Criminal law of the United States

Common law is law developed by judges through legal opinions, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.[4] A common law crime is thus a crime that was originally defined by judges.

Common law crimes no longer exist at the federal level because of the U.S. Supreme Court's decision in United States v. Hudson and Goodwin, 11 U.S. 32 (1812).[5] The validity of common law crimes varies at the state level. More than a dozen states expressly retain a role for common law crimes: Alabama, Connecticut, the District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, North Dakota, Rhode Island, South Carolina, Virginia, and Washington. All recognize the common law authority of judges to convict for conduct not criminalized by statute.[6]

All 50 states have their own penal codes. Therefore, for any particular crime somewhere, it would be necessary to look it up in that jurisdiction. However, statutes derive from the common law. For example, if a state's murder statute does not define "human being," its courts will rely on the common-law definition.[7][8]

The states, since they possess the police power, have the most general power to pass criminal laws in the United States. The federal government, since it can only exercise those powers granted to it by the Constitution, can only pass criminal laws that are related to the powers granted to Congress. For example, drug crimes, which comprise a large percentage of federal criminal cases, are subject to federal control because drugs are a commodity for which there is an interstate market, thus making controlled substances subject to regulation by Congress in the Controlled Substances Act, which was passed under the authority of the Commerce Clause. Gonzales v. Raich affirmed Congress's power to regulate drug possession under the Controlled Substances Act under the powers granted to it by the Commerce Clause.

The Model Penal Code ("MPC") was created by the American Law Institute ("ALI") in 1962. In other areas of law, the ALI created Restatements of Law, usually referred to just as Restatements. For example, there is a Restatement of Contracts and a Restatement of Torts. The MPC is their equivalent for criminal law.[3]

Many states have wholly or largely adopted the MPC. Others have implemented it in part, and still others have not adopted any portion of it. However, even in jurisdictions where it has not been adopted, the MPC is often cited as persuasive authority in the same way that Restatements are in other areas of law.

The phrase actus reus is typically translated as "guilty act."

The phrase res gestae is typically translated as "the thing that happened."

The phrase animus firandi is typically translated as "evil in the heart."

Ordinarily, a voluntary act refers to commission. However, as discussed below, some crimes do punish failure to act. A status is not a voluntary act. For example, no law will be constitutional that makes it a crime to be addicted to illegal drugs, as opposed to using them, as happened in Robinson v. California.[10]

Failure to do something can occasionally be criminal. For example, not paying one's taxes is criminal. Typically, the criminality of failing to act will be codified.

Certain relationships create a duty to act at common law, such as spouse to spouse, parent to child, or employer to employee, for example. A person may contract to act, such as a babysitter to render aid in the event of the child in their care hurting himself.

A person typically has a duty to act when he is responsible for putting the other in peril in the first place, such as through accidental injury.[11]

A person may have a duty to act when he begins to act but then stops. This situation typically arises in the hypothetical where a person is drowning. One bystander among many starts swimming out to rescue him but simply changes his mind halfway and decides to turn around and go back to shore alone. The rationale for holding the bystander culpable is that the other bystanders did nothing because of his act. If the bystander had been the only person around, he would not be causing others not to assist, so he would not be culpable.

Criminal law is distinguishable from tort law or contract law, for example, in that society as a whole is theoretically damaged. Obviously, there are particular victims, but society as a whole is the party responsible for the case against and, in the event of a conviction, punishment of the criminal. Social harm is that part of the crime sought to be avoided.

The phrase mens rea is typically translated as "guilty mind" and focuses on the mental state of the accused.

General intent is an awareness of factors constituting the crime, including attendant circumstances. The person must be aware that he is acting in a proscribed way and be aware of a high likelihood that attendant circumstances will occur. The requisite intent may be inferred from the doing of the act.

A specific intent crime requires the doing of an act coupled with specific intent or objective. Specific intent cannot be inferred from the doing of the act. The major specific intent crimes are: conspiracy (intent to have crime completed), attempt (intent to complete a crime – whether specific or not, but falling short in completing the crime), solicitation (intent to have another person commit a crime), embezzlement (intent to defraud), first degree premeditated murder (premeditation), false pretenses (intent to defraud), forgery (intent to defraud), larceny & robbery (intent to permanently deprive other of interest in property taken), assault (intent to commit battery) and burglary (intent to commit felony in dwelling).

A strict liability crime, however, does not require that a mens rea be found. Common strict liability crimes include statutory rape and sale of alcohol to minors.

