Criminal Law - Attempt

Attempt Elements include:

1) Specific Intent 2) Enters Zone of Perpetration

Impossibility Defense to Attempt

As a general rule, impossibility is a defense to attempt liability, but only if the impossibility is considered legal impossibility and not factual impossibility.

Impossibility - Factual Impossibility

Factual impossibility is not a defense to attempt. Factual impossibility is where the defendant thinks facts are such that he or she could commit the crime, but the defendant cannot. Ex. Defendant goes to pick pocket someone, but there is nothing in the pocket. The defendant thought there was something in the pocket, so the facts are such that the defendant thought he could commit the crime, but in actuality, there was nothing in the pocket. Here, defendant would be guilty of attempted larceny, not larceny because he didn't steal anything.

Impossibility - Legal Impossibility

Legal impossibility is a defense when the Defendant believes he is committing a crime that is not prohibited by law. Ex. Defendant enters into a sale with a victim to sell weed, but in all actuality, the bag contains oregano. Defendant sells the bag and collects the money and completes the sale. Even though he had the intent, defendant did not complete any crime by selling a bag of oregano.

Attempt Merges

Once the defendant completes the crime, it merges into the completed crime.

Enters Zone of Perpetration

The accused must have been in the zone of perpetration. The courts will interpret the perpetration period as beginning when the felons have gone far enough to be guilty of attempt somewhere on their way to the location to commit the felony, and the felony ends for during the perpetration purposes once the felons reach a place of apparent (to them) safety.

Specific Intent

The intent required for attempt liability is the requirement that the defendant specifically intended to bring about a criminal result.

Attempt defined

The majority rule is where a criminal defendant enters the zone of perpetration or commission (not preparation of the crime) of the crime, but doesn't complete the crime. Under common law, attempt is where the defendant became dangerous close to completely the crime.