spokes.

Liability for Co‑Conspirators’ Crimes (Pinkerton Liability)

Under the Pinkerton doctrine (followed in federal courts and many states), a conspirator is liable for crimes committed by other co‑conspirators if those crimes:

1. Were committed in furtherance of the conspiracy’s objective; and
2. Were a reasonably foreseeable consequence of the conspiracy.

Key Term: Pinkerton Liability
A doctrine imposing liability on a conspirator for substantive crimes committed by co‑conspirators if those crimes are in furtherance of the conspiracy and reasonably foreseeable.

Thus, if A and B conspire to rob a bank, and B shoots a guard during the robbery:

• A can be guilty of both conspiracy and murder, even if A stayed outside as a lookout, so long as the shooting was a reasonably foreseeable way of furthering the robbery.
• The shooting is typically foreseeable in an armed robbery; violence to overcome resistance or escape is a natural and probable consequence.

Limits on Pinkerton liability:

• It does not apply if the co‑conspirator’s act is outside the scope of the plan and not reasonably foreseeable—for example, an unforeseeable sexual assault committed by a conspirator during a planned nonviolent fraud.
• If a conspirator effectively withdraws (as discussed below) before the substantive crime occurs, they are generally not liable for that later crime under Pinkerton.
• Some jurisdictions restrict or reject Pinkerton on policy grounds; unless the question states otherwise, assume the doctrine applies on the MBE.

Compare Pinkerton liability with accomplice liability:

• Pinkerton applies because of the conspiratorial agreement; no separate act of aiding or encouraging the particular substantive offense is needed.
• Accomplice liability requires actual aid or encouragement of the particular offense.
• A defendant might be liable under both theories, but exam questions usually focus on one or the other.

A frequent exam trap: A expressly tells B, “I’ll drive you to the bank but I don’t want any violence.” B nevertheless brings a gun and shoots a guard. Even though A protested, a shooting during an armed robbery is generally foreseeable, so Pinkerton liability (and possibly accomplice liability) will still attach.

Another point: a conspirator is typically liable only for substantive offenses committed after they join the conspiracy. If D joins an ongoing conspiracy late, most courts will not hold D liable for earlier substantive offenses already completed, though D will be liable for later ones that satisfy Pinkerton’s in‑furtherance and foreseeability requirements.

Defenses to Conspiracy

Impossibility (Conspiracy)

As with other inchoate crimes, impossibility defenses divide into factual and legal.

• Factual impossibility—for example, agreeing to rob a bank that has already moved all its money—is not a defense to conspiracy if the agreement and any overt act show a genuine plan to commit a crime. If the conspirators think they are planning a robbery, it does not matter that the vault happens to be empty.

• Legal impossibility is a defense: if what the conspirators agree to do is not actually a crime, there is no conspiracy. Agreeing to do something that is entirely lawful is not a criminal conspiracy even if the parties mistakenly believe it is illegal.

On the MBE, if the question clearly labels the situation as legal impossibility, treat it as a valid defense unless the facts say the jurisdiction follows an MPC‑style statute abolishing legal impossibility for inchoate offenses.

Withdrawal from Conspiracy

Key Term: Withdrawal (from Conspiracy)
An affirmative act by a conspirator to disavow or defeat the conspiracy. It may cut off further liability but usually does not erase the conspiracy already formed.

• Effect of Withdrawal:

  • Withdrawal is not a defense to the conspiracy charge itself at common law: once the agreement (and overt act, if required) occurs, conspiracy is complete.
  • Withdrawal can, however, be a defense to subsequent substantive crimes by co‑conspirators if:
    • The withdrawal occurs before the subsequent crime; and
    • It is effectively communicated or acted upon.

• Requirements for Effective Withdrawal (common law/majority):

  • The withdrawing conspirator must take an affirmative act inconsistent with the object of the conspiracy; and
  • Must communicate withdrawal to all co‑conspirators in time to allow them to abandon the plan.

  If the withdrawing party previously provided assistance (e.g., supplying weapons, plans, or a location), they must attempt to neutralize that assistance by retrieving the items, warning the intended victim, or contacting authorities.

  A mere secret decision to quit is insufficient. The other conspirators must have notice that the withdrawing conspirator is no longer participating.

• MPC Approach (“Renunciation”):

  • The MPC allows withdrawal (renunciation) to be a defense to the conspiracy itself if the conspirator:
    • Voluntarily and completely renounces criminal purpose; and
    • Takes affirmative steps to thwart the success of the conspiracy (for example, notifying police and helping them prevent the crime).

  As with solicitation, renunciation must not be motivated by fear of detection or by mere frustration with obstacles; it must reflect a genuine abandonment of criminal objectives.

