UBE Inchoate Crimes

Last updated: May 2, 2026

Inchoate Crimes questions are one of the highest-leverage areas to study for the UBE. This guide breaks down the rule, the elements you need to recognize, the named traps that catch most students, and a memory aid that scales to test day. Read it once, then practice the same sub-topic adaptively in the app.

The rule

Inchoate offenses punish conduct aimed at, but falling short of, a completed target crime. The three classic inchoate crimes — solicitation, conspiracy, and attempt — each require specific intent to bring about the target offense plus a distinct actus reus: a request or encouragement (solicitation), an agreement (conspiracy, with an overt act in the majority/federal view), or a substantial step under the MPC / dangerous proximity at common law (attempt). Solicitation and attempt merge into the completed target offense; conspiracy does NOT merge — a defendant can be convicted of both the conspiracy and the substantive offense, and is also vicariously liable under Pinkerton for foreseeable crimes of co-conspirators committed in furtherance of the agreement.

Elements breakdown

Solicitation

Inviting, requesting, encouraging, or commanding another person to commit a crime, with the specific intent that the offense be committed.

  • Words or conduct inviting another to act
  • Object of the invitation is a criminal offense
  • Specific intent that the solicitee commit the crime
  • Communication need not actually reach the solicitee (MPC)

Common examples:

  • Asking another to commit murder for hire
  • Hiring a hitman who turns out to be undercover
  • Encouraging another to set a fire

Conspiracy (Common Law / Bilateral)

An agreement between two or more persons with two or more guilty minds to commit a criminal act, with intent to enter the agreement and intent to achieve the unlawful objective.

  • Agreement between two or more persons
  • At least two parties with genuine criminal intent
  • Intent to enter the agreement
  • Specific intent to achieve the unlawful objective

Common examples:

  • Two co-defendants planning a bank robbery
  • Three partners agreeing to defraud investors

Conspiracy (Modern Majority / Federal — Overt Act)

Modern majority and federal conspiracy adds an overt-act requirement: any act in furtherance of the conspiracy, however slight, by any conspirator.

  • All elements of common-law conspiracy
  • Plus an overt act by any conspirator in furtherance of the agreement
  • Overt act need not itself be criminal

Common examples:

  • Renting a getaway car
  • Buying ski masks
  • Casing the target premises

Unilateral Conspiracy (MPC)

Under the Model Penal Code, a person is guilty of conspiracy if she agrees with another to commit a crime, even if the other party feigns agreement (e.g., undercover officer).

  • Defendant agrees with another to commit a crime
  • Defendant has specific intent that the crime be committed
  • Other party's actual intent is irrelevant

Common examples:

  • Hiring an undercover officer posing as a hitman
  • Agreeing with a confidential informant to traffic drugs

Pinkerton Co-Conspirator Liability

A conspirator is vicariously liable for crimes committed by co-conspirators that are in furtherance of the conspiracy and reasonably foreseeable, even without personal participation in the substantive offense.

  • Defendant is a member of the conspiracy
  • Co-conspirator commits a substantive offense
  • Offense was in furtherance of the conspiracy
  • Offense was reasonably foreseeable as a natural consequence

Wharton's Rule

Where a substantive offense by definition requires the participation of two persons, those two persons cannot be charged with conspiracy to commit that offense unless additional parties join.

  • Target crime inherently requires two participants
  • Only the two necessary parties have agreed
  • Conspiracy charge precluded as to those two

Common examples:

  • Bigamy
  • Adultery
  • Dueling
  • Bribery (in some formulations)

Attempt

An act done with specific intent to commit a target crime that goes beyond mere preparation toward commission.

  • Specific intent to commit the target offense
  • Overt act beyond mere preparation
  • Substantial step strongly corroborative of criminal purpose (MPC) OR dangerous proximity to completion (common law)

Common examples:

  • Pointing a loaded gun at the victim and pulling an empty trigger
  • Lying in wait near the victim's home with a weapon
  • Driving to the target with arson tools

Impossibility Defenses

Factual impossibility (the crime could not be completed because of a fact unknown to the defendant) is NOT a defense; legal impossibility (what the defendant set out to do is not actually a crime) IS a defense in most jurisdictions.

