Can I face criminal charges without actually committing a crime?

Most people in California likely assume that in order for authorities to prosecute them for a crime, they actually have to have committed a crime. Yet news stories often describe people facing criminal charges with terms like “attempted” or “conspiracy to.” This means that the perceived intent to commit a crime may be enough to warrant criminal charges.

Legal professionals refer to charges arising from situations where a crime may not have actually occurred as “inchoate offenses.” Yet in order for such crimes to warrant a conviction, prosecutors must prove that intent indeed existed in a defendant’s mind.

Taking a step towards a crime

Section 21a of the California Penal Code states that two elements must exist in order for authorities to charge someone with an attempted crime: a specific intent to commit the offense and evidence detailing direct (but ineffectual) steps toward actually doing it.

Investigators often look to the defendant’s words, actions and perceived motives to determine intent. However, they must provide actual evidence that shows the defendant was working toward carrying out the supposed intentions. Examples of such evidence could include the defendant recently purchasing a weapon or stalking a possible victim.

Persons charged with an inchoate offense may respond to the charges by showing that they eventually abandoned any intention to actually commit the crime. They may also argue that, even if evidence shows they had intent to commit the crime, circumstances made following through with those intentions impossible.

Separating inchoate from target offenses

The Cornell Law School lists three distinct types of inchoate offenses:

  • Conspiracy
  • Solicitation
  • Attempt

Target offenses are the actual crimes that inchoate offenses contemplated. A defendant who’s charged with attempt or solicitation cannot also face charges for the actual target offense. That is not the case with conspiracy, however.

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