Attempt - Common Law
1. General Principles
a. An attempt occurs when a person, with the intent to commit a crime, performs a substantial step, beyond mere preparation towards the commission of the offense
i. At common law, attempt requires a specific intent to commit the target offense
b. A criminal attempt needs a “target” offense because it can exist only in connection with another crime
c. A defendant cannot be convicted both of the target offense and an attempt to commit it.
2. Elements of Attempt
a. Mens Rea
i. Actor’s conduct which constitutes the attempt must be intentional
1. Knowledge is not enough
ii. Actor must have committed that act with the specific intention of committing the completed offense.
iii. For attendant circumstances, most jurisdictions follow the MPC Approach:
1. For “attendant circumstance” elements, it is sufficient that the defendant possessed the same degree of culpability required to commit the target offense.
a. Same mens rea requirement as for the attendant circumstance of the completed crime
b. Actus Reus
i. Mere preparation is not sufficient to constitute an attempt to commit a crime.
1. Semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule.
2. Preparation alone is not enough, there must be some appreciable fragment of the crime committed.
3. Courts apply different tests to determine whether an act is mere preparation or an attempt
ii. Dangerous Proximity Test
1. A person is guilty of an attempt when her conduct is in dangerous proximity to success or when her act is so near to the result that the danger of success is very great.
2. Three factors considered in determining dangerous proximity
a. Nearness of the danger
i. If the accused intended to rely upon his own hands must have had a present intent to accomplish the crime without much delay, at a time and place where he was able to carry it out.
ii. If the offense is to be committed by soliciting someone else, the solicitation must be alleged as one of the overt acts.
b. Greatness of the harm
c. Degree of apprehension felt by the victim
i. Victim needs to be there in order to feel apprehension
iii. Probable Desistance Test
1. The actus reus requirement for attempt is satisfied where “the actor had reached a point where was unlikely that he would have voluntarily desisted from his efforts to commit the crime.” (Point of no return)
2. Whether anyone who went so far would stop short of the final step?
iv. Res Ipsa Loquitur Test
1. An attempt occurs when a person’s conduct, standing alone, unequivocally (with certainty) manifests a criminal intent.
a. Ignoring any statements the defendant made regarding intent
b. “Silent film” analogy
3. Special Defenses: Impossibility
a. Impossibility Analysis
i. Would the defendant’s actions, if the circumstances are as she believes them to be, constitute a crime under the existing criminal laws?
1. If no, this is a case of pure legal impossibility, and the defendant is not guilty of attempt
2. If yes, go to Step 2
ii. If the defendant’s goal is illegal, but the commission of the offense fails due to a factual mistake, does the factual mistake relate to the legal status of an attendant circumstance?
1. If yes, this is a case of hybrid legal impossibility, which is a defense to attempt in a minority of jurisdictions
2. If no, this is a case of factual impossibility, which is not a defense to attempt
b. Types of Impossibility
i. Factual Impossibility
1. Exists when a person’s objective is prohibited by the criminal law, but a circumstance unknown to her prevents her from bringing about that objective.
2. NOT a defense to attempt
3. Examples:
a. D points an unloaded gun at the victim and pulls the trigger, believing the gun was loaded
b. A pickpocket puts hand into victim’s empty pocket, believing there was money in the pocket
c. D shoots into an empty bed, believing that the victim is sleeping there
ii. Legal Impossibility
1. Pure Legal Impossibility
a. When the defendant’s actions, if the circumstances are what he believes them to be, would not be a crime
i. A belief that a non-crime is a crime does not make it an offense
b. IS a valid defense to attempt
i. But this pretty much never gets to a court in real life
c. Examples:
i. Right after Prohibition, D attempts to sell bootleg liquor illegally, but it is no longer illegal.
ii. D puts hand on woman’s shoulder, thinking it is rape, but it is not conduct within definition of rape.
