Attempts

Question 1

Attempts Elements

Answer 1

1. An intent to commit a crime
2. The execution of an overt act in furtherance of the intention; AND
3. A failure to consummate the crime

Question 2

Buffam Test

Answer 2

1. Preparation alone is not enough
2. There must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature
   
   1. They’ve done everything they need to do, but something happens outside of their control (they shoot and miss, or the gun doesn’t fire)

Question 3

California Test (People v. Staples)

Answer 3

1. An overt act, when added to the requisite intent, which is sufficient to bring about a criminal attempt, need not be the last proximate or ultimate step towards commission of the substantive crime
   
   1. If you have the intent and move forward with the plan in a substantial way, that’s enough to be an attempt
2. The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation
3. This is CA’s attempt to expand the Buffam test

Question 4

Model Penal Code Test (State v. Latraverse)

Answer 4

1. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
   
   1. Purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; OR
   2. 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
   3. 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
2. The MPC also has a renunciation of criminal purpose affirmative defense which states that the defendant has abandoned his effort to commit a crime
   
   1. Commentators have said that renunciation should not apply to the second category of situations, and should only apply to the third category
   2. CA does not acknowledge renunciation as a defense

Question 5

Older Views

Answer 5

1. The act done must come pretty near to accomplishing that result before the law will notice it (Justice Oliver Wendell Holmes)
2. Acts performed in furtherance of a criminal project do not reach the stage of attempt unless they carry the project forward within dangerous proximity to the criminal end to be attained (Justice Benjamin Cardozo)

Question 6

Substantial Step Test (Tennessee v. Tracie Reeves)

Answer 6

1. When an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled to find that the actor has taken a substantial step toward the commission of the crime if such action is strongly corroborative of the actor’s overall criminal purpose

Courts have moved away from the older test, and an attempt can be established with much less than the older common law requirements

1. A substantial step is much less than a penultimate act

Question 7

Impossibility Defense

Answer 7

1. If property is no longer stolen, you can’t be guilty of receiving stolen property (People v. Rojas)
   
   1. However, this is not a defense to an attempt charge
   2. The defendant has still manifested his dangerousness and culpability sufficiently enough that punishment can be appropriately imposed

Question 8

When, if ever, is impossibility a defense?

Answer 8

1. Claims of factual impossibility DO NOT provide a defense:
   
   1. Where the defendant intends to commit a crime but is unable to commit that crime because he is mistaken or unaware of some fact that must exist for him to commit the crime (deer example)
2. Claims of pure legal impossibility DO provide a defense:
   
   1. Where the defendant is not ignorant of the facts but is mistaken about the law – the law does not contain the prohibition that the defendant thought he was violating (vegetable example)
   2. If it’s not a crime, even if you think it’s a crime, that is a defense
3. Claims of inherent factual impossibility MAY provide a defense:
   
   1. Where the method to accomplish the crime was one that a reasonable person would view as completely inappropriate to the objective sought (BB gun example)

Question 9

Mens Rea of Attempts

Answer 9

1. The actor:
   
   1. Must intend to commit the acts that bring him in proximity to commission of a substantive offense; AND
   2. Must perform those acts with the specific intention of committing the target offense
2. A crime of attempt will not work for a target crime that has a mens rea of negligence or recklessness
3. A person cannot intend to commit an unintentional crime
4. Cannot be guilty of attempted felony murder
   
   1. The crime of attempted murder requires a specific intent to kill
   2. They have the intent to commit a felony, but not the intent to kill