Attempt Flashcards
What are the two elements of an attempted crime according to People v. Gibson?
- a specific intent
- an ineffectual overt act directed at its consummation.
MPC §5.01 Criminal Intent
(a) Purposely engaged in conduct that would
constitute the crime if the attendant
circumstances were as he believes them to be;
or
(b) When causing a particular result is an element of
the crime, 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; or
(c) Purposely does or omits to do anything that,
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.
What is the goal of the MPC here?
to criminalize attempt at an earlier point than the proximity tests, well before someone got close to actually committing the crime.
But, conduct is not criminal unless it “is strongly corroborative of the actor’s criminal purpose.”
What are MPC examples of Substantial Acts?
- Lying in wait
- Enticing or seeking to entice contemplated victim
to go to place of crime for its commission - Reconnoitering the place of possible crime
- Unlawful entry of a structure
- Possession of materials to be employed…that can serve no lawful purpose under the circumstances
- Soliciting an innocent agent to engage in the
conduct constituting an element of the crime.
What are common law tests for Actus Reus of Attempt?
Physical proximity
Dangerous proximity
Indispensable element
Probable desistance
Abnormal step
Res ipsa loquitur/unequivocality test
What was the 2-tier test the trial judge applied in U.S. v. Jackson?
- Did the D have the specific intent to commit the crime?
- Did the D take a substantial step toward committing the crime?
What does a prosecutor have to prove for the crime of attempt?
Mens Rea
Intent to commit the specific crime that is the object of the attempt.
Remember, no crime of “attempt” it is always connected to another crime, for example, attempted murder, or attempted burglary.
Actus Reus
Proximity test or
Substantial step
TCC § 15.01 Criminal Attempt
(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
What must an actor do to have the requisite level of intent in an attempt offense?
Intentionally commit the acts that constitute the actus reus of an attempt.
Must perform those acts with the intention that is required by the target offense.
What is a specific intent crime?
Definition of the crime expressively includes an
intent or purpose to do some future act or to
achieve some future consequence or
Provides that the actor be aware of a statutory
attendant circumstance
What is a general intent crime?
Definition does not include any specific intent
Ex: Battery: “intentional application of
unlawful force upon another.”
What are affirmative defenses under the MPC for attempt?
Abandonment/Renunciation
must be “a complete and voluntary renunciation” (so not motivated by probability of detection).
The idea is that there should be an incentive for potential criminals to abandon at attempted crime.
What is a factual impossibility?
when a person’s intended end is a crime, but he fails to
consummate the offense because of an attendant circumstance unknown to him or out of his control.
Ex: Pickpocket sticking hand into empty
pocket.
What is a legal impossibility?
“a person commits a lawful act with a guilty conscience”
Which impossibility is a defense under common law?
Legal impossibility is a defense
MPC does not recognize it as a defense
How do courts decide if there was a legal or factual impossibility?
what the actor intended to do or
outcome of the actor’s actions?
