Attempt

Question 1

Inchoate Offenses

Answer 1

Cover conduct that is intended to result in the commission of a substantive criminal offense.

Question 2

Attempt

Answer 2

An attempt occurs if (1) the defendant with the specific intent to commit a target offense, (2) engages in conduct that constitutes a substantial step towards the completion of the crime that (3) does not result in its completion.

Question 3

Merger

Answer 3

If a person commits the target offense, they may not be convicted of both the target offense and Attempt

Question 4

Mens Rea

Answer 4

The defendant must have the specific intent to commit the target offense.

If the target offense’s definition requires unintentionally causing a particular result then it is typically not possible to attempt to commit that crime.

Question 5

Bruce

Answer 5

Bruce was found guilty of attempted felony murder.
BUT Felony murder is not a specific intent crime.

The only mental state required for a felony murder conviction is the specific intent to commit the underlying felony, not to cause the death itself.

Therefore, attempted felony murder is not a crime.

Question 6

Gentry

Answer 6

There can be no attempted manslaughter, but can be attempted murder.

A person commits the crime of attempted murder where he kills an individual if, in the performing the acts which cause the death, he intends to kill or do great harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual

Question 7

Actus Reus

Answer 7

There must be some act that pushes the line from mere preparation to perpetration.

Question 8

Complete Attempt

Answer 8

The actor does all the things she set out to do but fails to achieve her goal.

Question 9

Incomplete Attempt

Answer 9

The actor does some of the things necessary to complete her goal, but quits or is prevented from completing.

There are various tests used to determine whether the steps that have been taken are sufficient to constitute attempt.

Question 10

The tests (6)

Answer 10

Last Act, Physical Proximity, Probable Desistance, Dangerous Proximity, Unequivocality, MPC/Substantial Step

Question 11

Last Act

Answer 11

Attempt occurs only when the person performs all the acts that she believed were necessary to commit the target offense.

See Peaslee: The defendant must possess a present intent to commit the crime in the near future and must have this intent while in a position to carry it out.

Question 12

Peaslee

Answer 12

The defendant must possess a present intent to commit the crime in the near future and must have this intent while in a position to carry it out.

In this case, the evidence is insufficient to show that Peaslee’s actions went beyond mere preparation. Although Peaslee set up the combustibles so that only the lighting of the combustibles remained, he did not have the present intent to set the fire when he did so.

Question 13

Physical Proximity

Answer 13

Conduct must be proximate to the completed crime: it has to approach sufficiently near it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.

Question 14

Probable Desistance

Answer 14

Attempt occurs when, in the ordinary course of events, without the interruption from an external source, the actor has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime.

Factfinder assesses whether an ordinary person in the actor’s shoes has reached the point of no return.

Question 15

Dangerous Proximity

Answer 15

The greater the gravity of and probability of an offense, and the nearer the act is to the crime, then there’s a stronger case for calling it an attempt.

Question 16

Unequivocality

Answer 16

An act is not an attempt unless it ceases to be equivocal.

Look at whether a person’s conduct, standing alone, unambiguously manifests her criminal intent. Res Ipsa Loquitur

Question 17

MPC substantial step approach

Answer 17

The actus reus for attempt is satisfied if the defendant performed an act or omission constituting a substantial step toward committing the target offense.

A substantial step is conduct that strongly corroborates the defendant’s criminal intent.

Evaluate Actor’s conduct in light of all the circumstances.

Question 18

Substantial Step Examples

Answer 18

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.

Question 19

MPC Analysis

Answer 19

1) Complete or Incomplete?
2) If complete: result or conduct? if conduct, 5.01(1)(a) and if result, 5.01(1)(b)
5. 01(1)(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them, or (b) 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.
3) If incomplete, use 5.01(1)(c) and (2):

5. 01(1)(c) 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 a course of conduct planned to culminate in his commission of the crime.
6. 01(2) Conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor’s criminal purpose

Question 20

Impossibility

Answer 20

Because of defendant’s mistake of fact or law, his actions could not have resulted in the commission of the substantive crime underlying the attempt charge.

Types: Factual impossibility (few jdx, not CL, not MPC); hybrid legal impossibility (few jdx, CL); Legal Impossibility (all jdx, MPC 1.05(1)); Inherent Factual impossibility (all jdx).

Question 21

Factual Impossibility

Answer 21

NOT CL OR MPC

Actor’s intended goal constitutes a crime, but she fails to complete it because of a factual circumstance unknown to her or beyond her control.

Question 22

Hybrid Legal Impossibility

Answer 22

Only CL

Actor’s intended goal is illegal, but the commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged crime.

Most jurisdictions have abolished this (ex. MPC says “circumstances as he believes them to be”)

Question 23

Thousand

Answer 23

A defendant can be convicted of attempt even if it is impossible to complete the underlying offense (cop pretended to be a minor).

This jurisdiction’s attempt statute says that a defendant who attempts to commit a crime, commits an act in furtherance of that crime, but fails to complete it, is guilty of attempt.

There is no wording in the statute that suggests the Legislature intended to allow a defendant to escape liability due to a mistake of fact or legal status. Therefore, the defense of impossibility is unavailable to Thousand for his attempted crime.

Question 24

Legal Impossibility

Answer 24

The criminal law does not prohibit the actor’s conduct or the result she sought to achieve, but the actor believes it does

See MPC 1.05(1) on legality

Defense in all jurisdictions

Question 25

Inherent Factual Impossibility

Answer 25

All jdx.

The method used to try to accomplish the crime is one that a reasonable person would view as totally inappropriate to the objective sought.

MPC 5.05(2) on mitigation: If the particular conduct charged to constitute a criminal attempt, solicitation or conspiracy is SO inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of such offense then the court may impose a sentence for a crime of lower grade or degree or, in extreme cases, may dismiss the charge.

Question 26

MPC Abandonment

Answer 26

not CL, not most SS, but a defense under MPC 5.01(4).

MPC provides an affirmative defense of abandonment that holds even if the actor has crossed the line of attempt, if the actor: (1) Abandoned his effort to commit the crime OR otherwise prevented its commission (2) Under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

Not voluntary if motivated in whole or in part by circumstances increasing the probability of detection or apprehension or make it more difficult.

Not complete renunciation if motivated by a decision to postpone criminal conduct until a more advantageous time or transfer of the efforts to another, but similar, objective or victim.

Question 27

MPC Abandonment Last Necessary Act

Answer 27

Abandonment is not a defense, even if the desistance is motivated by remorse and is complete if the actor has already performed the last necessary act to commit the offense or caused serious harm.