2. Hybrid Legal Impossibility
a. Defendant’s goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance in the crime.
i. Goal is illegal
ii. Focus on whether factual mistake is in regards to an attendant circumstance or not.
b. WAS a valid defense at common law, but overwhelming legal trend is to abolish it
c. Examples
i. D receives unstolen property believing it to be stolen, where the receipt of “stolen property” is an attendant circumstance in the crime
ii. D offers a bribe to a juror who is not a juror, where the statute prohibits the bribery of “jurors.”
iii. D shoots a corpse believing that it is alive, where the statute prohibits the killing of a “human being.”
4. Special Defenses: Abandonment
a. The defense only applies if the defendant (1) voluntarily and (2) completely abandons her plans.
b. Analysis
i. Step 1 - Voluntarily
1. Abandonment is voluntary if it results from a genuine change of heart.
2. It is not voluntary if it is caused by unexpected resistance, the absences of an instrument necessary to the crime’s completion, or other circumstances that increase the likelihood of arrest or the unsuccessful completion of the crime.
ii. Step 2 - Complete Abandonment
1. The abandonment is not complete if the defendant merely postpones her plans until a better opportunity presents itself.
2. Majority Rule: Once defendant has committed the last act necessary to complete the crime, or has already caused serious harm, then there can be no abandonment defense.
Attempt - MPC
1. General Principles
a. An attempt occurs when a person, with the intent to commit a crime, performs a substantial step, beyond mere preparation towards the commission of the offense
b. A criminal attempt needs a “target” offense because it can exist only in connection with another crime
c. A defendant cannot be convicted both of the target offense and an attempt to commit it.
2. Elements of Attempt
a. Mens Rea
i. When the target offense contains a conduct element, the defendant must purposely engage in conduct that would constitute the target offense
1. i.e. get into car while drunk, put key in ignition, and then arrested
ii. When the target offense contains a result element, the defendant must purposely attempt to cause the result OR act with knowledge that the result will occur.
iii. For “attendant circumstance” elements, it is sufficient that the defendant possessed the same degree of culpability required to commit the target offense.
1. Same mens rea requirement as for the attendant circumstance of the completed crime
b. Actus Reus
i. A person commits criminal attempt who, acting with the kind of culpability otherwise required for the commission of the crime, he:
1. Purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
2. When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
3. Purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
ii. Substantial Step
1. The defendant must have done or omitted to do something that constitutes a “substantial step in a course of conduct planned to culminate in his commission of the crime.” MPC 5.01(1)(c)
a. Emphasizes what the actor has already done, as opposed to what remains to be done to complete the offense.
b. “Substantial Step” standard is intended to broaden the scope of attempt liability
2. Conduct is not a substantial step “unless it is strongly corroborative of the actor’s criminal purpose.”
a. Conduct must match the intent/purpose
b. Little bit of blending into mens rea territory, but should still be analyzed separately.
c. To be “strongly corroborative,” the actor’s conduct, considered in light of the circumstances, must add significantly to other proof of her criminal intent, such as a confession or other incriminating evidence.
3. 5.01(2) provides a list of non-exclusive factual circumstances in which a defendant’s conduct, if strongly corroborative of criminal purpose, may be sufficient as a matter of law
a. Lying in wait, searching for or following the contemplated victim of the crime;
b. Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
c. Reconnoitering the place contemplated for the commission of the crime;
d. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
e. Possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
f. Possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
g. Soliciting an innocent agent to engage in conduct constituting an element of the crime.
3. Special Defenses: Impossibility
a. Pure legal impossibility is a defense
i. The result desired or intended by the actor must constitute a crime
b. Factual and hybrid impossibility is not a defense
4. Special Defenses: Abandonment
a. “Renunciation of criminal purpose” is a valid defense
b. Analysis: A person is not guilty of attempt if:
i. Step 1: They abandon their effort to commit the crime or otherwise prevents its commission; and
ii. Step 2: Their conduct manifests a “voluntary renunciation” of their criminal purpose; and
1. Renunciation is not voluntary “if it’s motivated in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose.”
iii. Step 3: Their conduct manifests a “complete renunciation” of their criminal purpose.
