Inchoate offense

An inchoate offence (British English) or inchoate offense (American English) is the crime of preparing for or seeking to commit another crime. The most common example of an inchoate offence is conspiracy. Inchoate offence has been defined as "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent." It is a "crime about crime." This term is also called an inchoate crime or inchoate offense.

Intent

Main article: Intention

Every inchoate crime or offense must have the mens rea of intent. Absent a specific law, an inchoate offence requires that the defendant have the specific intent to commit the underlying crime. For example, for a defendant to be guilty of the inchoate crime of solicitation of murder, he or she must actually intend for that person to die.

Intent may be distinguished from Recklessness and Criminal negligence as a higher mens rea.

Proof of intent

Specific intent may be inferred from circumstances. It may be proven by the doctrine of res ipsa loquitur or "dangerous proximity".

Merger doctrine

Main article: Merger doctrine

A true inchoate offence occurs when the intended crime is not perpetrated since the Doctrine of Merger prohibits charging both, except for conspiracy.

Failure

There can be various causes of failing the commission of the underlying crime, for example arrest prior to committing the crime, accident which prevents the crime, or even factual impossibility. For example, the defendant takes a gun that he believes is loaded, points it at the victim, and with the intent to kill the victim, pulls the trigger. The gun is not loaded, however, and the victim runs away. In this case, the defendant would be guilty of the inchoate crime of attempted murder, even though it was actually impossible for the defendant to commit the underlying crime, murder.

Defenses

Impossibility

If the underlying crime to be attempted could not have been performed, then a defense to the charge would be that it would be impossible to commit the crime. If a man is hired to commit murder, but before he can get to the victim, the victim drops dead of a heart attack, the murder would have been impossible. If a group of men go to rob a liquor store, and arriving at the (attempted) crime scene, find the building in flames, then again, the crime would have been impossible.

Also, if it would have been impossible for the alleged perpetrator to have committed the crime, that may also be a defense. If a man with no arms is arrested for attempting to beat a man to death with a baseball bat, proof that there is no way he could have lifted or used a baseball bat would be a defense of impossibility.

It should be noted, however, that such impossibility, in the realistic sense, may not be a legal defense under state laws. In Oregon, for example, it is not. To-wit: Oregon Revised Statutes (ORS) 161.425, states: "Impossibility not a defense. In a prosecution for an attempt, it is no defense that it was impossible to commit the crime which was the object of the attempt where the conduct engaged in by the actor would be a crime if the circumstances were as the actor believed them to be. [1971 c.743 §55]." The group of adventurous perpetrators arriving at the burning liquor store could therefore still be arrested in Oregon for "attempted robbery" of the burning store.

Cases that illustrate the case law for impossibility defenses are People v. Lee Kong (1892), State v. Mitchell (1902) and United States v. Thomas (1962).

Examples

Examples of inchoate offences include conspiracy, solicitation, facilitation, misprision of felony, organized crime, and attempt, as well as some public health crimes; see the list below.

List of Inchoate offenses

• Accessory
• Attempt - See State v. Mitchell
• Conspiracy
• Facilitation
• Misprision of felony
• Misprision of treason
• RICO
• Solicitation

See also

• Criminal law
• Doctrine of merger

External links

• http://www.apsu.edu/oconnort/3010/3010lect03a.htm