Withdrawal also plays a role in determining when a conspiracy ends for purposes of the statute of limitations and the hearsay co‑conspirator exception in evidence law. A conspiracy continues until it is accomplished, abandoned, or defeated. After it ends, subsequent acts and statements by co‑conspirators are no longer “in furtherance” of the conspiracy, and Pinkerton liability for later crimes normally stops as well.

Note that arrest or incarceration, by itself, does not negate conspiracy liability if the defendant already agreed and an overt act occurred. It may prevent further substantive crimes but does not constitute withdrawal in the legal sense, unless accompanied by steps to communicate withdrawal or thwart the plan.

Merger: Conspiracy

Conspiracy does not merge with the completed substantive offense. Therefore:

• A defendant can be convicted of both:
  • Conspiracy to commit X; and
  • The completed offense X itself.

This is a frequent MBE trap. Unlike solicitation and attempt, conspiracy stands on its own even when the target crime is completed. Double jeopardy does not bar prosecution for conspiracy simply because the defendant has already been prosecuted for the substantive offense (or vice versa), as long as each offense contains an element the other does not. Under the Blockburger test:

• Conspiracy requires proof of an agreement not required for the substantive offense.
• The substantive offense requires proof of the completed crime not required for conspiracy.

Conspiracy also does not merge into attempt. If the conspirators begin to execute the plan and commit an attempt but fail, they can be convicted of both conspiracy and attempt, as well as any completed lesser offenses.

Worked Example 1.4

Felix and Gina agree to rob a convenience store and, two days later, Felix buys masks and a crowbar. Before the robbery, Gina changes her mind and texts Felix to say she is out and that he should not go through with the plan. Felix robs the store anyway and, during the robbery, shoots and injures the clerk. What is Gina’s liability?

Answer:
Gina is guilty of conspiracy to commit robbery. The agreement plus Felix’s overt act of purchasing supplies completed the conspiracy. Her later change of heart cannot undo the already completed inchoate offense. However, her effective withdrawal before the robbery cuts off liability for Felix’s later substantive crimes under Pinkerton. If her text clearly communicated withdrawal in time for Felix to abandon the plan, Gina will not be liable for the robbery or the shooting. She could, however, still be charged as a conspirator, and in some jurisdictions she might need to show that she also took steps to neutralize her prior involvement (e.g., warning the store or contacting police) to fully avoid Pinkerton liability. Under the MPC, if Gina’s renunciation were voluntary and she actually helped thwart the robbery, she might even have a defense to the conspiracy charge itself.

Worked Example 1.5

A man and a married woman begin an affair. They agree that they will continue having sexual relations secretly despite both knowing that adultery is a crime in their jurisdiction. The statute defining adultery necessarily requires two participants: a married person and their sexual partner. There are no other people involved in the scheme. May they be convicted of conspiracy to commit adultery?

Answer:
No. This is a classic application of Wharton’s Rule. Because adultery inherently requires two participants and no more than those two are involved, the law generally does not permit an additional conspiracy conviction for the same conduct. They may still be prosecuted for the substantive offense of adultery if that remains criminal in the jurisdiction, but they cannot be convicted of conspiracy to commit that offense absent additional participants beyond the minimum necessary to commit adultery. If a third person, such as a friend who arranges the meetings and actively furthers the relationship, becomes involved, that person could be part of a conspiracy with one or both of the lovers.

Attempt

Attempt involves taking a substantial step toward committing a target crime, coupled with the specific intent to commit that crime.

Key Term: Attempt
An act, done with the specific intent to commit a crime, that constitutes a substantial step toward the commission of the crime but falls short of completion.

Attempt is the inchoate offense that lies closest to the completed crime on the timeline. It punishes conduct that has gone beyond planning or agreement and has moved into execution, but where completion is thwarted or fails.

Elements of Attempt

Attempt has two key elements:

1. The requisite specific intent to commit the target crime.
2. An overt act that goes beyond mere preparation and constitutes a substantial step (under the MPC/majority) or is dangerously close to completion (under the proximity test/minority).

1. Intent

Attempt is always a specific intent crime. The defendant must:

• Intend to perform the act; and
• Intend to bring about the proscribed result (e.g., death, theft, destruction of property), even if the completed crime can be committed with a lower mental state.

Important consequences on the MBE:

• There is no such crime as “attempted felony murder” in most jurisdictions because felony murder does not require an intent to kill. The mental state for felony murder is supplied by the predicate felony, not by an intent to kill.
• There is generally no attempt for crimes defined by negligence or recklessness (e.g., involuntary manslaughter, reckless driving), because it is incoherent to “attempt” to be negligent or reckless.
• For strict liability crimes (e.g., statutory rape), some courts allow attempt liability if the defendant has the specific intent to engage in the prohibited conduct (e.g., intercourse with a minor), even though the completed crime does not require intent as to the victim’s age. On the MBE, look carefully for statutes and fact patterns that reveal whether the jurisdiction allows attempts for strict liability offenses.