The MPC also addresses intent. One of its major innovations is the use of standardized mens rea terms (in MPC terms, culpability) to determine levels of mental states, just as homicide is considered more severe if done intentionally rather than accidentally. These terms are (in descending order) "purposely", "knowingly," "recklessly", "negligently", and "strict liability". Each material element of every crime has an associated culpability state that the prosecution must prove beyond a reasonable doubt.

To determine causation the result of defendant's action must be foreseeable and must be a substantial factor in causing the crime.

Actual cause (also called "cause-in-fact") holds that the defendant cannot be criminally liable unless it can be shown that he was the cause-in-fact of the prohibited result. Actual cause is satisfied if the result would not have happened in absence of defendant's conduct. To find a defendant guilty, a court must use the following test:

• but-for test, where but for the defendant's conduct the result would not have occurred.
• substantial factor test, if there are multiple causes for a crime the defendant's conduct must be a substantial factor in causing the harm.

There are some exceptions to the but-for test, however. For example, in a case where multiple wrongdoers "overdetermine" the harm that a victim would have experienced. In cases where a defendant hastens or accelerates a harmful consequence, he can be criminally liable.

Proximate cause (also called "legal" cause) restricts criminal liability to those cases where the harmful result which ensued was a foreseeable result of defendant's conduct. It is often phrased that the harmful result must be the "natural or probable" consequence of defendant's conduct. Defendant is not liable if the result is unusual, abnormal, or unlikely.

Transfer intent occurs when a defendant's intention to commit a crime is transferred from the intended victim to an unintended one. This transfers liability from a person intending to harm one person but accidentally harms another.

Concurrence means the mens rea (mental state or guilty mind) coincides with the actus reus elements. X hates Y and knows that she plays soccer every July 4 at a certain park. July 4, 2010, X goes on a high hill overlooking the field that Y is playing on, and then intentionally dislodges a large boulder, and directs it towards Y intending to kill her. If it kills her, concurrence is complete. Same situation, only the boulder rolls halfway down the hill, then gets lodged on a tree. X does everything he can to dislodge the boulder but cannot do so. He gives up. July 4, 2011, the boulder becomes dislodged in a storm (or otherwise becomes dislodged in any way other than X dislodging it with the intention of killing Y). The boulder kills Y, just as X intended one year ago. There is no concurrence, and X committed no crime.

Justification defenses are full defenses. Society essentially tells the actor that he did nothing wrong under the circumstances.

An accused will typically raise this defense when he is defending a crime of battery or homicide. Under common law, a person may use non-deadly force to defend himself from a non-deadly attack under certain circumstances. For one, he may not be the aggressor. Moreover, he must believe his force is necessary. Furthermore, that belief must be reasonable, it cannot be a defense if defendant unreasonably but honestly believed in the necessity of his actions.

In addition, the person must be facing imminent and unlawful force. Notably, the force the person uses need not be actually necessary. It need only appear so to a reasonable person.

Under common law, a person may use deadly force to defend himself from a deadly attack under the same circumstances as for a non-deadly attack except that a person may not use deadly force if non-deadly force would suffice. In some jurisdictions there is a duty to retreat before using deadly force. In counties where the duty to retreat exist, a non-aggressor has the duty to retreat from a threatening situation if he can do so with complete safety.

Other justifications include defense of others, law enforcement, fear of imminent harm, and necessity.

Defense of property is a defense where defendant uses reasonable and appropriate force to avoid danger and prevent the threaten interference of property, but not deadly force.

Entrapment is a defense where the defendant must show that there is a lack of predisposition and that he was induced by a law enforcement agent to commit the crime. Predisposition indicates a defendants readiness to commit the crime and focuses on defendant's conduct. Inducement is the encouragement that might persuade a defendant to commit a crime. This focuses on the conduct of the law enforcement agent.

Abandonment is used as a defense where a defendant voluntarily abandons the attempt before committing the act.

Impossibility defense where a crime's attempt fails because it is impossible to commit. There are two types of impossibility defenses:

• Factual impossibility where there is a factual error preventing commission of the crime.
• Legal impossibility where the defendant completed all of his intended acts, but his acts fail to fulfill all the required in elements for the crime.

Excuse defenses are also full defenses. However, society is not saying the actor did nothing wrong, only that it will not punish him under the circumstances. Intoxication can serve as a defense, with the law distinguishing between how voluntary and involuntary intoxication can serve as defenses. Other excuses include duress and insanity. Infancy is a defense where the defendant is a minor and too young to form criminal intent.

