Exam 10: Inchoate Offenses

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An overt act, in the context of inchoate crimes, refers to a clear, definitive action that a person takes toward the commission of a crime, which demonstrates their intention to commit that crime. Inchoate crimes are crimes that are recognized by the law as being in preparation for committing a full criminal offense but fall short of the final act. They include attempt, conspiracy, and solicitation.

For an attempt to be considered an inchoate crime, there must typically be an overt act that goes beyond mere preparation. The overt act must be a step in the direct movement towards the commission of the offense after the preparations are made. It is an act that clearly indicates the individual's intention to follow through with the criminal intent.

For example, if someone plans to rob a bank, merely planning and discussing the robbery is not enough to constitute an attempt. However, if that person buys a ski mask, a gun, and writes a note demanding money from the bank teller, these actions could be considered overt acts because they are direct movements toward the commission of the robbery.

In the case of conspiracy, an overt act is an action taken by one or more members of the conspiracy that furthers the objectives of the conspiratorial agreement. It is proof that the conspirators have gone beyond mere agreement to commit a crime and have taken steps to make that crime a reality.

For solicitation, the overt act is the act of requesting, encouraging, or demanding someone else to engage in criminal conduct, with the intent that the crime be committed.

The requirement of an overt act serves to distinguish serious, concrete steps toward committing a crime from mere thoughts or talk about criminal activity. It is a safeguard to ensure that individuals are not punished solely for their thoughts or for offenses they never actually intended to commit. The overt act must be sufficiently proximate to the intended crime to be considered a punishable offense under the law.

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A person can be convicted of the crime of solicitation under circumstances where they have intentionally requested, encouraged, or demanded someone else to engage in criminal conduct with the intent that the crime be committed. The key elements of solicitation typically include:

1. Intent: The person doing the soliciting must have the specific intent or purpose that the crime be committed. This means they must actually want the crime to occur, not merely joke or speak hypothetically.

2. Communication: The solicitation must involve some form of communication, whether verbal, written, or electronic, where the person solicits, commands, entreats, or otherwise tries to persuade another person to commit a crime.

3. Crime: The solicitation must be for the commission of a specific crime. General or vague requests that do not pertain to a particular criminal act may not meet the threshold for solicitation.

4. No requirement for compliance: It is not necessary for the person solicited to agree to commit the crime, or even for the crime to be attempted or completed. The crime of solicitation is complete upon the act of solicitation itself, provided the other elements are met.

5. Seriousness of the offense: Solicitation often applies to serious offenses. Many jurisdictions may not charge an individual with solicitation for minor infractions or petty crimes.

It's important to note that laws regarding solicitation can vary by jurisdiction, and what constitutes solicitation in one place may differ in another. Additionally, some jurisdictions may require that the solicitation be made to someone who has the apparent ability to commit the crime, although this is not a universal requirement.

Defenses against a charge of solicitation can include lack of intent, withdrawal or renunciation of the solicitation (if the person voluntarily and completely renounces the criminal intent and thwarts the commission of the crime), or entrapment (if the individual was induced by law enforcement to commit the solicitation that they would not have otherwise initiated).

As with any legal matter, specific circumstances and local laws will greatly influence the outcome of a solicitation case, and legal counsel should be sought to navigate the complexities of such charges.