3.1 Attempt
6 min read•august 20, 2024
Attempt is a crucial concept in criminal law, bridging the gap between criminal thoughts and completed crimes. It allows law enforcement to intervene before harm occurs, while still holding individuals accountable for their criminal intentions and actions.
The elements of attempt include specific intent and a beyond mere preparation. Courts must carefully evaluate the proximity to the completed crime and consider defenses like or when determining .
Elements of attempt
- Attempt is an inchoate crime where a person takes steps towards the commission of a crime but does not complete it
- Requires both (guilty mind) and (guilty act) for criminal liability to attach
- Criminalizing attempt allows law enforcement to intervene before a crime is completed and harm occurs
Specific intent to commit crime
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- Defendant must have the specific intent to commit the target crime, not just a general criminal intent
- Mere thoughts or desires are insufficient; intent must be accompanied by action
- Evidence of intent can include statements, plans, or overt acts (purchasing weapons, surveilling a target)
Mere preparation vs attempt
- Mere preparation is insufficient for attempt liability; defendant's actions must go beyond planning
- Courts evaluate whether the steps taken are substantial and in close proximity to completing the crime
- Examples of mere preparation include buying maps (burglary), purchasing poison (murder), or arranging a meeting (drug deal)
Actus reus of attempt
- The actus reus of attempt requires an overt act that goes beyond mere preparation
- Defendant's actions must be a substantial step in a course of conduct planned to culminate in the crime
- Actus reus is evaluated based on the specific facts and circumstances of each case
Substantial step toward commission
- A substantial step is an action that is strongly corroborative of the defendant's criminal intent
- Must be an act that is more than mere preparation but less than the last act necessary for completing the crime
- Examples include lying in wait (murder), breaking into a building (burglary), or enticing a minor (sexual assault)
Proximity to completed crime
- Temporal or geographic proximity to completing the crime is a factor in determining a substantial step
- The closer the defendant is to completing the crime, the more likely attempt liability will attach
- Examples of proximity include driving to the crime scene (robbery) or confronting the intended victim (assault)
Impossibility of attempt
- is not a defense to attempt; the defendant's actions and intent are key
- Even if it is impossible to complete the crime, attempt liability can still attach (trying to pickpocket an empty pocket)
- may be a defense if the defendant's intended actions would not constitute a crime (attempting to bribe an undercover officer posing as a juror)
Abandonment of attempt
- Abandonment can be a defense to attempt liability in some jurisdictions
- Defendant must completely and voluntarily renounce the criminal purpose before the crime is committed
- Abandonment is not a defense if it is motivated by fear of getting caught or circumstances making the crime more difficult
Voluntary vs involuntary abandonment
- is a complete defense if it is not motivated by external factors (crisis of conscience)
- does not relieve attempt liability (unable to complete crime due to police presence or victim resistance)
- Burden of proving voluntary abandonment is typically on the defendant to show genuine renunciation
Effect on criminal liability
- Voluntary abandonment can be a complete defense to attempt liability but not other completed crimes
- If the defendant already committed a substantial step, abandonment does not undo attempt liability
- Abandonment may be a mitigating factor at even if not a complete defense
Solicitation vs attempt
- Solicitation is asking or encouraging another to commit a crime, while attempt requires an overt act by the defendant
- Solicitation involves a communication to another, while attempt can be committed alone
- Solicitation and attempt can overlap if the solicitation is strongly corroborative of intent (offering money to a hitman)
Conspiracy vs attempt
- requires an agreement between two or more people to commit a crime, while attempt can be committed alone
- Conspiracy focuses on the criminal agreement, while attempt focuses on the substantial step taken
- In some jurisdictions, an overt act in furtherance of the conspiracy is required, similar to attempt's substantial step
Defenses to attempt
- Defenses to attempt liability can negate the mens rea, actus reus, or both
- Voluntary abandonment and impossibility are common defenses specific to attempt
- General defenses like insanity, duress, or self-defense can also apply to attempt charges
Factual impossibility
- Factual impossibility arises when a defendant's intended actions are thwarted by external circumstances unknown to them
- Examples include trying to pick an empty pocket, shooting a corpse believing it to be alive, or purchasing fake drugs
- Factual impossibility is not a defense to attempt because the defendant's actions and intent are the basis for liability
Legal impossibility
- Legal impossibility arises when the defendant's intended actions, even if completed, would not constitute a crime
- Examples include attempting to bribe a juror who is actually an undercover officer or trying to sell a legal substance believed to be illegal
- Jurisdictions are split on whether legal impossibility is a defense to attempt, with many abolishing the distinction with factual impossibility
Punishment for attempt
- Attempt is typically punished less severely than the completed crime, reflecting the reduced harm
- Many jurisdictions set attempt punishments at a fraction of the completed crime (half the maximum sentence)
- Some states allow the same punishment for attempt as the completed crime for serious felonies (murder, rape)
Sentencing vs completed crime
- Sentencing for attempt convictions is usually more lenient than for completed crimes
- Judges have discretion to consider mitigating factors like voluntary abandonment, renunciation, or minimal steps taken
