Inchoate Crimes Dr. Eric Engle DEA

Inchoate Crimes - Overview Introduction & Comparison Conspiracy Complicity (Aiding and Abetting; Accomplice; Accessory) Attempt Misprision/Concealing a Crime Obstruction of Justice

Inchoate Crimes: Introduction & Comparison Inchoate crimes are those acts which are criminal yet do not alone result in the completion of a substantive criminal act. Mens rea is not the problem. Actus reus however is questionable. These types of crimes exist in French and German law, not to the same extent however and not under a specific rubric. In dubio pro reo, the fact there is no completed criminal damage or actus reus makes inchoate crimes look problematic.

Possible Translations France: délit non accompli; infractions inchoatives http://www.linguee.com/english-french/translation/inchoate+offence.html Germany: einleitender Straftat

Conspiracy Common law conspiracy is an agreement between two people to commit a felony with at least one overt act in furtherance of the conspiracy. A misdemeanor, conspiracy merges into the completed crime By statute conspiracy may have felony or misdemeanor as its object and no longer merges into the completed crime.

German and French Law German law recognizes “Beteiligung” which may be translated as conspiracy but is more accurately translated as “participation. Art. 30 German Penal Code regards crimina participation ie inciting or being incited to commit crime as a variety of attempt France likewise punishes “participation à une association de malfaiteurs” CP 401-1 Does conspiracy/participation satisfy “double criminality” for extradition ?

Complicity Governed by statute today Early common law tried to distinguish between “accessory before the fact” and “accessory after the fact”. “Accessory” terms sometimes still appear in the laws and cases but are rejected in some jurisdictions. Aiding and abetting is a synonym of complicity Complicity is the liability for an accomplice to a crime. Where accessory liability is recognized it is less severe than complicity: the accomplice helps to commit the crime. The accessory is instead only involved in providing the criminal means or disposal of criminal evidence and escape of the criminal.

French and German Law France: Complice Article 121-7 Code penal Anstiftung StGB Art. 26 (incitation) Beihilfe; StGB Art. 27 (aide)

Attempt Versuch StGB 22, 23; Tentative Article 121-5 Code penal Intending action (general intent) versus intending consequences (specific intent) Example: I shoot a gun, intending to kill A but instead kill B. I am guilty of murder of B and attempted murder of A. Contrast, I shoot a gun at a straw doll, thinking it a person. This is a case of factual impossibility: most common law jurisdictions do not allow factual impossibility as a defence to crime! Thus, attempted murder.

Misprision of a Felony At common law failure to report a felony was a misdemeanor. Usually, not always, common law misprision is abolished by statute and replaced with the statutory term “concealment of a crime” Contrast: “compounding a crime” = bribery in exchange for no prosecution

Obstruction of Justice / Perverting the Course of Justice Lying to the police, principally Possibly: destruction of evidence

Conclusion: Although inchoate crimes are somewhat problematic and considered somewhat differently in common law and continental European law

Thank you for listening! Any questions?