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Author Topic: Quick legal question  (Read 1046 times)

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Offline KythiaTopic starter

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Quick legal question
« on: November 13, 2014, 01:17:22 AM »
This isn't related to any real world situation I currently find myself in, BTW.  Just curiosity.

Buying Heroin is illegal here.  If I buy a couple of pounds of something I believe is Heroin, knowingly and with the intent of buying Heroin, but it turns out I'm mistaken/deceived/whatever and the substance in question is something that it's totally legal to buy and sell - have I broken any laws?

I have a mens rea but no actus reus (as I understand the situation), so my gut feeling is no.  But does anyone know for sure?

Offline gaggedLouise

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Re: Quick legal question
« Reply #1 on: November 13, 2014, 05:32:22 AM »
No, I figure that would be non-criminal, at least in most western countries and as long as your attempt to buy heroin, top secret papers or the like didn't entail any other illegal acts in the process. I've heard of incidents where people have been acquitted without much discussion (and without it going to court) for this kind of thing.
« Last Edit: November 13, 2014, 05:36:12 AM by gaggedLouise »

Offline Caehlim

Re: Quick legal question
« Reply #2 on: November 13, 2014, 07:39:43 AM »
Yes, it is illegal.

Quote
Title 21 United States Code (USC) Controlled Substances Act

Part D Offenses And Penalties
846. Attempt and conspiracy

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

(Pub. L. 91513, title II, 406, Oct. 27, 1970, 84 Stat. 1265; Pub. L. 100690, title VI, 6470(a), Nov. 18, 1988, 102 Stat. 4377.)

Offline gaggedLouise

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Re: Quick legal question
« Reply #3 on: November 13, 2014, 07:57:57 AM »
But do you actually attempt to buy hard drugs or the like - attempt in a legal sense - if you are only being handed some ordinary white substance like, well, flour mixed with salt for your money?  ::)

Offline Cassandra LeMay

Re: Quick legal question
« Reply #4 on: November 13, 2014, 08:08:09 AM »
But do you actually attempt to buy hard drugs or the like - attempt in a legal sense - if you are only being handed some ordinary white substance like, well, flour mixed with salt for your money?  ::)
Yes, it's a crime, even if the act of buying the Heroin is physicaly impossible, as long as you are not aware of that fact and believe you are actually buying Heroin. It's a case of an inchoate offense, in this case "attempt". Other typical inchoate crimes are conspiracy to commit a crime or soliciting a crime. What defines attempt is: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."

The US Penal Code puts it thus (quoted from Wikipedia):

Quote
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime he: purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be. MPC 5.01 (1)(a) (emphasis added).
« Last Edit: November 13, 2014, 08:09:32 AM by Cassandra LeMay »

Offline gaggedLouise

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Re: Quick legal question
« Reply #5 on: November 13, 2014, 08:15:57 AM »
Right, I suspect this would not constitute an offence in many countries in continental Europe, where taking a person to court on their hypothetical intentions (even if likely) but no criminal act possible to occur is not seen as good legal practice.

Offline Cassandra LeMay

Re: Quick legal question
« Reply #6 on: November 13, 2014, 08:36:34 AM »
Right, I suspect this would not constitute an offence in many countries in continental Europe, where taking a person to court on their hypothetical intentions (even if likely) but no criminal act possible to occur is not seen as good legal practice.
I am not sure about buying drugs that turn out not to be drugs at all, but at least in Germany attempt is a criminal offence in almost all cases covered by our penal code.

But, the intentions are not hypothetical if the person in question had good reason to believe what they were buying was actually Heroin. That can probably be shown by the actions the person undertook to set up the deal and how they conducted themselves during the deal. The moment you approach a deal and say something like "I'd like to buy some heroine" your intentions are no longer hypothetical, and most certainly not if you then hand over some money to the dealer.

Offline Oniya

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Re: Quick legal question
« Reply #7 on: November 13, 2014, 08:37:25 AM »
Oddly enough, there's an offense called 'misprision', which makes the sale of 'look-alike' substances (the classic example being the sale of an innocent substance such as oregano under the guise of an illegal substance such as marijuana) also punishable.

