Types of Criminal Offenses

Although there are many different kinds of crimes, criminal acts can generally be divided into four
primary categories: PERSONAL CRIMES, PROPERTY CRIMES, INCHOATE CRIMES, STATUTORY
CRIMES, AND FINANCIAL CRIMES.

Personal Crimes

Personal crimes are those that result in physical or mental harm to another person. They can be divided into
two main categories, forms of homicide and other violent crimes. Where the physical harm to another
individual is so severe that it causes death, a defendant may be charged with any one of several types of
homicide, including, for example, first-degree murder, voluntary manslaughter, or vehicular homicide.
Conversely violent crimes, which are also very severe, include:

 assault and battery

 arson

 child abuse

 domestic abuse

 kidnapping

 rape and statutory rape

Property Crimes

Property crimes typically involve interference with the property of another. Although they may involve
physical or mental harm to another, they primarily result in the deprivation of the use or enjoyment of
property. Many property crimes are theft crimes, including burglary, larceny, robbery, auto theft,
and shoplifting.

Homicide is defined as the killing of one human being by another. Although homicides are generally thought
of as criminal acts, such as murder or manslaughter, some homicides are considered lawful because they
are “justified” for reasons such as self-defense. According to the Department of Justice, the rate of homicide
in the United States has declined dramatically in recent years, falling to almost half in the past decade. The
rate of homicide remains the greatest amongst young adults age 18-24, and males are over three times more
likely to commit a homicide than females.

Homicide encompasses a variety of criminal offenses, and the specific homicide offense charged in a crime
depends on the defendant’s mental state and intentions at the time of the killing.

Murder

Murder is an intentional killing that is unlawful and was committed with “malice aforethought.” Malice
aforethought means that the defendant had the intent to harm or kill another, or acted with reckless
disregard for another’s life. When considering murder charges, many states distinguish murders that are
particularly egregious as first-degree murders. Although the exact requirements may vary by state, first-
degree murder is the strictest form of homicide and generally requires that the defendant acted in a
deliberate and premeditated manner. Premeditation requires that the defendant had, in some way,
considered killing another person and acted consciously in doing so.

Violent Crimes

Crimes defined as violent may vary by state, but they often include crimes of harm against another person
like assault or battery, sexual crimes like rape, and serious property crimes like arson.
Although homicide crimes are often considered a separate category of criminal law, many jurisdictions
consider murder and non-negligent manslaughter to be violent crimes. For instance, for statistical purposes,
the Federal Bureau of Investigation (FBI) defines four categories of violent crimes: murder, forcible
rape, robbery, and aggravated assault.

Crimes of Harm Against Another

Most states consider crimes where an individual harms or threatens to harm another person to be violent
crimes. Two of the most common of these crimes are assault and battery. Assault is an intentional act that
causes another person to be in fear of imminent bodily harm. Battery is similar to assault, but it requires that
actual physical contact or harm has occurred. While the two crimes were traditionally distinct from each
other, many states now refer to simply one crime of “assault and battery.” Assault may also become
“aggravated” where the threat of harm is particularly offensive, such as when the assault is committed using
a deadly weapon.

Assault and Battery

Assault and battery are two crimes that involve threatening harm or causing actual harm to another person.
In some states, assault and battery remain two separate crimes, while others have slowly merged the two
into one general crime. Additionally, many states apply a more serious charge of aggravated assault or
battery when severe injury occurs or the act is committed with a deadly weapon.

Assault

Assault is typically defined as an intentional act that puts another individual in apprehension of immediate
harm. Assault thus criminalizes the threat of harm itself, rather than requiring that actual harm has occurred.
For this reason, it is sometimes also known as “attempted battery.” Since assault is an intentional act, it
cannot be committed by accident. This means that a perpetrator must have intended to cause fear in another
person, or that he or she acted in a way that was knowingly dangerous, even if a specific individual was not
targeted. Assault does not require that the victim fear being subjected to severe bodily harm or death. Any
reasonable fear is sufficient.
Assault also requires that an act be taken in furtherance of the threat of harm. This could be any variety of
acts, including approaching someone with raised fists, scaring someone with a weapon, or attempting to
push an individual into a crowded street. However, some sort of act is required. For example, if a man has a
reputation for being a mean and violent drunk and is walking down the street when he approaches a woman,
it is not an assault because she is scared merely by his reputation. Instead, he must take some act directed
at her for an assault to occur. Additionally, words are insufficient. Simply stating a threat is not enough to
create an assault unless the words are accompanied by an additional action that creates a fear of harm.

Battery

Battery is, in many ways, the completion of an assault. Battery is defined as an intentional offensive or
harmful touching of another person that is done without his or her consent. Since an assault is the
threatening of harm, and a battery is the actual act of harm, the two crimes are often charged together. As
with assault, battery requires that the perpetrator intended to commit the act. Thus, for instance, if a man
accidentally hits a shopper with his grocery cart while in the supermarket, this would probably not be a
battery. If, however, the man was acting with criminal recklessness or negligence, this might be sufficient.

The act of battery does not require that the victim is severely injured or traumatized. Any type of touching
that the victim considers harmful or offensive can be sufficient. For example, if a woman pours a mug of hot
water on someone else, this could be a battery. To go even further, a classic case of a battery that does not
result in pain or injury is when the perpetrator spits on the victim. However, a defendant will not be held
liable for contact that is deemed offensive only because the victim is abnormally sensitive. The standard of
“offensiveness” is determined from the perspective of an ordinary individual.

Aggravated Assault and Battery

When the conduct of a defendant is particularly egregious, he or she may be charged with the elevated crime
of aggravated assault or battery.

Aggravating and Mitigating Factors

Overview of Aggravating and Mitigating Factors

If a judge or jury finds a defendant guilty at the end of a criminal trial, the court must determine the
defendant’s punishment. State and federal criminal statutes often set maximum penalties based on
the offense classification, with felonies having the most serious possible punishments. Judges have some
discretion with regard to sentencing, and a sentencing hearing allows both prosecutors and defendants the
chance to present evidence for the court to consider.

Aggravating Factors

Prosecutors can offer evidence of aggravating factors that would merit a harsh sentence during trial.
Criminal statutes often identify specific factors that should result in harsher punishments. A common
aggravating factor is a prior record of similar convictions. Other aggravating factors typically relate to the
circumstances of the offense itself, such as the use of a weapon or the severity of the injuries suffered by a
victim. With the exception of prior convictions, a court may not use aggravating factors to impose a harsher
sentence than usual unless the jury found those factors to be true beyond a reasonable doubt. Cunningham
v. California, 549 U.S. 270 (2007).

Repeat Offenses: A court may impose a harsher penalty on a defendant with multiple prior convictions. In
states that have a “three strikes” law, such as California, a relatively minor offense may result in a lengthy
jail or prison term if the defendant has two or more prior convictions.

Vulnerability of Victim: In some jurisdictions, court may impose a harsher sentence if the victim is found to
be vulnerable, either according to an objective standard or in relation to the defendant. Vulnerability based
on age, such as a crime of violence against a child or a fraudulent scheme targeting the elderly, may be an
aggravating factor. Other factors may include physical or mental disability, illness or injury, and
incapacitation.

Leadership Role: If the defendant played a prominent role in a criminal scheme, such as a leadership or
managerial role, some jurisdictions allow courts to consider that as an aggravating factor. This is particularly
true if the defendant influenced or controlled others involved in the offense.

Hate Crimes: Some states have enacted laws that allow sentencing enhancements if the state proves that the
defendant was motivated by bias or animus based on a group characteristic. Most hate crime
statutes include categories like race, religion, and national origin. Some states include categories like sexual
orientation and gender identity as well.

Mandatory Minimum Sentencing: For certain offenses, the circumstances of the case may trigger laws that
remove a court’s discretion to adjust a sentence downward. Mandatory minimum sentencing laws are still
common for many drug-related offenses. The penalties for offense involving crack cocaine, for example,
used to vary widely from the penalties for offenses involving cocaine in powder form, due to mandatory
minimum laws targeting crack. The Fair Sentencing Act of 2010 sought to eliminate the disparity, but other
laws still have a similar effect.

Mitigating Factors

The defense may put on evidence of mitigating factors that would support leniency in sentencing. Criminal
statutes devote far less attention to factors that might mitigate a defendant’s punishment, but courts have
held that evidence relating to a defendant’s character may be introduced provided that it is relevant to the
sentencing process. See Lockett v. Ohio, 438 U.S. 586 (1978). Common mitigating factors include:

 Lack of a prior criminal record

 Minor role in the offense;
 Culpability of the victim;
  Past circumstances, such as abuse that resulted in criminal activity;
 Circumstances at the time of the offense, such as provocation, stress, or emotional problems that
might not excuse the crime but might offer an explanation;
 Mental or physical illness; and
 Genuine remorse.

This can vary by state, but it is generally meant to criminalize conduct that society finds particularly
offensive. Thus, for instance, aggravated assault may apply to circumstances when a deadly weapon, such
as a gun, is used, or when the victim is particularly vulnerable, such as a pregnant woman or elderly
individual. In some states, if the harm done to the victim is particularly severe and causes serious and
lasting injury, the assault or battery will be charged as aggravated. If the perpetrator’s actions could have
caused death, the defendant may even face a charge of attempted murder or manslaughter.

Many states also define particular violent crimes according to special categories of victims who may face
harm or the threat of harm from a perpetrator. These include domestic abuse and child abuse. Domestic
abuse criminalizes harmful conduct against individuals who are family members or with whom the
perpetrator shares a close relationship. It is prohibited under the federal Violence Against Women
Act (VAWA), and many states have enacted similar statutes to address the unique circumstances of
domestic violence crimes. Similarly, most states make special efforts to protect children, given their status
as especially vulnerable victims, and to prosecute those who engage in child abuse. These statutes often
extend child abuse crimes beyond physical harm to include emotional and sexual abuse. Child abuse
statutes may also criminalize kidnapping, although many states have also enacted separate kidnapping
statutes.

Sexual Crimes

Both state and federal laws typically categorize offensive sexual crimes as violent crimes. These
include rape and sexual assault. Rape is a form of battery that involves sexual contact with another person
without his or her consent. It may involve violent physical contact, or it may be accomplished by means of
emotional manipulation or a victim’s inability to consent. In any of these circumstances, it is considered a
violent crime because of the highly offensive violations that the victim experiences. Statutory rape is a
special category of rape that occurs when an adult individual has sexual contact with another person who is
below the age of consent, which varies from state to state. Since the younger participant is statutorily unable
to consent, the action is categorized as criminal rape even if the minor gave his or her actual consent.

Property Crimes

Although property crimes are generally considered to be a separate category of offenses, criminal laws have
designated the crime of arson as one type of property crime that is so harmful as to constitute a violent
crime. Arson involves the intentional burning of the building of another, often a personal home or property.
Since arson is such a destructive crime, it is punished harshly under criminal laws.
First-Degree Murder

First-degree murder is the most serious of all homicide offenses. It involves any intentional murder that is
willful and premeditated with malice aforethought. Premeditation requires that the defendant planned the
murder before it was committed or was “lying in wait” for the victim. For example, a wife who buys poison
and puts it in her husband’s coffee commits a premeditated murder, as does a man who waits behind a fence
to attack a neighbor coming home from work. In many states, felony murder is also charged as first-degree
murder.

Felony Murder

The felony murder rule is a rule that allows a defendant to be charged with first-degree murder for a killing
that occurs during a dangerous felony, even if the defendant is not the killer. The felony murder rule applies
only to those crimes that are considered “inherently dangerous,” as the rationale underlying the felony
murder rule is that certain crimes are so dangerous that society wants to deter individuals from engaging in
them altogether. Thus, when a person participates in an inherently dangerous crime, he or she may be held
responsible for the fatal consequences of that crime, even if someone else caused the actual death.