Voluntary intoxication can be a defense for specific crimes (larceny, attempt, solicitation, conspiracy and so on), but not for general intent crimes (arson, assault, battery, rape etc.). The defendant has the burden of proof for voluntary intoxication. Claiming that he would not commit the crime when sober is not a defense.

Involuntary intoxication is a defense where the defendant is not aware that he is ingesting the intoxicant, an intoxicant is taken under medical advice or the defendant is ingesting an intoxicant under duress, which causes intoxication. However, intoxication due to peer pressure or addiction is not enough defense.

Mistake is another defense and can be a mistake of fact or a mistake of law. Mistake of Fact occurs when the defendant misunderstands a fact that negates an element of the crime. Mistake of law is the misunderstanding, incorrect application, or ignorance of the law's existence at the time. These mistakes must be honest, made in good faith, and reasonable to an ordinary person. Using mistake as a defense does not work in strict liability cases where the defendant's intent is irrelevant.

Duress is an excuse where a crime is committed because of immediate threat to life posed by another. The person using the defense must establish that a reasonable person in the same position would have also committed the crime and they had no alternative to committing the crime. Duress cannot be used as a defense in murder or if the party was responsible for getting into the situation that resulted in the threat.

Insanity defense is the defense where a crime is excused due to an episodic or persistent psychiatric disease that effect legal responsibility at the time of the criminal act. The state presumes that the defendant is competent, requiring defendant to give proof or advance notice to raise the insanity defense. There are five tests for insanity:

• M'Naghten test shows that the defendant (1) did not know the nature and quality of the act or (2) the wrongfulness of the act.
• Irresistible-impulse test shows that the defendant lacks the capacity for self-control and free choice because mental disease or defect.
• Durham rule is a but-for test where the defendant is not if the unlawful act is the cause of a mental disease or defect, and the defendant would not have committed the act if it was not for the disease or defect.
• Model Penal Code as a result of mental disease or defect, didn't have substantial capacity to recognize the wrongfulness of the act or conform to legal conduct.
• ALI rule shows that a person is not guilty as a result of mental disease of defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

Currently the US uses the ALI rule to determine if for the insanity defense. Confinement for defendants found not guilty by reason of insanity is confined in a mental institution until such time they may no longer be a danger to themselves or others, which may be beyond the maximum for the offense.

Only a human being can commit a homicide (as opposed to other legal persons, such as corporations). Homicide is the unlawful killing of another human being. The two types of homicide are murder and manslaughter.

A person who accidentally causes a fatal car accident by losing control of an automobile on black ice and kills a child is still considered to have committed "homicide," but this is not punishable as long as it is proven that it was a truly accidental car wreck. While homicide carries a criminal connotation to the layperson, from a legal standpoint it is merely the "unlawful killing of another human being" and may not be punishable.

A murder is a homicide with malice aforethought, an "endangering state of mind." There are four ways to satisfy the element of malice. One is an intent to kill and is the only form of express malice. The remaining ways are implied malice. One is an intent to inflict great bodily harm.

Degrees of murder did not exist under common law. Most states have statutorily created at least two degrees of murder. Usually, a person only commits first-degree murder when he has express malice. If he has any other type of malice, he usually commits second-degree murder. American law reformed old-world, common-law practices during the ages of Henry VIII where even petty thieves were executed. American law generally categorizes the level of punishment and created lesser sentences, as opposed to the common law "one size fits all," hence the first-, second-, third- and fourth-degree murder with different level of punishment. (See voluntary manslaughter)

Felony murder, a charge that may be filed against a defendant who is involved in a dangerous crime where a death results from the crime, is typically first-degree, but may be second-degree.[12] Felony murder only applies when someone dies during the commission or attempted commission of a felony. It is often called the felony murder rule and only requires the person to intend to commit the underlying violent felony, including burglary, arson, rape, robbery and kidnapping. The Redline Rule excludes the death of co-felon who was killed during a justified homicide from a felony murder charge.

First degree murder is proven when malice aforethought accompanies "willful, deliberate and premeditation" of the criminal homicide. Since it is the harshest degree of murder in terms of sentencing and societal punishment, a first-degree murder must be especially premediated. Premeditation is the time and capacity to appreciate the enormity of the evil imposed. It involves weighing the pros and cons of one's own actions, and allowing one to think calmly, rationally and thoughtfully. A planned event, with a design to maliciously murder another human being, such as a gang member planning a contract murder or a serial killer outlining the steps to kidnapping his next victim, are committing premeditated acts when, if caught and charged, usually are proven to have committed murder in the first degree.

