Attempt
What is the Attempt?
Criminal attempt requires the specific intent to commit a crime and a substantial step toward its commission that goes beyond mere preparation. It is an inchoate offense that allows punishment before the target crime is completed.
Definition
Attempt is an inchoate offense that punishes a defendant who, with the specific intent to commit a crime, takes a substantial step toward completing that crime but fails to achieve the criminal objective. Attempt always requires specific intent, regardless of the mental state required for the target offense. For example, attempted murder requires the specific intent to kill, even though murder itself can be committed with other mental states such as extreme recklessness.
The central analytical challenge in attempt law is distinguishing mere preparation from a punishable attempt. Multiple tests have been developed. The common law "last act" test required the defendant to have done everything necessary to complete the crime. The "dangerous proximity" test, associated with Justice Holmes, asks how close the defendant came to completing the crime. The MPC's "substantial step" test, now dominant in most jurisdictions, requires conduct that is strongly corroborative of the defendant's criminal purpose and constitutes a substantial step toward the commission of the crime.
Legal impossibility is a defense to attempt, while factual impossibility is not. Factual impossibility exists when the defendant's intended crime could not be completed due to circumstances unknown to the defendant (e.g., picking an empty pocket). Legal impossibility exists when the defendant's intended act, even if completed, would not constitute a crime. Under the MPC, impossibility is largely eliminated as a defense, focusing instead on the defendant's intent and conduct. Attempt merges with the completed offense, meaning a defendant cannot be convicted of both attempt and the completed crime.
Key Elements
- 1Specific intent to commit the target crime
- 2A substantial step beyond mere preparation toward commission of the crime (MPC test)
- 3The substantial step must be strongly corroborative of criminal purpose
- 4The target crime was not completed
- 5Factual impossibility is not a defense; legal impossibility may be
Landmark Cases
People v. Rizzo
246 N.Y. 334 (1927)
Applied the dangerous proximity test and found no attempt where defendants searched for but never found their intended robbery victim
United States v. Jackson
560 F.2d 112 (2d Cir. 1977)
Applied the MPC substantial step test, finding attempt where defendants conducted reconnaissance and acquired tools for a bank robbery
People v. Dlugash
41 N.Y.2d 725 (1977)
Addressed the issue of attempting to kill an already-dead person, applying the factual impossibility rule
Commonwealth v. Peaslee
177 Mass. 267 (1901)
Justice Holmes articulated the dangerous proximity doctrine for criminal attempt
Exam Tips
- Remember that attempt always requires specific intent, even if the completed crime does not; you cannot attempt a reckless crime under traditional analysis
- Apply the substantial step test by looking for conduct strongly corroborative of criminal purpose, such as casing a location, acquiring tools, or lying in wait
- Distinguish between factual impossibility (not a defense) and legal impossibility (a defense at common law); under the MPC, neither is a defense
- Note that attempt merges with the completed crime, unlike conspiracy
Common Mistakes to Avoid
- Forgetting that attempt requires specific intent even for crimes that can be committed recklessly or negligently
- Confusing mere preparation with a substantial step; buying a weapon alone is usually preparation, but buying a weapon and traveling to the victim's location is more likely a substantial step
- Failing to recognize that abandonment or renunciation is a defense under the MPC if it is voluntary and complete, but not at common law
Memory Aid
"Intent plus a Substantial Step" -- two things you always need for attempt, no matter the target crime