Conspiracy is the concerted effort or act of committing the crime. Conspiracy is a specific intent crime and the common law requires two parties for a conspiracy charge. Both parties must have the same mens rea or “mutuality” (See State v. Hayes). The common law does not require an over act or a step beyond preparation for the crime; however, it does require a showing of when the agreement (or implied agreement) was actually formed.

Under conspiracy, a defendant can be held accountable for acts that exceed the defendant’s initial agreement. In Pinkerton v. United States, the court held the defendant liable for acts of co-conspirators that occurred “in the furtherance” of the conspiracy. Under this standard, the court looks from the point of view of the conspiracy and states that those acts which are “reasonably foreseeable consequences of the conspiratorial agreement.”

Note: This standard is different from the natural and probable consequences doctrine under felony-murder which viewed forseeability from the perspective of the defendant.

Defeat the purpose of the conspiracy

Under the common law, a defendant could not abandon the original conspiracy. Once the defendant entered the conspiracy, he was stuck. However, the common law did allow a defendant to withdraw from the reasonably foreseeable consequences (aka the Pinkerton crimes). In order to withdraw from these consequences, the defendant had to notify the co-conspirators of his withdrawal and the withdrawal had to be completed within a reasonable amount of time so that the co-conspirators could also withdraw before the commission of the crime.

MPC Conspiracy

Under the MPC Section 5.03, both parties do not need the same mens rea (no mutuality required). Because conspiracy is a specific intent crime, the defendant can only be charged with conspiracy, attempt, or solicitation. The state must choose one of the three.

Under the MPC Section 5.03(6), renunciation must be presented as an affirmative defense if the defendant “thwarted the success of the conspiracy.” This could include calling law enforcement with a reasonable amount of time so that the co-conspirators could also withdraw. The MPC essentially rejects Pinkerton because it allows the defendant to avoid the conspiracy charge as a whole instead of only avoiding the foreseeable consequences with an appropriate renunciation.


List of Specific Intent Crimes


Common Law Solicitation

Solicitation is a general intent crime under the Common Law; however, it was typically treated as though it was a specific intent crime because solicitation is an incomplete crime like attempt. The defendant only needed to have a general intent that his conduct/solicitation will lead to the result of the crime; however, the defendant needed to “have the purpose” or specific intent that the third party will commit the crime.

Under common law, whenever the defendant completed the actus of asking a third party to commit a crime, the solicitation was complete. The law required that the state must show the defendant encouraged or induced through the statement (i.e. the defendant offers the third party tangible property if the third party commits a crime). In order to be found guilty, the defendant’s statement would have to indicate a clear mens rea that the third party commit the crime. Common law only looked at the statement by the defendant and not any actions surrounding the statement. No overt act required under Common Law or MPC. The statement was evaluated under an objective reasonableness standard.

Modern Solicitation

Modern statutes define solicitation as a specific intent crime.  For example, MPC Section 5.02 defines solicitation as:

“A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission [specific intent] he commands, encourages or requests 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.”

If the defendant wants to end or renunciate the solicitation he must persuade the third party not to do the crime or otherwise prevent the commission of the crime. In order to renunciate from the solicitation, the defendant must manifest a “complete and voluntary renunciation of his criminal purpose” (Section 5.02(3)). Renunciation is presented by the defendant as an affirmative defense.


Helpful: General Intent Crimes List


Attempt is an “incomplete crime.” To constitute attempt, the defendant’s mens rea must have intended the actual conduct AND the actual result (or ultimate harm). In other words, attempt is a specific intent crime even if the attempted crime only requires general intent.

Common Law Attempt

The Common Law had four tests to determine whether the defendant attempted a crime:

1. Equivocality

Looked at the factual circumstances the defendant committed to show that it was unambiguous that the defendant intended the completed offense

2. Proximity

Under this analysis, the court balances the following tests:

(a) “Nearness” test. This test looks to see how close the defendant came to actually committing the offense.

(i) How many steps did the defendant take?

(ii) How many steps where left?

(b) Harm test. Looks at the ultimate result of the actual harm.

