3.1 Attempt

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 substantial step beyond mere preparation. Courts must carefully evaluate the proximity to the completed crime and consider defenses like abandonment or impossibility when determining attempt liability.

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 mens rea (guilty mind) and actus reus (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

• Factual impossibility 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)
• Legal impossibility 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

• Voluntary abandonment is a complete defense if it is not motivated by external factors (crisis of conscience)
• Involuntary abandonment 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 sentencing 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

• Conspiracy 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