The felony murder rule is an exception to the normal rules of homicide. Normally, a defendant can be
convicted of murder only if a prosecutor shows that the defendant acted with the intent to kill or with a
reckless indifference to human life. Under the felony murder rule, however, a defendant can be convicted of
murder even if the defendant did not act with intent or a reckless indifference; the prosecution must show
only that the defendant participated in a felony where fatalities occurred.

Inherently Dangerous Crimes

Inherently dangerous crimes may vary by state, but typically

include burglary, robbery, rape, arson and kidnapping. However, under the merger doctrine, if the elements
of the underlying felony are a part of the elements of murder, the felony murder rule cannot be applied. For
example, a defendant who participated in an assault in which someone was killed could not be charged with
felony murder because the elements of assault are also incorporated in the elements of a murder. Thus, the
assault “merges” into the murder and is not a distinct crime that can constitute the underlying felony.

Burglary

The crime of burglary occurs when a defendant unlawfully enters a structure with the intent to commit a
crime therein. Traditionally, burglary applied only if the crime occurred at night and the structure was the
dwelling of another. Additionally, the defendant was required to engage in “breaking” and entering, as
opposed to other, less destructive, actions. Over time, state statutes have expanded burglary to cover a
much broader range of circumstances.
Unlawful Entry

In most states, burglary no longer requires that a burglar break into a home by breaking a window or some
other use of force. Rather, unlawful entry can occur through a variety of means, including physical force,
entry through an open window or doorway, or “constructive breaking.” Constructive breaking refers to
circumstances where a burglar enters through means that don’t require force, such as using threats of
violence against a homeowner or pretending to be a stranded driver seeking to use a phone. All of these
actions are encompassed within unlawful entry.

Intent

One of the factors that has remained the same in burglary statutes over time is the requirement that the
burglar intended to commit a crime while inside the structure. While it may seem that the intended crime
must a theft, this is not the case. Instead, a burglary may occur when there is an intent to commit any sort of
crime. For instance, if a defendant unlawfully enters a retail business with the intent to vandalize the
property, this could be considered a burglary, as vandalism is a crime itself. Conversely, if a person is forced
to enter a building because he or she is fleeing an emergency situation or under duress, but does not have
an intent to commit a crime while inside, this would not be considered a burglary.

Buildings and Structures

While burglary traditionally required that the building targeted by the burglar was a dwelling or home, this is
no longer the case in most states. The term “structure” now includes businesses, offices, industrial
buildings, sheds, or other private facilities. In most states, the only two requirements are (1) that the
structure is used to house people or property and (2) that the structure was closed to the public at the time it
was entered. Thus, when a public building is open to visitors, or a retail store is open to customers, a
burglary cannot occur. Instead, any theft that occurs inside would be categorized as a larceny or shoplifting
crime.

Additionally, abandoned buildings are generally not considered to be structures under burglary statutes.
While other criminal charges may occur if damage is done to an abandoned building, a defendant usually will
not face burglary charges.

Punishment and Defenses

In many states, burglary may be a first- or second-degree crime depending on the intent of the defendant. If
the defendant unlawfully entered the building already intending to commit a crime once inside, this may
result in a charge of first-degree burglary. If the defendant enters the building unlawfully and, once inside,
decides to commit a crime, this may result in a second-degree burglary charge.

Defendants may also be charged with the crime of aggravated burglary under certain circumstances. For
instance, in many states aggravated burglary may occur where a burglar commits the crime using a deadly
weapon, or if the structure that is entered is a personal home. Both burglary and aggravated burglary are
typically charged as felonies and may make a defendant liable under the felony murder rule for any deaths
that occur as a result of the burglary.

Because burglary requires the unlawful entry into a structure, two possible defenses to burglary are that the
defendant had consent to enter the structure or was entrapped into committing the burglary.

Entrapment

The Criminal Defense of Entrapment

Entrapment is a defense to criminal charges on the basis that the defendant only committed the crime
because of harassment or coercion by a government official. Without such coercion, the crime would never
have been committed. Entrapment can be a difficult defense to assert because it requires the defendant to
establish that the idea and impetus for the crime was introduced by government officials, and the defendant
was not already willing or predisposed to commit the crime. It is also important to note that entrapment can
only occur with a government official, such as an FBI official or a police officer, not a private individual.
Additionally, since it is an affirmative defense, the criminal defendant has the burden of establishing that
entrapment occurred.

Opportunity is not Entrapment

In order to find and eliminate criminal behavior, law enforcement officers are allowed to engage in sting
operations, whereby they create circumstances that allow individuals to take criminal actions that they can
then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be
involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment
and involves merely the temptation to violate the law, not being forced to do so.

Unlike creating an opportunity, entrapment occurs when law enforcement officers urge, harass, or otherwise
overly encourage an individual to commit a crime when he or she would not otherwise do so. Entrapment
may result from the use of threats, intimidation, extended fraud, or any other means where the defendant
was essentially forced to commit a crime.

Fraud

A deliberate scheme to obtain financial or similar gain by using false statements, misrepresentations,
concealment of important information, or deceptive conduct is known as fraud. Fraud typically involves
getting property to which someone is not legally entitled, but it is different from criminal offenses
categorized as theft in two important ways. Theft generally involves directly obtaining money or something
else of value by stealing it, or by the use or threat of force. The offenses included in the category of fraud, by
contrast, involve a “scheme or artifice” to convince someone to give something of value based on false
statements or false pretenses. Fraud is therefore often considered a form of white collar crime, unlike most
forms of theft.
White Collar Crimes

Non-violent crimes committed, directly or indirectly, for financial gain generally fall under the category of
“white collar crime.” This is particularly true when the person or persons accused of illegal activity are
professionals in business, particularly finance, or government. Financial crimes and the government’s
prosecution of them are not limited to Wall Street and corporate boardrooms. The category also includes
offenses that could be the work of individuals or small groups. The federal and state governments have
enacted an enormous body of law regarding financial crimes, and it can be relatively easy for people to run
afoul of these laws without even realizing it.

White Collar Crime

No single definition of “white collar crime” exists in the law. Sociologist Edwin Sutherland is credited with
coining the term, using it for the first time in a speech to the American Sociological Society in Philadelphia
on December 27, 1939. He noted that police seemed to focus their attention on crime among the “lower
class,” while ignoring crimes committed among “business and professional men,” people he described as
“merchant princes and captains of finance and industry.” The “robber barons” of the late nineteenth century,
he stated, were white collar criminals, but they were not as “suave and deceptive” as those of the Great
Depression era.

Sutherland’s ideas have informed the laws regarding white collar and financial crime ever since. The Federal
Bureau of Investigation (FBI) offers a simplified definition of white collar crime: “lying, cheating, and
stealing.” The Wall Street crisis that began in 2008 brought prosecutions for fraud and other financial
offenses, although many critics might say that far too few prosecutions have occurred. Before that, financial
upheavals like the savings and loan scandal of the early 1980s and the Enron scandal of the early 2000s also
saw prosecutions for various white collar offenses.

Theft Offenses

Offenses that involve theft of money or something else of value, but that do not involve the threat or use of
force, may be considered financial or white collar crimes. They are also commonly associated with organized
crime.

Extortion , for example, might involve a threat to cause harm to a person’s business or property,
while blackmail generally involves threats to expose sensitive or damaging information. Embezzlement might
involve misuse or abuse of a position of trust to obtain money without legal authority, often from an
employer.

Extortion

The use of force, or the threat of force, to obtain money, something else of value, or services from a person
is often known as the criminal offense of extortion. Many jurisdictions classify extortion as a “crime against
property” or a theft-related offense, but the threat of harm to a person is an essential element of the offense.
This could consist of physical harm, financial harm, destruction of property, or abuse of official power.

Types of Extortion

One form of extortion, commonly known as “protection,” involves a promise to refrain from a harmful action,
which by necessity implies a threat of harm, in exchange for ongoing payments. Extortion that involves the
use of information, rather than force, in order to coerce someone is classified as blackmail in some
jurisdictions. Large-scale extortion, such as extortion performed by or on behalf of an organization, may be
prosecuted as racketeering under statutes like the Racketeer Influenced and Corrupt Organizations Act
(RICO).

Legal Definition of Extortion

California’s extortion statute, which defines the offense based on two elements, the alleged perpetrator’s
objective and the means used, offers a good example of extortion’s legal definition. The statute prohibits a
person (1) from obtaining someone else’s property or “an official act of a public officer;” (2) by wrongfully
using force against the person, instilling fear of harm in the person, or acting “under color of official right.”

Under federal law, the offense of extortion typically requires the use of interstate communications to make a
threat. Threats to federal or foreign officials in order to obtain some sort of official benefit may also be
prosecuted as extortion under federal law. Certain federal officials are subject to additional statutes of
regulations regarding extortion, such as laws prohibiting customs officials from demanding additional fees
at ports.

How Is Extortion Different from Racketeering?

Racketeering is a broad category of actions related to organized crime, often including extortion.
Prosecutions under RICO might include allegations of extortion against public officials to obtain favorable
actions or hinder investigations. They might also include alleged “protection rackets,” through which a
criminal enterprise demands “protection money” from residents or businesses in an area, with the
understanding that without the payments, the harm would come from the very people offering protection.

How Is Extortion Different from Bribery?

Extortion can involve attempts to influence public officials, which is often also the objective of bribery. The
difference is in the means used. Bribery involves payment of money or something else of value to a public
official in exchange for some sort of action, while extortion involves threats.

How Is Extortion Different from Robbery or Other Theft Crimes?

Extortion is often classified as a property crime, as it can involve wrongfully obtaining property from another
person. The crime of robbery also involves the use or threat of force to obtain property from someone. The
difference is in the nature of the threat. Robbery requires immediacy, in which a person threatens imminent
harm in order to obtain money or other property in that moment. The threat does not need to be verbal, and
could involve little more than displaying a weapon in a threatening manner.

While a robber generally does not give a victim an opportunity to weigh his options, an extortionist relies on
the victim making a conscious decision to cooperate in order to avoid future harm. Extortion requires
communication of a threat, verbally or in writing, with a clear connection between the threat and a demand.

Bribery

The criminal offense of bribery involves offering or giving something of value to another person, usually a
public official. The purpose of the conduct usually must be:

 To influence that person in their official capacity;

 To induce them to do something illegal or allow something illegal to occur; or

 To induce them to do or omit to do anything else that would violate the law or contradict their official
duties.

Many definitions of bribery also include what might be described as the reverse situation, when a public
official solicits or demands something of value in exchange for an official act. It also applies to efforts to
influence jurors and people who are preparing to give testimony under oath.

Bribery bears some resemblance to the crime of blackmail, since both are often intended to influence the
actions of others. The difference is in the means used. Blackmail, much like extortion, involves the use of
threats to influence someone’s actions. Bribery achieves its aims by giving, offering, or promising
something of value. Once a bribery scheme is underway, the person giving the bribes could turn to blackmail
by threatening to reveal the prior acceptance of bribes.

Bribery of Public Officials

Federal law forbids a activities that might affect how the government functions, including bribery intended to
influence public officials or misuse of power by officials to benefit themselves or others. “Public official” is
defined as elected members of Congress and other legislative bodies, both after their election or
appointment and after they take office. The definition also extends to employees, agents, and officers who
have the authority to act on behalf of the government, as well as jurors serving in a civil or criminal trial.