  • Factual impossibility: never a defense
  • Legal impossibility: defense at common law and most jurisdictions
  • MPC abolishes legal impossibility except for true legal impossibility (no crime exists)

Common examples:

  • Pickpocket reaching into an empty pocket — factual, no defense
  • Selling a substance defendant believes is illegal but is actually legal — legal impossibility

Renunciation / Withdrawal

Common-law conspiracy and attempt generally do not allow renunciation as a defense to the inchoate offense itself; the MPC recognizes a complete and voluntary renunciation defense for both attempt and conspiracy.

  • Voluntary abandonment under circumstances manifesting renunciation of criminal purpose
  • For conspiracy: must thwart the conspiracy's success (MPC)
  • Withdrawal from conspiracy cuts off Pinkerton liability for future crimes but not past ones

Merger Doctrine

Solicitation and attempt merge into the completed target offense; conspiracy does NOT merge — a defendant may be convicted of both the conspiracy and the substantive offense.

  • Solicitation merges if conspiracy or completed offense follows
  • Attempt merges into completed offense
  • Conspiracy is a separate offense and does not merge
  • Cannot be convicted of both attempt AND solicitation for same act

Common patterns and traps

The Solicitation-Conspiracy-Attempt Timeline

Many fact patterns walk a defendant through a sequence: request → agreement → overt act → substantial step → completion. Each milestone crosses into a new inchoate offense, and the right answer often turns on identifying the latest stage the conduct reaches. The graders want you to mark the timeline rather than label the entire sequence with a single offense.

A correct choice will identify the most-advanced inchoate stage actually reached on the facts (e.g., 'attempt' rather than 'solicitation') and pair it with the correct test (substantial step vs. dangerous proximity).

The Bilateral-vs-Unilateral Conspiracy Cut

When a fact pattern includes an undercover officer, confidential informant, or co-conspirator who feigns agreement, the jurisdictional rule decides everything. At common law and in bilateral jurisdictions, conspiracy fails because there is no true meeting of two guilty minds. Under the MPC's unilateral approach, the defendant alone can form a conspiracy. Watch the call-of-the-question for 'common law' or 'MPC' — it is dispositive.

Trap choices apply MPC unilateral conspiracy in a common-law jurisdiction or vice versa, often paired with otherwise-correct rule statements about agreement and intent.

The Substantial-Step vs. Mere-Preparation Line

Attempt distractors live on the line between substantial step and mere preparation. The MPC asks whether the conduct is strongly corroborative of criminal purpose; common law asks whether the defendant was in dangerous proximity to success. Buying tools, scouting, and lying in wait usually cross the line under the MPC; arriving at the scene with the means to commit the offense almost always does.

A wrong choice will frame any pre-arrival conduct as 'mere preparation' or apply the discarded 'last-act' test as if it were the governing standard.

The Pinkerton Foreseeability Trap

Bar questions repeatedly test whether a co-conspirator is liable for unplanned violence committed by a confederate during the conspiracy. The trap is to require specific intent to commit the additional crime — Pinkerton requires only that the offense was in furtherance and reasonably foreseeable, like a robbery escalating to homicide. Don't confuse Pinkerton with accomplice liability, which requires intent to aid the substantive offense.

Trap choices acquit the non-shooter co-conspirator on lack-of-intent grounds or insist Pinkerton has been abolished, when in fact it remains the federal and majority rule.

The Merger Mismatch

Solicitation and attempt merge into the completed offense and into each other; conspiracy does not merge. Test takers who memorize 'inchoate crimes merge' get burned when a defendant is convicted of both conspiracy AND the substantive crime. Conversely, charging a defendant with both attempt and the completed crime is a double-counting error that distractors exploit.

Wrong choices either let conspiracy merge into the completed crime (acquitting the conspiracy charge) or stack attempt on top of a completed offense, both of which misstate the merger rules.

