8.1 Attempt
The Model Penal Code disallows factual impossibility as a defense by stating that conduct is an attempt when the defendant
"purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be"
Rex v. Scofield (1784)
One of the first documented cases of attempt Scofield, a servant was convicted of a misdemeanor for attempting to burn down his master's house with a lighted candle
In general, there are two types of attempt statutes
Some states have general attempt statutes that set forth attempt elements and apply them to any criminal offense Other states and the federal government have specific attempt statutes that define attempt according to specified crimes, such as murder, robbery, or rape
a defendant's criminal intent can transfer from the intended victim to the
actual victim in some jurisdictions
Many jurisdictions allow a defendant who voluntarily abandons the planned offense to use this abandonment as an
affirmative defense to attempt
the crux of any attempt case is how close to completing the offense the defendant must get to fulfill the
attempt criminal act requirement
Other jurisdictions punish attempt the same as the _____________, with exceptions for certain specified crimes
attempted offense
If the intent is transferred, the defendant may be criminally responsible for the
consummated offense against the eventual victim and for attempt against the intended victim
Under res ipsa loquitur or unequivocality, the trier of fact must determine that at the moment the defendant stopped progressing toward completion of the offense, it was clear that the
defendant had no other purpose than commission of the specific crime at issue.
probable desistance test
examines how far the defendant has progressed toward commission of the crime, rather than analyzing how much the defendant has left to accomplish.
if the prosecution fails to prove beyond a reasonable doubt that the defendant acted purposefully with intent to commit the crime attempted, this could operate as a
failure of proof defense
Attempt, conspiracy, and solicitation are considered
inchoate crimes
substantial steps test
intended to clarify and simplify the attempt act analysis, to prevent arbitrary application
The criminal intent element required for attempt in the majority of jurisdictions is the
specific intent or purposely to commit the crime at issue
The voluntary abandonment defense gives defendants incentive to
stop progressing toward consummation of the offense and prevents the crime from occurring without the need for law enforcement intervention.
Attempt merges into the crime if
the crime is completed in many jurisdictions, which means that the defendant cannot be charged with attempt and the completed crime
factual impossibility
the defendant could not complete the crime attempted because the facts are not as he or she believes them to be
affirmative defense to attempt has two parts
the defendant must have a change of heart that is not motivated by an increased possibility of detection, or a change in circumstances that make the crime's commission more difficult the abandonment must be complete and cannot simply be a postponement
The substantial steps test has two parts
the defendant must take substantial steps toward completion of the crime the defendant's actions must be "strongly corroborative of the actor's criminal purpose"
The res ipsa loquitur test, also called the unequivocality test, analyzes
the facts of each case independently
The Model Penal Code developed the substantial steps test in response to
the large variance between different jurisdictions in evaluating the criminal act element required for attempt
Res ipsa loquitur means
the thing speaks for itself
Inchoate
just begun, incipient, in the early stages
Inchoate crimes can be
left unfinished, or incomplete
Legal impossibility
the defendant believes what he or she is attempting to do is illegal, when it is not
Rex v. Higgins
upheld an indictment for attempted theft and firmly established the crime of attempt in English jurisprudence
Along with failure of proof defenses to the criminal act and criminal intent elements, _______________________ can also function as affirmative defenses to attempt in many jurisdictions
legal impossibility and voluntary abandonment
Two types of impossibility defenses exist:
legal impossibility, factual impossibility
The difficulty in holding a defendant accountable for an inchoate or incomplete crime is ascertaining the
level of progress necessary to impute criminal responsibility, which is especially daunting with attempt, because in every instance the crime is left unfinished
Jurisdictions vary as to how they grade attempt. Some jurisdictions follow the common law and grade attempt
lower than the completed offense
the Model Penal Code provides seven examples of actions that constitute substantial steps, as long as they are corroborative of the defendant's intent. The seven examples are
lying in wait; enticing the victim to go to the scene of the crime; investigating the potential scene of the crime; unlawfully entering a structure or vehicle where the crime is to be committed; possessing materials that are specially designed for unlawful use; possessing, collecting, or fabricating materials to be used in the crime's commission; and soliciting an innocent agent to commit the crime
proximity test
measures the defendant's progress by examining how close the defendant is to completing the offense
Some states have statutes criminalizing behavior that would be considered ___________ under any of the four attempt act tests.
preparatory
The rationale supporting punishment for an inchoate crime is
prevention and deterrence
Jurisdictions use four tests to ascertain whether the defendant has committed the attempt criminal act:
proximity test, res ipsa loquitur test, probable desistance test, and the Model Penal Code's substantial steps test.