You know that sinking feeling when an MBE question asks “Can the defendant be convicted of conspiracy?” and you freeze because you can’t remember whether conspiracy requires an overt act or just an agreement? Inchoate crimes trip up more bar examinees than almost any other Criminal Law topic because they test crimes that never actually happen.
Inchoate crimes on the MBE — attempt, conspiracy, and solicitation — are the “almost crimes.” They punish conduct that falls short of the completed offense. The MBE loves testing these because they require you to spot subtle distinctions: Did the defendant take a substantial step or just prepare? Was there an agreement or just talk? Understanding these incomplete crimes is essential because they appear in roughly 15-20% of Criminal Law questions, and they frequently overlap with other doctrines like accomplice liability and defenses.
What Makes a Crime “Inchoate”?
The term inchoate means incomplete or unfinished. These crimes punish defendants for taking steps toward committing another crime, even when that target crime never occurs. The policy rationale is straightforward: society has an interest in stopping dangerous conduct before it causes harm.
All three inchoate crimes share one critical feature: they are specific intent crimes. This means the defendant must have intended to bring about the completed offense, regardless of whether the target crime itself requires specific intent. A defendant can be guilty of attempted murder (specific intent) even though murder itself can be a general intent crime.
This distinction matters constantly on the MBE. Voluntary intoxication, for example, can negate the specific intent required for attempt or conspiracy, even if it wouldn’t be a defense to the underlying crime.
Attempt: The Substantial Step Test
Attempt requires two elements: (1) the specific intent to commit the target offense, and (2) a substantial step toward its commission that goes beyond mere preparation.
The first element is straightforward. The defendant must intend the result that would constitute the completed crime. If you’re charged with attempted murder, prosecutors must prove you specifically intended to kill, even if the completed crime of murder could be satisfied by depraved heart recklessness.
The second element — the substantial step — is where MBE questions get tricky. The common law required an act that came dangerously close to completion. The Model Penal Code (which most jurisdictions follow and which guides the MBE) uses a more lenient standard: any act that is strongly corroborative of the defendant’s criminal purpose.
Here’s a typical fact pattern: Defendant purchases a gun, follows the victim home, and parks outside the victim’s house with the gun loaded. Has the defendant committed attempted murder? Yes. Purchasing the gun alone would be mere preparation, but the combination of acts — buying the weapon, stalking the victim, positioning himself for the crime — constitutes a substantial step strongly corroborative of intent to kill.
Contrast that with a defendant who simply announces “I’m going to kill him” and buys a gun but takes no further action. That’s still preparation. The line between preparation and attempt is the most heavily tested distinction in this area.
The Impossibility Defense
Factual impossibility is not a defense to attempt. If you try to pick an empty pocket, you’re still guilty of attempted larceny. If you shoot at someone sleeping in a bed but they had already left the house, you’re still guilty of attempted murder. The crime was impossible to complete due to circumstances you didn’t know about, but your intent and conduct still constitute attempt.
Legal impossibility is a defense, though it rarely applies. Legal impossibility exists when the defendant’s intended act, even if completed exactly as planned, would not actually be a crime. The classic example: you attempt to bribe someone you believe is a juror, but they’re actually not a juror. Your completed act would not be bribery, so there’s no attempted bribery.
The MBE tests this by presenting facts where the defendant made a mistake. Ask yourself: if everything had been exactly as the defendant believed, would completing the act be a crime? If yes, it’s factual impossibility (no defense). If no, it’s legal impossibility (defense applies).
Abandonment and Merger
At common law, abandonment is not a defense once you’ve taken a substantial step. Your change of heart doesn’t erase the crime you’ve already committed. The Model Penal Code recognizes voluntary and complete abandonment as a defense, but only if the abandonment wasn’t motivated by fear of getting caught or a decision to postpone the crime until later.
The MBE typically follows the common law rule: once you’ve crossed the line from preparation to attempt, you’re guilty regardless of whether you abandon the plan.
Remember that attempt merges into the completed crime. You cannot be convicted of both attempted robbery and robbery. If you complete the crime, the attempt is subsumed. This is one of the few instances where merger applies in criminal law.
Conspiracy: The Agreement Crime
Conspiracy is the most tested inchoate crime on the MBE, and it’s also the most complex. It requires: (1) an agreement between two or more persons to commit an unlawful act, and (2) the specific intent to achieve the objective of that agreement.
In the majority of jurisdictions, conspiracy also requires an overt act in furtherance of the conspiracy, though this act can be trivial — even a simple phone call or purchasing supplies qualifies. At common law, no overt act was required; the agreement itself was the crime.
Here’s what makes conspiracy dangerous for defendants: it doesn’t merge with the completed crime. You can be convicted of both conspiracy to commit robbery and robbery itself. This is a major distinction from attempt.
Bilateral vs. Unilateral Approach
The common law follows a bilateral approach: at least two guilty minds are required. If one person is an undercover police officer or is only feigning agreement, there’s no conspiracy because there was never a true meeting of the minds.