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Re: Quick legal question
« Reply #8 on: November 13, 2014, 08:41:26 AM »
Well a that's not a hypothetical intention. That's a very real intention.

Bob goes to his local drug dealer and wants some cocaine, his dealer sells him rice flower. Bob gets arrested. He wasn't out to hypothetically buy cocaine, he wanted real cocaine. Now if Bob is smart he'll keep his mouth shut when the cops are testing the rice flower and say it's just rice flower or something. If he drops the ball and says yes it's cocaine he's going to jail with intent to buy narcotics or some such terminology.

A good metric for evaluating these kinds of questions is if a cop was doing a sting on you and you said, "but you didn't sell me heroin!" Is he just going to let you go?

Offline Zakharra

Re: Quick legal question
« Reply #9 on: November 13, 2014, 09:59:31 AM »
Well a that's not a hypothetical intention. That's a very real intention.

Bob goes to his local drug dealer and wants some cocaine, his dealer sells him rice flower. Bob gets arrested. He wasn't out to hypothetically buy cocaine, he wanted real cocaine. Now if Bob is smart he'll keep his mouth shut when the cops are testing the rice flower and say it's just rice flower or something. If he drops the ball and says yes it's cocaine he's going to jail with intent to buy narcotics or some such terminology.

A good metric for evaluating these kinds of questions is if a cop was doing a sting on you and you said, "but you didn't sell me heroin!" Is he just going to let you go?

 Some lawyers here would argue that  he should be let go if he said that before any Miranda rights were read.

Offline consortium11

Re: Quick legal question
« Reply #10 on: November 13, 2014, 10:28:24 AM »
This isn't related to any real world situation I currently find myself in, BTW.  Just curiosity.

Buying Heroin is illegal here.  If I buy a couple of pounds of something I believe is Heroin, knowingly and with the intent of buying Heroin, but it turns out I'm mistaken/deceived/whatever and the substance in question is something that it's totally legal to buy and sell - have I broken any laws?

I have a mens rea but no actus reus (as I understand the situation), so my gut feeling is no.  But does anyone know for sure?

Almost certainly yes.

I recall you being based in the UK, so I'll quote UK laws. The key one in this case is the Misuse of Drugs Act 1971, and, assuming the drugs were for personal use Section 5: Restriction of possession of controlled drugs.

Now, in this case you don't actually have controlled drugs... you've got baking powder or some other legal substance. But one only has to go down to Section 19: Attempts etc to commit offences to see that it is still an offence to attempt to commit an offence under the act. In this case the person in question would have attempted to commit the offence of possession which, despite them not actually possessing a controlled drug, is still a crime. Alternatively one could look to the Criminal Attempts Act 1981 which makes it an offence to attempt to commit an indictable (as this case clearly would be) crime and, as per Section 4 of the act, would be liable for the same penalties as if they actually had managed to commit the offence (in this case at least possession).

The person in question may not have the actus reus for the crime of possession itself but they almost certainly have the actus reus (as well as mens rea) for attempt.

Offline KythiaTopic starter

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Re: Quick legal question
« Reply #11 on: November 13, 2014, 02:29:32 PM »
Almost certainly yes.

I recall you being based in the UK, so I'll quote UK laws. The key one in this case is the Misuse of Drugs Act 1971, and, assuming the drugs were for personal use Section 5: Restriction of possession of controlled drugs.

Now, in this case you don't actually have controlled drugs... you've got baking powder or some other legal substance. But one only has to go down to Section 19: Attempts etc to commit offences to see that it is still an offence to attempt to commit an offence under the act. In this case the person in question would have attempted to commit the offence of possession which, despite them not actually possessing a controlled drug, is still a crime. Alternatively one could look to the Criminal Attempts Act 1981 which makes it an offence to attempt to commit an indictable (as this case clearly would be) crime and, as per Section 4 of the act, would be liable for the same penalties as if they actually had managed to commit the offence (in this case at least possession).