Attempt intent also interacts with transferred intent rules:

• Transferred intent does not apply to attempts. If D intends to kill A and misses, injuring B instead, D is guilty of attempted murder of A and battery (or assault) of B, but not attempted murder of B based solely on transferred intent.

Another important point: sometimes the defendant’s actions would have been a different crime than the one charged. For example, if D poisons what he believes is a person’s drink but actually poisons a dog’s water, courts will typically treat this as attempted murder of the person (based on the intent to kill a human), rather than attempted animal cruelty, because the focus is on the intended target and result.

Attempt also requires intent as to each element of the target offense. If a burglary statute requires entry into a dwelling at night with intent to commit a felony, a person cannot be guilty of attempted burglary unless they specifically intend to enter a dwelling at night and commit a felony inside. An intent merely to trespass is not enough.

2. Overt Act: From Preparation to Perpetration

The defendant must engage in conduct that goes beyond mere preparation. Courts use different tests to determine when preparation becomes attempt.

• Proximity Test (Traditional / Minority Rule):

  • Requires conduct “dangerously close” to successful completion.
  • Focuses on how much remains to be done: the fewer steps left, the more likely attempt has occurred.
  • The act must place the defendant in a position to commit the crime almost immediately.

  Under this test, many preliminary actions that would qualify as a substantial step under the MPC may be deemed mere preparation because the defendant still has significant steps to complete.

• Substantial Step Test (MPC / Majority Rule):

  • Requires a substantial step strongly corroborative of the defendant’s criminal purpose.
  • Focus is on the degree to which the defendant’s conduct demonstrates commitment to the criminal plan, not just how close in time or space the act is to completion.
  • Common examples of substantial steps include:
    • Lying in wait or reconnoitering the place contemplated for the crime.
    • Possessing materials specially designed for unlawful use (e.g., burglary tools) and bringing them to the relevant location.
    • Enticing the contemplated victim to go to the planned crime scene.
    • Going to the scene of the crime with necessary weapons or tools.
    • Attempting to overpower a victim or a security barrier.

Key Term: Substantial Step
Under the MPC/majority rule, conduct that strongly corroborates the defendant’s criminal intent and moves beyond mere preparation toward commission of the crime.

Key Term: Proximity Test
A traditional test for attempt requiring that the defendant’s conduct be dangerously close to completion of the crime, leaving only minimal steps remaining.

Another way courts sometimes describe the threshold is through the “unequivocality” test: has the defendant done something that clearly and unequivocally manifests a criminal intent, such that, absent interruption, a crime would almost certainly ensue? Although not the dominant test, this language sometimes appears in case law and bar questions.

Examples to distinguish preparation from attempt:

• No attempt (mere preparation):

  • D tells an undercover officer he plans to sell drugs and says he “will go get the cocaine,” but never leaves his house or acquires drugs.
  • D buys a ski mask and gloves but never goes to the target location.
  • D sketches a bank floor plan at home but takes no further steps to implement the plan.

• Attempt (substantial step):

  • D obtains a weapon and goes to the victim’s house at night, lurking outside with the weapon.
  • D threatens a clerk and goes behind the counter to access the register.
  • D points a gun at a victim and pulls the trigger, even if the gun misfires.

On the MBE, unless the facts clearly emphasize a last‑minute interruption or the question expressly invokes the MPC, it is generally safe to ask whether the defendant’s conduct satisfies the substantial step test. Many questions will not hinge on the distinction between the two tests; if they do, the problem will usually highlight how “close” the defendant came or will specify which test the jurisdiction uses.

The exam may also use the distinction between “complete” and “incomplete” attempts:

• A complete attempt occurs when the defendant performs all the acts planned but the crime does not result (e.g., shoots at victim but misses).
• An incomplete attempt occurs when the defendant stops or is interrupted before performing all acts intended (e.g., is arrested on the way to the bank).

Both types are attempts; the distinction matters mainly for abandonment defenses under MPC‑style rules, where the defendant may claim voluntary abandonment of an incomplete attempt.

Worked Example 1.6

A man plans to rob a bank. Waiting until the security guard leaves, he enters the bank, walks up behind a teller with his hand in his pocket pointed as if he has a gun, and is about to demand money. Before he speaks, he sees the guard return, panics, and runs out. He is charged with attempted robbery. He argues that he voluntarily abandoned the plan. What result?