Second degree murder, however, initiated by any other crime which satisfies the general malice aforethought whereas "malice is merely implied." Second degree murder includes intention to kill the victim, but no plans to act. This include depraved heart, where an act of high-risk conduct or acting in extreme recklessness is knowingly done to put the victim in danger.

Depraved heart murder occurs when defendant expresses a reckless disregard for the value of human life. This includes conduct which creates a high risk of death. This differs from involuntary manslaughter by a higher degree of recklessness.

The Model Penal Code does not categorize murder by degrees.

Voluntary manslaughter is the lesser charge of homicide, lesser than murder, for a reason that has come down by American law taken from the felony murder rule doctrine of the common law. American society has come to understand how a loss of self-control, brought about through emotional states, can push a person toward murder when it is not rationally intended. Since Henry the Eighth, common law practices were harsh whereas petty thieves were executed, as well as criminals whose motives were understood as emotionally challenging to maintain self-control. Voluntary manslaughter, although punishable, is an intentional, malicious form of homicide that involves certain elements to justify this lesser charge.

The "Heat of Passion" and "Cooling off Period" are subjective justifications that are argued in court, by attorneys, based on circumstantial evidence and establishment of motives where proof of a crime may not be fully ascertained. The ideas that a person, whom upon walking into his bedroom, observes his wife having sex with another male (his lifelong rival), reacts harshly, grabs a nearby gun, and within a matter of minutes, kills both of them, is less punishable than other forms of deliberate, premeditated and willful acts of calculated murder. A person is still "hot," the heat of passion is so great that reason is dismissed, and primal aggression takes over, but it was never the natural intention of the person ever—with no evidence of ever having marital problems or the like. Because he or she walked in on his partner's infidelity and kills both of them within minutes, he or she has no chance to cool off. However, the heat of passion and cooling are subjective factors.

According to the law, a murder charge can become a voluntary manslaughter charge if there is proof of "legally adequate provocation," the objective test. This truly objective standard combines heat of passion and cooling off to determine them from the facts of a case. The question is, "Does the defendant have legally adequate provocation to have lost control?" In situations of infidelity described above, he does, according to America's general interpretation. (Facts of a particular case may override some of that matter, however). Insulting words alone cannot justify legally adequate provocation.

Think about reasonably adequate provocation in terms of a stressful trigger to a loss of self-control. The law says insulting words, or words alone, cannot justify a trigger of criminal homicide. Your lover cannot call you a name, thereby making you justified in killing them. The legally adequate provocation must go beyond insulting words to events, situations and circumstances that surprise the defendant and trigger them to lose any sort of reasonableness without time to think through the consequences nor weigh the pros and cons. In this way, a court may establish a defendant, originally charged with second degree murder, to have been legally adequately provoked to commit the unlawful act of killing of another human being making his crime less punishable, but still punishable.

Voluntary manslaughter results in a lesser charge than murder, but more than involuntary manslaughter.

Involuntary manslaughter is unintentional killing of a person, the law requires proof beyond a reasonable doubt of some form of malfeasance or misfeasance. Malfeasance is considered to be any dangerous, unlawful act (felony), misfeasance includes any act, even lawful, that is criminally negligent (misdemeanor).

Mayhem is the law involving a person that may harm or injure a person and cause them to lose the ability to use a part of their own body. This includes any part of the body (the eyes, the tongue, arms, legs, ears or lips)[13]

Robbery at common law was the trespassory taking of the property of another with the intent to permanently deprive the person of that property by means of force or threat of force.[14]

Robbery charges result in substantial sentences which may be up to ten years with parole. Robbery with a deadly weapon increases this sentence and depends on the present ability of the defendant during the commission of the act. The precise language of this charge must be carefully reasoned to a jury panel by a trial court judge. Robbery is a charge reliant on the notion of possession of property of another and the force or threat of force used to accomplish the transfer of possession. According to the legal standard, a sleeping man cannot be aware that his property is being stolen. Therefore, a thief cannot be charged with robbery based on the force or threat of force prior to the incident requirement. Instead, the individual would likely be charged with a more general larceny crime.

