attempt (common law)
An attempt occurs when a person with the intent to commit a criminal offense engages in conduct that constitutes the beginning of perpetration of, rather than mere preparation for, the intended offense.
attempt v. real crime (common law)
o an attempt to commit a felony is a felony
o attempt as a lesser crime: most common law states treat a criminal attempt as a lesser offense than the target crime. Usually punished half as severely.
Criticism: A person who attempts to commit a crime is as dangerous and morally culpable as the successful criminal, only luck prevents the completion of the crime so the offense should be punished as severely as the complete offense.
Defense: A criminal attempt clauses less social harm than a successful crime. Consequently, punishment of an attempt should be less. Utilitarian perspective: legal system may wish to give a person an incentive to desist from completing an offense by mitigating the punishment for attempt.
Merger doctorine (Common law)
A criminal attempt merges into the target offense if it is successfully completed:
o Ex. D attempt to kill V but is arrested first. D is guilty of attempted murder, but if D succeeds, the attempt merges into the complete crime and she will be convicted of murder, not both murder and attempted murder.
Last Act test
rule used to be that a criminal attempt occurred only when the person performed all of t acts that she believed were necessary to commit the target offense. No jurisdiction requires that a criminal attempt reach this stage on all occasions.
Problem: it will not be possible for the police to prevent the target offense under this rule.
Ex. D is not guilty of attempted murder unless she pulls the trigger or puts poisoning in D's coffee.
Dangerous Proximity test
Conduct "is so near to the result that the danger of success is very great." Three factors (the more serious the crime, the less close t actor must come to completing the offense to be convicted of attempt:
• Nearness of the danger;
• The substantiality of the harm;
• The degree of apprehensions felt.
Ex. D and three armed men drove around in their car looking for the V but V didn't show up. BC they lacked the ability to complete the crime (the V was missing) the court concluded that they were not dangerously close to success.
Physical proximity test
An attempt "must go so far that it would result, or apparently result in the actual commission of the crime it was designed to effect, if not extrinsic hindered or frustrated by extraneous circumstance." Alt exp. D's conduct must approach sufficiently near to the complete offense " to stand either as the first or some subsequent step in a direct movement toward t commission of the offense after t preparations are made. "
Ex. D1 weapon in hand, has her V in sight and can immediate proceed to rob her absent police intervention. D1 is guilty of attempted robbery.
Ex. D2 intending to rick V out of her money convinces V to go withdraw some cash. D is arrested before the money is withdraw and before D can make overtures to obtain the money from V. D2 Is not guilty of attempted larceny.
Unequivocality/res ipsa loquitur test
D's conduct must no longer be equivocal, i.e. her conduct demonstrates criminal intent. This test reduces the risk of false conviction of an innocent person, but it may also increase the risk the police will be unable to act quickly enough to prevent the target offense.
Ex. D threatens to kill V. D armed with a rifle enters field where V is. D walked towards V, loaded rifle but did not aim and continued to walk toward V. police arrest D but court finds that D was not guilty of attempted murder bc no one could certainly see if D had come to field to kill V or demand his arrest.
Probable distance test
guilty of attempt if D has proceeded past "the point of no return" i.e. the point past which an ordinary person is likely to abandon her criminal endeavor.
criticism: provides little guidance to police; what is the standard: that of a reasonable criminal/law abiding person? If standard is law abiding person, then that is nonsense bc such persons wouldn't commit crimes.
Mens Rea (common Law)
o Dual intent:
First intent: actor must intentionally commit the acts the constitute the actus reus of the attempt, e.g. he must intentionally perform an act that brings him in dangerous proximity to the commission of the target offense.
Second intent: the actor must commit the actus reus with the specific intent to commit the target offense.
• Ex. D intentionally aims a loaded gun at V. D is arrested before he can pull the trigger. Though D intentionally aimed gun at V (first intent) he is not guilty of attempted murder unless he aimed t gun with the specific intent of killing V. if he intended to scare V, he is not guilty of attempted murder.
Problem with Dual Intent (common law)
An attempt may require a higher level of mens rea than necessary to commit target offense:
• Ex. D intentionally fires a gun into an occupied building to scare its occupants. If D kills an occupant, he can be convicted of murder (depraved heart); however, if nobody dies as a result of D's conduct, he is not guilty of attempted murder bc he did not have t specific intent to kill an occupant.