Answer:
He is guilty of attempted robbery. Robbery is a specific intent crime, and he took a substantial step toward committing it by entering the bank at a planned time, approaching the teller, and simulating a weapon. His conduct clearly corroborates his intent. His later decision to flee is abandonment, which is not a defense at common law once an attempt has occurred. Under the MPC, abandonment might be a defense only if his renunciation was voluntary and complete, not motivated by fear of apprehension. Here, his retreat is plainly motivated by the guard’s return and the increased risk of getting caught, so even under the MPC, renunciation would not be considered voluntary.

Defenses to Attempt

Abandonment / Renunciation

Key Term: Abandonment (Attempt)
The defendant’s decision to cease efforts to commit a crime. Its effect depends on jurisdiction.

• Common Law / Majority Rule:

  • Abandonment is not a defense once the defendant has taken a substantial step or reached the point of attempt.
  • Changing one’s mind, moral qualms, or fear of apprehension do not erase attempt liability once the line into attempt has been crossed.

• MPC / Modern Minority:

  • Recognizes abandonment (renunciation) as a defense if:

    • The renunciation is voluntary (not motivated by detection, difficulty, or postponement); and
    • The renunciation is complete (the defendant does not intend to resume the criminal plan at a later time).

  • The MPC also expects the defendant to take steps to prevent the crime if possible (e.g., warning the victim, disposing of weapons).

Exam tip: Bar questions often describe a defendant who stops because they see a police officer or because the plan now seems too risky. That is not voluntary renunciation under the MPC; it is fear‑driven abandonment and does not excuse attempt.

If, on the other hand, D loads a gun, drives toward V’s house intending to kill V, has a genuine change of heart, turns around, unloads the gun, and throws it away, a jurisdiction following the MPC could treat that as an effective renunciation of attempt if D had not yet taken a substantial step under that jurisdiction’s standard.

Impossibility (Attempt)

Key Term: Legal Impossibility
A situation where the defendant’s intended acts, even if fully carried out, would not constitute a crime. Traditionally a defense to attempt, though often narrowed by modern statutes and the MPC.

Key Term: Factual Impossibility
A situation where external facts or circumstances, unknown to the defendant, prevent completion of the crime (e.g., empty pocket, broken gun). Never a defense to attempt.

• Factual Impossibility (never a defense to attempt):
  The defendant intends to commit a crime, takes a substantial step, but fails because of some factual condition unknown to them. Examples include:

  • Trying to pick an empty pocket, believing it contains a wallet.
  • Shooting into an empty bed, believing the victim is asleep there.
  • Attempting to poison someone with what the defendant believes is cyanide, but which is actually harmless.

  In each case, the defendant’s conduct would have constituted the crime had the facts been as the defendant believed them to be. The law punishes the attempt because the danger and culpability are the same, despite the factual misalignment.

• Legal Impossibility:

  • The defendant believes their conduct is criminal, but the law does not actually prohibit it. Even if the defendant did exactly what they intended, no crime would have occurred.
  • Under traditional common law, legal impossibility is a defense—there is no attempt if, even with perfect execution, the defendant’s conduct would be lawful.
  • Under the MPC/modern trend, the focus is on the actor’s purpose, and many modern statutes collapse most forms of “legal impossibility” into factual impossibility, thereby denying the defense. Nonetheless, the MBE usually still recognizes legal impossibility as a defense unless the question states that the jurisdiction follows an MPC‑style rule that abolishes it.

On the MBE, if the question clearly labels the situation “legal impossibility,” treat it as a defense unless a statute or MPC rule is expressly invoked. If the question uses factual scenarios without labels, ask whether, had the circumstances been as the defendant believed them to be, the defendant’s conduct would have been a crime. If yes, impossibility is factual and therefore no defense.

Some scenarios are hybrids. For example, where the defendant is mistaken about a non‑criminal legal status (e.g., believing property still belongs to someone else when title has passed), there is debate over whether the impossibility is “legal” or “factual.” The MBE tends to avoid truly contentious edge cases. Instead, it tests classic examples where the classification is clear.

Impossibility analysis frequently overlaps across inchoate crimes. The same basic mistaken belief may render an inchoate offense impossible in law (true defense) or impossible in fact (no defense). Train yourself to identify:

• Whether the “problem” is that the law does not actually criminalize the conduct (legal impossibility); or
• Whether the “problem” is that a physical fact was not as the defendant assumed it to be (factual impossibility).

Worked Example 1.7

A daughter decides to kill her parents by poisoning them with ricin extracted from castor oil plant seeds. She mistakenly uses seeds from a look‑alike plant that are harmless. She crushes the seeds and serves them in her parents’ oatmeal, intending to kill them. They suffer only mild stomach upset. She is charged with attempted murder. What result?