(i) How serious would the harm have been if the defendant committed the act?
The less serious the harm, the closer we need in “nearness;” the more serious the harm, we don’t need to get as close in “nearness”

(ii) What would it take to prevent the harm? The more police involvement required (government intrusion), the further we can be away from the nearness

3. Desistance

  1. Looked at the events as a causation; (another type of proximity test);
  2. From our causation link, is there a point in time when a reasonable person would/could have stepped in and stopped him?
  3. The goal of the desistance test is to determine the point in time when a reasonable person could have stepped in and stopped the offense (reasonable person analysis)
  • Reasonable person – someone of common intelligence who wants to avoid serious bodily injury to himself
    • If they could step in, they would.
    • Analyze seriousness of the harm to determine if the reasonable person would step in
    • The last point in time that a reasonable person would have stepped in is the point of desistance

4. Last Act

The last act before a defendant can change is mind before completing the offense of attempt.

MPC Attempt

The MPC Section 5.01 only has one test: “substantial step.” However, 5.01(2) specifically lists conduct which may be held as a substantial step. The MPC does require that a defendant’s conduct be strongly corroborative of his criminal purpose in order to constitute a substantial step. Examples, from section 5.01(2), of what may constitute a substantial step include:

  • lying in wait, searching for or following the contemplated victim of the crime
  • possession of materials to be employed in the commission of the crime, which are specifically designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances
  • soliciting an innocent agent to engage in conduct constituting an element of the crime

For Defenses to Attempt see Impossibility

More Helpful Information: List of Specific Intent Crimes

General Intent vs. Specific Intent

Intent crime

The difference between general intent and specific intent:

  • General intent – the defendant intended the conduct
  • Specific intent – the defendant intended the conduct and the result

For a specific intent crime, the mens rea will typically be written into the statute. Intentional and knowledge based crimes are considered specific intent crimes. Here is a (not exhaustive) list of specific intent crimes:

  1. Murder
  2. Attempt
  3. Conspiracy
  4. Solicitation (under modern statutes)
  5. Larceny
  6. False Imprisonment

Note: A specific intent crime cannot merge.

General intent crimes typically include crimes that are based on the defendant being reckless or negligence. Here is a (non exhaustive) list of general intent crimes:

  1. Manslaughter
  2. Negligent Homicide
  3. Solicitation (however, it is treated like a specific intent crime and modern statutes define it as a specific intent crime)
  4. Arson
  5. Rape


Mistake of Law Defense

Mistake of Law is not a valid defense to a general intent crime. Even if the defendant’s mistake was reasonable, mistake of law is not a valid defense. (See People v. Marrero). The only exception is if a statute proscribing the defendant’s conduct has not been reasonably made available or if the defendant recently relied on a statute or judicial decision that was recently held unconstitutional.

However, under a specific intent crime, the defendant’s mistake of law is a valid defense whether reasonable or unreasonable. (See Cheek v. United States).

Compare to Mistake of Fact Defense

More Helpful Information: List of General Intent and Specific Intent Crimes

Cheek v. United States, 498 U.S. 192 (1991)

Case Name: Cheek v. United States
Citation: 498 U.S. 192 (1991)

Facts: Cheek was convicted of willfully failing to file a federal income tax return for a number of years. His defense was that he sincerely believed that under the tax laws he owed no taxes and that the tax laws were unconstitutional. Cheek received this information from seminars and his own study. The jury could not decide because they were divided on whether Cheek honestly and reasonably believed that he was not required to pay income tax. The trial judge responded that “an honest but unreasonable belief is not a defense and does not negate willfulness” and that the information Cheek received was “not objectively reasonable.” The jury then convicted Cheek.

Defendant’s argument: The trial judge erred in instructing the jury that only an “objectively reasonable” misunderstanding of the law negates the statutory willfulness requirement.

State’s argument: Mistake about the law is not a defense to criminal liability.

Holding: It was not error for the judge to instruct the jury not to consider Cheek’s claims that the tax laws were unconstitutional; however, it was error for the court to instruct the jury that Cheek’s beliefs should not be considered by the jury in determining whether Cheek acted willfully.

Reasoning: Because of the complexity of the tax laws, the Court has interpreted the term “willfully” as carving out an exception to the traditional rule and requires specific intent.