Ch. 6—Attempt
Attempt: an inchoate (incomplete) offense. Often punished similarly to the completed offense.
Why Punish Inchoate Offenses?
- Retribution? Deterrence? Incapacitation? — but the earlier in time liability attaches, the greater the risk of punishing those who would have desisted.
- The line: don't punish too early (innocent people, unprovable intent), don't wait too late (a completed harm).
Mens Rea (Common Law)
- Majority: specific intent to commit the target crime. (this is the exam rule)
- Extreme Minority: same mens rea required for the target crime (no more, no less), plus purposeful conduct.
- See State v. Maestas, 652 P.2d 903 (Utah 1982).
- Intent may be inferred from the circumstances—see People v. Gibson, 210 P.2d 747 (Cal. App. 1949).
Actus Reus — Where Does Preparation End and Attempt Begin?
- General Rule: attempt begins when preparation ends and perpetration begins.
- Proximity Tests (older / CL):
- Last Act: ∆ has done everything he intended, but the crime did not complete.
- Physical Proximity: was ∆'s act sufficiently proximate to the completed crime?
- Dangerous Proximity: how serious is the social apprehension created? (See People v. Rizzo, 158 N.E. 888 (N.Y. 1927).)
- Indispensable Element: anything missing that is necessary to the crime?
- Substantial Step Tests (modern / MPC):
- Probable Desistance: would ∆ have completed the crime without interference?
- Abnormal Step: would a reasonable person have stopped before this point?
- Res ipsa loquitur: are we certain of ∆'s intent based on the acts?
- MPC § 5.01: ∆ must take a "substantial step" strongly corroborative of criminal purpose. Punishes attempts much earlier than CL approaches.
- See Commonwealth v. Peaslee, 59 N.E. 55 (Mass. 1901) and U.S. v. Jackson, 560 F.2d 112 (2d Cir. 1977).
Subtopics
Cases
- State v. Maestas, 652 P.2d 903 (Utah 1982) — mens rea standard.
- People v. Gibson, 210 P.2d 747 (Cal. App. 1949) — intent inferred from circumstances.
- Commonwealth v. Peaslee, 59 N.E. 55 (Mass. 1901) — actus reus; "very near."
- People v. Rizzo, 158 N.E. 888 (N.Y. 1927) — dangerous proximity.
- U.S. v. Jackson, 560 F.2d 112 (2d Cir. 1977) — substantial step / last proximate act.
- State v. Workman, 584 P.2d 382 (Wash. en banc 1978) — abandonment.
- State v. Guffey, 262 S.W.2d 152 (Mo. App. 1953) — legal impossibility.
- State v. Curtis, 603 A.2d 356 (Vt. 1992) — modern attempt; impossibility rejected.
- People v. Dlugash, 363 N.E.2d 1155 (N.Y. App. 1977) — factual impossibility & belief.
Reading: pp. 257–60, 262–67, 269–75, 278–80, 284–91.