Answer:
She is guilty of attempted murder. She had the specific intent to kill and took a substantial step by preparing and administering what she believed was a deadly poison. The fact that the seeds were not actually poisonous is a classic case of factual impossibility: the plan would have caused death had the facts been as she believed them to be (i.e., had the seeds contained ricin). Factual impossibility is not a defense to attempt, so she remains liable for attempted murder, even though homicide did not occur.

Worked Example 1.8

Believing that buying codeine cough syrup without a prescription is a crime, D goes to a pharmacy and purchases a bottle of codeine syrup without a prescription. In fact, the legislature repealed the prescription requirement last year, so the purchase is completely legal. D is charged with attempted unlawful possession of codeine without a prescription. What result?

Answer:
D is not guilty of attempt under the traditional rule because this is legal impossibility. Even if everything had been as D believed, his conduct—buying codeine without a prescription—would still be lawful under current law. There is no actual crime to attempt. Under an MPC‑type statute that defines attempt in terms of the actor’s purpose to engage in conduct they believe to be criminal, some courts would treat this as punishable. On the MBE, unless the question expressly adopts such a statute, treat this as legal impossibility and therefore a defense to attempt.

Attempt and Result Crimes: No “Attempted Felony Murder”

Because attempt always requires specific intent, there are important limits:

• There is no “attempted felony murder” because felony murder does not require an intent to kill; it punishes killings that occur during the commission of certain felonies.
• There is generally no attempt for purely reckless or negligent crimes (e.g., involuntary manslaughter), since the defendant’s mental state in those offenses is not purposeful with respect to the harmful result.
• However, a defendant who actually intends to kill can be guilty of attempted murder even if, had the victim died, the prosecution might also have charged felony murder or depraved‑heart murder. The presence of actual intent to kill is sufficient for attempt.

Another important rule, already noted, is that transferred intent does not apply to attempts. Attempt liability tracks the specific victim the defendant intended to harm.

• If D aims at A intending to kill A, misses, and injures B:
  • D is guilty of attempted murder of A and battery or assault of B.
  • D is not guilty of attempted murder of B, because there was no intent to kill B.

This is contrasted with completed homicide, where D’s intent to kill A can transfer to B if B is actually killed.

Attempts also interact with attendant‑circumstance elements of crimes. Suppose a statute makes it burglary to enter the dwelling of another at night with intent to commit a felony. If D breaks into a building believing it is someone else’s dwelling, when in fact it is his own property (legally), he may avoid both burglary and attempted burglary due to legal impossibility: even if all had gone as he believed, his conduct would not fit the statute.

Worked Example 1.9

D, intending to kill his business partner, fires a shot into what he believes is the partner’s bedroom while the partner is sleeping. Unknown to D, the partner is out of town, and no one is in the room. The bullet lodges harmlessly in the wall. D is charged with attempted murder of the partner. What result?

Answer:
D is guilty of attempted murder. He had the specific intent to kill his partner and took a substantial step by firing into the bedroom where he believed the partner was located. That conduct is strongly corroborative of his murderous intent and goes far beyond preparation. The failure to achieve the result is due to factual impossibility—the room was empty—which is not a defense to attempt.

Punishment and Merger: Attempt

Attempt is usually punished less severely than the completed offense, often one grade lower (e.g., attempted felony punished as a lesser felony). Some statutes, especially for very serious crimes, impose equal penalties for attempt and completion; always read any statutory language provided in the fact pattern.

Attempt merges into the completed substantive offense:

• If the defendant actually completes the target crime, they can be convicted of the completed offense but not also of attempt.
• If the crime is not completed, the defendant can be convicted of attempt alone.

This is consistent with the broader rule that inchoate offenses merge into completed crimes, with the key exception of conspiracy.

Double jeopardy mirrors this merger logic. If D is tried and convicted of attempted robbery, and later evidence shows that D actually obtained property (i.e., the robbery was in fact completed), D generally cannot be reprosecuted for that same robbery because attempt is a lesser‑included offense of the completed robbery. However, if a new element arises later (such as the victim’s death), a subsequent homicide prosecution may be permitted, because the homicide is considered a separate offense with an element (death) that was not present at the first trial.

Attempt, Solicitation, and Conspiracy Together

In some fact patterns, the same course of conduct may satisfy multiple inchoate crimes. For example:

• Asking someone to commit a crime (solicitation).
• Agreeing together to commit the crime (conspiracy).
• Taking steps toward committing the crime (attempt).

Merger rules work as follows:

• Solicitation merges into conspiracy once an agreement is formed (under a bilateral approach) or once the defendant believes they have an agreement (under a unilateral approach, only in jurisdictions that recognize unilateral conspiracy).
• Solicitation and attempt each merge into the completed crime if it occurs.
• Conspiracy does not merge into the completed crime; a defendant can be convicted of both conspiracy and the substantive offense.

