American criminal law recognizes three general inchoate offenses: attempt, conspiracy, and solicitation. Where a person attempts, conspires with another, or solicits another to commit an offense, but the offense is never committed, the person nonetheless may be liable for one of these inchoate offenses. If you have been charged with an inchoate offense, contact an experienced Bluffdale Utah criminal defense lawyer.
The Crime of Attempt
At some point in the chain of events from thinking about committing an offense to completing it, a person’s conduct becomes criminal. This point typically is described as the moment at which mere preparation becomes a criminal attempt. Defining this point is an important part of attempt liability because it demarcates both when a person becomes criminally liable and when authorities lawfully may intervene. Attempt is significantly different from other offenses under American law because even after this point is reached and all the elements of attempt (or other inchoate offense) are satisfied, a person typically may escape liability if he or she voluntarily and completely renounces the attempt. Absent such renunciation, the failure to complete an offense only prevents liability for the full offense; it does not relieve the person from liability for the attempt.
The most common American objective requirement for attempt is that the person take a “substantial step” toward commission of the offense.
Current American law commonly elevates the culpability required for an offense when it is charged in its inchoate form. Thus, although recklessness with respect to causing injury may be sufficient for aggravated assault, in many jurisdictions attempted aggravated assault may require purpose or knowing with regard to causing injury. There is disagreement over whether this is wise policy. It may well be that attempt should require proof of a purpose to complete the conduct constituting the offense, but that the normal culpability levels for the offense elements ought not to be elevated.
The Crime of Conspiracy
Conspiracy typically requires an agreement between two or more conspirators that at least one of them will commit a substantive offense. The agreement need not be an act in a strict sense. Speaking, writing, or nodding can signal agreement, but one also can agree through silence where, under the circumstances or custom, silence is meant and understood to mean positive agreement. Thus, for the person to be liable for conspiracy, the other conspirator must actually be agreeing, not just pretending to agree (as an undercover police officer would, for example).
Modern American codes have adopted a unilateral agreement requirement, which permits conspiracy liability as long as the person agrees with another person, without regard for whether the other person is returning the agreement. Perhaps because conspiracy’s agreement requirement is so slim a conduct requirement, an overt act is typically also required of one of the conspirators in furtherance of the agreement in order to sustain a conviction.
The Crime of Solicitation
Solicitation is essentially an attempt to commit conspiracy by encouraging or requesting another person to do what would constitute an offense or an attempt. As with conspiracy, the offense focuses on the person’s subjective view of the world. The solicitation need not be successfully communicated; it is sufficient that the solicitor’s “conduct was designed to effect such communication.” Unlike attempt, where the person’s conduct may be ambiguous with respect to its criminal purpose, the solicitation offense includes no special requirement that the person’s conduct strongly corroborate his or her criminal purpose.
Defenses To Crimes
In casual language anything that prevents conviction of a person is called a defense, but this term includes doctrines that are very different from one another. The legal doctrines that we refer to as defenses typically are of five sorts: absent-element defenses, offense modifications, justifications, excuses, or nonexculpatory defenses.
Some doctrines that are called defenses are nothing more than the absence of a required offense element. If a person takes an umbrella, believing it to be his or her own, he or she may claim a mistake defense, but this defense derives not from a special defense doctrine about mistake as to ownership, but rather from the elements of the theft offense itself. The definition of theft includes a requirement that the person know that the property taken is owned by another. If a person mistakenly believes that the umbrella taken is his or her own, he or she does not satisfy the required culpability element of knowledge that it belongs to another. Such a mistake defense is called an absent-element defense (or a failure of proof defense) because it derives from the inability of the state to prove a required element. The person is claiming that the prosecution cannot prove all the elements of the offense. It is within accepted casual usage to call such claims defenses, but they are simply another way of talking about the requirements of an offense definition.
Some defenses are indeed independent of the offense elements but in fact concern criminalization issues closely related to the definition of the offense. They typically refine or qualify the definition of a particular offense or group of offenses. Voluntary renunciation, for example, can provide a defense to inchoate offenses like attempt or conspiracy. Consent is recognized as a defense to some kinds of assault. Such a consent defense helps define what we mean by the offense of assault, just as renunciation helps refine the definitions of inchoate offenses (as including only unrenounced criminal plans). Indeed, assault frequently is defined as an unconsented-to touching. That is, the absence of consent sometimes is included as an element of the offense. The difference between absent-element defenses and offense-modification defenses is one more of form than of substance. An offense-modification defense can as easily be drafted as a negative element of the offense, for each defines in part what the offense is not.
Criminalization Defenses versus General Defenses
Because both absent-element and offense-modification defenses serve to refine the offense definition, they tend to apply to a single offense or group of offenses. Justifications, excuses, and nonexculpatory defenses, in contrast, are unrelated to a particular offense; they theoretically apply to all offenses and therefore are called general defenses. The recognition of each general defense rests on reasons extraneous to the criminalization goals and policies of the offense. A general defense is provided not because there is no criminal wrong, but rather despite the occurrence of a legally recognized harm or evil. The offense’s harm or evil may have occurred, but the special conditions establishing the defense suggest that the violator ought not to be punished.