The federal bribery statute prohibits individuals, businesses, and others from “giv[ing], offering or promising
anything of value” to a public official, or someone who is awaiting final approval to a government position, in
order to influence him or her in carrying out official duties. It also prohibits public officials from seeking
anything of value in exchange for influence.
Bribery of Jurors and Witnesses

Giving or offering something of value to someone in order to influence his or her sworn testimony, such
before a court or legislative committee, is also considered bribery under federal law and most state laws. The
same applies to attempts to influence jurors in a civil or criminal trial. Witnesses and jurors are similarly
prohibited from seeking or demanding something of value in exchange for influence over their testimony or
their deliberation.

Bribery of Government-Funded Programs

A separate federal bribery statute applies to organizations, state and local governments, and Indian tribal
governments that receive more than $10,000 in federal funding during a one-year period. A person commits
an offense by giving or offering anything of value in an attempt to influence, for the benefit of the
organization or government, business transactions with a total value of $5,000 or more.

Commercial Bribery

Commercial bribery involves giving or offering something of value to an employee or agent of a business in
order to obtain a benefit, as well as soliciting or demanding something of value from someone other than
one’s employer in exchange for using one’s position to benefit that person. A common type of commercial
bribery is known as a kickback, by which a person makes a direct payment, or offers something else of
value, to someone else in order to secure a business advantage.

Federal law does not directly address commercial bribery, although mail and wire fraud laws may apply to
some commercial bribery schemes. Many states expressly prohibit commercial bribery, such as California,
which makes it an offense to offer or demand anything in excess of $250 in value. New York has a very broad
statutory regime targeting commercial bribery, which also covers issues like sports fixing and rent gouging.

Criminal Law Contents

 Criminal Law

 Aggravating and Mitigating Factors

 Bail and Bonds

 Restitution for Crime Victims

 Plea Bargains

 Immunity for Testimony

 Offense Classification

 Common Criminal Defenses

 Criminal Procedure

 Types of Criminal Offenses

 Drug Crimes

 Homicide
  Inchoate/Incomplete Crimes

 Other Offenses

 Sex Crimes

 Theft Crimes

 Traffic Offenses

 Violent Crimes

 White Collar Crimes

 Blackmail

 Bribery

 Extortion

 Forgery

 Perjury

 Fraud

 Bank Fraud

 Credit Card Fraud

 Check Fraud

 Insurance Fraud

 Securities Fraud

 Tax Fraud

 Welfare Fraud

 Wire Fraud

 Insider Trading

 Investment/Ponzi/Pyramid Schemes

 Money Counterfeiting

 Money Laundering

 Racketeering/RICO

 Tax Evasion

 Other Alcohol-Related Crimes

 Parole and Probation

 Expungement and Record Sealing

 Lesser Included Offenses

 Mental State Requirement

 Derivative Responsibility for Crimes

 Working with a Criminal Lawyer

Blackmail

Blackmail involves a threat to do something that would cause a person to suffer embarrassment or financial
loss, unless that person meets certain demands. The threat might include:

 to reveal private about a person that is likely to cause them embarrassment;

 to reveal sensitive information that is likely to cause financial harm;
 to accuse a person falsely of a crime; or
 to report a person’s involvement in a crime.

In order to avoid the threatened action, a blackmail victim must pay money to the blackmailer or perform
some other action. The action demanded by the blackmailer may or may not be illegal itself. The growth of
the Internet has also led to overlap between blackmail and cybercrime.

Many forms of blackmail are considered crimes under state or federal law. Most states treat blackmail as a
type of extortion or coercion, which involves threats of violence or other harm in order to compel a person to
do something. Blackmail is generally classified as a felony, which could result in multi-year prison sentences
and large fines.

Extortion vs. Blackmail

Blackmail and extortion are related concepts in criminal law. Extortion is generally considered a form of
theft, which involves the threat of physical harm or destruction of property in order to obtain something of
value or compel a person to do something. In cases involving government officials, extortion could also
involve misuse or abuse of authority, such as threatening to arrest a person without cause as a means of
coercing them.

Where extortion is primarily a crime based on force, blackmail is a crime based on information. A blackmailer
typically has information that is damaging to the victim, and uses threats to reveal that information in order
to coerce the victim. Blackmail is considered a crime regardless of whether the information is true or false.
The central element of the crime is the blackmailer’s intent to obtain money, property, or services from the
victim with threats of revealing the information.

State Blackmail Law

Laws regarding blackmail vary widely from one state to another, but they all have similar definitions of the
offense. Some states treat blackmail as a distinct criminal offense, while others treat it as a form of extortion
or coercion.

In Kansas, for example, blackmail is a crime against the person, rather than a theft offense. State law defines
the offense as a threat to reveal embarrassing or damaging information about a person in order to obtain
something of value or coerce someone to act against his or her will. The information could be about the
victim or about another person.

In contrast, California includes blackmail in the provisions relating to extortion. The elements commonly
associated with blackmail form part of the offense of extortion, including threats to accuse a person of a
crime, expose a person to disgrace or embarrassment, or expose a secret about a person.

The crime of coercion in New York is similar to California’s extortion statute, and it includes the common
elements of blackmail. It is an offense to use threats of criminal charges, accusation of a crime, exposure of
a secret that could lead to public ridicule or contempt, testimony against a person, or refusal to testify for a
person; if the purpose of the threat is to coerce a person into paying money, providing something else of
value, or engaging in conduct from which they have a legal right to abstain.

Federal Blackmail Law

A threat to report, or testify against, a person for any violation of federal law, along with a demand for money
or something else of value, is considered a federal crime. A conviction could result in up to one year in
prison, a fine of up to $100,000, or a combination of the two.

Cyber-Blackmail

New forms of blackmail have appeared as the Internet has grown, and the law has not always adapted to new
technologies. “Webcam blackmail,” as it is informally known, might involve someone who obtains intimate
photographs or videos of a person, sometimes by request after developing a relationship with the person
online, and sometimes through theft. The person then threatens to publish the pictures or videos on the
Internet if the person does not pay money, provide additional photographs or videos, or provide something
else of value.

Embezzlement

Embezzlement is a form of larceny that involves the taking of the property of another by someone who was
entrusted with care of the property. Embezzlement can occur in a variety of circumstances but is most
commonly committed by financial advisers or other individuals placed in charge of the money of another.
According to the 2012 Marquet Report on Embezzlement, the crime of embezzlement is on the rise in the
United States and increased more than 11 percent between 2011 and 2012, with an average loss of $1.4
million for major embezzlement schemes.

Defining Embezzlement

For an embezzlement to occur, four factors must be present. First, there must be a financial relationship
between the victim and the perpetrator, often known as a fiduciary relationship. This means that one party
relied on the other and trusted him or her to handle money, property, or something else of financial value.
Common fiduciary relationships that lead to embezzlement include bankers and clients, financial advisers or
stock brokers and clients, and employees providing financial services to companies. The mere handling of
money is usually not enough to give rise to a fiduciary relationship. Thus, for instance, a cashier at a store
does not have a fiduciary relationship with the customers whose money he or she collects. However, a
retirement advisor who is charged with managing the retirement funds for an elderly couple likely does have
a fiduciary relationship with his or her clients.

Second, the perpetrator must actually have acquired the property of another through this financial
relationship and then transferred possession to the self or a third party. This is an inherent aspect of
embezzlement or larceny in general. It is not enough that the perpetrator has access to the property,
although often that may be an element of the perpetrator’s job. Instead, the perpetrator must have used that
access to convert the property for his or her own personal benefit or the benefit of another. One simple
example is where a stock broker transfers a client’s stock to himself, or sells it and keeps the profits. Or
embezzlement may occur when an employee is charged with paying the company bills but instead uses the
money for his own personal expenses.

Finally, the perpetrator’s actions must have been intentional. This is the requirement of fraudulent intent.
Thus, if a financial adviser mistakenly transfers the property of a client, or believes that the client has given
him authorization to undertake an action that has not actually been authorized, this usually will not
constitute embezzlement. Likewise, if a person entrusted with property reasonably believes that the property
has been given to him, this is often a defense to embezzlement.

Punishment for Embezzlement

Although the punishment for embezzlement varies by state, most states adjust the severity of the
punishment according to the value and type of the property stolen. Thus, if millions of dollars are taken, a
defendant is likely to face more significant punishment than if several hundred dollars are stolen. Likewise,
some states heighten the punishment for embezzlement when the property is of particular value to the owner
or when the money embezzled is public funds.

Since trust is a crucial aspect of any fiduciary relationship, many states have also determined that certain
aggravating factors may apply to an embezzlement charge when the perpetrator occupied a position of
public trust, such as a public servant or an employee at a local bank, or when the perpetrator targeted
particularly vulnerable populations like the elderly.

Defendants convicted of embezzlement will likely face jail time and fines, and they are usually required to
pay restitution as well. Restitution is a payment made to the victim to compensate him or her for the loss that
he or she experienced. It may be the value of the money or property stolen, or, when the property is not
subject to ready valuation, an amount determined by the court.
Fraud Offenses

A fraud offense consists of a scheme to obtain something of value from another person through false
pretenses or misrepresentation. Unlike theft, by which a person either directly takes something of value or
compels someone to give it to them, fraud involves deceptively convincing a person to give up something
voluntarily. Fraud schemes might involve:

 Identity theft or forged documents, such as bank fraud or credit card fraud;
 Direct solicitation of money from individuals, such as in a Ponzi schemeor other investment scam;
or
 Fraud against the government, such as welfare fraud or tax fraud.

Financial Crimes

Some financial crimes do not target a specific person or business, but they are considered criminal because
they have an overall negative public impact. Insider trading, for example, is considered an unfair advantage
in the market, which is damaging to investors who do not have access to inside information. Money
counterfeiting may harm merchants who accept counterfeit bills, believing they are genuine. It also
potentially harms the economy by destabilizing the currency.

Corruption

Public corruption, by which public officials misuse their authority for financial gain, is also considered a
financial crime. Bribery is a common example, such as when a business offers financial payments to an
official in exchange for favorable treatment, or an organized crime outfit pays law enforcement officials to
look the other way.

Organized Crime

Any of the offenses described above, when committed by or on behalf of an organization established to carry
out illegal activity, are known as racketeering or “organized crime.” Organized crime is usually not
considered a type of “white collar crime,” but it often involves many of the same criminal statutes. The
federal Racketeer Influenced and Corrupt Organizations (RICO) Act allows federal prosecutors to pursue
individuals who might conceal their own involvement in criminal activity behind subordinates and shell
companies, and who might try to hide the proceeds of criminal activity through money laundering and tax
evasion.

The second key difference between fraud and theft is that the “scheme or artifice” is the key element of a
fraud offense, instead of the actual wrongful acquisition of property. This means that a person could be
found guilty of fraud even if the scheme does not succeed.
“Scheme or Artifice”

Federal fraud statutes, along with most state laws, require proof of a “scheme or artifice” to defraud. The
statutes do not provide an explicit definition of these terms, but courts have developed definitions through
precedent. The U.S. Supreme Court held in Carpenter v. United States that the terms apply to any plan
intended to deprive another of property, regardless of whether it would cause immediate financial harm.
Congress has expanded the scope of federal fraud statutes beyond schemes that affect property interests to
include honest services fraud. This applies to schemes intended “to deprive another of the intangible right of
honest services,” and it has generally been used to prosecute offenses related to government corruption,
such as bribery.

Mail and Wire Fraud

The federal government asserts jurisdiction over fraud offenses that make use of interstate commerce. In the
19th century, Congress passed the mail fraud statute, which prohibits any scheme or artifice to defraud that
involves false representations transmitted by the U.S. Postal Service and other carriers that deliver between
the states. Congress passed the wire fraud statute in the mid-20th century, expanding the provisions of mail
fraud to communications sent by telephone, radio, or television. Courts have since expanded the wire fraud
statute’s scope to cover cable and internet communications as well.