Note also that each inchoate crime has its own actus reus and may occur at different times:

• Solicitation is complete when the request is made.
• Conspiracy is complete when there is an agreement (and any required overt act).
• Attempt is complete when the substantial step is taken.

A defendant may thus be guilty of several inchoate crimes along the way, but merger limits what they can ultimately be convicted of.

Worked Example 1.10

Leo asks Max to kill Victor for $5,000 (solicitation). Max agrees, and they plan the murder (conspiracy). Max later goes to Victor’s house with a gun and fires at Victor, missing him (attempt). On a different day, Max finally succeeds in killing Victor (completed murder). Which convictions are possible?

Answer:
Leo and Max may be convicted of murder for the completed killing and of conspiracy to commit murder, because conspiracy does not merge into the completed crime. The earlier solicitation and attempt merge into the later offenses: the solicitation merges into the conspiracy once Max agrees, and Max’s attempted murder merges into the completed murder. On these facts, neither Leo nor Max should be convicted of separate solicitation or attempted murder based on the same course of conduct, because those inchoate offenses are absorbed by the later, more serious crimes. In addition, Leo can be liable as an accomplice to the murder based on his original solicitation and participation in planning.

Inchoate Offenses and Parties (Accomplice Liability)

Inchoate liability often overlaps with party liability, particularly accomplice liability and co‑conspirator liability. MBE questions frequently require distinguishing these theories and understanding how they can operate simultaneously.

Key Term: Accomplice
A person who, with the intent to aid or encourage, assists, aids, abets, or encourages the principal before or during the commission of a crime, and is liable for that crime and other foreseeable crimes committed in the course of it.

Basic Principles of Accomplice Liability

Under modern law, accomplice liability is a theory for holding people other than the principal criminally responsible for the principal’s crime. Key features:

• The accomplice must:

  • Assist or encourage the principal (actus reus), and
  • Act with the intent to aid and the intent that the crime be committed (mens rea).

• Forms of assistance:

  • Physical aid (driving a getaway car, providing weapons, acting as lookout).
  • Psychological aid (encouraging words, promises to help escape).
  • Providing information or tools with knowledge and intent that they be used in the crime.

• Mere presence at the scene, even with knowledge that a crime is occurring, is not enough; there must be some affirmative act or words designed to help or encourage, unless a special legal duty exists (e.g., a parent–child relationship that creates a duty to act).

Accomplices are typically liable for:

• The target crime they assisted; and
• Other crimes that are the natural and probable (foreseeable) consequences of the target crime.

For example, a driver who agrees to assist in a bank robbery as a getaway driver can be an accomplice to:

• The robbery itself; and
• Any foreseeable assaults or homicides committed by the robbers during the robbery or escape.

The additional crimes must be reasonably foreseeable in light of the original plan. A shooting during an armed robbery will usually be foreseeable; a sexual assault during a planned pickpocketing may not be.

Accomplice liability does not require the principal’s conviction:

• An accomplice can be convicted even if the principal cannot be (e.g., because the principal is a minor, insane, immune, or not yet apprehended).
• Exception: A person protected by a statute (e.g., a minor in a statutory rape law) cannot be an accomplice in violating that statute, just as they cannot be a co‑conspirator.

Under traditional common law, distinctions were made among principals and accessories (principal in the first degree, principal in the second degree, accessory before the fact). Modern statutes usually collapse these categories into a single concept of “accomplice” or “party to a crime,” simplifying analysis for the MBE.

How Inchoate Offenses Interact with Accomplice Liability

• Solicitation and Accomplice Liability:

  • The act of solicitation often overlaps with accomplice liability. If the person solicited actually commits the crime, the original request or offer of payment typically constitutes the act of encouragement needed for accomplice liability.

  • Example: A offers B $5,000 to kill C. B kills C. A is guilty of murder as an accomplice; the original solicitation merges into the completed homicide. A is not separately punished for solicitation, but the solicitation remains the factual basis for his accomplice liability.

  • If the person solicited only attempts the crime, the solicitor may be an accomplice to the attempt. If the person solicited never goes beyond preparation, there may be no substantive offense to which accomplice liability can attach, but the solicitor remains liable for solicitation.

• Conspiracy and Accomplice Liability:

  • Conspiracy and accomplice liability are separate theories:

    • A conspirator is someone who agreed to commit the crime and intended its success.
    • An accomplice is someone who actually aided or encouraged the crime.

  • In practice, most conspirators also act as accomplices (e.g., providing resources, planning details), but it is possible to be:

    • A conspirator but not an accomplice (if you agreed but never provided any assistance before the crime occurred); or
    • An accomplice but not a conspirator (if you helped in a one‑time way without agreeing to an ongoing plan).

