Attempt

Question 1

Attempt

Answer 1

• an act that, although done with the intention of committing a crime, falls short of completing the crime

Question 2

Inchoate offenses

Answer 2

• specific intent

- greater mental state than the completed offense itself

Question 3

2 kinds of attempt

Answer 3

• complete attempt (did all acts set out to do but missed)

- incomplete attempt (did some of the acts but did not finish them)

Question 4

Attempt consists of:

Answer 4

1) A specific INTENT to commit the crime, and

2) an OVERT ACT in furtherance of that intent

Question 5

Overt act

Answer 5

an act beyond mere preparation for the offense

Question 6

Mere preparation

Answer 6

1) proximity test: how close the accused came to a crime

2) MPC substantial step: how far the accused went

Question 7

Common law acts reus tests for attempt

Answer 7

1) Physical proximity test
2) Dangerous proximity test
3) Indispensable element test
4) Probable distance test
5) Abnormal step approach
6) Res ipsa loquitur (unequivocality test)

Question 8

Physical proximity test

Answer 8

Almost immediately neared completion of the intended crime

Question 9

Dangerous proximity test

Answer 9

Balance: seriousness / gravity of crime and likelihood / probability and proximity

Question 10

Indispensable element test

Answer 10

What remains to be done?

Does an indispensable aspect remain to be completed?

Question 11

Probable desistance test

Answer 11

Unlikely that D will stop? (if no interruption from an outside source)

Question 12

Abnormal step approach

Answer 12

Did the D’s conduct go beyond the point where a normal person would have thought better of his conduct and desisted?

Question 13

Res ipsa loquitur (unequivocality) test

Answer 13

Would reasonable person do these public acts if not trying to commit crime?
Does the D’s conduct clearly manifest the intent to commit a crime?

Question 14

MPC Attempt translation

Answer 14

Mens rea/Actus reus: guilty of attempt if D does something with purpose of causing or belief that it will cause the result or it constitutes a substantial step towards commission of crime
- Now majority rule

Question 15

Actus reus MPC examples

Answer 15

• lying in wait or searching for victim
• enticing victim to place
• reconnoitering place of crime
• unlawful entry into structure where crime will take place
• possessing materials employed in crime
• possessing materials for crime at or near place of crime
• soliciting innocent person to help with crime

Question 16

Common law mens rea required for attempt

Answer 16

1) intent to perform the actus reus (the conduct that is the attempt)
2) intent to commit the crime itself (the crime that is the goal of the attempt)

Question 17

MPC attempt

Answer 17

1) person is guilty of an attempt if acting with the kind of culpability otherwise required for commission of the crime, he:
a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be, or

Question 18

MPC attempt continued

Answer 18

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 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

Question 19

Abandonment / Renunciation

Answer 19

• Common law abandonment was not recognized
• Now jurisdictions are split on whether to recognize abandonment of an attempt, and some only allow defendant to prove she didn’t establish substantial steps or one of the common law tests
• Trend is to recognize this defense

Question 20

Modern abandonment. renunciation requirements:

Answer 20

To qualify for defense of abandonment/ renunciation:

• voluntary decision, not due to extrinsic factors
• complete decision, entire decision of committing crime is given up not just this time
• prevent commission of target crime (if accomplice are still doing, you must try to stop them)
• majority: actually stop crime
• minority: make best efforts to stop crime

Question 21

MPC Abandonment

Answer 21

• MPC argues that withdrawal will be a defense if:
  1) it is fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of completing the crime or because of an increased risk of apprehension, and
  2) it is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim

Question 22

MPC translation

Answer 22

MPC Attempt Renunciation/ Abandonment

• renunciation is affirmative defense if D abandons decision to commit crime where it is complete and voluntary
• it is voluntary and complete if not based on external circumstances or a decision to postpone the crime or transfer to different victim

Question 23

Common law impossibility

Answer 23

2 types:

1) factual impossibility
2) legal impossibility

Question 24

Factual impossibility

Answer 24

• typically not a defense

- where crime is impossible to complete because of some physical or factual condition unknown to defendant

Question 25

Legal impossibility

Answer 25

• is a defense

- act if completed would not be criminal

Question 26

MPC and majority REJECTS impossibility

Answer 26

Guilty of attempt if

a) engages in conduct which would constitute the crime if the attendant circumstances were as he believed them to be, or
b) does or omits to do anything with the purpose of causing or with the belief that it will cause [a criminal result] or
c) 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 [towards crime]

Question 27

Factual impossibility examples

Answer 27

• picking of empty pocket
• attempt to steal from empty receptacle or empty house
• D shoots victims’ bed believing he is there but he isn’t
• where D erroneously believed gun is loaded and points at wife’s head and pulls trigger
• woman upon whom abortion is performed is not pregnant

Question 28

Legal impossibility examples

Answer 28

• accepting goods he believes to be stolen but where goods are not stolen
• where false testimony solicited from witness would have been material to case at hand and not perjurious though D thinks it is
• an accused who offers a bribe to person believed to be a juror but who is not a juror
• official who contracts debt which is unauthorized and a nullity but which he believes to be valid
• hunter who shoots stuffed deer believing it to be alive out of season
• trying to buy what one mistakenly believes is a controlled drug that is actually not drugs

Question 29

Imaginary offenses

Answer 29

actor thinks some act is a crime but it is not a crime at all, not due to circumstance, but there is no law against what actor is doing

Question 30

MPC impossibility: inherently unlikely attempt

Answer 30

if conduct (attempt, solicitation or conspiracy) is so inherently unlikely to result or culminate in a crime that conduct or actor does not present public danger then court may sentence for lower crime or dismiss crime