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.