  • Pinkerton liability (for co‑conspirators’ crimes) and accomplice liability (for the principal’s crimes) can both apply. For instance, a conspirator who also drives the getaway car may be liable as both a conspirator under Pinkerton and an accomplice to the substantive crimes.

  • The MBE sometimes tests the difference by using language clues:

    • Words like “agreed,” “planned together,” or “conspired” point toward conspiracy.
    • Words like “aided,” “encouraged,” or “assisted” with no mention of agreement point toward accomplice liability.

• Attempt and Accomplice Liability:

  • A person who assists another in attempting a crime is an accomplice to the attempt itself. The target crime has not been completed, but attempt is its own offense.

  • Example: A drives B to the victim’s home knowing B intends to kill the victim and wanting to help. B fires at the victim but misses. B is guilty of attempted murder; A is an accomplice to attempted murder.

  • If the principal does not go beyond mere preparation, there may be no attempt, and therefore no crime for the accomplice to be liable for—unless the accomplice’s own conduct independently constitutes solicitation or conspiracy.

  • A person can also attempt to aid another, even if the principal never reaches the stage of attempt. Modern statutes sometimes criminalize “attempted aiding and abetting,” but the MBE focuses primarily on classic accomplice liability plus solicitation and conspiracy.

• Overlap with Inchoate Offenses:

  • A single course of conduct can create multiple layers of liability:

    • Solicitation by A to B (inchoate).
    • Conspiracy between A and B if they agree (inchoate).
    • Attempt if either takes a substantial step (inchoate).
    • Completed offense if the crime occurs.
    • Accomplice liability for anyone who aids the attempt or the completed offense.

  • Merger rules apply to the inchoate offenses, but accomplice liability is simply a way of assigning responsibility for the substantive offenses and does not merge in the same sense.

Withdrawal as an Accomplice vs. Withdrawal from Conspiracy

Withdrawal has different effects depending on whether you are considering conspiracy or accomplice liability:

• Withdrawal from conspiracy (discussed earlier) does not erase the conspiracy but can cut off Pinkerton liability for later offenses.

• Withdrawal as an accomplice can cut off liability for future crimes if:

  • The accomplice communicates withdrawal to the principal in time for the principal to abandon the plan; and
  • If the accomplice has already provided substantial assistance, they must attempt to neutralize that assistance (e.g., retrieving the weapon, warning the victim).

However, withdrawal as an accomplice does not retroactively absolve the accomplice of liability for crimes already completed or attempts already undertaken. Timing is important: once the principal has crossed the line into attempt or completion, it is too late to withdraw to avoid accomplice liability for that offense.

The MBE may test this by asking, for example, whether a getaway driver who backs out at the last minute, after previously providing planning help, is liable if the principal proceeds alone. Analyze:

• Has the driver withdrawn in time to prevent being an accomplice to the completed robbery?
• Has the driver nevertheless already committed conspiracy by agreeing to the plan (if an overt act occurred)?

In that scenario, the driver might escape accomplice liability for the robbery if the withdrawal was timely and communicated, but still be guilty of conspiracy based on the earlier agreement.

Distinguishing Theories on the MBE

MBE questions often include facts that could suggest solicitation, conspiracy, attempt, and accomplice liability. You must read closely to identify which doctrine the call of the question is targeting.

Look for:

• Words like “agree,” “plan together,” “scheme” → suggests conspiracy.
• Words like “aid,” “assist,” “encourage,” “drive the getaway car” → suggests accomplice liability.
• Words like “ask,” “urge,” “offer money to commit” → suggests solicitation.
• A solo actor taking steps toward a crime, interrupted before completion → suggests attempt.
• Multiple actors committing additional crimes during the execution of the planned offense → suggests Pinkerton or natural‑and‑probable‑consequence accomplice liability.

Once you identify the theory, apply the correct elements and defenses:

• For conspiracy, focus on agreement, intent, and overt act (if required), and remember that conspiracy does not merge.
• For attempt, focus on specific intent and a substantial step, and remember that factual impossibility and most abandonment are not defenses.
• For solicitation, focus on communication and specific intent, and remember that solicitation merges into conspiracy or the completed crime.
• For accomplice liability, focus on actual aid/encouragement and intent to facilitate, and remember that the accomplice can be liable for additional foreseeable crimes.

An additional exam technique is to map each person’s conduct against a timeline and mark the earliest point each element appears. This helps you determine:

• When each inchoate crime was complete;
• Whether an asserted withdrawal or renunciation came too late;
• Which inchoate crimes merge into later offenses; and
• Which derivative liability (Pinkerton, accomplice) applies to each substantive offense.