How it works

Inchoate crimes are an issue-spotting goldmine because every fact pattern that hints at coordinated wrongdoing or a frustrated criminal plan triggers them. Suppose Reyes asks Liu to burn down a competitor's warehouse. The moment Reyes asks, solicitation is complete. If Liu agrees, both have committed conspiracy (common law); under the modern majority and federal rule, you also need an overt act — say, Liu buying gasoline. If Liu drives to the warehouse with the gas can and is arrested in the parking lot, attempt is on the table under the MPC's substantial-step test. If a fire actually starts and a bystander dies, Reyes is liable for the homicide under Pinkerton even if she stayed home, provided the death was reasonably foreseeable. On the bar, work the timeline forward and tag each milestone — request, agreement, overt act, substantial step, completion — and ask which inchoate offense each crosses.

Worked examples

Worked Example 1

On what theory is Patel most likely to be convicted of the guard's murder?

  • A Conspiracy alone, because conspiracy merges with all completed offenses committed by co-conspirators.
  • B Pinkerton liability, because the killing was reasonably foreseeable and in furtherance of the agreed-upon armed robbery. ✓ Correct
  • C Accomplice liability only, because Patel never fired the weapon and Pinkerton has been abolished in federal court.
  • D She cannot be convicted of murder because the agreement was limited to robbery and Patel lacked specific intent to kill.

Why B is correct: Under Pinkerton v. United States, a co-conspirator is vicariously liable for substantive offenses committed by other conspirators that are (1) in furtherance of the conspiracy and (2) reasonably foreseeable as a natural consequence. An armed bank robbery foreseeably escalates into homicide when an armed robber is confronted, so Patel is liable for the guard's death even though she never personally fired.

Why each wrong choice fails:

  • A: Conspiracy does NOT merge with the completed offense — that is exactly backwards. Solicitation and attempt merge; conspiracy stands as a separate conviction alongside the substantive crime. (The Merger Mismatch)
  • C: Pinkerton remains good law in federal court and the majority of states. The choice misstates current doctrine and ignores that Pinkerton supplies a vicarious-liability theory beyond accomplice liability. (The Pinkerton Foreseeability Trap)
  • D: Pinkerton does not require specific intent to commit the additional offense; foreseeability of the additional crime as a natural consequence of the conspiracy suffices, which is precisely why the doctrine reaches unplanned violence during armed crimes. (The Pinkerton Foreseeability Trap)
Worked Example 2

Has Liu committed attempted arson?

  • A Yes, because under the MPC her conduct was a substantial step strongly corroborative of her criminal purpose. ✓ Correct
  • B Yes, because under the common-law dangerous-proximity test she came within fifty feet of the warehouse.
  • C No, because the police arrested her before she set foot on the warehouse property, so her conduct remained mere preparation.
  • D No, because the MPC requires that the defendant complete the last act necessary to commit the offense.

Why A is correct: The MPC defines attempt as conduct constituting a substantial step strongly corroborative of the actor's criminal purpose. Driving to the target premises at 2:00 a.m. with gasoline and reconnaissance notes — after weeks of scouting — easily satisfies the substantial-step test, which expressly contemplates 'reconnoitering the place contemplated' and 'possession of materials specially designed for unlawful use.'

Why each wrong choice fails:

  • B: The state follows the MPC, not the common law, so dangerous proximity is the wrong governing test. The right outcome paired with the wrong rule is a classic distractor. (The Substantial-Step vs. Mere-Preparation Line)
  • C: The substantial-step test does not turn on physical entry onto the target's property; possession of accelerant at the scene with prior reconnaissance is corroborative of criminal purpose regardless of the property line. (The Substantial-Step vs. Mere-Preparation Line)
  • D: The 'last act' test is the discarded common-law minority approach, not the MPC standard. The MPC deliberately moved the threshold earlier so police can intervene before the offense is consummated. (The Substantial-Step vs. Mere-Preparation Line)
Worked Example 3

Of which inchoate offenses can Marquez properly be convicted?

  • A Conspiracy and solicitation, because she both agreed with Tran and asked him to commit murder.
  • B Conspiracy only, because the solicitation merged into the agreement to murder her husband.
  • C Solicitation only, because no conspiracy was formed when Tran feigned agreement, and her conduct was too remote from the killing itself to constitute attempt. ✓ Correct
  • D Attempted murder, because handing over the down payment and the husband's schedule was a substantial step toward causing his death.