Bank Fraud

The offenses categorized as bank fraud involve two types of schemes. In schemes to defraud banks and
other financial institutions, a person might use forged or altered checks to withdraw money from fake
accounts. Schemes targeting bank depositors might involve theft or forgery of checks drawn on real
accounts, or misuse of deposited funds by bank employees or officers.

Credit Card Fraud

Credit transactions make up an increasingly large percentage of consumer purchases, and credit card
fraud is growing along with it. Credit card fraud schemes are a common feature of identity theft, with
fraudsters using people’s personal identification information, such as name, date of birth, and address, to
open new accounts, or stealing credit card information to make counterfeit cards.

Insurance Fraud

Insurance fraud includes any scheme to obtain insurance coverage through deceptive means, or false or
misleading claims made in order to obtain money from an insurance policy payout. “Soft” insurance fraud
involves false information provided in an application for coverage or a claim for a damage payout, such as
concealing information that might result in a denial of coverage or overstating the amount of damages in a
claim. “Hard” insurance fraud involves fabricating a loss where none occurred, such as claiming damages
for the loss of an asset that never existed or causing a loss, such as by setting fire to a building, in order to
make a claim.
Securities Fraud

Numerous federal and state laws regulate the offering, buying, selling, and trading of stocks, bonds, and
other securities. Insider trading, investment schemes, and other fraudulent acts affecting stock and
commodities markets fall under the category of securities fraud.

Fraud Against the Government

Federal law deals with fraudulent acts targeting specific areas of government separately from fraud that
targets private individuals or businesses. This includes fraud by government contractors, private individuals
and businesses, and government employees and officials themselves.

Tax Fraud

Efforts to avoid tax liability through fraudulent means, or efforts to avoid payment of tax altogether, might be
categorized as tax evasion. False statements and misrepresentations in the course of preparing tax
documents, with the intent of reducing the amount of tax a person or business should owe, is generally
considered tax fraud.

Welfare Fraud

False or misleading statements made to state or federal public assistance programs are known as welfare
fraud. In certain well-publicized cases, people convicted of welfare fraud created dozens of aliases in order
to claim benefits multiple times, and also claimed as dependents dozens of children who did not actually
exist.

Perjury

Certain cases of the offense known as perjury, which involves knowingly making false statements of material
fact, either under oath or “under penalty of perjury,” are closely related to fraud. Unsworn statements signed
“under penalty of perjury” in connection with a public assistance program or tax program, for example,
could be considered both fraud and perjury.

For example, law enforcement officers could set up a sting operation for a suspected criminal to commit
a burglary. This might involve a law enforcement officer pretending to be a fellow criminal and alerting the
defendant of a warehouse shipment that will be arriving shortly and will not be protected by security. If the
defendant completes the burglary on the basis of this information, this is not entrapment. The officers have
merely created an opportunity for the defendant to commit the crime, and their efforts to do so were entirely
legal. If however, the undercover law enforcement officer threatens that the defendant needs to commit the
burglary for him, or he will be punished, or shows up every day and harasses the defendant to commit the
burglary even though the defendant does not appear interested, this could amount to entrapment. It goes
beyond providing an opportunity and involves efforts by law enforcement to force the burglary to occur.
Analyzing Entrapment

Assessing whether a criminal defendant was harassed or forced into committing a criminal act is a difficult
task and involves a thorough evaluation of the circumstances. In some states, an objective standard is used
to evaluate entrapment, meaning that the criminal defendant must show that the tactics used by government
officials were such that any reasonable person would have been induced to commit a crime.

However, other states utilize a subjective standard for assessing entrapment. Under the subjective standard,
the court or jury weighs the actions of the law enforcement officials against the criminal defendant’s
predisposition to commit a crime and considers which was the primary motivating factor for the criminal act.
Thus, the burden is on the defendant to show that the actions of the government officials were so
overbearing and extreme as to constitute the primary reason for the crime to occur, or that the defendant had
no prior motivation or disposition to complete the crime. This is often a much harder standard to meet than
the objective standard.

Robbery

Robbery is defined as the taking of another’s property by force or threat. It is sometimes also referred to
as larceny by threat or force. Because robbery involves injury or the threat of injury, it is considered a more
serious crime than many of the other theft crimes.

Aiding and Abetting

The inchoate crime of aiding and abetting applies to an individual who assists in a crime, but does not
commit the crime himself. This person is also known as an “accessory to the crime.” Aiding and abetting
varies greatly by state, with some states varying the severity of the charge depending on the level of
involvement of the accessory.

Accessory and Principal

Aiding and abetting requires the existence of both a “principal” and an “accessory.” The principal is the
person who is primarily responsible for the crime and who likely ultimately committed the crime. If two or
more individuals are responsible for a crime they can be charged as joint principals. The accessory is the
person who assists with the crime but is not directly involved with its actual commission. Typically, the test
for distinguishing between the two is whether the person directly contributed to the crime (a principal) or
merely provided background help or assistance (an accessory).

Elements of Aiding and Abetting

A charge of aiding and abetting has three requirements. First, someone else must have committed a crime.
Second, the defendant must have assisted that person in the commission of the crime. Third, the defendant
must have had knowledge of that person’s criminal intent or criminal plans. An individual will not be found
guilty for accidentally assisting in a crime. For instance, if a man knows that his friends have committed a
crime and are trying to escape and he causes an accident in order to allow them to get away from the police,
this could be aiding and abetting. However, if the same man is involved in an accident that allows burglars to
get away from the police, but he has no knowledge of the burglary or the effect his accident would have, he
cannot be charged with aiding and abetting.

An accessory to a crime can have knowledge of criminal intent before, or after, the commission of the crime.
An individual who is aware of the crime before it occurs and gives assistance in preparation to commit the
crime is called an “accessory before the fact.” If an individual only learns of the crime after it has taken
place, but provides assistance in the aftermath of the crime, he is known as an “accessory after the fact.”

The types of actions that constitute assistance to a crime vary greatly. A person may provide advice,
supplies, financial support, or engage in actions such as acting as a lookout or driving the getaway car.
Where the assistance the accessory provides rises to the level of significant involvement in planning the
crime, this can elevate the charge from aiding and abetting to conspiracy.

Punishment

In most states, accessories face lesser punishment than principals for crimes that are committed. However,
other states consider accessories just as guilty as principals because they also intended for the crime to be
committed. It is important to check the laws of your state in order to determine what punishments may apply.

It is also important to note that even if a principal is not convicted of a crime (perhaps because of mistaken
identity or another defense), the accessory may still be charged with aiding and abetting if a crime was
committed and he assisted in the commission of that crime.

Some states allow a defense of abandonment or withdrawal for an individual charged with aiding and
abetting. For instance, in California, a defendant may be found not guilty if he can establish that he notified
everyone else involved in the crime that he was no longer participating in the crime and that he did
everything reasonably within his power to prevent the crime from being committed, such as reporting the
planned crime to the police.

The crime of larceny is what many of us think of as ordinary theft. It involves the taking of someone else’s
property without their consent and with the intent to permanently deprive them of it. Although larceny is on a
general decline within the United States, the FBI has reported there were over six million larceny crimes in
2010. Larceny originated as a common law crime, but most states now incorporate the crime of larceny into
their penal code. Although the exact state statutes may vary, larceny typically involves (1) the unlawful
taking (2) of the property of another (3) without their consent (4) and with the specific intent to permanently
deprive the owner of that property.
Taking the Property of Another

Larceny requires that someone affirmatively take the property of another. While some states define take to
mean “carry away,” others simply require that the person committing the crime take control of the property,
rather than actually move it. Thus, while larceny may occur when a bracelet or piece of jewelry is stolen, it
may also occur when a gym-goer owns a locker at a gym that another takes control over. Even though the
locker does not move and is not taken from its location, another person has taken control and possession of
it.

Larceny also requires that the property actually belongs to another. If the property is originally yours and
you have loaned it to another, it is not larceny to take that property back. For instance, if a woman lets her
sister borrow a cake mixer to make a few cakes and the sister forgets to return it, it is not larceny for the
woman to stop by her sister’s house and take the cake mixer back.

Finally, if two people co-own property, one owner can commit larceny against the other if they deprive the
other owner of their right to the property. Thus, if three people co-own a grill, but one moves it to his
vacation home without the others’ permission, he has committed larceny.

Consent

Larceny requires that the owner of the property failed to give their consent for the property to be taken. If a
defendant receives consent to borrow or take property, he cannot be charged with larceny because no
unlawful taking has occurred.

Intent

Like attempt, larceny is a specific intent crime. This means that a defendant can only be convicted of larceny
if he had the specific intent to permanently deprive another of their property. If the defendant merely meant
to borrow the property for a few minutes, or mistakenly thought that it belonged to him, this is not enough to
establish larceny. Similarly, an individual cannot recklessly or negligently commit a larceny.

Punishment and Defenses

In most states, punishment for larceny depends on the nature of the property taken. This is often done by
considering the monetary value of the property. For instance, if a defendant steals a big screen TV worth five
thousand dollars he will be subjected to tougher punishment than a defendant who steals a vase worth
twenty dollars. Additionally, states vary as to whether they categorize larceny as a felony or a misdemeanor.
You will need to check the penal code and statutes of your state to determine what punishment may apply.

A common defense to larceny is consent by the property owner. Because taking the property without
consent is necessary to a finding of larceny, a defendant who can prove that she had consent has proven
that she did not commit a crime of larceny. Some defendants may also use the defense
of entrapment against a larceny charge. Entrapment occurs when a defendant is persuaded by a police
officer or government official to commit a crime and he or she would not otherwise have done so. Thus if a
police officer involved in an investigation convinces his informant to steal a necessary piece of evidence, the
informant cannot be found guilty of larceny. He committed the crime only at the behest of the officer and
would not otherwise have done so.

Theft Crimes

Theft crimes are crimes that involve the unauthorized taking of the property of another with the intent to
deprive them of it permanently. Historically, theft involved three different categories of crime: larceny,
embezzlement and false pretenses. Embezzlement was defined as the fraudulent taking of the property of
another by someone who is in lawful possession of it. For example, if a banker takes the money of one of his
customers this may be embezzlement. False pretenses involved a false representation of a fact by a
defendant that caused another to hand over title to property to the defendant. In most states, these two
crimes are now incorporated within the broader crime of larceny and the term “theft crime” is used to
represent different types of property crimes, including larceny, robbery, burglary, shoplifting and auto theft.

Traditional Theft Crimes

Larceny is perhaps the crime we most commonly know as “theft.” While most states have larceny statutes,
some states continue to refer to larceny as “general theft.” Larceny involves the taking of the property of
another without their consent. Someone who commits larceny must have intended to deprive the owner of
the property permanently.

Robbery is a more serious form of larceny that involves the use of force. In fact, robbery is often defined as
“larceny of another person by force.” Because violence is typically a component of this form of theft,
defendants who commit robbery often face more severe punishments, including longer prison sentences, in
comparison to other theft crimes. If a robbery goes awry, it may also implicate other crimes, like the felony
murder rule.

A lesser form of larceny that is often discussed in the news is shoplifting. Unlike general larceny or robbery,
shoplifting does not usually involve taking items from another individual. Rather, it is the taking of goods
from a retail establishment without the establishment’s consent. While some states have separate statutes
for shoplifting, in many states shoplifting falls under statutes prohibiting larceny and is treated as a lesser
crime at the discretion of a judge. As with other theft crimes, shoplifting requires not only that the individual
have taken merchandise, but also that he or she had the intent to deprive the store of the items. Thus,
shoplifting typically does not apply to individuals who may have mistakenly placed an item in a bag or
forgotten to pay.

