One of the most confusing areas of the law is when the law surrounding criminal attempt, criminal solicitation and criminal conspiracy. This can be confusing for attorneys as well. In law school we learn that these crimes are called inchoate crime or incomplete crimes. That’s because the actually crime that is connected to the solicitation, conspiracy or attempt doesn’t actually have to come about for there to be a crime that is punished.
It’s like criminalizing the pre-stages of criminal activity even when criminal activity may never actually happen. Think like the Tom Cruise movie “Minority Report.”
But unlike the movie, we can and do fight these charges. Because it is confusing, juries won’t necessarily convict unless they see a clear crime and very clear actions.
So when folks ask:
- “Who is the best criminal attempt attorney near me?”
- “Who’s the best criminal solicitation attorney near me?”
- “Who is the best criminal conspiracy attorney near me?”
The only answer is “The McShane Firm”“.
When you know that you need the best criminal defense attorney, call us. We’ll come to your aid.
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You can read the exact laws here:
- 18 PS § 901. Criminal attempt.
- 18 PS § 902. Criminal solicitation.
- 18 PS § 903. Criminal conspiracy.
In the law school world, they can conjure up all sorts of really bizarre fact patterns to probe the edge of these incomplete crimes. But sometimes, the reality and common sense show how the crime itself is obvious.
Some obvious examples include:
- Criminal solicitation to commit murder. Where the accused meets with a “hit man”, exchanges money for a specific person to be killed and tells the hitman how.
- Criminal attempt murder. Where the accused walks up to someone and says “you deserve death” points the gun at the person’s head from inches away and says “meet your maker” pulling the trigger several times, but the person survives and doesn’t die.
- Criminal conspiracy. A group of friends get together. They fantasize about how easy it would be to rob the bank that one of them work at. Meeting again and again to finalize an assault plan, these folks are serious. They purchase guns. Stealing a ditch car, they drive to the bank. The police arrest them as they exit their car guns in hand, balaclavas on with empty duffle bags.
Cases that do go to trial
But these are not typically the ones that go to trial unless there is no realistic offer and there is nothing to lose. The ones that go tot trial are the ones that are in the very wide and large grey area of facts. The government will always look to criminalize what may be just youthful talk, locker room talk, and BS’ing.
In addition, we run into cases of taped meetings set up by the police where a future crime is discussed. For a conspiracy, at least two individuals must actually have an agreement to commit the crime and have the intent to commit the crime- if one person made a “fake agreement”- no conspiracy since it lacks multiple guilty minds. Sometimes you agree to anything to get out of a crazy talking situation that you want nothing to do with. In the real world, if you start voicing objections to folks, it could lead to injury or death.
Beyond a reasonable doubt
First it’s about a mindset. Even experienced criminal defense attorneys adopt the wrong mindset. When you are charged with any crime, it is just a naked allegation. While it is true that the government does not have to prove the complete and total impossibility of guilt. A reasonable doubt is a doubt based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act.
Second, the power of the oath makes it so you must follow the law. The law includes the command that the accused at all times has the presumption of innocence. A criminal trial is not about where the jury is being asked to decide who told the better story or if the government told a story that is possible or even very very likely.
The jury is not there to be a referee. That’s the judge. The jury is not standing in between the prosecutor and the accused and being asked to choose which side is better.
So in the jury deliberation room, they need to act consistent with that the person with the verdict slip marking the verdict as not guilty before a word is uttered, before the foreperson is selected and before anyone even sits. This is done with ink because of how hard it is to erase is like how hard it is to remove that presumption of innocence.
The only way we can lose
The only way the jury can lawfully and with good conscious give a verdict of guilty, and leave our side, is if the prosecutor presents such quantity and quality of evidence that the only reasonable interpretation of the facts is that of guilt.
A brick wall called reasonable doubt now stands before us all. Unless the government knocks down every brick, doubt still exists, and you go home. Reasonable doubt can come out of the evidence (what someone said, what someone said they saw, what someone said they did) or FROM A LACK OF EVIDENCE (somethings that the government didn’t explain, what doesn’t make sense, questions unanswered).
The government must prove exact parts of the law and each and every part beyond a reasonable doubt. We call these parts elements of the crime. In general, a crime consists of four elements: a mental state, conduct, concurrence, and causation. So let’s look at the elements for each of these crimes.
The elements of § 901. Criminal attempt.
- the accused
- with intent to commit a specific crime,
- does any act which constitutes a substantial step toward the commission of that crime.
Defenses for § 901. Criminal attempt
Mistake of fact.
Unfortunately, we cannot augur to the jury that you were either physically incapable of doing the underlying crime or that it was in fact impossible for the accused to commit the crime attempted.
(1) In any prosecution for an attempt to commit a crime, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if the mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.
(2) A renunciation is not “voluntary and complete” within the meaning of this subsection if it is motivated in whole or part by:
(i) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or
(ii) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.
The elements of § 902. Criminal solicitation.
- the accused
- with the intent of promoting or facilitating its commission
- commanded, encouraged or requested
- another person
- to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.
Defenses for § 902. Criminal solicitation
Renunciation.–It is a defense that the actor, after soliciting another person to commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal intent.
The elements of § 903. Criminal conspiracy.
- the accused
- with another person or persons
- to commit a crime
- if with the intent of promoting or facilitating its commission he:
- agreed with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
- agreed to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
The law reads: “No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.”
The law reads: “It is a defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal intent.”
It all depends on what the object or intended crime is. Whatever that crime is and its maximum becomes the maximum for these incomplete crimes.