Why C is correct: At common law, conspiracy is bilateral and requires a genuine meeting of two guilty minds. Tran's feigned agreement does not satisfy that requirement, so no conspiracy formed. Marquez nonetheless committed solicitation the moment she invited Tran to commit murder with the specific intent that he do so. Attempted murder fails because hiring a third party is too remote from the act of killing — Marquez's own conduct never came near the substantive offense.

Why each wrong choice fails:

  • A: Bilateral conspiracy fails because Tran never formed genuine criminal intent. The choice correctly identifies solicitation but incorrectly tacks on a conspiracy charge that would only succeed under the MPC's unilateral approach. (The Bilateral-vs-Unilateral Conspiracy Cut)
  • B: Solicitation does merge into a conspiracy if a conspiracy actually forms, but no conspiracy formed here. The merger doctrine cannot resurrect a charge that was never validly available in the first place. (The Merger Mismatch)
  • D: Hiring a third party is generally treated as too remote from the substantive killing to constitute attempted murder; the defendant's own conduct never approaches dangerous proximity to causing death. This choice over-extends the substantial-step concept. (The Substantial-Step vs. Mere-Preparation Line)

Memory aid

S-C-A: Solicitation = Speech, Conspiracy = Compact (+ overt act), Attempt = Action. Merger? S and A merge in; C stays out. Pinkerton = Partner's foreseeable Crimes are yours.

Key distinction

The single most-tested distinction is bilateral (common law) vs. unilateral (MPC) conspiracy. If a fact pattern features an undercover officer or feigning informant and the jurisdiction follows common law, conspiracy fails for lack of a true meeting of guilty minds — but solicitation almost always still applies, so don't reflexively acquit on all inchoate counts.

Summary

Inchoate crimes punish dangerous criminal planning at three escalating stages — solicitation, conspiracy, and attempt — and the bar tests merger, Pinkerton, and the bilateral-versus-unilateral conspiracy split relentlessly.

Practice inchoate crimes adaptively

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Frequently asked questions

What is inchoate crimes on the UBE?

Inchoate offenses punish conduct aimed at, but falling short of, a completed target crime. The three classic inchoate crimes — solicitation, conspiracy, and attempt — each require specific intent to bring about the target offense plus a distinct actus reus: a request or encouragement (solicitation), an agreement (conspiracy, with an overt act in the majority/federal view), or a substantial step under the MPC / dangerous proximity at common law (attempt). Solicitation and attempt merge into the completed target offense; conspiracy does NOT merge — a defendant can be convicted of both the conspiracy and the substantive offense, and is also vicariously liable under Pinkerton for foreseeable crimes of co-conspirators committed in furtherance of the agreement.

How do I practice inchoate crimes questions?

The fastest way to improve on inchoate crimes is targeted, adaptive practice — working questions that focus on your specific weak spots within this sub-topic, getting immediate feedback, and revisiting items you missed on a spaced-repetition schedule. Neureto's adaptive engine does this automatically across the UBE; start a free 7-day trial to see your sub-topic mastery climb in real time.

What's the most important distinction to remember for inchoate crimes?

The single most-tested distinction is bilateral (common law) vs. unilateral (MPC) conspiracy. If a fact pattern features an undercover officer or feigning informant and the jurisdiction follows common law, conspiracy fails for lack of a true meeting of guilty minds — but solicitation almost always still applies, so don't reflexively acquit on all inchoate counts.

Is there a memory aid for inchoate crimes questions?

S-C-A: Solicitation = Speech, Conspiracy = Compact (+ overt act), Attempt = Action. Merger? S and A merge in; C stays out. Pinkerton = Partner's foreseeable Crimes are yours.

What's a common trap on inchoate crimes questions?

Forgetting that conspiracy does NOT merge with the completed offense

What's a common trap on inchoate crimes questions?

Applying bilateral conspiracy to MPC fact patterns (or vice versa) — read the call carefully

Related UBE sub-topics

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