Although robbery involves the theft of property, it is not a property crime. The elements of force or threat of force requires robbery to be a crime against persons.[2] An individual cannot commit robbery on the property. For example, if a person holds another at gunpoint forcing them to hand over their belongings, the element of force or threat of force is fulfilled. However, a person cannot point a gun at a house and demand its contents since the house cannot be forced to hand it over nor be in fear for its safety. Furthermore, the National Institute of Justice deliberately states that crimes classified as property crimes are absent of the elements of force or threat of force.[15]

Assault is the act of intentional putting another person endangered of an imminent threat. This can be in the form of attempted battery or verbal threats. An assault charge is aggravated when there is the intention to murder or rape a person. Mayhem or malicious assault is the intentional dismemberment or disfiguring of a person. Stalking is the repeated following, threaten or harassing in ways leading to fear of harm.

Battery is the unconsented bodily contact with another or the intentional use of force or violence against another. Battery is aggravated when using a weapon or dangerous object, when it results in disfigurement or serious physical injury.

Both assault and battery classified as aggravated when directed towards a person with special status such as a law enforcement officer or elderly person.

Kidnapping is the abduction or holding of a person against their will (without legal authority) with the intent to use the abduction/holding in connection with some other crime by force, threat, or deception.[16] Parental kidnapping is the kidnapping of a child when a parent does not have the legal rights to the child, violating a court order. Failure to release a person within 24 hours allows the presumption that the person has been transported through interstate commerce allowing a federal investigation.[17]

False imprisonment is the prevention of a person from leaving an area that interferes with a person's individual rights without authority.[18] False imprisonment can be a criminal case or a civil case.[18]

Rape is defined as penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

Rape is generally a second-degree felony, except when there is bodily injury or when the person is not the companion of rapist.

American rape law has transitioned common law practices which grew out of a male centric legal interpretation to the feministic view it has today. A woman once had to prove absolute resistance against her aggressor, and rape reformation laws in America did away with the Hale Warning, corroborating evidence, and the early outcry doctrine and instead focused rape law reform onto the aggressive, coercive nature of the "rapist." Marital rape law once required "forcible, unlawful and carnal knowledge," and common law once believed husbands cannot rape their wives, so these incidents, if reported at all, were never charged. Women in America have reported more rape with these times; however, rape is the most under-reported crime; 63% of sexual assaults are not reported to police.[19]

Rape shield laws were adopted in the 1970s and 1980s, which do not permit any evidence relating to the past sexual behavior of the victim and protects the victims' character and identity. A federal rape shield law was adopted in 1994 under the Violence Against Women Act.

Rape can also be non-forcible where the victim in incapable of consenting in cases where the victim has a mental or emotional disability, or in statuary cases where the victim is underage, despite their consent. Non-forcible rape are strict liability crimes, where the act alone is sufficient for proof.

Statutory rape, sometimes called unlawful sexual intercourse, occurs when an individual engages in sexual intercourse or oral sexual contact with a person who is not their legal spouse and is under the local jurisdictions age of consent.[2] States also may increase the punishment if the age gap is beyond a certain number of years, or if the minor is under another, younger set age. For example, if the age of consent is 18, the state may punish the crime more severely if the minor is also two years or more apart in age, or if the minor is also younger than 16 years of age.[20] Most states include a phrasing that requires the individual accused of statutory rape to be aware of the minor's age prior to or during the act.[21]

Arson is the malicious or reckless burning of property. The charge is aggravated when burning a dwelling, where the victim resides. Second degree arson is the burning of property that is uninhabited. Third degree arson is the burning of personal property.

Burglary is the unlawful breaking and entry of a property for the purpose of committing a felony inside. Burglary is committed upon entry of the property. Breaking requires the use of force for entry. Fraudulent entry can constitute constructive breaking. Entry can be constructive by using another person or object to reach inside. Larceny does not merge into burglary.

Possession, however, is acquiring an object of another without being entitled to it or allowed to possess it. A person charged with a robbery may have reasonably believed he or she owned the iPod, although they may have been incorrect. Possession, in terms of the legal interpretation of robbery, is 9/10 of the law. Possession, to charge robbery, must be a transfer of property acquired through force or fear. That is, a defendant must create fear through force to achieve the possession of the object or property in question, otherwise they may have committed another crime. A person who threatens another with future violence cannot be charged with robbery, because they did not use "force or fear", and insulting words alone cannot allow somebody to be entitled to self-defense. Therefore, a person who holds up victim with a deadly weapon, with or without present ability (bullets in the weapon that is charged and fails to meet its target-assault) and takes possession of a book the victim is holding, is committing robbery according to the law.