Finally, many states have enacted special statutes to deal with the larceny of motor vehicles, also known
as auto theft. Auto theft is a significant problem within many parts of the country, and many states have
enacted severe punishments for those caught stealing, or attempting to steal, a vehicle.
Shoplifting

Shoplifting is a particular category of theft crimes that deals with larceny against a retail establishment, as
opposed to larceny against a person. Generally, the crime of shoplifting entails the willful concealment or
taking of items owned by the retail establishment with the intent to deprive the store or other owner of them
permanently.

Acts Constituting Shoplifting

Although we typically think of shoplifting as occurring only when an individual leaves a store with stolen
items, the crime of shoplifting can be charged in a variety of circumstances. Since shoplifting involves not
only the taking of items but also the “willful concealment” of them, it is possible to be charged with
shoplifting even without leaving the store. Simply concealing goods will be enough to violate shoplifting
laws as long as the perpetrator has the intention to deprive the owner of them permanently. For example, if a
woman takes various make-up items while in a store and hides them in her backpack, a security guard may
detain her for shoplifting even though she has not yet left the store.

Additionally, in many states, shoplifting laws prohibit the intentional altering of an item in order to avoid
paying the full price of the item. This can include switching tags on items, manipulating the price written on a
good, or changing the packaging of merchandise in order to get a lower price.

Detention of Shoplifters

Although our criminal laws typically prevent private citizens from holding others against their will, also
known as false imprisonment, special exceptions have been carved out over the years for dealing with
shoplifters. Since most stores do not employ police to watch for shoplifters, their owners are placed in a
position of frequently needing to detain an alleged shoplifter until police can arrive. In order to do so, many
states have enacted special statutes allowing stores and employees to detain shoplifters if certain
requirements are met. Generally, someone suspected of shoplifting may be detained only if the store has
“probable cause” to believe that a crime has occurred. Probable cause can be established through personal
observations of the crime occurring, statements from customers, or actions recorded on surveillance video
cameras. Mere suspicion that someone has been shoplifting is not sufficient.

It is important to note that these laws do not allow stores to hold suspected shoplifters for an unlimited
amount of time, or to question them in an inappropriate manner. Instead, the detention and questioning of
suspects must be reasonable. This will vary from case to case, but most courts have found that the use of
excessive force in restraining a suspect is not reasonable, nor is detaining someone until he or she is willing
to sign a confession or waiver of liability.

Punishment for Shoplifting

In some states, shoplifting is charged as a lesser form of larceny, often known as “petty theft.” Other states
have enacted specific statutes to deal with shoplifting crimes. Your state’s approach will be set forth in the
state or local penal code. Typically, the exact punishment imposed will vary depending on the items the
shoplifter attempted to steal. For instance, a perpetrator may only receive a fine for smaller thefts, but
attempts to steal larger items could result in being charged with felony larceny and possible jail time.

Additionally, certain aggravating factors can increase the punishment that a defendant faces. If there is a
history of shoplifting charges, the defendant may be punished more harshly. In California, for example,
repeated convictions for shoplifting can lead to a felony charge, as opposed to a misdemeanor, and may
result in jail time.

Auto Theft

In 2012, the FBI recorded over 700,000 motor vehicle thefts in the United States, resulting in more than 4.3
billion dollars in damages. Auto thefts make up a significant portion of larceny crimes and, for that reason,
many states have enacted special statutes to deal specifically with the theft of motor vehicles. Although
these statutes may vary from state to state, most prohibit the theft of common vehicles, including cars,
trucks, motorcycles, and larger commercial vehicles like buses or semi trucks.

Grand Theft Auto

Auto theft may occur in a variety of circumstances, and many states have statutes addressing various auto
theft crimes based on these circumstances. One of the most common of these crimes is grand theft auto.
Grand theft auto typically applies to a theft of a parked vehicle that is not occupied by a driver or passenger.
While some larceny crimes are deemed “petty crimes” because of the low value of the items stolen, grand
theft auto ascribes a more severe charge to a larceny crime because the item (the car) is worth so much.
Grand theft auto is typically charged as a felony and can result in jail time of a year or more.

In order to prove that grand theft auto has occurred, a prosecutor must show that the defendant took a
vehicle that belonged to someone else with the intent to permanently deprive the owner of their vehicle.
These elements are similar to other theft crimesand prevent defendants from being charged with theft for
mistaken use of a vehicle. For instance, because grand theft auto requires an intent to steal, a man who
mistakenly believes that his friend has authorized him to borrow a car would not be convicted of grand theft
auto for driving away in his friend’s vehicle. Similarly, if a businessman mistakenly drives off a rental car lot
with the wrong car, this would not be an auto theft crime either.

If a person knowingly takes a car that does not belong to him, but intends to return it to the owner eventually,
some states will charge the offender with a separate crime, known as joyriding, which is a misdemeanor.
Carjacking

Another form of auto theft crime is carjacking, which is a type of robbery that involves a motor vehicle. A
carjacking occurs when the vehicle is taken directly from the owner or driver of the car. Typically, as in a
robbery, violence or the threat of violence is used to steal the car from another. Some states consider a
carjacking to occur even when a victim is not near their car, but is threatened or forced to hand over their
keys. Most states categorize carjacking as a felony and, because force or violence often accompanies the
carjacking, a defendant may also be charged with battery or assault when appropriate. In many states,
carjacking is considered a more serious offense than grand theft auto and can result in jail time of ten years
or more.

Burglary

Burglary is a very specific theft crime that has evolved over the years. Traditionally, a conviction for burglary
required as showing that the defendant unlawfully entered a house at night with the intent to commit a crime
within. This definition greatly limited convictions for burglary, as it could be applied only to theft that took
place within a home (as opposed to an office building or garage) and during the dark. For this reason, most
states have now expanded the definition of burglary to more broadly apply to the unlawful entering of any
structure with the intent to commit a crime within. Notably, although we typically think of burglary as a theft
crime, this broader definition does not limit the objective crime to larceny—the defendant may enter the
structure for any criminal purpose.

In 2012, over a quarter of a million robberies occurred in the United States. This is a twenty-five percent
reduction from the more than one million robberies that occurred per year for much of the 1990s.

Elements of Robbery

The crime of robbery involves (1) the taking of the property of another (2) from his or her person or in their
presence (3) by violence, intimidation or threat (4) with the intent to deprive them of it permanently. Robbery
is thus distinct from the crime of larceny in two important ways. First, the theft occurs through the use of
force and intimidation. A perpetrator is not required to use significant force, or extreme threats, in order to
commit a robbery. All that is required is the amount of violence or fear necessary to cause the victim to give
up his or her possessions. This may vary based on the value of the possession and the victim. For instance,
less violence may be required to rob an elderly woman of her possessions than would be required to
intimidate a strong young man. It is also important to note that the violence must occur as part of the theft in
order for the crime to rise to the level of robbery. If an individual uses violence after the theft while trying to
escape police, for instance, this will not make the crime a robbery.

A second distinction of robbery is that the crime must occur in the victim’s presence. This is because
violence or threat of harm requires the presence of the victim. If the victim is unavailable, the elements of a
robbery cannot be completed. While larceny requires that the possessions that are stolen belonged to
someone else, they can be taken in secret or while the owner is unavailable. Robbery can only be charged if
the victim personally experienced the crime.

Threats

Where a perpetrator does not harm a victim, but merely threatens the victim with harm, several additional
requirements must be met in order to show that a robbery occurred. Threats during a theft only rise to the
level of robbery if they are imminent threats that include a threat of death, bodily injury, or destruction of the
victim’s home. If a criminal threatens to shame the victim or spread rumors about them, this will not turn a
larceny into a robbery. Additionally, the victim must have an actual and reasonable fear based on the threats.
For example, if a weightlifter is threatened by a small child who is trying to steal his wallet, it is doubtful that
the weightlifter would be “reasonably” afraid of the child and this is probably not a robbery.

Aggravated Robbery

Many states provide for varying degrees of robbery depending on the level of violence exerted against the
victim. Aggravated robbery is a robbery that occurs under the most serious of circumstances and usually
requires either that a deadly weapon was used during the robbery or that the perpetrator inflicted serious
bodily harm on the victim. For instance, if a criminal uses a gun or knife to commit the crime, or gravely
injures the victim, he may be charged with aggravated robbery. Some states also apply aggravated robbery
to any robbery that occurs against special groups of victims, such as elderly persons or disabled
individuals.

Felony murder can arise in a variety of circumstances, many of which may seem surprising. For example, if a
defendant and his partner attempt to rob a gas station and his partner fires a warning shot to scare the store
clerk, but it accidentally hits another customer, both the defendant and his partner can be charged with
murder, even though the defendant did not have the gun. Similarly, if a man sets fire to his neighbor’s shed
because he does not like the shed and the fire spreads to another neighbor’s house, killing those inside, the
man can be charged with murder even though he never intended to harm anyone. Because of these
complexities, it is important to remember that involvement in an inherently dangerous crime that results in
fatalities can lead to murder charges for all those involved.

Punishment

Almost every state in the United States has a felony murder rule, and federal law recognizes the felony
murder rule, as well. In most states, felony murder is categorized as a first-degree murder and can result in
sentencing from several years to a life imprisonment. In almost half of these states, felony murder is
considered a capital offense, which means that the death penalty is available. However, the Supreme Court
has imposed additional restrictions on states that seek to impose the death penalty for a felony murder.
In Enmund v. Florida, the Supreme Court held that the death penalty cannot be imposed on a defendant who
had only a minor role in the underlying felony, such as any individuals who did not participate in the killing,
or did not intend to kill during the felony. However, in Tison v. Arizona, the Supreme Court concluded that
the death penalty could be considered for a defendant convicted of felony murder who was a significant
participant in the underlying felony and who acted with reckless indifference to human life.

While most states separate murder into first degree and second degree, some states classify murder
differently. For instance, in New York, first-degree murder requires that the murder involve “special
circumstances,” such as the murder of a police officer. Similarly, the Model Penal Code does not classify
murder by degree, but defines murder as “any killing committed purposefully and knowingly.” This means
that it is important to check the penal code of your state or consult a criminal defense lawyer to determine
whether and how first-degree murder is defined.

Rape

Rape is a violent crime that is defined as unwanted sexual intercourse that is accomplished by force or
threat of force. While women make up a significant percentage of rape victims, rape may be perpetrated
against either men or women and may arise in same-sex or opposite-sex relationships. Although traditionally
rape was limited to non-marital circumstances, most state statutes now allow for rape to occur in marital
relationships when one partner is coerced or forced into sex.

Types of Rape

The most commonly recognized form of rape is forcible rape, which involves the victim being physically
forced into sexual intercourse with the perpetrator. Forcible rape can occur between two individuals who
know each other or are in a relationship, or it can be committed by a total stranger. A forcible rape may be
committed even if no actual physical force or harm occurs to the victim. If a threat of force or bodily injury is
sufficient to force the victim to comply with the perpetrator’s demands, this also amounts to forcible rape.

In additional to forcible rape, rape can occur when a victim is unable to resist sexual intercourse due to drug
or alcohol intake. This often occurs in the context of date rape, when a victim may be given drugs that
heavily impair his or her ability to make decisions or resist the advances of another person. In many states,
statutes have been enacted that impose harsh punishments on individuals who commit date rape in order to
deter this conduct.

Another form of rape occurs when a perpetrator uses his or her authority, or pretends to be in a position of
authority, in order to coerce the victim into agreeing to sexual intercourse. For instance, a perpetrator may
pretend to be a law enforcement officer pulling a victim over for a traffic violation and may threaten to arrest
the victim unless he or she agrees to have sex.

