Criminal Law Outline - Attempt

  1. ** Quick and Dirty Attempt **

    • Mens Rea in MPC
      • Same level of culpability as required by the underlying offense.
      • Intent to commit an overt act in furtherance of the crime.
    • Actus Reus in MPC
      • If incomplete attempt (D does some of the acts then desists or is prevented from continuing by extraneous factor)
        • Purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      • If complete attempt (D does every act planned but fails to bring about the desired result)
        • If result element involved…
          • Does or omits to do anything with the purpose of causing or with belief that it will cause such result without further conduct on his part.
        • If attendant circumstance involved…
          • Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be
    • Impossibility Defense for Attempt
      • Pure legal impossibility
        • Bars attempt liability
        • Exists if law does not prohibit D's conduct or result that he has sought to achieve
      • Hybrid legal impossibility
        • Does not bar attempt liability
        • Exists if D's goal was illegal but commission is impossible due to factual mistake regarding legal status of some attendant circumstance that constitutes an element of offense.
    1. Rationale
      1. For Incomplete Attempts
        1. Interventionist view: Provide a basis for law-enforcement officers to intervene before an individual can commit a completed offense.
        2. Deterrence view: D is inclined towards committing these acts, and punishment will stop him from committing them in the future.
        3. Harm-based retributivist view: No harm has actually been caused, unless you count the fear caused by the intent to commit the crime and the preliminary acts taken by D.
        4. Intent-based retributivist view: Once D has gone far enough in action with the settled purpose to commit a substantive offense, criminal liability is just and socially fair.
        5. Consequentialist view: D with a dangerous disposition is worthy of intervention since it prevents future harm.
      1. For Complete Attempts
        1. Interventionist view: Act has already been completed, so intervention is possible.
        2. Deterrence view: Because a D cannot be convicted of attempt and the completed offense, deterrence is hard to argue as a justifying aim for attempt liability.
        3. Harm-based retributivist view:
          1. Better argument for complete than incomplete since more fear has probably been caused by the acts.
          2. Also, for complete attempts that do cause some injury, harm has been caused, although not the extent of harm for which D is punished.
        1. Intent-based retributivist view: D has done everything planned. Just because D failed because of a "fortuity" does not mean he should be exculpated. There is no moral distinction between the two.
        2. Consequentialist view: D has shown willingness to bring about a prohibited consequence. The fact that he failed does not change the danger and the necessity for punishment.

     

    1. Punishment for Attempt/Merger
      1. Merger doctrine for attempt - D cannot be convicted of both a completed offense and an attempt to commit it.
      2. Punishment
        1. Old common law set punishment for attempt lower than punishment for completed crimes.
        2. MPC (5.05(1)) sets penalty for attempt on par with penalty for completed offense.
          1. Rationale - there is little difference between the two actors and their need for corrective sanctions.
          2. Exception - for capital crimes or felonies of the first degree, attempt is bumped down to second degree.
             
    1. Mens Rea Requirement
      1. Traditionally (non-MPC)
        1. Two-fold intent is required…
          1. Specific intent to commit the underlying offense.
          2. Intent to commit the overt act in furtherance of the crime. (the substantial step must be done intentionally)
        1. Implications of the two-fold intent
          1. The underlying offense must be one of a nature that can be done intentionally.
            1. Ex. People v. Gentry
              1. Boyfriend doused girlfriend with gas, she caught on fire but lived.
              2. Attempt statute: "with the intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense."
              3. No attempted murder since there was no specific intent to kill. Reckless or knowledge only.
            1. Ex. Bruce v. State
              1. Armed robbery, gun went off, wounded man. Charged robber with attempted felony murder.
              2. Attempt statute: "specific intent to commit the offense coupled with some overt act in furtherance of the intent which goes beyond mere preparation."
              3. No attempted felony murder since there is no intent requirement in felony murder.
                 