The force or fear established by the defendant must precede the transfer of possession of the object in question. This can be said, also, as the transfer of possession must be acquired through the use of force or fear as the tool of attaining such goods to achieve all aspects of the legal doctrine imposed, "the felonious taking."

Theft in the United States is the take property at the detriment of another. The property can be constructively possessed, where property entrusted to a person and is under their control, but still retained by owner.

Definitions of theft is codified in Title 18 of the United States Code Chapter 31.

Larceny is the trespassory taking without consent and asportation of personal property of another intent to permanently deprive the person of possession of that property.

The term property of another means a person cannot steal from himself, joint accounts, spouses, or partnerships.

Larceny by trick is a crime which involves the obtainment of another's property through fraud.

Embezzlement is where a person entrusted with possession of the property, converted the property, deprive without permission or substantially interferes with owners' rights, by one who acquired lawful possession with the intent to defraud. Embezzlement differs from larceny where the taking of property must not be trespassory.

False pretenses are crimes where a false representation of material or past fact is made with the knowledge that the fact is false, with the intent to defraud to pass property title to the actor. The false representation can be made orally, in writing, or implied by action.

The information that is falsely represented must be material or relate to present or past facts, they cannot be opinions or predictions. It must be proven that the defendant knew the statements made were false or reckless.

For most of American history, there has been a mixture of what society deems as moral and what is a crime. For these reasons, certain actions are considered crimes in the United States compared to other nations.[22]

Prostitution is the exchange of sex for money that is a crime in every American jurisdiction where sexual activity is engaged as a business.[23]

The United States have deemed a set of laws known as the Controlled Substances Act that affect which substances cannot be used, made, sold, or distributed.[24] Drug laws commonly fall into three categories: possession, distribution, and possession of paraphernalia. Drug laws also take into consideration weight, value, and intent. These laws have powered the "drug war" that continues to be effected by the development of more drugs and the cheapness. This is where mandatory sentencing laws have begun to be reexamined as it has begun to tax the American prison system.

Bigamy is the marriage of a married person to another despite being married. Polygamy is the open consensual practice of having multiple husbands/wives. For most of American history, both practices have been outlawed in all American jurisdictions.

Driving under the influence can best be defined as operating a vehicle with a blood alcohol level of more than .08%. This is one of the criminal laws that has undergone an exponential evolution as the nation understands the dangerous of alcohol and driving have on our society including the loss of life and property damage.[2] Historically, driving under the influence was seen as nonharmful offense that was typically overseen and not reported with little to no punishment. However, now DUI can carry penalties harsher than some other felonies as public outcry and pressure have affected criminal laws to change to deter drinking and driving.

For the state, security is the peacekeeping device for the interest of many.[25]

An inchoate crime is the crime of preparing for or seeking to commit another crime. Inchoate crimes include attempt, solicitation and conspiracy. Except for conspiracy, inchoate offenses merge into the completed offense and attempt.

Attempt is effort to commit a crime that goes beyond preparation. To prove attempt, the person must have intended to commit a crime, acted with that criminal intent, and taken substantial steps that where the crime is close to succeeding. Qualifying actions include asking an individual to join in on the crime, purchasing a weapon, or planning a crime and executing the steps to complete the plan. Usually, thoughts alone or mere preparation are insufficient. Attempt merges into the completion of a crime.

Several tests are used to prove intent including:

• Res ipsa loquitur looks at crime individually and finds an act indicating the defendant has no other purpose than to commit the specific crime.
• Proximity Test where the acts that are taken and the remaining acts are examined. The completed acts must be a dangerous proximity to success.
• Model Penal Substantial Step where steps taken towards the commission of a crime. Conduct must only corroborate.

Solicitation is encouraging, requesting, enticing, or commanding another to commit a crime. The defendant must intend to convince another to commit the crime, and the crime of solicitation is completed when the defendant communicates the request to another party. The crime has been committed even if the other party does not agree to the defendant's request or command.

Conspiracy is agreement between two or more persons to commit an unlawful act. Most jurisdictions also require an overt act to further the conspiracy. Conspiracy requires a plurality of agreement. Wharton's Rule prevents the prosecution of two people for conspiracy when the offense in question can only be committed by at least two persons, as in crimes such as prostitution and gambling. In cases where Wharton's Rule applies, more than two people are required for conspiracy. Solicitation may be merged into conspiracy. Conspiracy does not merge into the completion of a crime.