Specific intent v. general: "attempt" is a specific intent offense, even if the target crime is general intent. Thus rape is a general intent crime, whereas attempted rape is specific intent in nature.
Problem of attendant circumstances (common law)
Unclear at common law what mens rea an actor must posses regarding the attendant circumstances of a guilty attempt.
Ex. D engages in conduct that brings him close to his goal, having sex with V, a 15 yr old girl who D believes is 17. Assume that if D has intercourse with V he is guilty of statutory rape bc statutory rape age=16 & the crime is strict liability. If D does not complete the offense, is he guilty of statutory rape? No real answer
Alt approach: Some courts hold the a person may be convicted of criminal attempt if he is at least reckless with regard to an attendant circumstance. Other courts believe that it is sufficient that the D is culpable regarding an attend circumstance as is required for the target crime.
• Ex. Above hypo—some courts will not convict D unless he knew that V was underage or was, at least, reckless sin his belief that she was old enough to consent. Other courts would hold that since stat rape is a strict liability offense, d may also be convicted of attempted statutory rape even without a culpable state of mind as to V's age.
Special Defense to attempt: Factual Impossibility (common law)
Factual impossibility: NOT A DEFENSE. May be defined as occurring when the actor's intended end constitutes a crime, but he fails to complete the offense bc of a factual circumstance unknown to him or beyond his control. I.E. If the facts had been as the D believed it to be, would his conduct have been a crime? If yes, then factual impossibility.
• Ex. D1 a pickpocket, puts his hand in an empty pocket. D1 is guilty of attempted larceny
• Ex. D2 sexually assaults V, but he fails to consummate the rape bc he is impotent. D2 is guilty of attempted rape.
Special Defense to attempt: Pure legal impossiblity
• Pure legal impossibility: applies when an actor engages in lawful conduct that she incorrectly believes constitutes a crime. Just as ignorance of the law generally is not excuse, one who incorrectly thinks he is committing a crime is not guilty of attempt to commit a non-existent offense
o Ex. D1 puts hand on V/s shoulder believing this is rape. D's not guilty of rape or attempted rape bc this is a case of pure legal impossibility.
Special Defense to attempt: hybrid legal impossiblity
actor's goal is illegal (this is what makes it different from pure impossibility) but commission of the offense is impossible due to a mistake by the actor regarding a legal status of some factual circumstance. Such a case may just as easily be characterized as a factual impossibility.
o Ex. D receives property he believes was stolen. In fact it was not. D1 is not guilty of receiving stolen property, and some courts will also find him not guilty of attempting to receive stolen property (People v. Jaffey). The fact that it wasn't stolen prevents D from being guilty of attempt bc its legally impossible; BUT this also could be fact mistake: D1 believed the goods were stolen and would have been guilty (factual impossibility).
o Ex. D2 shoots a corpse, believing it to be a live person. D is guilty of attempted murder bc this was a fact mistake: the person was not a person but a corpse; BUT it could also be a case of legal impossibility as it is impossible to attempt to kill a corpse.
• NOTE: many states have followed the MPC and abolished the hybrid defense. Rationale:
o 1) people who are acquitted on the grounds of legal impossibility are as dangerous and culpable as those convicted on the ground of factual impossibility
o 2) there is not really a distinction between factual impossibility and hybrid legal impossibility—any case could be both.
Def. A person commits a criminal attempt if he:
a) purposely engages in conduct that would constitute eh crime if the attendant circumstances were as he believes them to be or
b) when causing a particular result is an element of the crime, D does or omits to do anything with the purpose of causing that result with the belief that it will cause such a result without further conduct on his part; or
c) D purposely does or omits to do anything which , under the circumstances as he believes them to be, is an act or omission constituting a substantial step in the course of a conduct planned to culminate in the commission of the crime.
Punishing attempt (MPC)
The MPC does not treat criminal attempt as lesser offenses with lesser punishment than the target offense.
• Exception: a felony of the first degree, i.e. one that carries a max punishment of life imprisonment, an attempt tot commit such an offense is a felony of the 2nd degree, or lesser offense.