Justification defenses such as lesser evils, self-defense, and law-enforcement authority exculpate on the theory that the person’s otherwise criminal conduct avoided a greater harm or evil. That is, although a person satisfies the elements of an offense, his or her offense is tolerated or even encouraged because it does not cause a net societal harm. A person who burns a firebreak on another’s land may thereby commit arson but also may have a justification defense (of lesser evils) because, by the burning, the person saves innocent lives threatened by the fire.
The commonly available doctrines of justification are the lesser-evils defense, the defensive-force defenses of self-defense, defense of others, defense of property, and defense of habitation, and the public authority defenses of law enforcement authority, authority to maintain order and safety, parental authority, benevolent custodial authority, medical authority, authority to prevent a suicide, judicial authority, military authority, and general public authority.
The Defense of Excuses
Excuse defenses such as insanity and duress exculpate under a different theory. The defendant has admittedly acted improperly— has caused a net societal harm or evil— but the defendant is excused because he or she cannot properly be held responsible for his or her offense conduct. Note the difference in focus between justifications and excuses: a defendant’s conduct is justified, a defendant is excused. Excuses are of two sorts: disability excuses, which include insanity, involuntary intoxication, duress, and immaturity (the defense for involuntary conduct also serves this purpose), and mistake excuses, which include mistake about a justification, reliance on an official misstatement of law, and unreliable law. Insanity defense is not available in Utah.
A final group of general defenses does not exculpate a person but does provide an exemption from liability. Even if the person’s conduct is criminal and unjustified and the person is fully responsible for it, such nonexculpatory defenses are made available because each furthers important societal interests. Thus diplomatic immunity may provide a defense, without regard to the guilt or innocence of the person, because by doing so a country’s diplomats are protected from interference when abroad, and diplomatic communications among nations can be established and maintained. Other common nonexculpatory defenses in American codes include statutes of time limitation; judicial, legislative, and executive immunities; and immunity after compelled testimony or pursuant to a plea agreement.37 Further, many constitutional principles function as nonexculpatory defenses, such as the double-jeopardy clause and the exclusionary rule,38 as well as the legality principle doctrines discussed earlier.
The lesser-evils defense— sometimes called choice of evils or necessity, or simply the general justification defense. It illustrates the structure and operation of justification defenses generally by relying explicitly on the rationale inherent in all justifications: although the person may have caused the harm or evil of an offense, the justifying circumstances suggest that his or her conduct avoided a greater harm or evil than it caused.
The triggering of a lesser-evils defense, like that of all other justifications, does not give a person unlimited authority.
His or her response must be both necessary and proportionate. The necessity requirement has two components: the conduct must be necessary in time and in the amount of harm caused. The lesser-evils defense, like all other justifications, requires proportionality between the harm or evil caused by the person’s conduct and the harm or evil avoided. Indeed, the defense contains a more explicit statement than does any other justification. While most other justifications require proportionality through a general requirement that the person’s conduct be “reasonable,” the lesser-evils requirement might be seen as being more demanding. It is not enough for the defense that the harmfulness of the person’s conduct is generally proportionate to the harm threatened. The person’s conduct must be shown to have been less harmful than the harm threatened.
Defensive-force justifications are triggered when an aggressor unjustifiably threatens harm. The triggering conditions for defensive force are considerably more specific than those of the lesser-evils defense; defensive force requires an unlawful, aggressive use or threat of force. That the person against whom the defendant uses force is acting unlawfully is not sufficient to trigger a defensive-force justification. Smoking on a bus or refusing to get out of the way of an emergency vehicle may be unlawful conduct that justifies the use of force against the violator, but a justification defense other than defensive force must be relied on. For defensive force, active physical aggression is required. In order to trigger a defensive-force justification, the aggressor must unjustifiably threaten harm to the defendant. Thus, when a police officer uses justified force to effect an arrest, the arrestee has no right of self-defense, and others may not lawfully use defensive force on his or her behalf. Similarly, where a person unjustifiably attacks another and his or her victim then uses justified defensive force to repel the attacker, the initial aggressor has no right of self defense against the justified defensive response. On the other hand, where the intended victim uses unnecessary or disproportionate force in response, the initial aggressor gains a right to use defensive force.
Public Authority Justifications
Public authority justifications are available when a person has been specifically authorized to engage in conduct otherwise constituting an offense that is necessary to protect or further a societal interest. Unlike defensive-force justifications, the person’s authority is not limited to defensive action. He or she may act affirmatively to further a public interest, even one that is entirely intangible. These justification defenses most commonly are distinguished from one another according to the specific interests they foster: different defenses authorize the use of force for law-enforcement purposes, medical purposes, military purposes, judicial purposes, to maintain order and safety on public carriers or in other public places of assembly, or for use by parents or guardians. A catchall public authority justification commonly provides a defense for performing public duties other than those for which a special defense is provided.
The common structure of public authority justifications is thus that special authorization and evoking conditions trigger a person’s right to use necessary and proportional force. The authorization and evocation elements as triggering conditions act together to describe the factors and circumstances that will give rise to an authority to act. For example, a police officer and a bus driver are both given authorizations to act, but in different situations and with different limitations on their use of force. The necessity and proportionality requirements— the response elements— describe the nature of the conduct that is justified once the authority to act is triggered.
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