The Model Penal Code adopts a unilateral approach: only one person needs to genuinely agree. A defendant can be convicted of conspiracy even if every other “conspirator” was actually an undercover agent. The MBE can test either approach, so read the call of the question carefully.
The practical difference shows up in this scenario: Defendant approaches an undercover officer and proposes they rob a bank together. The officer pretends to agree but has no intention of going through with it. Under the bilateral approach, no conspiracy exists. Under the unilateral approach, the defendant is guilty of conspiracy.
Pinkerton Liability
The Pinkerton rule holds each conspirator liable for all foreseeable crimes committed by co-conspirators in furtherance of the conspiracy. This is vicarious liability, and it’s broader than accomplice liability.
Suppose three defendants conspire to commit armed robbery. During the robbery, one conspirator unexpectedly shoots and kills a security guard. Even the conspirators who didn’t pull the trigger can be liable for felony murder if the killing was a foreseeable consequence of the armed robbery conspiracy.
The key limitations: the crime must be (1) committed in furtherance of the conspiracy, and (2) a reasonably foreseeable result of the conspiratorial agreement. If a conspirator commits a crime for purely personal reasons unrelated to the conspiracy, co-conspirators are not liable.
Withdrawal from Conspiracy
Withdrawal from conspiracy is possible, but it’s difficult. At common law, a conspirator must affirmatively notify all co-conspirators of the withdrawal. This terminates liability for subsequent crimes committed by co-conspirators, but it does not erase liability for the conspiracy itself (remember, the conspiracy was complete the moment the agreement was made).
Some jurisdictions allow a conspirator to avoid liability for the conspiracy itself by thwarting the conspiracy’s objective — for example, by notifying police in time to prevent the crime. But this is not the majority rule on the MBE.
Solicitation: The Asking Crime
Solicitation is the simplest inchoate crime. It occurs when a person asks, commands, or encourages another person to commit a crime with the intent that the other person commit the crime.
The crime is complete the moment the solicitation is communicated. It doesn’t matter whether the person solicited agrees, refuses, or ignores the request entirely. If you ask a hitman to kill your spouse, you’ve committed solicitation the instant those words leave your mouth.
Solicitation merges into conspiracy if the person solicited agrees (because now you have an agreement). It also merges into the completed offense if the crime is actually committed.
The MBE tests solicitation less frequently than attempt or conspiracy, but when it does appear, the questions focus on whether the solicitation was actually communicated and whether the defendant had the specific intent that the crime be committed. Merely discussing the possibility of committing a crime is not solicitation; there must be actual encouragement or inducement.
Common MBE Traps with Inchoate Crimes
Trap #1: Confusing conspiracy with accomplice liability. Conspiracy requires an agreement to commit a crime. Accomplice liability requires intentionally aiding or encouraging a crime. You can be an accomplice without being a conspirator (if there was no prior agreement), and you can be a conspirator without being an accomplice (if you never actually helped commit the crime).
Trap #2: Forgetting that inchoate crimes require specific intent. Even if the target crime is general intent or strict liability, the inchoate version requires specific intent. Attempted statutory rape requires intent that the victim be underage, even though completed statutory rape is strict liability.
Trap #3: Misapplying merger rules. Attempt merges with the completed crime. Conspiracy does not. Solicitation merges with both conspiracy and the completed crime. Keep these straight.
Trap #4: Treating all impossibility the same. Factual impossibility is never a defense. Legal impossibility is a defense, but it almost never applies to real-world facts. If the MBE gives you an impossibility question, it’s almost always factual impossibility, meaning the defendant is still guilty.
Trap #5: Assuming withdrawal erases conspiracy liability. Withdrawal can terminate liability for future crimes by co-conspirators, but the defendant remains guilty of the original conspiracy. The agreement itself was the crime.
What You Need to Memorize
For attempt, lock down: specific intent to commit the target crime plus a substantial step that is strongly corroborative of that intent. Factual impossibility is no defense. Abandonment is no defense at common law. Attempt merges into the completed offense.
For conspiracy, memorize: agreement between two or more persons plus intent to achieve the objective, plus an overt act (in most jurisdictions). Conspiracy does not merge. Pinkerton rule imposes liability for foreseeable crimes by co-conspirators. Bilateral approach requires two guilty minds; unilateral approach requires only one.
For solicitation, remember: asking another to commit a crime with intent that they commit it. Complete upon communication. Merges into conspiracy and the completed crime.
If you want all of these rules organized in a format designed for active recall, FlashTables Criminal Law & Procedure breaks down attempt, conspiracy, and solicitation with every element, every exception, and every defense in side-by-side comparison tables. The structured format makes it easier to spot the distinctions the MBE tests most frequently — like when factual impossibility applies versus legal impossibility, or what acts constitute a substantial step versus mere preparation.
Inchoate crimes are tested heavily because they force you to apply multiple layers of analysis: intent, conduct, causation, and policy. Master the elements of each crime, understand how they differ from each other, and practice spotting the line between preparation and criminal conduct. That’s where MBE points are won.