Attempt Flashcards
Inchoate Offenses
Cover conduct that is intended to result in the commission of a substantive criminal offense.
Attempt
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.
Merger
If a person commits the target offense, they may not be convicted of both the target offense and Attempt
Mens Rea
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.
Bruce
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.
Gentry
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
Actus Reus
There must be some act that pushes the line from mere preparation to perpetration.
Complete Attempt
The actor does all the things she set out to do but fails to achieve her goal.
Incomplete Attempt
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.
The tests (6)
Last Act, Physical Proximity, Probable Desistance, Dangerous Proximity, Unequivocality, MPC/Substantial Step
Last Act
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.
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.
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.
Physical Proximity
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.
Probable Desistance
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.
Dangerous Proximity
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.
Unequivocality
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
MPC substantial step approach
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.
Substantial Step Examples
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.
MPC Analysis
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):
- 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.
- 01(2) Conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor’s criminal purpose
Impossibility
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).
Factual Impossibility
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.
Hybrid Legal Impossibility
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”)
Thousand
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.
Legal Impossibility
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
Inherent Factual Impossibility
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.
MPC Abandonment
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.
MPC Abandonment Last Necessary Act
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.