- Aggravating factors like detailed planning, lengthy preparation, or targeting vulnerable victims can increase attempt sentences
Attempt vs completed crime
- Attempt and completed crimes share the mens rea element of intent to commit the target offense
- Attempt liability attaches earlier than a completed crime based on the substantial step taken
- A completed crime requires actual harm or prohibited result to occur, while attempt does not
Elements in common
- Both attempt and completed crimes require the mens rea of intent to commit the crime
- The conduct involved in an attempt will often be the same as a completed crime, just falling short of completion
- Defenses that negate mens rea like insanity or intoxication can apply to both attempt and completed crimes
Key distinctions
- A completed crime requires the prohibited harm to occur (death in murder), while attempt does not
- Attempt focuses on the defendant's actions as a substantial step, while completed crimes focus on the actual result
- Causal connection between conduct and harm is required for completed crime but not attempt
- Voluntary abandonment is a defense to attempt but not completed crime
Evaluating evidence of attempt
- Evidence of attempt often focuses on proving the defendant's intent through statements, plans, and actions
- Substantial step determination looks at the specific facts to assess whether the actions go beyond mere preparation
- Circumstantial evidence can be used to infer intent and corroborate a substantial step (acquiring weapons, conducting surveillance)
- Defenses like impossibility or abandonment require evaluating the defendant's knowledge and motivation
Policy rationales for criminalizing attempt
- Allows police to intervene and prevent crimes before harm occurs to protect public safety
- Punishes those with a culpable mental state who have taken steps towards a criminal act
- Provides a deterrent effect by imposing liability at an earlier stage in a criminal undertaking
- Recognizes the dangerousness of those who attempt crimes even if not successful
Key Terms to Review (22)
Abandonment: Abandonment, in the context of criminal law, refers to the voluntary and intentional relinquishment of a criminal intent or the act of discontinuing an attempt to commit a crime. This concept is crucial when considering attempts, as it can determine whether a defendant can avoid liability for an incomplete crime. Understanding abandonment can help clarify when someone has effectively withdrawn from criminal behavior and what that means for their culpability.
Actus reus: Actus reus refers to the physical act or conduct that constitutes a criminal offense. It includes not just the actions taken by an individual but also omissions or failures to act in certain situations where there is a legal duty to do so, playing a crucial role in determining liability in criminal law.
Attempt Liability: Attempt liability refers to the legal principle that holds individuals criminally responsible for attempting to commit a crime, even if the crime was never successfully completed. This concept connects to various elements of criminal law, including mens rea, the stages of criminal conduct, and the need for a substantial step towards the commission of the crime, which distinguishes attempts from mere preparation.
California Penal Code § 664: California Penal Code § 664 defines the crime of attempt, stating that when a person intends to commit a crime and takes a direct step toward completing that crime but fails to finish it, they can still be charged with an attempt. This section establishes that the law recognizes the intent and actions taken toward committing a crime, even if the ultimate crime was not successfully carried out.
Conspiracy: Conspiracy is an agreement between two or more individuals to commit an unlawful act or to achieve a lawful objective through illegal means. It involves a combination of intent and planning, where parties collaborate to carry out a crime or support criminal behavior. This term connects deeply with the concepts of attempt and solicitation, as both can play roles in the formation and execution of conspiracies, highlighting the progression from planning to action in criminal law.
Criminal Attempt: Criminal attempt refers to an individual’s intention to commit a crime and taking substantial steps towards its completion, even if the crime itself does not occur. This legal concept is critical because it recognizes that the mere intention to commit a crime, combined with actions that demonstrate that intent, can be punishable under law. Understanding criminal attempt helps clarify the difference between mere thoughts and serious intentions that threaten public safety.
Dangerous Proximity Test: The dangerous proximity test is a legal standard used to determine whether an individual has taken sufficient steps toward the commission of a crime to be charged with attempt. This test assesses the closeness of the actions taken by the defendant in relation to the ultimate goal of committing the crime, focusing on how imminent the offense is based on the actions performed. It emphasizes the degree of danger presented by those actions, helping courts decide if an attempt has occurred even if the crime itself has not been completed.
Factual impossibility: Factual impossibility refers to a situation in which a person intends to commit a crime but cannot do so due to an external fact or circumstance that makes the act impossible. This concept is crucial in understanding attempts in criminal law, as it distinguishes between what a person wants to achieve and the reality of whether their actions can lead to a successful commission of the crime. Factual impossibility does not negate liability for an attempted crime, as the individual still exhibits the requisite intent.
Impossibility: Impossibility refers to a legal doctrine in criminal law where a defendant's attempt to commit a crime fails due to the unfeasibility of the criminal act. This can occur when the intended crime is not possible to complete because the means are unavailable or the object of the crime does not exist. Understanding impossibility is crucial as it differentiates between mere intent and actionable attempts, impacting whether an individual can be found guilty of attempted crimes.