      1. MPC
        1. Two part inquiry for MR...
          1. D must act with the kind of culpability required for commission of the crime.
          2. AND
            1. If RESULT offense: D must have Intent/purpose to commit the overt act in furtherance of the crime.
            2. If CONDUCT/ATTENDANT CIRCUMSTANCE offense: D must purposely engage in conduct that would constitute the crime if the attendant circumstances were as he believes them to be.
        1. Applying MPC two part inquiry
          1. Ex. People v. Gentry
            1. Boyfriend doused girlfriend with gas, she caught on fire but lived.
            2. D could probably pass the first part, probably had MR of depraved indifference or R required by the crime.
            3. However, this is a result offense, so D must act with the purpose of causing or with the belief that he will cause the result.
            4. D did not act with purpose toward the commission of the crime; he did not intend to kill his girlfriend. No MPC attempt liability.
          1. Ex. Bruce v. State
            1. Armed robbery, gun went off, wounded man. Charged robber with attempted felony murder.
            2. D could probably pass first part since no MR is required for FM.
            3. However, this is a result offense. D must act with P/K toward the result.
            4. D did not P/K kill. No MPC attempt liability.
          1. Ex. Attempted Statutory Rape
            1. D could probably pass first part since no MR is required for statutory rape.
            2. This is a conduct/AC offense. So, D must purposefully engage in conduct that would constitute the crime if the ACs were as D believed them to be.
              1. If D thinks V is less than required age, then could be MPC attempt liability.
              2. If D is stopped before he succeeds (incomplete offense), result is the same.
          1. Ex. Bombing a Building (Attempted Murder?)
            1. D intends to bomb building. Knows people are inside, believes they will die, but does not intend their deaths. Bomb doesn't go off.
            2. D could probably pass first part since D had I/K toward the murder.
            3. This is a result offense, so D must act with the purpose of causing or with the belief that it will cause such result. D believed people would die, so liable under MPC for attempted murder.

     

    1. Act Requirement
      1. Incomplete
        1. Definition: D does some of the acts that he set out to do then desists or is prevented from continuing by an extraneous factor (like police intervention)
          1. In deciding whether an act constitutes an attempt, courts (and police) have a high level of discretion. Courts analyze the law and policies and decide whether the act should be punished.
        1. Common law approaches to finding adequate actus reus.
          1. Physical Proximity doctrine
            1. The overt act required must be proximate to the completed crime, or directly tending toward the completion of the crime, or must amount to the commencement of the consummation.
          1. Dangerous proximity doctrine
            1. The greater the gravity and probability of the offense and the nearer the act to the crime, the stronger the case for calling the act an attempt
            2. Ex. People v. Rizzo
              1. Ds tried to find V to rob him but could not find him. Police intervened and charged attempted robbery.
              2. Held that no attempt at robbery could be made unless V was close or his location was known to Ds.
            1. Ex. Commonwealth v. Peaslee
              1. D arranged combustibles in a way that if they were lighted they would have burnt the building. On the way to light them, he changed his mind.
              2. Court said that a mere collection of materials unaccompanied by any intent to set fire to them, is too remote. D must be shown to have intent.
              3. However, pleading failed to allege that D had solicited help from another man, who had refused. This would have shown the intent and been a substantial step.

     

    1. Indispensible element test
      1. The act must be an indispensible aspect of the criminal endeavor. (no acts constitute an attempt if D lacks a means essential to the completion of the offense)
      2. Ex. Life Insurance Fraud - If A plans to fake his own death to defraud insurance company and B must file the claim as beneficiary, acts of A do cannot constitute an attempt until B agrees to file a claim.
    1. Probable desistance test
      1. An act is sufficient if, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended.
    1. The abnormal step approach
      1. An act constituting an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist.
    1. The res ipsa loquitur test
      1. An act constituting an attempt is committed when the actor's conduct manifests an intent to commit a crime.

