Actus Reus Attempt Test at Common Law

Probable Desistance Test

No attempt unless in ordinary course of events, actor has reached point where it is unlikely that he would have voluntarily desisted from his effort to commit the crime. Identify point of no return for ordinary person. Focuses more on what D has already done and likelihood that D will continue. Has D exhibited a dangerousness of character?

Indispensable Element Test

Has D obtained control over all indispensable elements of the offense? Actor who does not yet possess necessary instrumentality for crime has not crossed the line from preparation to perpetration. Must have control of indispensable feature of the criminal plan for an attempt to occur. Thus, if innocent third party must act, then no attempt until does so.

Physical Proximity Test

D's conduct must be proximate to the completed crime in that it must approach sufficiently near to it to stand either as the first step or some subsequent step in direct movement toward the commission of the offense after preparations are made. Must go so far that it would result in actual commission of the crime it was designed to effect, if not hindered by extraneous circumstances. How much conduct remains to be done?

Unequivocality Test

Does D's act speak for itself? Could we know D's intention by looking at conduct? Objective. Act does not constitute criminal attempt until it ceases to be equivocal. Person's conduct, standing alone, manifests criminal intent.

Dangerous Proximity Test

Has D come dangerously close to completion? Person guilty of attempt when conduct is in dangerous proximity of success or when the act is so near to the result that the danger of success is very great. Consider: nearness of danger, greatness of harm and degree of apprehension felt, and seriousness of crime.