13. Attempt- Actus Reus

Question 1

Physical Proximity Test

Answer 1

• Q: Has he achieved a physical proximity to the completion of the offense? How near is he to the completed crime? How many steps separate actor from target offense?
• Look at what is left to be done, see how close in time and space to completion
• Ex: People v. Rizzo

Question 2

Dangerous Proximity Test

Answer 2

• Q: Was there a dangerous proximity to success?
• Look at what is left to be done and how serious the crime is, how much apprehension it is creating in the community, how likely a person is to succeed

Question 3

Res Ipsa Loquitur Test

Answer 3

• Q: Does the conduct speak for itself?
• Look at what has already been done (not what is left to do), see if it shows criminal intent on the face of it
• Overt acts, must be unequivocally referable to commission of the specific crime, must manifest or be symbolic of the crime
• Silent movie – does not include confessions or other representations of purpose, only conduct (don’t look at stated intention)
• Supposed to establish independent evidence of intent
• Ex: Bowen and Rouse (below)

Question 4

MPC Substantial Step Test

Answer 4

• Q: Given what we otherwise know about the actors’ purpose, is there enough conduct to corroborate/confirm purpose?
• An act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime
• Substantial step = strongly corroborates criminal purpose
• Includes - lying in wait or searching for victim, unlawful entry of place where crime will be committed, possession of the materials to be used in the commission of the crime –list is not exhaustive
• Thinks devil is less likely to lose the battle

Question 5

People v. Bowen and Rouse

Answer 5

• Defendants were allowed into old woman’s house (had previously been handyman, said there to do work). Police arrived. House was a mess (dresser drawers open). Charged with larceny of rings and necklace.
• Court said there needed to be some overt act to support a conviction of attempted larceny in addition to intent.
• Court said that coming to/entering the house with the intent to commit larceny was not an overt act and does not support attempt charge, presence of the defendant at the house didn’t indicate their intention because they were let in
• Uses language of res ipsa and physical proximity tests, but eventually endorses res ipsa
  o Not enough that they just showed up at the house
  o Silent movie – going into house, ransacking place, hiding jewelry

Question 6

People v. Rizzo

Answer 6

• D planned to rob a payroll clerk, left in the car to find him, didn’t find him, police convicted him of attempt to commit robbery.
• Court reversed because they were still looking for the guy, didn’t come near to the completion of robbery, wasn’t yet a “reasonable likelihood of its accomplishment but for the interference,” must be near to accomplishment of crime

Question 7

US v. Harper

Answer 7

• Police found men in a rental car in a bank, had created a bill trap which shuts the ATM down and notifies the company monitoring the ATM So that technicians come to repair it
• Theory was they were going to rob the technicians of the money in the ATM  attempted bank robbery
• Robbery in future, hadn’t moved toward bank, still had as much as 90 minutes away (response time for ATM Technicians)
• Has language of many tests
  o Proximity – haven’t taken a physical step to the bank
  o Res Ipsa
  o Not MPC test

Question 8

US v. Gladish

Answer 8

• Agent pretended to be a 14 y.o. in a chat room, D solicited her to have sex with him, discussed possibility, arrested for attempting to get an underage girl to have sex with him
• Not guilty of attempt, didn’t take the substantial step, only speech, not convinced he was going to go through with it

Question 9

Criminal Solicitation

Answer 9

• MPC –if with the purpose of promoting or facilitating its commission he commands, encourages or requests another to engage in specific conduct which would constitute such crime or an attempt to commit such a crime
• People v. Decker
  o P asked an undercover policeman to kill sister, told him to shoot to the heart, gave him information about the location of her home and office, promised to pay $25k and gave $5k down payment, said he was sure he wanted to go through with it
  o Court upheld prosecution for attempted murder