1. Renunciation is not complete “if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.”
1. General Principles
a. An attempt occurs when a person, with the intent to commit a crime, performs a substantial step, beyond mere preparation towards the commission of the offense
i. At common law, attempt requires a specific intent to commit the target offense
b. A criminal attempt needs a “target” offense because it can exist only in connection with another crime
c. A defendant cannot be convicted both of the target offense and an attempt to commit it.
2. Elements of Attempt
a. Mens Rea
i. Actor’s conduct which constitutes the attempt must be intentional
1. Knowledge is not enough
ii. Actor must have committed that act with the specific intention of committing the completed offense.
iii. For attendant circumstances, most jurisdictions follow the MPC Approach:
1. For “attendant circumstance” elements, it is sufficient that the defendant possessed the same degree of culpability required to commit the target offense.
a. Same mens rea requirement as for the attendant circumstance of the completed crime
b. Actus Reus
i. Mere preparation is not sufficient to constitute an attempt to commit a crime.
1. Semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule.
2. Preparation alone is not enough, there must be some appreciable fragment of the crime committed.
3. Courts apply different tests to determine whether an act is mere preparation or an attempt
ii. Dangerous Proximity Test
1. A person is guilty of an attempt when her conduct is in dangerous proximity to success or when her act is so near to the result that the danger of success is very great.
2. Three factors considered in determining dangerous proximity
a. Nearness of the danger
i. If the accused intended to rely upon his own hands must have had a present intent to accomplish the crime without much delay, at a time and place where he was able to carry it out.
ii. If the offense is to be committed by soliciting someone else, the solicitation must be alleged as one of the overt acts.
b. Greatness of the harm
c. Degree of apprehension felt by the victim
i. Victim needs to be there in order to feel apprehension
iii. Probable Desistance Test
1. The actus reus requirement for attempt is satisfied where “the actor had reached a point where was unlikely that he would have voluntarily desisted from his efforts to commit the crime.” (Point of no return)
2. Whether anyone who went so far would stop short of the final step?
iv. Res Ipsa Loquitur Test
1. An attempt occurs when a person’s conduct, standing alone, unequivocally (with certainty) manifests a criminal intent.
a. Ignoring any statements the defendant made regarding intent
b. “Silent film” analogy
3. Special Defenses: Impossibility
a. Impossibility Analysis
i. Would the defendant’s actions, if the circumstances are as she believes them to be, constitute a crime under the existing criminal laws?
1. If no, this is a case of pure legal impossibility, and the defendant is not guilty of attempt
2. If yes, go to Step 2
ii. If the defendant’s goal is illegal, but the commission of the offense fails due to a factual mistake, does the factual mistake relate to the legal status of an attendant circumstance?
1. If yes, this is a case of hybrid legal impossibility, which is a defense to attempt in a minority of jurisdictions
2. If no, this is a case of factual impossibility, which is not a defense to attempt
b. Types of Impossibility
i. Factual Impossibility
1. Exists when a person’s objective is prohibited by the criminal law, but a circumstance unknown to her prevents her from bringing about that objective.
2. NOT a defense to attempt
3. Examples:
a. D points an unloaded gun at the victim and pulls the trigger, believing the gun was loaded
b. A pickpocket puts hand into victim’s empty pocket, believing there was money in the pocket
c. D shoots into an empty bed, believing that the victim is sleeping there
ii. Legal Impossibility
1. Pure Legal Impossibility
a. When the defendant’s actions, if the circumstances are what he believes them to be, would not be a crime
i. A belief that a non-crime is a crime does not make it an offense
b. IS a valid defense to attempt
i. But this pretty much never gets to a court in real life
c. Examples:
i. Right after Prohibition, D attempts to sell bootleg liquor illegally, but it is no longer illegal.
ii. D puts hand on woman’s shoulder, thinking it is rape, but it is not conduct within definition of rape.
