Attempt Flashcards
Attempt
- an act that, although done with the intention of committing a crime, falls short of completing the crime
Inchoate offenses
- specific intent
- greater mental state than the completed offense itself
2 kinds of attempt
- complete attempt (did all acts set out to do but missed)
- incomplete attempt (did some of the acts but did not finish them)
Attempt consists of:
1) A specific INTENT to commit the crime, and
2) an OVERT ACT in furtherance of that intent
Overt act
an act beyond mere preparation for the offense
Mere preparation
1) proximity test: how close the accused came to a crime
2) MPC substantial step: how far the accused went
Common law acts reus tests for attempt
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)
Physical proximity test
Almost immediately neared completion of the intended crime
Dangerous proximity test
Balance: seriousness / gravity of crime and likelihood / probability and proximity
Indispensable element test
What remains to be done?
Does an indispensable aspect remain to be completed?
Probable desistance test
Unlikely that D will stop? (if no interruption from an outside source)
Abnormal step approach
Did the D’s conduct go beyond the point where a normal person would have thought better of his conduct and desisted?
Res ipsa loquitur (unequivocality) test
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?
MPC Attempt translation
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
Actus reus MPC examples
- 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
Common law mens rea required for attempt
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)
MPC attempt
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
MPC attempt continued
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
Abandonment / Renunciation
- 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
Modern abandonment. renunciation requirements:
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
MPC Abandonment
- 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
MPC translation
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
Common law impossibility
2 types:
1) factual impossibility
2) legal impossibility
Factual impossibility
- typically not a defense
- where crime is impossible to complete because of some physical or factual condition unknown to defendant
