Attempt Flashcards
Incomplete Attempt
The actor does some of the acts that she set out to do, but then desists or is prevented from continuing by an extraneous factor, e.g., the intervention of a police officer.
Complete Attempt
the actor does every act planned, but is unsuccessful in producing the intended result, e.g., she shoots and misses the intended victim. D took the “last act.”
Attempt: Mens Rea
For conduct crimes, the attempt must have the same mens rea as the completed crime.
For result crimes, the purpose of the conduct must have been to bring about the result.
In MPC jurisdictions, knowledge about result is enough as well.
Attempt: Actus Reus Modes of Analysis (CL)
(1) The physical proximity test–the overt act required for an attempt must be proximate to the completed crime. D could commit the crime almost immediately.
(2) The dangerous proximity test–the greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger is the case for calling the act an attempt.
(3) The indispensable element test–a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control.
(4) The probable desistance test–the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended.
(5) The res ipsa loquitur or unequivocality test–an attempt is committed when the actor’s conduct unequivocally manifests an intent to commit a crime.
Attempt: MPC Actus Reus Test
A person is guilty of attempt if they take a substantial step toward the commission of the crime.
Substantial steps are corroborative of intent.
Abandonment (CL and MPC)
A defense to an attempted crime. There must be (1) a VOLUNTARY and GENUINE change of heart, and (2) the abandonment must be complete and permanent.
Impossibility
Possible defense to attempt: in cases where the impossibility defense is raised, the crime did not, and could not, occur.
Factual Impossibility
A “factual” impossibility exists where facts present at the time of the attempt, but unknown to the actor, render the consummation of the intended substantive crime impossible. Not a defense.
Inherent Impossibility
Applies to “situations in which the defendant employs means that a reasonable person would view as totally inappropriate to the objective sought. Yes, a defense.
Legal Impossibility
The act D was attempting to do was, in fact, not a crime. Yes, a defense.
Hybrid Legal Impossibility
A hybrid legal impossibility exists where the D was attempting to do something illegal, but was mistaken about a fact that has independent legal significance to the crime.
A defense in some CL jurisdictions but NOT in MPC jurisdictions.
Factual Impossibility Examples
D tries to pick V’s pocket and steal V’s wallet. V’s pocket is empty.
Similar result for attempts to steal from empty receptacle or empty house.
D is trying to kill V, and so he goes to V’s house in the middle of the night, points a gun at V’s bed, and shoots. It so happens that V was not in bed.
D wants to kill V. He points a gun, which he erroneously believes is loaded, at V’s head and pulls the trigger.
A woman erroneously believes that she is pregnant. She goes to a doctor, and she asks him to perform an illegal abortion. The doctor tries to perform an abortion.
Hybrid Legal Impossibility Examples
D accepts goods that she believes to be stolen, but the goods are not actually stolen.
D convinces a witness to testify a certain way at trial. D believes that the solicited testimony is false (and thus perjurious), but the testimony is actually true.
D offers a bribe to X, believing that X is a juror in a pending legal case. X accepts the bribe, but she is not a juror.
D goes hunting out of season. He sees what he believes to be a live deer, and he shoots it. The target he shoots at (and hits) is actually just a stuffed deer.
D wants to buy cocaine, and so he approaches X and asks X to secure some cocaine for him. X does not have access to cocaine, but she wants D’s money, and so she sells him a bag of baking soda.
