Module 11 - Attempt and Solicitation

Attempt: Rule

A defendant is guilty of attempt if he

1. intends to commit the target (substantive) offense and

2. takes an act beyond mere preparation toward committing it, whether or not he succeeds

Suppose Defendant succeeds in taking out the crime. Can a Defendant be liable for both the crime and the attempt?

No, the attempt merges with the completed crime

Suppose the state fails at proving the completed crime. What can the prosecution do?

Attempt is a lesser offense, so jury can still convict of attempt

True or false: The act itself may be lawful (e.g. buying a crowbar).

True

In terms of policy, why do we have Attempt Law?

1. Let police stop crimes before harm

2. Punish people who have shown through their actions that they have criminal intent and are dangerous

3. A clumsy/unlucky criminal shouldn’t escape punishment (e.g. gun jams bullet misses)

These are the phases of a crime:

1. Conception (e.g., “What if I robbed the bank?”).

2. Evaluation (e.g., “If I wear a mask, there’s a 10% chance I’m caught. Is it worth it?”).

3. Resolution (e.g., “Okay, I’m going to do it.” Intent forms; thought alone is not a crime).

4. Commencement (e.g., gets a mask and gun, drives to the bank).

5. Completion (e.g., the teller hands over the money and he takes it).

Where does Attempt fit in?

Between Commencement and Completion

Thanos plans to kill all of civilization by snapping his fingers with powerful stones. He snaps, but since the stones were fake, the result doesn’t occur. Did Thanos attempt murder?

Yes. This is a complete but imperfect attempt. D does everything but the harm does not occur.

Defendant is walking into the bank with his gun planning to rob the bank. A security guard tases him and says, “Stop right there!” The security guards restrain him to the ground.

Did Defendant attempt robbery despite being stopped partway?

Yes

Attempt: Required Mens Rea (Common Law)

Attempt is ALWAYS a specific intent crime:

1. intent to do the act/step (voluntary, not a reflex or seizure);

2. specific intent (purpose) to commit the target offense.

Attempt requires intent. How does that intent differ depending on whether its a result or conduct based crime?

Result crimes (e.g., murder): purpose aimed at the result (e.g., shoot to kill and miss = attempted murder).
Conduct crimes (e.g., reckless driving): purposeful steps toward the conduct + the statute’s mental state (e.g., a blindfolded driver stopped before moving).

Can crimes that require recklessness (e.g. depraved heart murder), negligence (involuntary manslaughter), or felony murder be attempted?

No, because you need intent

a blindfolded woman fires into a room not caring whether she hits anyone. No one dies. Is she guilty of attempted murder?

No. No intent to kill.

Attempt: Required Mens Rea (MPC)

For conduct and the result: purpose (even if strict liability)

For attendant circumstances: whatever mens rea the target crime requires (even if strict liability)

Statute: It is a crime to knowingly sell drugs to anyone under 18 during the day. At noon, Defendant approaches a boy in a middle school uniform, holding drugs and a Square card reader, and says, “You want some?” Police arrest him before the sale.

1. Under the MPC, what mens rea does Defendant need for the prosecution to prove Attempt?

2. Under the MPC, is this an attempt?

1. Conduct: purpose. He purposely tried to sell drugs.
   Attendant circumstances: knowledge, as the statute requires. He knew the boy was under 18 (the uniform) and that it was daytime.

2. Yes. Holding the drugs and a card reader while offering them is likely a substantial step.

Bruce v. State:

Bruce, masked and armed, and two others entered Barry Tensor’s shoe store. Finding the register empty, Bruce pointed the gun at Tensor’s face and said, “I’m going to kill you”; Tensor ducked and bumped into him, and Bruce shot him in the stomach (five weeks in the hospital).

Did Bruce commit attempted felony murder?

No. “Attempted felony murder” is a logical impossibility.

Attempt requires specific intent, and felony murder requires no intent to kill.

People v. Gentry:

After drinking all afternoon, Gentry and his girlfriend, Ruby Hill, argued. He spilled gasoline on her, and it ignited when she was next to the stove.

D smothered the flames with a coat, but she was severely burned.

The jury was instructed on all four mental states for murder (intent to kill or do great bodily harm, knowledge that acts will cause death, or knowledge of a strong probability of death or great bodily harm).

Were the trial court’s instructions correct?

No. Attempted murder requires specific intent to kill; the other mental states let the jury convict without it.

Attempt: Actus Reus Rule

The act must go beyond mere preparation

What are the different tests for determining whether the Attempt’s Actus Reus is enough?

1. Last Act

2. Physical Proximity

3. Dangerous Proximity (Holmes)

4. Indispensable Element

5. Probable Desistance

6. Unequivocality (res ipsa loquitur)

7. Substantial step (MPC)

Last Act Test: Rule

D is guilty only after doing the very last act needed (e.g. pulling the trigger) (no longer used)

Physical Proximity Test: Rule

Conduct so close (in place and time) that the crime would happen almost immediately but for outside intervention

(e.g. Burglar inside the house heading toward the victim)

Dangerous Proximity Test: Rule

D is so near completion that the crime would have probably occurred but for timely interference.