     

    1. MPC
      1. MPC rejects all of the above tests and looks at evidence of steps taken to show intent. Emphasizes culpability and MR.
      2. A person is guilty of attempt if acting with the kind of culpability otherwise required for commission of the crime if he purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      3. The following are not insufficient as a matter of law to show substantial step (in other words, these can send it to a jury at least)
        1. Lying in wait, searching for or following the contemplated victim of the crime.
        2. Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission.
        3. Reconnoitering the place contemplated for the commission of the crime.
        4. Unlawful entry of a structure , vehicle, or enclosure in which it is contemplated that the crime will be committed.
        5. Possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances.
        6. Possession, collection, or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection, or fabrication serves no lawful purpose of the actor under the circumstances.
        7. Soliciting an innocent agent to engage in conduct constituting an element of the crime.

     

    1. Complete
      1. Definition - D does every act planned but is unsuccessful in producing the intended result.
      2. MPC
        1. A person is guilty of attempt if acting with the kind of culpability otherwise required for commission of the crime if he…
          1. Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be OR
          2. When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with belief that it will cause such result without further conduct on his part.

     

    1. Renunciation under the MPC
      1. It is a defense if D abandons his effort to commit the crime or otherwise prevents its commission.
      2. The circumstances must manifest a complete and voluntary renunciation of criminal purpose.
        1. Renunciation is not voluntary if it is motivated, in whole or in part, by circumstances the actor was not aware of when he started his course of conduct that
          1. Increase probability of detection or apprehension OR
          2. Make the accomplishment of the criminal purpose more difficult.
        1. Renunciation is not complete if
          1. It is motivated by a decision to postpone the criminal conduct until a more advantageous time OR
          2. To transfer the criminal effort to another but similar objective or victim.
      1. Renunciation does not absolve an accomplice of liability if the accomplice does not also abandon or prevent the commission.

     

    1. Defense of Impossibility
      1. Factual Impossibility (Non-exculpatory)
        1. D's intended end constitutes a crime by D fails to consummate it because of a factual circumstance unknown to D or beyond D's control.
        2. Ex. D prosecuted for attempted murder after pointing gun at V's head and pulling trigger thinking the gun is loaded.
      1. Hybrid Legal Impossibility (Non-exculpatory)
        1. Exists if D's goal was illegal but commission is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense.
        2. Example - D sells cigarettes to 17 year old, believing it a crime to sell to people 16 and under.
        3. People v. Thousand
          1. D chatted with police officer over Internet thinking it was a 14 year old girl. D planned to meet her for sex was arrested instead.
          2. Guilty of attempted sex crimes on a minor since goal was illegal, just factual mistake about the identity of the chat partner.
      1. Pure Legal Impossibility (Exculpatory) (Mistake of Law)
        1. Exists if the law does not prohibit D's conduct or the result that he has sought to achieve, but D thinks it is criminal.
        2. Example - D sells cigarettes to a 19 year old, believing it is a crime to sell to people under 20. Not against the law, no attempt.
        3. Why pure legal impossibility is not prosecuted…
          1. Evidentiary issue - no objective evidence, could inculpate some who were not thinking as we believed they were
          2. Enforcement issue - too much discretion on who and how often to prosecute
      1. Chart

     

     

    Mistake of Law

    Mistake of Fact

    Inculpate
    1. "Hybrid" Legal Impossibility

      2. Ex: V is 17, D thinks law is can sell cigarettes to <16, but law is <18.

      Mistake of Law no excuse, unless it is read like Cheek stat + requires knowledge of illegality
    1. Factual impossibility (attempt only)

      2. Ex: Law is no sale for <18, D thinks V is 17, but V is 19.

      Ex: Smuggler thinks he is smuggling cocaine, but it is really baby powder.

    Exculpate
    1. "Pure" Legal Impossibility/M of L exceptions (Cheek)

      2. Ex: No sale of cigs to <18, D thinks law is <19, V is 18. D intends to break law, but M of L means he doesn't.
    1. Mistake of Fact (when error of fact means no MR)

      2. Ex: D sells to V, who is 17; ID says 19, D thinks V is 19. Law is no sale to <18