2. Hybrid Legal Impossibility
a. Defendant’s goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance in the crime.
i. Goal is illegal
ii. Focus on whether factual mistake is in regards to an attendant circumstance or not.
b. WAS a valid defense at common law, but overwhelming legal trend is to abolish it
c. Examples
i. D receives unstolen property believing it to be stolen, where the receipt of “stolen property” is an attendant circumstance in the crime
ii. D offers a bribe to a juror who is not a juror, where the statute prohibits the bribery of “jurors.”
iii. D shoots a corpse believing that it is alive, where the statute prohibits the killing of a “human being.”
4. Special Defenses: Abandonment
a. The defense only applies if the defendant (1) voluntarily and (2) completely abandons her plans.
b. Analysis
i. Step 1 - Voluntarily
1. Abandonment is voluntary if it results from a genuine change of heart.
2. It is not voluntary if it is caused by unexpected resistance, the absences of an instrument necessary to the crime’s completion, or other circumstances that increase the likelihood of arrest or the unsuccessful completion of the crime.
ii. Step 2 - Complete Abandonment
1. The abandonment is not complete if the defendant merely postpones her plans until a better opportunity presents itself.
2. Majority Rule: Once defendant has committed the last act necessary to complete the crime, or has already caused serious harm, then there can be no abandonment defense.
Attempt - MPC
1. General Principles
a. An attempt occurs when a person, with the intent to commit a crime, performs a substantial step, beyond mere preparation towards the commission of the offense
b. A criminal attempt needs a “target” offense because it can exist only in connection with another crime
c. A defendant cannot be convicted both of the target offense and an attempt to commit it.
2. Elements of Attempt
a. Mens Rea
i. When the target offense contains a conduct element, the defendant must purposely engage in conduct that would constitute the target offense
1. i.e. get into car while drunk, put key in ignition, and then arrested
ii. When the target offense contains a result element, the defendant must purposely attempt to cause the result OR act with knowledge that the result will occur.
iii. For “attendant circumstance” elements, it is sufficient that the defendant possessed the same degree of culpability required to commit the target offense.
1. Same mens rea requirement as for the attendant circumstance of the completed crime
b. Actus Reus
i. A person commits criminal attempt who, acting with the kind of culpability otherwise required for the commission of the crime, he:
1. Purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
2. When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
3. Purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
ii. Substantial Step
1. The defendant must have done or omitted to do something that constitutes a “substantial step in a course of conduct planned to culminate in his commission of the crime.” MPC 5.01(1)(c)
a. Emphasizes what the actor has already done, as opposed to what remains to be done to complete the offense.
b. “Substantial Step” standard is intended to broaden the scope of attempt liability
2. Conduct is not a substantial step “unless it is strongly corroborative of the actor’s criminal purpose.”
a. Conduct must match the intent/purpose
b. Little bit of blending into mens rea territory, but should still be analyzed separately.
c. To be “strongly corroborative,” the actor’s conduct, considered in light of the circumstances, must add significantly to other proof of her criminal intent, such as a confession or other incriminating evidence.
3. 5.01(2) provides a list of non-exclusive factual circumstances in which a defendant’s conduct, if strongly corroborative of criminal purpose, may be sufficient as a matter of law
a. Lying in wait, searching for or following the contemplated victim of the crime;
b. Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
c. Reconnoitering the place contemplated for the commission of the crime;
d. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
e. Possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
f. Possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
g. Soliciting an innocent agent to engage in conduct constituting an element of the crime.
3. Special Defenses: Impossibility
a. Pure legal impossibility is a defense
i. The result desired or intended by the actor must constitute a crime
b. Factual and hybrid impossibility is not a defense
4. Special Defenses: Abandonment
a. “Renunciation of criminal purpose” is a valid defense
b. Analysis: A person is not guilty of attempt if:
i. Step 1: They abandon their effort to commit the crime or otherwise prevents its commission; and
ii. Step 2: Their conduct manifests a “voluntary renunciation” of their criminal purpose; and
1. Renunciation is not voluntary “if it’s motivated in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose.”
iii. Step 3: Their conduct manifests a “complete renunciation” of their criminal purpose.
1. Renunciation is not complete “if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.”
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