Key Point Checklist

This article has covered the following key knowledge points:

• Inchoate offenses (solicitation, conspiracy, attempt) punish steps taken toward completing a crime, even when the target crime is not completed.
• All three inchoate offenses are specific intent crimes; they require an intent to bring about the target crime, even if the completed crime itself can be committed with lesser mens rea.
• Solicitation is asking or encouraging another to commit a crime with specific intent that the crime be committed; it is complete upon communication and generally does not require an overt act.
• The communication constituting solicitation may be direct or indirect, explicit or implicit, and may be made by spoken, written, or electronic means, as long as it is intended to induce the commission of a crime.
• Under common law, withdrawal is not a defense to solicitation; the crime is complete when the request is made. Under some modern statutes and the MPC, voluntary and complete renunciation coupled with prevention of the crime can be a defense.
• Factual impossibility is not a defense to solicitation; legal impossibility is a defense, because there must be an actual crime being urged.
• Solicitation merges into either conspiracy (if the other person agrees) or the completed offense (if the crime is carried out); it also often serves as the factual basis for accomplice liability when the solicited person commits the substantive offense.
• Conspiracy requires (i) an agreement, (ii) specific intent to agree, (iii) specific intent to achieve an unlawful objective, and (iv) in most modern jurisdictions, an overt act in furtherance.
• The common law bilateral conspiracy rule requires two genuinely guilty parties; the MPC unilateral rule permits conviction even when the co‑conspirator is an undercover officer or otherwise feigns agreement.
• Buyer–seller relationships, mere knowledge, and mere presence do not create conspiracy; there must be an actual shared plan to commit an unlawful act.
• Wharton’s Rule and the protected class rule limit conspiracy liability in crimes that inherently require multiple participants or are designed to protect a particular class.
• Under Pinkerton liability, conspirators are liable for substantive crimes of co‑conspirators that are in furtherance of the conspiracy and reasonably foreseeable; effective withdrawal can cut off this derivative liability.
• Withdrawal from a conspiracy is generally not a defense to the conspiracy itself but can cut off liability for later substantive crimes; under the MPC, effective renunciation (including efforts to thwart the crime) may also defeat the conspiracy charge.
• Conspiracy does not merge into the completed crime; a defendant can be convicted of both conspiracy and the substantive offense without violating double jeopardy.
• Attempt requires specific intent to commit the target crime plus a substantial step (MPC/majority) or conduct dangerously close to completion (proximity test/minority); mere preparation is insufficient.
• There is no attempted felony murder and generally no attempts for purely reckless or negligent offenses; attempt always demands a purposeful intent to bring about the proscribed result.
• Factual impossibility is never a defense to attempt; legal impossibility is traditionally a defense, though many modern/MPC approaches narrow or abolish it and focus instead on the actor’s purpose.
• Abandonment is generally not a defense to attempt once a substantial step is taken, though the MPC recognizes voluntary, complete renunciation as a defense if the defendant forsakes the crime and, where possible, prevents its commission.
• Under the merger doctrine:
  • Attempt and solicitation merge into the completed offense if it occurs.
  • Solicitation also merges into conspiracy when an agreement is reached.
  • Conspiracy does not merge; a defendant can be convicted of both conspiracy and the completed crime.
• In multi‑stage fact patterns, you must carefully identify which inchoate crimes have arisen and which have merged, and then apply the appropriate defenses and liability expansions (Pinkerton and accomplice).
• Accomplice liability requires aiding or encouraging with intent that the crime be committed and often overlaps with, but is distinct from, inchoate liability and co‑conspirator (Pinkerton) liability; an accomplice can be liable even if the principal is not convicted, subject to the protected class exception.
• Withdrawal as an accomplice can cut off liability for future crimes if timely and effectively communicated and if prior aid is neutralized, but does not erase liability for past offenses.
• Specific‑intent doctrines (voluntary intoxication, some mistakes of fact) and impossibility defenses interact in particular ways with inchoate offenses; spotting these interactions is a common source of MBE questions.
• Double jeopardy principles interact with merger: prior prosecution for an inchoate offense can bar later prosecution for the completed offense if all elements were already present and no new fact (such as death) arose later, but conspiracy remains separately punishable from the substantive crime.
• Mapping each actor’s conduct on a timeline (from solicitation through agreement and overt acts to substantial steps and completion) is an effective way to analyze which inchoate offenses are complete, which defenses are available, and which charges merge.

Key Terms and Concepts

• Inchoate Offense
• Specific Intent Crime
• Merger Doctrine
• Solicitation
• Overt Act
• Conspiracy
• Bilateral Conspiracy
• Unilateral Conspiracy
• Wharton’s Rule
• Statutory Protected Class
• Pinkerton Liability
• Withdrawal (from Conspiracy)
• Attempt
• Substantial Step
• Proximity Test
• Abandonment (Attempt)
• Legal Impossibility
• Factual Impossibility
• Accomplice