The person in question may not have the actus reus for the crime of possession itself but they almost certainly have the actus reus (as well as mens rea) for attempt.

Thanks consortium11, I figured you were probably my go to guy. 

Offline consortium11

Re: Quick legal question
« Reply #12 on: November 14, 2014, 04:00:46 PM »
Right, I suspect this would not constitute an offence in many countries in continental Europe, where taking a person to court on their hypothetical intentions (even if likely) but no criminal act possible to occur is not seen as good legal practice.

I can't think of any countries where that would be the case; I know that Germany, Italy and France all have offences related to attempt in their penal codes (or equivalent) that would apply to this situation. Which countries are you thinking about?

Offline Caehlim

Re: Quick legal question
« Reply #13 on: November 14, 2014, 04:03:00 PM »
Of course there are always differences between the theoretical legal code and what occurs in practice. You may well find police officers more likely to ignore such an offense or the state being less likely to attempt to prosecute. That all depends on a lot of factors though, so it's something you wouldn't want to count on. At least by the books though this would be illegal.

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Re: Quick legal question
« Reply #14 on: November 14, 2014, 05:21:27 PM »
Some lawyers here would argue that  he should be let go if he said that before any Miranda rights were read.
Most cops have dashboard cams so that's a bit of moot point. I mean if we had to get people Mirandized before they drove dangerously people would not be to be charged. :\


Offline Zakharra

Re: Quick legal question
« Reply #15 on: November 14, 2014, 09:09:56 PM »
Most cops have dashboard cams so that's a bit of moot point. I mean if we had to get people Mirandized before they drove dangerously people would not be to be charged. :\

 I meant having the perp admit to something before having his/her Miranda Rights being read to them. Lawyers have gotten them off before because it wasn't considered admissible as evidence. I think that has or is changing, but I know it has been used to get perps off before.

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Re: Quick legal question
« Reply #16 on: November 14, 2014, 11:02:26 PM »
I meant having the perp admit to something before having his/her Miranda Rights being read to them. Lawyers have gotten them off before because it wasn't considered admissible as evidence. I think that has or is changing, but I know it has been used to get perps off before.
It depends. If I tell a cop I straight up murdered someone they could arrest me and use that as evidence. If a cop asked me before I was Mirandized if I murdered someone  then a lawyer might be able to work with it.

Miranda rights are to protect alleged criminals from abuse of authority, not their own stupidity.

Offline Zakharra

Re: Quick legal question
« Reply #17 on: November 15, 2014, 12:50:26 AM »
It depends. If I tell a cop I straight up murdered someone they could arrest me and use that as evidence. If a cop asked me before I was Mirandized if I murdered someone  then a lawyer might be able to work with it.

Miranda rights are to protect alleged criminals from abuse of authority, not their own stupidity.

 All I am saying is that there have been some cases where the lawyer got the perp off because he/she confessed/shot their mouth off -before- being Mirandized, and the courts agreed it was inadmissible as evidence because of that.

Offline gaggedLouise

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Re: Quick legal question
« Reply #18 on: November 15, 2014, 03:30:37 AM »
I can't think of any countries where that would be the case; I know that Germany, Italy and France all have offences related to attempt in their penal codes (or equivalent) that would apply to this situation. Which countries are you thinking about?

Yep, but I think the question is how to define attempting to do X in a legal sense (and often this isn't clearly defined by the text of the law itself). Different countries might take different approaches on that, just like they do on assisting a crime in such a way that you actually share the full culpability of the act. Like, I understand in the US you might get sentenced to murder for having helped deflect the attention of somebody in e.g. a car in a way that soon enough offered an option for somebody you were with to move to shoot him (or let's say the guy dies during a breakout attempt, his car being bumped aside etc by a gang of bank robbers, though he isn't actually shot) even if there's been no real proof that you were party to such a plan, knew of it or had bought into it. Some other countries do not view that kind of loose "assistance" as constituting joint culpability in the act of murder itself. Not in general anyway.