Courts weigh the following: (GN-PP)

1. Gravity: e.g. death, the most serious harm.

2. Nearness: e.g. D is inside with his gun and seconds away from V.

3. Probability: e.g. V is home and the gun is loaded, so death is likely without interference.

4. Public fear: an armed home invasion is highly alarming to the community.

Indispensable Element Test: Rule

D has obtained every essential means (tool, third party’s consent) needed (e.g D buys the gun and the bullets).

Lets police act early.

Probable Desistance Test: Rule

Defendant has gone so far that a reasonable person would not turn back unless interrupted

Unequivocality Test: Rule

Res ipsa loquitur. Acts alone, (ignoring statements), unmistakably show the criminal purpose. The silent movie test.

Substantial Step: Rule

1) a substantial step towards the crime that 2) strongly corroborates criminal purpose.

Analyzes what has been done, not what remains.

People v. Rizzo:

Rizzo and three others, armed, planned to rob Charles Rao of a roughly $1,200 payroll for the United Lathing Company. They drove around New York City looking for Rao by visiting the bank and construction sites. The police were followed Rizzo.

Rizzo jumped out and ran into a building, and all four were arrested before they ever found or saw Rao.

Attempted robbery under the Dangerous Proximity test?

Rule: D is so near completion that the crime would have probably occurred but for timely interference.

Answer: No, Rizzo wasn’t so near completion because he was still searching for the victim. His acts were still preparation.

Commonwealth v. Peaslee:

Peaslee arranged combustibles in a building (a candle near a pan of turpentine) to burn it and defraud insurers. He offered to pay a young employee to light it and carry out the plan; the employee refused. Later, the two drove toward the building, but a quarter mile away, Peaslee changed his mind and drove off. Peaslee never personally attempted to light the candle or execute the plan himself.

Is Peaslee liable for Attempt under the Dangerous Proximity Test?

Rule: D is so near completion that the crime would have probably occurred but for timely interference.

Answer: No, he wasn’t. When further acts are reliant on a new decision (either by D or a third party), there is a possibility they will change their mind. They weren’t near accomplishment.

People v. Miller:

Somewhat drunk, Miller threatened to kill Albert Jeans at a post office. Later he walked into a hop ranch with a .22 rifle, heading directly toward Constable Ginochio (Jeans was about 30 yards beyond him). After about 100 yards, he stopped and appeared to load the rifle but never aimed it. Jeans fled upon seeing Miller. Miller kept walking toward Ginochio who disarmed him without resistance. The rifle was loaded.

Is Miller liable for Attempt under the Unequivocality Test?

Without his words, his acts were equivocal/open to more than one interpretation. He never aimed—maybe he was just exploring.

State v. Reeves:

Twelve-year-olds Tracie Reeves and Molly Coffman agreed to kill their homeroom teacher, Janice Geiger, with rat poison in her drink, then steal her car and drive to the Smoky Mountains (a high school student refused to drive).

Coffman brought the poison in her purse and showed classmate Christy Hernandez, who told a teacher.

Geiger found the girls leaning over her desk, giggling, with the purse beside her coffee cup.

Did Reeves attempt second degree murder under the Substantial Step test?

Yes. Possessing poison near the scene with no lawful purpose strongly corroborated intent.

What are the Impossibility Defenses to Attempt?

1. Factual Impossibility (NOT A VALID DEFENSE)

2. Pure Legal Impossibility

3. Hybrid Legal Impossibility

4. Inherent Factual

(depends on the jurisdiction)

Factual Impossibility: Rule

D is unaware of a fact prevents completion (pulling the trigger of an unloaded gun, picking an empty pocket)

Pure Legal Impossibility: Rule

The intended act is not a crime at all, though the defendant thinks it is

(e.g. Defendant, an immigrant from North Korea, thinks traveling abroad is illegal. Defendant goes to the airport attempting to travel. Can’t be guilty of attempt.)

Hybrid Legal Impossibility: Rule

D’s goal is illegal but a factual mistake makes his goal impossible. (e.g. D shoots a corpse who he thinks is alive)

Inherent Factual Impossibility: Rule

D employs means so absurd that no reasonable person would expect success

(e.g. D hates his neighbor V and wants him dead. Every night he sticks pins into a doll made to look like V, chanting a curse, fully believing it will kill V. V is unharmed.)

People v. Thousand:

Deputy William Liczbinski posed online as “Bekka,” a 14-year-old girl. Over several days Thousand sent sexually explicit messages and a photo of male genitals, invited her to his house, and arranged to meet at a McDonald’s, where he was arrested.