Impossibility Doctrine: The impossibility doctrine is a legal principle that addresses situations where a person attempts to commit a crime but fails due to an impossibility of achieving the criminal act. This doctrine distinguishes between factual impossibility, where the crime could not be completed due to circumstances beyond the actor's control, and legal impossibility, where the act, even if completed, would not constitute a crime. Understanding this doctrine is crucial in determining whether an individual can be held liable for an attempted crime.
Inchoate Crimes: Inchoate crimes are offenses that are not fully realized or completed, representing an attempt to commit a crime that is actively in progress. These crimes focus on actions that demonstrate intent and preparation towards a criminal act, even if the actual crime has not yet been carried out. They highlight the importance of intent and steps taken towards committing a crime, thus holding individuals accountable for their plans and actions.
Involuntary Abandonment: Involuntary abandonment occurs when an individual who has begun to commit a crime ceases their conduct without having the choice to do so, often due to external factors such as intervention by law enforcement or an unforeseen circumstance. This concept plays a crucial role in determining whether an individual can be held liable for attempt when they abandon their criminal objective against their will. Understanding this term is essential when analyzing the nuances of criminal intent and liability in attempt cases.
Legal Impossibility: Legal impossibility occurs when a person's actions, though they may seem like an attempt to commit a crime, cannot result in legal liability because the intended crime is not actually prohibited by law. This means that the individual has not engaged in any conduct that would qualify as a criminal offense due to a lack of applicable law or because the act itself is not criminal under any circumstances. It’s crucial to distinguish legal impossibility from factual impossibility, as the former relates to the law’s definitions and boundaries around criminal actions.
Mens Rea: Mens rea refers to the mental state or intent of a person when committing a criminal act. It plays a crucial role in distinguishing between different levels of culpability, as it assesses whether the individual had a guilty mind at the time of the offense, which is essential for establishing liability in criminal law.
Model Penal Code § 5.01: Model Penal Code § 5.01 addresses the concept of attempt in criminal law, providing a framework to determine when an individual can be held liable for attempting to commit a crime. This section outlines the criteria for establishing an attempt, including the requirement that an individual must take a substantial step towards the commission of an offense, thereby distinguishing mere preparation from actionable conduct.
People v. McDonald: People v. McDonald is a significant case in criminal law that addresses the concepts of attempt and burglary. This case centers on whether the defendant had the intent to commit a crime and if their actions constituted a sufficient step toward completing that crime. It raises important questions about what constitutes an attempt, especially in relation to unlawful entry with the intent to commit theft or another crime.
Plea Bargaining: Plea bargaining is a negotiation process in the criminal justice system where the defendant agrees to plead guilty to a lesser charge or to receive a reduced sentence in exchange for concessions from the prosecution. This practice helps to expedite court proceedings, reduce the caseload of courts, and often leads to a quicker resolution for both parties. It also involves considerations about the strength of evidence and potential outcomes if the case goes to trial.
Proximity Principle: The proximity principle refers to the legal concept that an individual can be held liable for an attempt to commit a crime if their actions are closely related to the commission of that crime. This principle emphasizes the importance of the relationship between the defendant's conduct and the intended crime, where the closer the actions are to completing the crime, the more likely they are to be considered an attempt. It plays a crucial role in determining the culpability of individuals who take substantial steps toward committing a criminal act without necessarily completing it.
Sentencing: Sentencing is the legal process through which a judge determines the appropriate punishment for a person convicted of a crime. This process involves considering various factors such as the severity of the offense, the defendant's criminal history, and any mitigating or aggravating circumstances. It aims to achieve justice by balancing the need for punishment, deterrence, rehabilitation, and public safety.
State v. McGuire: State v. McGuire is a significant legal case that addresses the nuances of attempt in criminal law, particularly focusing on what constitutes a substantial step towards committing a crime. The case highlights how the actions of an individual can demonstrate an intention to commit a crime, even if the crime itself is not completed. This distinction is crucial for understanding the principles of attempt and the legal thresholds that must be met for prosecution.
Substantial Step: A substantial step refers to a significant action taken by an individual toward the commission of a crime, indicating that they are moving beyond mere preparation or contemplation. This concept is crucial in distinguishing between a mere intention to commit a crime and an actual attempt, which is necessary for legal accountability. The actions must be more than just symbolic; they should demonstrate a clear intent and commitment to carry out the criminal act.
Voluntary Abandonment: Voluntary abandonment refers to the intentional decision by a person to cease their criminal conduct before the crime is completed. This concept is crucial in understanding attempts, as it distinguishes between individuals who actively choose to withdraw from their criminal plans and those who are unsuccessful due to external factors. It emphasizes the importance of a person's state of mind and the voluntary nature of their decision to abandon their criminal intentions.