Attempt

Question 1

Attempt

Answer 1

A criminal attempt occurs when a person, with the intent to commit an offense, takes a substantial
step, beyond mere preparation, and toward commission of the offense.

This is a theory criminal liability; there is not separate crime of attempt.

This is an inchoate offense: A crime committed while an actor is trying to complete another criminal objective.

Question 2

Actus Reus

Answer 2

Proximity test (common law); or

Substantial step test (MPC)

Question 3

Mens Rea

Answer 3

Actor must intentionally commit the acts that constitute the actus reus of an attempt; and

Must perform those acts with the intention that is required by the target offense.

Question 4

Attempt is a

Answer 4

specific attempt crime

Question 5

Specific Intent

Answer 5

Definition of the crime expressively includes an intent or purpose to do some future
act or to achieve some future consequence; or

Provides that the actor be aware of a statutory attendant circumstance

Question 6

General Intent

Answer 6

Definition does not include any specific intent

Question 7

Common Law: Actus Reus Tests

Answer 7

Physical Proximity: Whether D committed an overt act that was proximate to the completed crime or directly tending
toward the completion of the crime (commencement).

Dangerous Proximity
Whether an act is so near to the result that the danger of success is very great.

Indispensable element
Whether there is an element of the crime that the D has not acquired control over.

Probable desistence
Whether D’s conduct will result in the crime intended without interruption from an outside
source.

Abnormal Step
Whether D’s conduct has gone beyond the point where the normal citizen would think better of
his conduct and desist.

Res ipsa loquitor / unequivocally test
Whether D’s conduct manifests an intent to commit a crime.

Question 8

MPC § 5.01: Attempt

Answer 8

Definition of Attempt
a.
Purposely engaged in conduct that would constitute the crime if the attendant circumstances
were as he believes them to be; or
b.
When causing a particular result is an element of the crime, does or omits to do anything with
the purpose of causing or with the belief that it will cause such result without further conduct on
his part; or
c.
Purposely does or omits to do anything that, 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.

Question 9

MPC Attempt

Answer 9

Conduct That May Be Held Substantial Step Under Subsection (1)(c)

Lying in wait
Enticing or seeking to entice contemplated victim to go to place of crime for its commission
Reconnoitering the place of possible crime
Unlawful entry of a structure
Possession of materials to be employed…that can serve no lawful purpose under the
circumstances

Possession, collection, fabrication of materials to be employed
Soliciting an innocent agent to engage in the conduct constituting an element of the crime.

Question 10

TPC § 15.01: Criminal Attempt

Answer 10

A person commits an offense if, with specific intent to commit an offense, he does an act amounting
to more than mere preparation that tends but fails to effect the commission of the offense intended.

Question 11

Abandonment

Answer 11

MPC accepts renunciation as a defense
○
Must be “a complete and voluntary renunciation” (not motivated by probability of detection).
Instituted to give potential criminals an incentive to abandon the crime.*

Question 12

Impossibility

Answer 12

Factual Impossibility (not a defense at common law)
○
When a person’s intended end is a crime, but he fails to consummate the offense because of an
attendant circumstance unknown to him or out of his control.
*
Legal Impossibility (proper defense at common law)
○
When “a person commits a lawful act with a guilty conscience.”
MPC and many jurisdictions no longer recognize legal impossibility as a defense.*