Also known as: substantive offenses · substantive crime
Written by attorneys · grounded in primary & secondary sources — see below
A completed crime that constitutes the object of an inchoate offense such as conspiracy or attempt. The completed crime supplies the basis for liability once the preparatory conduct has been carried out and any merger rules have been applied.
Santiago Sanchez and Stephen Shaw agreed to stage accidents and file false insurance claims. After they submitted multiple bogus claims and received payouts, prosecutors charged both conspiracy and the completed fraud counts. The court permitted conviction only on the completed fraud counts because the conspiracy merged into those substantive offenses.
Sylvia Santos drove to the area near a bank and sat across the street for thirty minutes while carrying a demand note and disguise. She never entered the bank or presented the note before police arrested her. The court held that her conduct had not come dangerously close to completing the substantive offense of robbery.
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Sydney Santos prepared and submitted a forged medical bill believing it would be paid under an active policy. The policy had actually been canceled months earlier, so no payout occurred. The court rejected the factual-impossibility defense and convicted her of attempt to commit the substantive offense of insurance fraud.
Spencer Silver prepared documents he believed would support a perjury charge against a witness. Even if every document had been used exactly as planned, the statements would not have been material. The court dismissed the attempt charge because legal impossibility prevented commission of the substantive offense of perjury.
Seth Shapiro was convicted of a drug offense after a jury found the elements of the crime. The judge then imposed an enhanced sentence based on additional facts never presented to the jury. The court held that those facts could not be treated as part of the substantive offense without violating the jury-trial right.
Sterling Dynamics was convicted of a federal drug crime. The judge found additional facts that raised the sentence beyond the statutory maximum for the jury verdict alone. The court ruled that those facts had to be treated as elements of the substantive offense and submitted to the jury.
Under the traditional common law rule, merger occurs once the conspirators complete the substantive offense that was the object of their agreement. The participants may be convicted of the completed crime but not of a separate conspiracy conviction based on the same agreement and conduct.
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No. At common law a defendant may not invoke factual impossibility as a defense to attempt. The rule applies when an unknown physical or factual condition prevents completion of the substantive offense, provided the defendant's conduct would have been criminal if the facts had been as the defendant believed them to be.
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Legal impossibility is a defense when, even if the defendant completed every intended act exactly as planned, no crime would have occurred because an essential element of the substantive offense would be missing. Factual impossibility supplies no defense because it concerns only an unknown physical condition that does not alter the legal definition of the offense.
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The defendant's conduct must come dangerously close to successful completion of the substantive offense. Preparatory acts such as traveling to the general area or other steps that leave substantial actions undone fall short of the required proximity.
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…between types of crimes. Article III gives narrow rules for treason, but the Fourth Amendment draws no lines between various substantive offenses. Arrests in hot pursuit and arrests on visible evidence of probable cause cut across the board. I would respect present lines of distinction and not improvise because a particular crime…