With each of these types of rape, it is important to remember that the actual act of rape occurs with even the
slightest act of sexual penetration. Thus, rape can occur even if sexual contact is limited or fleeting.
The Importance of Consent

A common factor in all types of rape is the lack of consent by the victim. This element is crucial to a rape
finding. Even when an individual believes that his or her partner or friend is willing to have sex, an
affirmative acknowledgement of consent by both parties must occur. For example, assume a young man and
woman go out on a date and have a few drinks. The woman invites the man back to her apartment to spend
the night, but then she blacks out from the drinks she has consumed. Her date cannot assume that she is
willing to have sex with him because she invited him back. Without her consent, the act of sexual intercourse
would be rape. This is equally true if a victim is incapable of giving consent in any other circumstance.
Indeed, in certain contexts, a victim below the age of consent is considered legally unable to provide
consent, and thus any sexual intercourse with the victim is statutory rape.

Conversely, a victim who is neither coerced nor placed in circumstances that cause fear of harm, and who
does not vocalize a lack of consent, may have difficulty establishing that a rape occurred even if he or she
did not truly want to have sexual intercourse. Typically, the victim must manifest some evidence of a lack of
consent, or be placed in circumstances where a failure to consent can be inferred.

Arson

Arson is defined as the willful and malicious burning of the property of another. It is considered a violent
crime and is treated as a felony in most states. According to the National Fire Incident Reporting System,
almost 17,000 acts of arson occur annually in the United States, leading to over half a million dollars in
property losses each year.

Elements of Arson

Traditionally, arson has been defined as the malicious burning of the dwelling of another. This definition is
highly specific, and many modern statutes have now expanded upon it, including commercial and industrial
buildings in addition to family homes or apartment buildings.

Most importantly, the crime of arson requires that the perpetrator maliciously intended to cause a fire that
burns a structure. This means that accidentally starting a fire is insufficient. Likewise, an individual’s
negligent actions, such as failing to turn off a stove before leaving a home, do not support a charge of arson.
Arson historically has required that an actual burning of the home occurred, but this rule has been relaxed in
many state statutes. The act of arson now often encompasses causing smoke damage to a property, setting
off an explosion that leads to a fire in a dwelling, and even starting a fire that never actually results in
burning or is discovered and put out before it can cause damage. Finally, many arson statutes now allow the
crime of arson to be charged even when an individual sets fire to his or her own home, thereby eliminating
the requirement that there is burning of the property “of another.” This is often done to combat cases of
possible insurance fraud, or when an individual knew that setting fire to his or her own home clearly risked
the possibility of burning nearby buildings.

Categorizing Arson

Many states recognize and criminalize varying degrees and types of arson depending on a number of
factors. For instance, some states break down arson into two types: primary fires and secondary fires.
Primary fires take place in inhabited buildings, such as homes, active businesses, or vehicles. Primary fires
may also consist of acts of arson that result in injuries. Secondary fires are less serious than primary fires,
such as a fire in an abandoned building or a fire that spreads from the primary fire.

Some states categorize arson as first-degree, second-degree, or third-degree, depending on the type of
property burned. The burning of places where individuals are likely to reside, such as homes, schools, or
businesses, may result in a charge of first-degree arson, while arson to abandoned buildings constitutes
second-degree, and the burning of personal property is third-degree. This means that a more serious form of
arson will result in harsher penalties.

Punishment for Arson

Since arson is typically charged as a felony, defendants are usually subject to fines and prison time. If the
arson results in the death of individuals inside the dwelling or near it, a defendant can also be charged under
the felony murder rule and may face up to a lifetime in prison. Many states also have special provisions
related to arson and insurance fraud because of the significant portion of fires that are a product of
fraudulent intent. Both law enforcement agencies and insurance companies have dedicated teams of
inspectors who specialize in determining whether an act of arson was the result of fraud. Defendants found
guilty of engaging in arson and insurance fraud may face up to 10 years or more in prison.

Kidnapping

Kidnapping is a serious crime that is prohibited by both federal and state laws. It is commonly defined as the
taking of a person against his or her will, or restricting that person to a confined space. Although kidnapping
is a crime that frequently receives a great deal of media attention, relatively few stereotypical kidnappings
involving abductions by strangers take place each year. According to the National Center for Missing and
Exploited Children, although several hundred thousand children are reported missing each year, only
slightly more than 100 are kidnapped by someone the child does not know. Most abductions are the result of
conduct by family members or friends. Although kidnapping of adults may also occur, there are no current
statistics on the number of adult abductions that happen each year.
Elements of Kidnapping

Kidnapping can occur in two circumstances. First, it may arise when an individual is removed, against his or
her will, from a location and taken to another location. This makes the transportation of the individual an
essential element of the crime, and the movement must be more than something slight or inconsequential.
However, kidnapping may also occur when an individual is not transported to a new location, but is instead
confined against his or her will in a certain space. If the victim is restrained in a manner that restricts his or
her freedom of movement, this is enough to constitute kidnapping. Courts have even recognized the crime
when a person is confined to his or her own home, without the ability to leave.

Some states add an additional requirement that the perpetrator of the kidnapping must have had an unlawful
motive for the crime, such as for extortion or ransom, to facilitate a crime, or to avoid an ongoing legal issue,
such as in the case of a custody dispute. In many states, parental kidnapping is an issue of special statutory
concern, since parents in ongoing divorce proceedings or child custody issues may attempt to take their
child to another state without the permission of all parties involved. In order to diminish this problem and
avoid conflicting custody laws, most states have now enacted statutes that adopt the Uniform Child Custody
Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), which provide guidance on
determining which states have jurisdiction over custodial disputes, and when the child custody decisions of
one state must be respected by others.

Federal Kidnapping Act

In response to the high-profile kidnapping of the son of Charles Lindbergh, one of the famous first air pilots,
the United States has also adopted the Federal Kidnapping Act in order to improve the federal response to
the crime of kidnapping. This act was passed to improve federal investigation and enforcement of
kidnappings once an abduction has crossed state lines. Under the Act, the Federal Bureau of Investigation
(FBI) is charged with investigating and stopping kidnapping in the United States. The Act makes kidnapping
a very serious felony, with jail time of up to 20 years or more. It also allows for the prosecution of parents
who kidnap their children by taking them abroad without the permission of a spouse or other guardian.

Requirements for First-degree Murder

Although the exact state laws defining first-degree murder vary by state, most state penal codes require that
a prosecutor establish willfulness, deliberation, and premeditation in order to convict a defendant of first-
degree murder. Willfulness requires that the defendant acted with the intent to kill another person. Thus, the
death cannot have been accidental. However, the prosecutor does not have to show that the defendant
intended to kill that particular victim. If the defendant shoots into a crowd with the intent to kill his friend, but
hits and kills a bystander instead, these facts can still support a charge of first-degree murder.
Deliberation and premeditation mean that the prosecutor must show that the defendant developed the
conscious intent to kill before committing the murder. This is a low threshold and does not require showing
that the defendant created an extensive plan before he committed the act (although that might sometimes be
the case). Rather, deliberation and premeditation require only that the defendant paused, for at least a few
moments, to consider his actions, during which time a reasonable person would have had time to second
guess such actions.

Punishment and Defenses

Because first-degree murder constitutes a very serious crime, a conviction results in very serious
punishment. In many states, a conviction for first-degree murder can result in the death penalty or life in
prison without the possibility of parole. The actual sentencing options available for a first-degree murder
conviction will vary greatly by state. Some states, for instance, have prohibited the death penalty. It is
therefore helpful to check the laws of your particular state to best understand possible punishments.

A defendant facing a conviction for first-degree murder is also entitled to raise arguments in his defense. A
defendant may seek to show that the prosecution has not established the elements necessary for a first-
degree murder conviction. For instance, the defendant may argue that the killing was accidental, and thus
could not have been premeditated. A defendant may also argue that the crime was a “justified homicide.”
This means that the killing was not a crime at all. The most common justified homicide defenses are self-
defense and defense of others. In order to succeed in arguing self-defense, the defendant must show not just
that he was scared or intimidated, but that the threat he faced would put a reasonable person in fear of death
or great bodily harm.

Additionally, the degree of force he used in defending himself (and causing the death of another) must have
been proportional to the threat perceived. A defendant usually cannot claim self-defense for murder when his
victim was only threatening to inflict minor harm, like a slap or a push. The same requirements apply to
defense of others; the use of force must be in response to a perceived threat and must be proportional to the
threat faced.

Second-degree murder occurs when the defendant may have intended to kill, but lacked premeditation. A
conviction for second-degree murder usually results in punishment that is slightly less severe than the
punishment imposed for first-degree murder.

Under the felony murder rule, defendants can also be held liable for a homicide that occurs in the
commission of another crime they are participating in, even if they did not commit the homicide themselves.
Thus, if a defendant is participating in a burglary where his partner kills another, the defendant can be
charged with homicide under the felony murder rule if the crime occurred in a jurisdiction that recognizes
that rule. Felony murder typically applies only where the underlying crime is a serious one. This will vary by
state and is set forth in state penal codes.

Manslaughter

Manslaughter is an unlawful killing that does not involve malice aforethought. Because manslaughter is not
intentional or premeditated, it is generally subject to a lower punishment than murder. The two primary forms
of manslaughter are voluntary manslaughter and involuntary manslaughter.

Voluntary manslaughter is similar to second-degree murder, as it typically involves a killing that occurs in
the “heat of passion.” This means a sudden and intense passion that causes the defendant to lose control.
One common example of voluntary manslaughter is where a husband unexpectedly encounters his wife in an
act of adultery and acts violently as a result.

Involuntary manslaughter is the least serious degree of homicide and arises when a defendant did not intend
to kill another, but acted with a carelessness or reckless indifference to a substantial risk, resulting in the
death of another. A common example is driving under the influence of alcohol (DUI)and causing the death of
another person as a result. The drunk driver did not intend to kill, but she acted with reckless indifference to
the possible consequences of driving drunk.

Many states also have statutes that set forth a particular crime for those who negligently or recklessly cause
the death of another while driving a vehicle. This is often referred to as vehicular manslaughter or vehicular
homicide.
Inchoate Crimes

Inchoate crimes refer to those crimes that were initiated but not completed, and acts that assist in the commission of

another crime. Inchoate crimes require more than a person simply intending or hoping to commit a crime. Rather, the

individual must take a “substantial step” towards the completion of the crime in order to be found guilty. Inchoate crimes

include aiding and abetting, attempt, and conspiracy. In some cases, inchoate crimes can be punished to the same degree

that the underlying crime would be punished, while in other cases, the punishment might be less severe.

Inchoate/Incomplete Crimes

Inchoate crimes, also known as incomplete crimes, are acts taken toward committing a crime or acts that
constitute indirect participation in a crime. Although these acts are not themselves crimes, they are illegal
because they are conducted in furtherance of a crime, and society wishes to deter individuals from taking
such steps. Three primary inchoate crimes are attempt, conspiracy, and aiding and abetting.

Criminal Attempt

Attempt is the act of trying to commit a crime and failing. Because attempt can involve very serious crimes,
like murder, it is often seen as the most serious of the inchoate crimes. Criminal attempt has three
requirements. First, the person must have had the specific intent to commit the actual crime. Second, the
person must take actions in furtherance of the crime. Third, the crime must not have been completed. If it
was completed, the individual would be charged with the actual crime and not attempt.

Attempt

Attempt is defined as an crime where an individual, with the intent to actually commit a crime, undertakes an
action in furtherance of that crime, but ultimately fails. Attempt is therefore comprised of three elements: (1)
intent to commit a crime; (2) conduct that constitutes a substantial step toward completing the crime and (3)
a failure to complete the crime.