• Rationale: threat of severe sentences is designed for general deterrent purposes and the threat of sever punishment of inchoate crime cannot add significantly to the net deterrent efficacy of the sanction. With more minor offenses, however, there is little difference in the anti-social disposition of the successful criminal and the foiled attempter.
Attempt: Actus Reus (MPC)
• Complete attempt: one in which the D has done every act necessary on his part to commit the target offense, but has failed to commit the crime
o NO actus reus issues bc the D has done everything including the last act but simply failed to produce the result.
• Incomplete attempt: D has not committed the last act necessary on his part.
o Actus reus issues arise.
Test for Attempt: actus Reus (MPC)
Substantial step: one has gone far enough to constitute an attempt if the "act or omission constitutes a substantial step in the course of conduct planned to culminate in the commission of the crime."
o NOTE: substantial step is not defined but it must be "corroborative of the actor's criminal purpose." 5.01(2). The code provides a list of circumstances that "shall not be held insufficient," i.e. a judge must allow the jury to consider the prosecution's case and the jury will determine if t act was a substantial step:
lying in wait, searching for the victim, unlawful entry, possession of materials that have no lawful purpose in the context
MPC v. Common law
Common law looked to see how far the D's conduct has proceeded form the point of initiation of the target offense. IN general, the MPC will find attempt sooner.
Mens rea of attempt (MPC)
1) is it a complete (MPC 5.01(1)(a)-(b) or incomplete attempt (MPC 5.01(1)(c))
2) if dealing with a complete attempt, decide whether t target offense relates to a criminal result (MPC 5.01(1)((b)) or to criminal conduct (MPC 5.01(1)(a)).
• Ex. D aims at V intending to shoot V. D is arrested and charged with attempted murder. Incomplete attempt
• Ex. D2 aims to shoot v2 but misses. D2 is charged with attempted murder. This is a complete attempt and the target offense, murder, is a result crime.
• Ex. D3 a would be pickpocket puts hand in 43's pocket but fails to grasp the wallet. D3 is charged with attempted unlawful taking. This is a complete attempt (D has done everything she intended to do). Target offense is a conduct crime.
Mens Rea of Attempt Dual Intent
RULE: (same as common law) a person is not guilty of an attempt unless he "purposely engages in conduct that would constitute the crime; " acts "with the purpose of causing" or "with the belief that it will cause" the criminal result or "purposely does an at constituting a substantial step" in furtherance of an offense.
Attendant circumstnace (MPC)
attendant circumstances: mens rea of purpose is required as to the conduct but with attendant circumstances...
o Rule: D is guilty of an attempt if she "acts with the kind of culpability otherwise required for commission of the target crime." The actor need only be as culpable regarding an attendant circumstance as is required for the target offense, i.e. look to the culpability requirement of the attendant circumstance. This applies to the mens rea.
Ex. If the crime is strict liability then strict liability applies to the attendant circumstance; if it is negligence, then negligence is the standard for the attendant circumstances.
Special defense: Impossibility ((MPC)
A person is guilty of an attempt if his conduct "would constitute the crime if the attendant circumstances were as he believes them to be." The effect is to abandon the hybrid legal impossibly defense of earlier. BUT pure legal impossibility is still a defense.
Special defense: Renunciation of criminal purpose (MPC)
A person is not guilty of a criminal attempt even if her actions constitute a substantial step in the commission of an offense if:
o 1) she abandons her effort to commit the crime or prevents it from being committed
o 2) her conduct manifests a complete and voluntary renunciation of her criminal purpose
Ex. While attempting to rob a bank, D1 flees when she observes a police officer. D1 cannot claim renunciation or abandonment bc D's abandonment was not voluntary
Ex. D2 a prison inmate attempts to escape confinement. Just as he is about to climb over fence, he decides not to and returns to his cell. He abandons his attempt.
o Rationale: A person who voluntarily and completely abandons her criminal endeavor is no longer dangerous. This defense provides an incentive to an actor to turn away from her criminal enterprise before she commits crime.
o Common law counter arg: Common law does not recognize this defense bc attempt itself is a social harm, and once that harm has occurred, a person cannot undo it.