Inchoate Offenses: Attempt

Question 1

What are the elements of “attempt” (2) ?

Answer 1

1. “overt act” (beyond mere preparation) that falls short of completing a crime;
2. done w specific intent of completing that crime

Question 2

What is the rule re: attempt and specific intent?

Answer 2

Attempt is ALWAYS a specific intent crime, even if underlying crime is not

EXAMPLE –> murder doesn’t require specific intent, but attempt to murder does

Question 3

Is it possible to attempt a negligent or reckless crime?

Answer 3

No

Example –> there can be no attempted negligent homicide

Question 4

What is the rule re: “overt act”?

Answer 4

D must commit an act “beyond mere preparation” for the offense

Modern majority approach (and MPC) –> “substantial step test”

Traditional approach –> followed “proximity test”

NOTE –> overt act required for attempt is much more substantial than that required for conspiracy.

Question 5

With regards to “over act” requirement - what is the modern/majority approach “substantial step test”?

Answer 5

Act or omission must constitute a “substantial step” in a course of conduct planned to culminate in commission of crime

Question 6

With regards to “over act” requirement - what is the traditional “proximity test”?

Answer 6

Traditional “proximity test” - required D to be dangerously close to successful completion of crime

Example –> pointing gun at victim

Question 7

What are the 3 defenses to be aware of with regards to attempt?

Answer 7

1. Legal Impossibility
2. Factual Impossibility
3. Abandonment

Question 8

What is the rule re: the defense of “LEGAL IMPOSSIBILITY” and attempt?

Answer 8

Legal impossibility IS a defense. You cannot attempt a crime that doesn’t exist.

Question 9

What is the rule re: the defense of “FACTUAL IMPOSSIBILITY” and attempt?

Answer 9

“factual impossibility” is NOT a defense to attempt.

“factual impossibility” means that the crime is incapable of completion due to some PHYSICAL or FACTUAL condition unknown to D

Example –> D wants to shoot victim through window while D thinks victim is home, but victim is not. D is still guilty of attempt.

Question 10

What is the rule re: the defense of “ABANDONMENT” and attempt?

Answer 10

At common law –> abandonment is NOT a defense
EFFECT: If D had intent and committed an OVERT act, he is guilty of attempt even if she changed her mind and abandoned act before doing it.

Model Penal Code Approach (minority) –> A FULLY VOLUNTARY and COMPLETE abandonment IS a defense to attempt