Intent

Because an attempt does not result in the actual commission of a crime, prosecuting an individual for
attempt requires clear evidence of intent to commit the crime. Individuals cannot be charged with attempt for
accidentally committing a crime. Rather, a prosecutor must show that the defendant specifically intended to
commit the crime that he attempted, and he simply fell short. Attempt is therefore categorized as a “specific
intent” crime. This means that acting negligently or recklessly is not enough to support a charge of attempt.
One caveat to this general rule is the concept of transferred intent. Under transferred intent, an individual
who intends to commit a crime against one person, but ends up hurting another person, may be held
responsible for one or both crimes. For example, if a man intends to shoot his wife, but when he discharges
the gun he accidentally hits his wife’s friend who is standing nearby, the man may be guilty of the murder of
the friend (because his intent transfers to her) and also be guilty of the attempted murder of his wife
(because he did originally intend to murder her).

Substantial Step

In addition to intent, most states require that a prosecutor also establish that the defendant took a
substantial step toward the completion of the crime. A substantial step goes beyond mere preparation to
commit the crime. Simply discussing the crime or contemplating it with a friend is also not enough. Rather,
the act must be such that it moves the defendant toward the successful completion of the crime, even
though the crime is never fully executed. For example, if a person wishes to commit arson, but merely
considers a possible plan in his head, or talks about it with another, this is probably not enough to charge
the person with attempt. However, if that same individual wishes to commit an arson, goes out and buys
kerosene and matches, and drives to the building, but is arrested before starting the fire, this is probably
enough to support a charge of attempted arson.

Failure to Complete

A charge of attempt also requires that the defendant did not actually complete the crime that he was
committing. This is because attempt is a distinct and separate crime that cannot be simultaneously charged
with the crime itself. Rather, if the defendant actually completed the crime, for instance, murder, he would be
charged with murder rather than attempted murder.

Punishment

Punishments for attempt are typically less severe than the punishment would be had the crime been
completed. Additionally, the punishment for an attempted crime is typically proportional to the severity of the
crime at issue. Thus, a defendant will face a stiffer penalty for attempted murder than attempted theft. Some
states have specific statutes addressing certain attempt crimes, such as attempted murder or attempted
rape. You should check your state’s penal code to determine if this is the case in your state.

A defendant facing a charge of attempt may argue several defenses, including that he fully and
completely abandoned his efforts to attempt the crime, or that the attempt was a logical or
factual impossibility.

Attempt
Attempt is defined as an inchoate crimewhere an individual, with the intent to actually commit a crime,
undertakes an action in furtherance of that crime, but ultimately fails. Attempt is therefore comprised of three
elements: (1) intent to commit a crime; (2) conduct that constitutes a substantial step toward completing the
crime and (3) a failure to complete the crime.

Intent

Because an attempt does not result in the actual commission of a crime, prosecuting an individual for
attempt requires clear evidence of intent to commit the crime. Individuals cannot be charged with attempt for
accidentally committing a crime. Rather, a prosecutor must show that the defendant specifically intended to
commit the crime that he attempted, and he simply fell short. Attempt is therefore categorized as a “specific
intent” crime. This means that acting negligently or recklessly is not enough to support a charge of attempt.

One caveat to this general rule is the concept of transferred intent. Under transferred intent, an individual
who intends to commit a crime against one person, but ends up hurting another person, may be held
responsible for one or both crimes. For example, if a man intends to shoot his wife, but when he discharges
the gun he accidentally hits his wife’s friend who is standing nearby, the man may be guilty of the murder of
the friend (because his intent transfers to her) and also be guilty of the attempted murder of his wife
(because he did originally intend to murder her).

Substantial Step

In addition to intent, most states require that a prosecutor also establish that the defendant took a
substantial step toward the completion of the crime. A substantial step goes beyond mere preparation to
commit the crime. Simply discussing the crime or contemplating it with a friend is also not enough. Rather,
the act must be such that it moves the defendant toward the successful completion of the crime, even
though the crime is never fully executed. For example, if a person wishes to commit arson, but merely
considers a possible plan in his head, or talks about it with another, this is probably not enough to charge
the person with attempt. However, if that same individual wishes to commit an arson, goes out and buys
kerosene and matches, and drives to the building, but is arrested before starting the fire, this is probably
enough to support a charge of attempted arson.

Failure to Complete

A charge of attempt also requires that the defendant did not actually complete the crime that he was
committing. This is because attempt is a distinct and separate crime that cannot be simultaneously charged
with the crime itself. Rather, if the defendant actually completed the crime, for instance, murder, he would be
charged with murder rather than attempted murder.

Punishment
Punishments for attempt are typically less severe than the punishment would be had the crime been
completed. Additionally, the punishment for an attempted crime is typically proportional to the severity of the
crime at issue. Thus, a defendant will face a stiffer penalty for attempted murder than attempted theft. Some
states have specific statutes addressing certain attempt crimes, such as attempted murder or attempted
rape. You should check your state’s penal code to determine if this is the case in your state.

A defendant facing a charge of attempt may argue several defenses, including that he fully and
completely abandoned his efforts to attempt the crime, or that the attempt was a logical or
factual impossibility.

Abandonment

The Defenses of Abandonment and Withdrawal

Abandonment and withdrawal is an affirmative criminal defense that arises when a defendant asserts that he
or she never completed, or was not involved in, a criminal act because he or she abandoned or withdrew
from the act prior to it happening. Abandonment and withdrawal is an affirmative defense, which means that
the burden is on the defendant to show that he or she met all of the requirements for a successful withdrawal
from the crime.

Establishing Abandonment and Withdrawal

For most crimes, except conspiracy, a criminal defendant can establish that he or she successfully
abandoned or withdrew from a crime by showing that he or she stopped participating in the crime prior to its
ultimate commission and either that any actions undertaken by the defendant prior to abandoning the crime
did not contribute to the successful completion of the crime or that the defendant notified the police of the
planned crime as soon as possible in order to attempt to prevent the crime from taking place.

In many states, this is known as the voluntary abandonment defense, since the defendant must have decided
to abandon the crime on a voluntary basis. This means that he or she cannot have done so under the belief
that he or she was about to get caught or because some difficulty arose regarding the commission of the
crime. Instead, the defendant must establish that he or she had an independent and voluntary change of
heart and decided not to complete the crime.

Abandonment can occur when a defendant is planning to commit a crime on his or her own and later decides
not to commit the crime, or when he or she is participating in a crime with other co-criminals and decides to
no longer participate. When the crime is to be committed by multiple individuals, one participant’s
abandonment of the crime does not absolve others from liability if the crime is ultimately completed.
Additionally, after abandoning a planned criminal activity, a defendant cannot later reinitiate contact with
other individuals who were involved in the planned crime. If he or she does so, the right to the defense of
abandonment or withdrawal is unavailable.
Withdrawal and Conspiracy

Abandonment or withdrawal is also available as a defense to the crime of conspiracy, but it involves several
elements unique to this crime. In order to withdraw from a conspiracy, a co-conspirator must:

 Take an affirmative action withdrawing from the conspiracy;

 Timely communicate to all co-conspirators the withdrawal; and
 Withdraw prior to the completion of the objective of the conspiracy.

Thus, a co-conspirator cannot withdraw by merely failing to participate further in the conspiracy. Instead, the
individual must pro-actively move to withdraw and communicate this action to others involved in the
conspiracy. Additionally, a withdrawal must occur before the primary goal of the conspiracy is completed.
This means that a co-conspirator cannot participate in the conspiracy until its completion, withdraw, and
then cite withdrawal as a defense to criminal charges. Finally, as with other crimes, if a co-conspirator
reinitiates contact with his or her co-conspirators, the defense of abandonment and withdrawal is
unavailable.

In some jurisdictions, in addition to the above requirements, a co-conspirator who withdraws must also
actively work to prevent the crime that is the objective of the conspiracy from being completed. This typically
involves alerting police as to any planned conduct.

Conspiracy occurs when two or more people agree to commit a crime together. Thus, conspiracy requires
two or more participants. One person cannot singly conspire to commit a crime. In many states, conspiracy
also requires that the individuals conspiring have carried out an obvious act in furtherance of the criminal
plan. Unlike with attempt, a defendant can be charged for both conspiracy to commit a crime and the actual
crime itself. These are seen as two separate offenses in criminal law.

Conspiracy

A conspiracy occurs when two or more people agree to commit an illegal act and take some step toward its
completion. Conspiracy is an inchoate crime because it does not require that the illegal act actually have
been completed. For instance, a group of individuals can be convicted of conspiracy to commit burglary
even if the actual burglary never happens. Conspiracy is also unique in that, unlike attempt, a defendant can
be charged with both conspiracy to commit a crime, and the crime itself if the crime is completed.

Elements of a Conspiracy

Conspiracy first requires a showing that two or more people were in agreement to commit a crime. This
agreement does not have to be formal or in writing. All that is required is that the parties had a mutual
understanding to undertake an unlawful plan. Second, all conspirators must have the specific intent to
commit the objective of the conspiracy. This means that someone who is entirely unaware that she is
participating in a crime cannot be charged with conspiracy. For instance, if two sisters agree to rob a bank
and ask their brother to drive them to the bank without informing him of their intent to commit a crime, he
cannot be charged with conspiring in the robbery. This specific intent requirement does not require that each
individual knows all the details of the crime or all of the members of the conspiracy. As long as an individual
understands that the act being planned is a criminal one and proceeds nonetheless, he can be charged with
conspiracy.

Finally, in most states, conspiracy requires an “overt act” taken in furtherance of the crime. This overt act
does not have to be the crime itself, nor does it have to be an act that is illegal. Rather, the act must merely
be a step taken in furtherance of the criminal objective, such as buying a weapon or holding a meeting to
plan an attack. The act must also take place after the group of individuals has agreed to conspire. Actions
taken before the agreement do not fulfill this requirement. While an “overt act” implies an affirmative action,
some courts have held that silence can be an overt act where it is intentional, planned, and done in
furtherance of the conspiracy.

Defenses to Conspiracy

Like other inchoate crimes such as attempt, a defendant charged with conspiracy can raise the defense
of abandonment or withdrawal. In order to do so, a defendant must show that he affirmatively communicated
his withdrawal to his co-conspirators and took some positive action to withdraw from the conspiracy.
Additionally, the defendant must have withdrawn from the conspiracy prior to its completion. Importantly,
the defendant must have definitively cut ties with his fellow co-conspirators. If he continues to communicate
with them or assist them in any way, this may prevent him from raising the defense of withdrawal.

Another defense available in conspiracy cases is the defense of entrapment. Entrapment means that the
defendant was persuaded to participate in the conspiracy by a law enforcement officer or government agent
and that he or she would not otherwise have become involved in the conspiracy. Specifically, the defendant
must show that (1) the idea for the conspiracy came from an officer and not the defendant; (2) the defendant
was persuaded to participate in the conspiracy by an officer and (3) before being persuaded, the defendant
had no intention of committing the crime.

Both federal law and state law define the crime of conspiracy. Whether a person is charged under federal or
state law depends upon the specific circumstances. Often, the federal government will prosecute persons
allegedly involved in a conspiracy that spans multiple states, whereas a state government will generally
handle matters that are entirely contained within its borders. If the crime underlying the conspiracy is a
federal crime, this too may lead to federal, rather than state, prosecution.

A conspiracy occurs when two or more people agree to commit an illegal act and take some step toward its
completion. Conspiracy is an inchoate crime because it does not require that the illegal act actually have
been completed. For instance, a group of individuals can be convicted of conspiracy to commit burglary
even if the actual burglary never happens. Conspiracy is also unique in that, unlike attempt, a defendant can
be charged with both conspiracy to commit a crime, and the crime itself if the crime is completed.

