Attempt and Solicitation Flashcards
Punishments for Attempt
Common Law. Misdemeanor,
California. 1/2 of the completed crime,
New York. One grade down from the completed crime,
MPC. Same as completed crime except for capital punishment or life imprisonment.
Smallwood v. State
The mens rea for attempted murder is specific intent, there was no intent to kill here so the conviction was reversed.
- HIV positive man, raped three women without wearing a condom; knew he was HIV positive and warned by social worker to practice safe sex
- Mens rea must be Purpose to commit the crime,
- No purpose to murder.
- high mens rea requirement because punished as severe as if they had committed and not attempted
Thacker v. Commonwealth
Example of no purposeful mens rea to kill, thus NO ATTEMPTED MURDER.
- Defendant shot at the light shining through the canvas of someones tent. Purpose was to shoot the light, which he did.
MPC 5.01
Definition of Attempt
A person is guilty of an attempt to commit a crime when, acting with the culpability otherwise required for the commission of the crime he:
- PURPOSELY engages in CONDUCT that would constitute the crime if the AC were as he believed them to be,
- When causing a particular RESULT is an element of a crime, he does, or omits to do anything with the PURPOSE of causing or WITH THE BELIEF that it will cause such RESULT.
-
PURPOSELY does or omits to do anything, which under the circumstances as he believes them to be, is an act or an ommission constituting A SUBSTANTIAL STEP.
- This is the MPC’s test for assessing whether an attempt has occurred (contrast Dangerous proximity; Equivocality Test etc.)
Mens rea = purposely
Conduct = Purpose,
AC = Same as underlying offense,
Result = Purpose
Eagleton Test
Cannot be punished for an attempt until you have taken the last step in commiting the crime
- British common law,
- Not followed in most jurisdictions
- waiting until the last step doesn’t deter crime from happening and may result in harm
People v. Rizzo
Dangerous Proximity Test
Look at the actions left to be taken or the distance or gap between the defendant’s actions and the unachieved goal of the commission of the crime - the distance MUST BE RELATIVELY SHORT and the gap MUST BE NARROW.
- Defendant tried to rob a man and his friends, drove around looking for him but never found him or came near to his person. Couldn’t convict them for attempted robbery under this test.
- Dangerous proximity is STILL the test used in NY.
Commonwealth v. Bell
You must be near your victim, WITHIN SPACIAL PROXIMITY, in which to commit the crime.
- “He had yet to see a child, and did not know the exact location of the child…”
NOTE. UNDERINCLUSIVE nature of the test, it allows people to escape liability that we want to convict, yet also convicts people that we don’t (McQuirter - black man follows white woman and children in Alabama - acts not reprehensible - just standing near them)
Equivocality Test
Look NOT to how far the defendant has gone but to HOW CLEARLY HIS ACTS bespeak his intent.
- Under this test, McQuirter wouldn’t be convicted
- preserves ability to stop and change mind (compared to spatial proximity)
- problems: subjective, proof problems, allows people to escape liability
MPC 5.01(1)(C)
Test for Attempt
“Purposely does or omits to do anything that under the circumstances . . . is an act or omission constituting a SUBSTANTIAL STEP in the commission of the crime.”
MPC 5.01(2)
The following shall not be held insufficient as a matter of law
Conduct that is a substantial step
- Lying in wait, searching for, or following the contemplated victim,
- Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission,
- Reconnoitering the place contemplated for the commission of the crime,
- Unlawful entry of a structure, vehicle, or enclosure in which it is contemplated that the crime will be committed,
- Possession of materials to be involved in the commission of the crime, that are specifically designed for such unlawful use or that serve no lawful purpose of the actor under the circumstances,
- Possession, collection, or fabrication of materials to be employed in the commission of the crime, at or near tha place contemplated for its commission, if such possession, collection, fabrication serve no lawful purpose of the actor under the circumstances, and
- Soliciting an innocent agent to engage in conduct constituting an element of the crime.
MPC 5.01(4)
Renunciation
When an actor’s conduct would otherwise constitute an attempt, it is an affirmative defence that he abandoned his efforts or otherwise prevented the commission of the crime, under circumstances showing a COMPLETE and VOLUNTARY RENUNCIATION of his criminal purpose.
(1) Renunciation is not voluntary if…
(2) Renunciation is not complete if…
-
Not voluntary. If it is motivated in whole, or in part, by circumstances, not present or apparent at the inception of the actors course of conduct, that increase the probability of detection or
- apprehension, or,
- that make more difficult the accomplishment of the crime.
-
Not complete. If it is moticated by a decision to postpone the crime until a more advantageous time, or
- To transfer the criminal effort to another but similar objective or victim.
>> Not a renunciation if you see the cops and decide not to do it. Must be the will of the defendant to not do it.
State v. Davis
Mere solicitation, WITHOUT AN OVERT ACT moving towards the commission of the crime IS NOT an element of the crime of attempt.
- Defendant wanted to hire a hit man to kill his lovers spouse, the hit man turned out to be an undercover cop, defendant paid him and then was arrested, Undercover cop wasn’t a real hitman so it was never going to happen.
- Intent as to conduct and result; however, the court said that none of these acts went beyond mere preparation.
MPC 5.02
Solicitation
- Definition. A person is guilty of solicitation to commit a crime if with the PURPOSE of promoting or facilitating its commission he commands, encourages, or requests another person to engange in specific conduct that would constitute such crime or an attempt to commit such crime or would establish his complicity in its commission or attempted commission.
- Uncommunicated. It is immaterial under (1) that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to affect such commission,
-
Renunciation. It is an affirmative defence that the aftor, after soliciting another person to commit a crime:
- Persuaded him not to do so, OR
- Otherwise prevented the commission of the crime, under circumstances mannifesting A COMPLETE and VOLUNTARY renunciation
People v. Thomas
Minority rule - Colorado. Reckless intent to kill.
- Defendant fired three shots at a man who he thought was a fleeing rapist and was convicted of attempted reckless manslaughter.
Reckless means consciously disregarding a substantial unjustifiable risk - how do you attempt to consciously disregard a substantial unjustifiable risk
