Attempt

Question 1

Why Punish

Answer 1

By definition, no crime was completed, so no harm, but …
 We want to stop, deter, and reform people who attempt crime.
 The attempt is still a social harm.
 The attempter is still morally culpable.
 A, B, C, and D all intend to kill their rivals.
 A succeeds; B has bad aim; C’s gun misfires; D is arrested before he pulls the trigger

Question 2

Mens Rea Attempt

Answer 2

Must be intent.
 An attempt cannot be committed recklessly, negligently, or by virtue of strict liability.
 Intent to _______.
 Look to substantive crime to fill in blank.
 Only intent-to-kill type of murder can constitute attempted murder (majority rule

Question 3

Smallwood MD 1996

Answer 3

Can a rape by an HIV+ rapist constitute attempted murder?
 Did he intend to kill?
 State wants to use the deadly-weapon doctrine to prove intent. Why is it applicable here?
 Prob. of death is too low from Δ’s actions to prove intent
. Actions are more consistent with intent to carry out the crimes of rape and robbery.

Question 4

Thacker WV 1922

Answer 4

Attempted murder? Evidence of intent
: “I am going to shoot that God-damned lightout!” Drunk
 Didn’t know victim
 Had victim been killed, what kind ofmurder?
 Not intent-to-kill type ==> no attempt

Question 5

Broussard Cal 1977

Answer 5

Broussard (Cal. 1977) Attempted involuntary manslaughter?
 Inherently contradictory Jury apparently believed Δ’s version:
 gun accidentally went off
 By definition, one cannot intend accidental outcomes
. Minority view: Thomas (Colo. 1986)(state attempt statute does not require specific intent to bring about the criminal result

Question 6

Stewart Wisc 1988 Intent

Answer 6

Attempted robbery Δ argues intent was to panhandle.
 Evidence that Δ intended to rob victim:
 Exit blocked
 “Give us some change.”
 “Hey, man, put that gun away.
” It’s up to the jury to decide which intentΔ actually held

Question 7

Actus Reus for Attempt

Answer 7

Also called the “overt act.”
 “Mere preparation” is not sufficient.
 “Substantial step” used by MPC.
 See list, pp. 1012–1013.
 DC test: “an act reasonably adapted to accomplishing the crime” that “must have come dangerously close to committing thecrime.”
 Time & space test:
 Was the action in “dangerous proximity to success”?

Question 8

Rizzo NY 1927

Answer 8

Attempted robbery?
 Evidence: Δ planned to rob a payroll courier as he left the bank.
 Δ’s role was to identify the victim and give signal
. Δ ran into a building to wait
. Δ was then arrested
. Acts were mere preparation; not substantial[ enough to constitute attempt.

Question 9

Stewart Wisc 1988 -Act

Answer 9

Stewart (Wisc. 1988)—Act Attempted robbery?
 Evidence:
 same evidence used to prove intent
 “Stop the film” test:
 View the Δ’s acts as a film that is stoppedand ask can the audience guess what’sgoing to happen next?
 But, where do we stop the film in thiscase

Question 10

Substantial Step Overt Act

Answer 10

Still (9th Cir. 1988): insufficient
 no “actual movement” toward destination of crime
 Davis (Mo. 1928): insufficient
 “mere acts of preparation”

Question 11

Abandonment Withdrawal

Answer 11

No defense once intent has formed and a substantial step taken.
 Gartlan (N.C. App. 1999
) Intent:○ confession Overt Act:○ started the car in the closed garage
 Johnson (Colo. App. 1987)
 How could a jury find abandonment?