If you're threatening somebody with a plastic water pistol painted in black so that it's supposed to look like a real gun, are you actually guilty of assault with a lethal weapon? Legal question, rather than just a common-sense question.
« Last Edit: November 15, 2014, 04:01:39 AM by gaggedLouise »

Offline consortium11

Re: Quick legal question
« Reply #19 on: November 15, 2014, 05:52:52 AM »
Yep, but I think the question is how to define attempting to do X in a legal sense (and often this isn't clearly defined by the text of the law itself).

France defines it as:

Quote
An attempt is committed where, being demonstrated by a beginning of execution, it was suspended or failed to achieve the desired effect solely through circumstances independent of the perpetrator's will.

Which would apply to this case.

Germany defines it as:

Quote
A person attempts to commit an offence if he takes steps which will immediately lead to the completion of the offence as envisaged by him

Which again would apply to this case.

Italy has a similar definition (Article 56 of their penal code) but as I can't find a direct English translation.

Just for fun I also looked at Georgia (Attempted crime shall be a deliberate action that was designed to perpetrate  a crime but the crime was not completed), Portugal (Attempt exists when the agent performs acts for the execution of a crime he has decided to perpetrate, which he failed to consummate and a couple of explanatory pieces), Hungary (Any person who carries out an act with intent to commit a premeditated crime, without finishing it, shall be punishable for attempt) and Spain (An attempted offence takes place when a person begins to perpetrate an offence by direct action, perpetrating all or part of the acts that objectively should produce the intended result, and notwithstanding this, such is not attained due to causes beyond the control of the principal).

I can't find any jurisdictions, penal codes or case law from continental Europe that would indicate that circumstances such as Kythia described wouldn't be classed as "attempt".

Different countries might take different approaches on that, just like they do on assisting a crime in such a way that you actually share the full culpability of the act. Like, I understand in the US you might get sentenced to murder for having helped deflect the attention of somebody in e.g. a car in a way that soon enough offered an option for somebody you were with to move to shoot him (or let's say the guy dies during a breakout attempt, his car being bumped aside etc by a gang of bank robbers, though he isn't actually shot) even if there's been no real proof that you were party to such a plan, knew of it or had bought into it. Some other countries do not view that kind of loose "assistance" as constituting joint culpability in the act of murder itself. Not in general anyway.

I'm not sure which laws in the US you're referring to; the aiding and abetting/accomplice/accessory type laws all require the aider and abettor/accomplice/accessory to have been involved in an original, planned crime to be liable for the unplanned crime. So if I talk to a third party to distract him so that my friend can punch him... but instead of punching him he pulls out a gun and shoots the third party (killing him) I'd be liable for murder despite not having intended or wanted the person to be murdered. However if I simply talked to a third party (which does distract him) but I have no knowledge or intention of helping my friend punch him and my friend then shoots him I wouldn't be liable; there needs to be an original, planned offence for the liability for an unplanned offence to be spread.

Insofar as we're talking about those aiding and abetting/accomplice/accessory type laws, every European penal code I'm aware of (as well as UK law) impose criminal liability for an unplanned offence on those who engaged in the planned offence in the same way. So in a planned bank robbery it's not a defence for the getaway driver to say he had no idea that one of the bank robbers was going to shoot someone and never intended for it to happen; he's still liable for murder.

If you're threatening somebody with a plastic water pistol painted in black so that it's supposed to look like a real gun, are you actually guilty of assault with a lethal weapon? Legal question, rather than just a common-sense question.

Unlikely; in general assault with a deadly weapon (a subset of assault in the first/second degree in US law) requires there to be some physical injury; if you're just threatening someone it would instead be a simple assault/threatening/menacing charge (although the victim's perception of there being a firearm involved may raise the punishment). However in crimes like armed robbery every jurisdiction I'm aware of treats a toy/imitation weapon as if it were the weapon in question; it is no defence to a charge of armed robbery (or the equivalent) that the "gun" you used was actually a water pistol made to look like a gun.

Offline gaggedLouise

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Re: Quick legal question
« Reply #20 on: November 15, 2014, 07:22:51 AM »

I can't find any jurisdictions, penal codes or case law from continental Europe that would indicate that circumstances such as Kythia described wouldn't be classed as "attempt".