Elements of a Conspiracy

Conspiracy first requires a showing that two or more people were in agreement to commit a crime. This
agreement does not have to be formal or in writing. All that is required is that the parties had a mutual
understanding to undertake an unlawful plan. Second, all conspirators must have the specific intent to
commit the objective of the conspiracy. This means that someone who is entirely unaware that she is
participating in a crime cannot be charged with conspiracy. For instance, if two sisters agree to rob a bank
and ask their brother to drive them to the bank without informing him of their intent to commit a crime, he
cannot be charged with conspiring in the robbery. This specific intent requirement does not require that each
individual knows all the details of the crime or all of the members of the conspiracy. As long as an individual
understands that the act being planned is a criminal one and proceeds nonetheless, he can be charged with
conspiracy.

Finally, in most states, conspiracy requires an “overt act” taken in furtherance of the crime. This overt act
does not have to be the crime itself, nor does it have to be an act that is illegal. Rather, the act must merely
be a step taken in furtherance of the criminal objective, such as buying a weapon or holding a meeting to
plan an attack. The act must also take place after the group of individuals has agreed to conspire. Actions
taken before the agreement do not fulfill this requirement. While an “overt act” implies an affirmative action,
some courts have held that silence can be an overt act where it is intentional, planned, and done in
furtherance of the conspiracy.

Defenses to Conspiracy

Like other inchoate crimes such as attempt, a defendant charged with conspiracy can raise the defense
of abandonment or withdrawal. In order to do so, a defendant must show that he affirmatively communicated
his withdrawal to his co-conspirators and took some positive action to withdraw from the conspiracy.
Additionally, the defendant must have withdrawn from the conspiracy prior to its completion. Importantly,
the defendant must have definitively cut ties with his fellow co-conspirators. If he continues to communicate
with them or assist them in any way, this may prevent him from raising the defense of withdrawal.

Another defense available in conspiracy cases is the defense of entrapment. Entrapment means that the
defendant was persuaded to participate in the conspiracy by a law enforcement officer or government agent
and that he or she would not otherwise have become involved in the conspiracy. Specifically, the defendant
must show that (1) the idea for the conspiracy came from an officer and not the defendant; (2) the defendant
was persuaded to participate in the conspiracy by an officer and (3) before being persuaded, the defendant
had no intention of committing the crime.

Both federal law and state law define the crime of conspiracy. Whether a person is charged under federal or
state law depends upon the specific circumstances. Often, the federal government will prosecute persons
allegedly involved in a conspiracy that spans multiple states, whereas a state government will generally
handle matters that are entirely contained within its borders. If the crime underlying the conspiracy is a
federal crime, this too may lead to federal, rather than state, prosecution.

Aiding and Abetting

Aiding and abetting is an inchoate crime that applies to individuals who, while usually not present for the
crime itself, may have assisted the crime in some way either before or after the fact. A person who aids and
abets a crime may also be known as an accessory to the crime. Aiding and abetting requires that the
individual had the intent to assist in the commission of the crime. Someone who is merely present while a
crime occurs and does nothing is not considered an accomplice to the crime.

Aiding and Abetting

The inchoate crime of aiding and abetting applies to an individual who assists in a crime, but does not
commit the crime himself. This person is also known as an “accessory to the crime.” Aiding and abetting
varies greatly by state, with some states varying the severity of the charge depending on the level of
involvement of the accessory.

Accessory and Principal

Aiding and abetting requires the existence of both a “principal” and an “accessory.” The principal is the
person who is primarily responsible for the crime and who likely ultimately committed the crime. If two or
more individuals are responsible for a crime they can be charged as joint principals. The accessory is the
person who assists with the crime but is not directly involved with its actual commission. Typically, the test
for distinguishing between the two is whether the person directly contributed to the crime (a principal) or
merely provided background help or assistance (an accessory).

Elements of Aiding and Abetting

A charge of aiding and abetting has three requirements. First, someone else must have committed a crime.
Second, the defendant must have assisted that person in the commission of the crime. Third, the defendant
must have had knowledge of that person’s criminal intent or criminal plans. An individual will not be found
guilty for accidentally assisting in a crime. For instance, if a man knows that his friends have committed a
crime and are trying to escape and he causes an accident in order to allow them to get away from the police,
this could be aiding and abetting. However, if the same man is involved in an accident that allows burglars to
get away from the police, but he has no knowledge of the burglary or the effect his accident would have, he
cannot be charged with aiding and abetting.

An accessory to a crime can have knowledge of criminal intent before, or after, the commission of the crime.
An individual who is aware of the crime before it occurs and gives assistance in preparation to commit the
crime is called an “accessory before the fact.” If an individual only learns of the crime after it has taken
place, but provides assistance in the aftermath of the crime, he is known as an “accessory after the fact.”
The types of actions that constitute assistance to a crime vary greatly. A person may provide advice,
supplies, financial support, or engage in actions such as acting as a lookout or driving the getaway car.
Where the assistance the accessory provides rises to the level of significant involvement in planning the
crime, this can elevate the charge from aiding and abetting to conspiracy.

Punishment

In most states, accessories face lesser punishment than principals for crimes that are committed. However,
other states consider accessories just as guilty as principals because they also intended for the crime to be
committed. It is important to check the laws of your state in order to determine what punishments may apply.

It is also important to note that even if a principal is not convicted of a crime (perhaps because of mistaken
identity or another defense), the accessory may still be charged with aiding and abetting if a crime was
committed and he assisted in the commission of that crime.

Some states allow a defense of abandonment or withdrawal for an individual charged with aiding and
abetting. For instance, in California, a defendant may be found not guilty if he can establish that he notified
everyone else involved in the crime that he was no longer participating in the crime and that he did
everything reasonably within his power to prevent the crime from being committed, such as reporting the
planned crime to the police.

Aiding and Abetting

The inchoate crime of aiding and abetting applies to an individual who assists in a crime, but does not
commit the crime himself. This person is also known as an “accessory to the crime.” Aiding and abetting
varies greatly by state, with some states varying the severity of the charge depending on the level of
involvement of the accessory.

Accessory and Principal

Aiding and abetting requires the existence of both a “principal” and an “accessory.” The principal is the
person who is primarily responsible for the crime and who likely ultimately committed the crime. If two or
more individuals are responsible for a crime they can be charged as joint principals. The accessory is the
person who assists with the crime but is not directly involved with its actual commission. Typically, the test
for distinguishing between the two is whether the person directly contributed to the crime (a principal) or
merely provided background help or assistance (an accessory).

Elements of Aiding and Abetting

A charge of aiding and abetting has three requirements. First, someone else must have committed a crime.
Second, the defendant must have assisted that person in the commission of the crime. Third, the defendant
must have had knowledge of that person’s criminal intent or criminal plans. An individual will not be found
guilty for accidentally assisting in a crime. For instance, if a man knows that his friends have committed a
crime and are trying to escape and he causes an accident in order to allow them to get away from the police,
this could be aiding and abetting. However, if the same man is involved in an accident that allows burglars to
get away from the police, but he has no knowledge of the burglary or the effect his accident would have, he
cannot be charged with aiding and abetting.

An accessory to a crime can have knowledge of criminal intent before, or after, the commission of the crime.
An individual who is aware of the crime before it occurs and gives assistance in preparation to commit the
crime is called an “accessory before the fact.” If an individual only learns of the crime after it has taken
place, but provides assistance in the aftermath of the crime, he is known as an “accessory after the fact.”

The types of actions that constitute assistance to a crime vary greatly. A person may provide advice,
supplies, financial support, or engage in actions such as acting as a lookout or driving the getaway car.
Where the assistance the accessory provides rises to the level of significant involvement in planning the
crime, this can elevate the charge from aiding and abetting to conspiracy.

Punishment

In most states, accessories face lesser punishment than principals for crimes that are committed. However,
other states consider accessories just as guilty as principals because they also intended for the crime to be
committed. It is important to check the laws of your state in order to determine what punishments may apply.

It is also important to note that even if a principal is not convicted of a crime (perhaps because of mistaken
identity or another defense), the accessory may still be charged with aiding and abetting if a crime was
committed and he assisted in the commission of that crime.

Some states allow a defense of abandonment or withdrawal for an individual charged with aiding and
abetting. For instance, in California, a defendant may be found not guilty if he can establish that he notified
everyone else involved in the crime that he was no longer participating in the crime and that he did
everything reasonably within his power to prevent the crime from being committed, such as reporting the
planned crime to the police.

Defenses to Inchoate Crimes

Several unique defenses are available to individuals charged with committing an inchoate crime. First, a
defendant may argue that he abandoned his efforts to commit a crime and did not attempt or conspire to
commit the crime. Abandonment requires a showing that the person completely and voluntarily stopped all
actions in furtherance of the actual crime. Second, defendant may argue that there is a legal impossibility.
This means that what the person is charged with intending to do is not actually a crime. For instance, a
hunter who shoots at a deer and misses, almost hitting another hunter, could argue legal impossibility if he
was charged with attempted murder. At the time he shot his gun, he only intended to shoot at the deer and
this was not a crime. Finally, a defendant may argue factual impossibility. Factual impossibility applies when
there are circumstances that make it impossible to complete the intended crime. For instance, if a man
intends to commit arson and buys all the necessary supplies, but, unbeknownst to him, the building is
demolished the next day, he could argue factual impossibility if charged with attempted arson. In some
states, however, factual impossibility is not a defense, as courts rely on the fact that the person still had the
intent to commi

Statutory Crimes

Statutory crimes include those crimes, in addition to the crimes discussed above, which are proscribed by statute. Three

significant types of statutory crimes are alcohol related crimes, drug crimes, traffic offenses, and financial/white collar

crimes. These crimes are specifically prohibited by statute because society hopes to deter individuals from engaging in them.

Alcohol-related crimes include a variety of offenses regarding how and where alcohol can be consumed, such as:

Driving Under the Influence (DUI/OWI/DWI)

Open Container Violations

Minor in Possession of Alcohol

Public Intoxication

Underage DUI

Boating DUI

Selling and Supplying Alcohol to Minors

Refusing to Perform a Field Sobriety Test

Refusing to Perform a Breathalyzer or Provide a Blood Sample

Drug crimes concern any involvement in the creation or distribution of drugs, including drug possession, drug manufacturing,

and drug trafficking. One area of criminal law that is currently receiving a great deal of attention is the regulation and

prosecution of drug crimes related to medical marijuana. Due to state trends toward the legalization of medical marijuana,

this is an area of criminal law that is in flux.

Traffic offenses include crimes that may arise while an individual is driving a vehicle on public roadways. Because a

DUI/OWI/DWI involves both alcohol and the use of a vehicle, it is considered both an alcohol related crime and a traffic

offense. Additional traffic offenses include driving on a suspended or revoked license, driving without a license, hit-and-run

accidents, reckless driving, and vehicular assault. Where a traffic offense results in death, it can be charged as a far more

serious crime, such as a form of homicide.

Financial and Other Crimes

Finally, financial crimes often involve deception or fraud for financial gain. Although white-collar crimes derive their name

from the corporate officers who historically perpetrated them, anyone in any industry can commit a white-collar crime.

These crimes include many types of fraud and blackmail, embezzlement and money laundering, tax evasion, and cybercrime.

Criminal Law Contents

Criminal Law

Aggravating and Mitigating Factors

Bail and Bonds

Restitution for Crime Victims

Plea Bargains

Immunity for Testimony

Offense Classification

Common Criminal Defenses

Criminal Procedure

Types of Criminal Offenses

Drug Crimes

Homicide

Inchoate/Incomplete Crimes
Other Offenses

Sex Crimes

Theft Crimes

Traffic Offenses

Violent Crimes

White Collar Crimes

Other Alcohol-Related Crimes

Parole and Probation

Expungement and Record Sealing

Lesser Included Offenses

Mental State Requirement

Derivative Responsibility for Crimes

Working with a Criminal Lawyer