I'm not sure which laws in the US you're referring to; the aiding and abetting/accomplice/accessory type laws all require the aider and abettor/accomplice/accessory to have been involved in an original, planned crime to be liable for the unplanned crime. So if I talk to a third party to distract him so that my friend can punch him... but instead of punching him he pulls out a gun and shoots the third party (killing him) I'd be liable for murder despite not having intended or wanted the person to be murdered. However if I simply talked to a third party (which does distract him) but I have no knowledge or intention of helping my friend punch him and my friend then shoots him I wouldn't be liable; there needs to be an original, planned offence for the liability for an unplanned offence to be spread.

Insofar as we're talking about those aiding and abetting/accomplice/accessory type laws, every European penal code I'm aware of (as well as UK law) impose criminal liability for an unplanned offence on those who engaged in the planned offence in the same way. So in a planned bank robbery it's not a defence for the getaway driver to say he had no idea that one of the bank robbers was going to shoot someone and never intended for it to happen; he's still liable for murder.


Yep, that was roughly what I was thinking about. However, you're half clouding the point I wished to make. Suppose we have a few smalltime crooks and one or two friends of theirs travelling in a car after a minor crime, let's say a minor break-in or a failed robbery. At some point, the car has been stopped for a roadside check by a cop, and X (who is in the car and knows of the prior crime but has no criminal record him-/herself) is talking to the cop and half unknowingly making his attention lapse, thereby creating an opprtunity for one of his friends to shot the cop - but without X knowing it or actively deciding to be in on the plan to have the cop killed. In many places in the US, X would certainly get sentenced for murder, becoming just as guilty as the guy who held the weapon and fired: being in the ame car and acting that way is sort of read as everyone "having kissed the knife together" beforehand and being guilty of whatever happens in equal measure. They are sen as acting in conspiracy on whatever came to happen. I don't have the time to make a thorough check but I think several juridictions in Europe make a more careful disctinction between the intent of escaping with your friends (or more or less happening to be in the same car, wrong place at the wrong time) and a shared in blanco intent to whatever they might do during the run. Just because X is chatting up the cop doesn't mean he/she is in on a plan to kill him, or aware of any such plan. But this is stuff that isn't likely to be spelled out in the legal paragraphs themselves.

« Last Edit: November 15, 2014, 07:25:12 AM by gaggedLouise »

Offline KythiaTopic starter

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Re: Quick legal question
« Reply #21 on: November 15, 2014, 09:18:17 AM »
Am I right in thinking that (the situation Louise talks about) is what the US calls "felony murder"?

Offline gaggedLouise

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Re: Quick legal question
« Reply #22 on: November 15, 2014, 10:10:08 AM »
Am I right in thinking that (the situation Louise talks about) is what the US calls "felony murder"?

Yes indeed - and it is (as I was hinting) a concept that's been at home within the common law system (Anglo-saxon law) though these days it seems to prevail mostly in North America, but not in the UK.
« Last Edit: November 15, 2014, 10:15:39 AM by gaggedLouise »

Offline Cassandra LeMay

Re: Quick legal question
« Reply #23 on: November 16, 2014, 01:19:19 AM »
I don't have the time to make a thorough check but I think several juridictions in Europe make a more careful disctinction between the intent of escaping with your friends (or more or less happening to be in the same car, wrong place at the wrong time) and a shared in blanco intent to whatever they might do during the run. Just because X is chatting up the cop doesn't mean he/she is in on a plan to kill him, or aware of any such plan. But this is stuff that isn't likely to be spelled out in the legal paragraphs themselves.
I am not a lawyer, but as far as I can tell, at least in Germany Beihilfe (Accessory) does require its own mens rea. So if your only intent is aid in fleeing a crime scene, but not aiding in the murder of the cop who tries to stop the car, you would have no mens rea for aiding in the murder, therefore a German court would (most likely) not find you guilty of accessory to murder in these circumstances. According to StGB 27 "Vorsatz" (i.e. "Intention") is necessary to be charged as an accomplice in a crime.