§ 20.01   Attempt, Generally

 

A criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense.  Criminal attempts are of two varieties: "complete" (but "imperfect"); and "incomplete." A complete, but imperfect, attempt occurs when the defendant performs all of the acts that he set out to do, but fails to attain his criminal goal.  In contrast, an incomplete attempt occurs when the defendant does some of the acts necessary to achieve the criminal goal, but he quits or is prevented from continuing, e.g., a police officer arrives before completion of the attempt.

 

§ 20.02   Mens rea of Criminal Attempts

 

[A]  General Rule – The defendant must intentionally commit the acts that constitute the actus reus of an attempt, i.e., acts that bring him in proximity to commission of a substantive offense or which otherwise constitute a substantial step in that direction, and  he must perform these acts with the specific intention of committing the target crime. An attempt is a specific-intent offense, even if the substantive crime is a general-intent offense.

 

[B]  "Result" Crimes – When the target crime is a "result" crime, the general rule is that a person is not guilty of an attempt unless his actions in furtherance of the target crime are committed with the specific purpose of causing the unlawful result. 

 

§ 20.03   Actus reus of Criminal Attempts

 

Courts have developed a number of tests to determine the point at which a defendant passes beyond the preparation stage and consummates the criminal attempt.

 

 

§ 20.04   Defense of Impossibility

 

[A]  General Rule – At common law, legal impossibility is a defense; factual impossibility is not.  However, today, most jurisdictions no longer recognize legal impossibility as a defense.

 

[B]  Factual Impossibility – "Factual impossibility" exists when a person’s intended result constitutes a crime, but he fails to consummate the offense because of an attendant circumstance unknown to him or beyond his control. Examples of factual impossibility are a pickpocket putting his hand in the victim’s empty pocket; shooting into an empty bed where the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at a person.

 

[C]  "Inherent" Factual Impossibility – Although largely academic, the doctrine of inherent factual impossibility has been recognized as a statutory defense in at least one state (Minnesota). Where recognized, the defense applies if the method to accomplish the crime was one that a reasonable person would view as inadequate to accomplish the criminal objective.

 

[D]  Pure Legal Impossibility – "Pure legal impossibility" arises when the law does not proscribe the result that the defendant seeks to achieve.

 

[E]  Hybrid Legal Impossibility – Hybrid legal impossibility (or "legal impossibility") exists if the defendant’s goal is illegal, but commission of the offense is impossible due to a factual mistake (and not simply a misunderstanding of the law) regarding the legal status of an attendant circumstance that constitutes an element of the charged offense, e.g., receiving unstolen property under the belief that such property was stolen, or shooting a corpse believing it is alive.  Today, most states have abolished the defense of hybrid legal impossibility on the theory that a defendant’s dangerousness is plainly manifested in such cases.

 

§ 20.05   Defense: Abandonment

 

Many courts do not recognize the defense of abandonment.  Where recognized, it applies only if the defendant voluntarily and completely renounces his criminal purpose.  Abandonment is not voluntary if the defendant is motivated by unexpected resistance, the absence of an instrumentality essential to the completion of the crime, or some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense, or if the defendant merely postpones the criminal endeavor until a better opportunity presents itself.

 

§ 20.06   Model Penal Code

 

[A]  Elements of the Offense – Generally speaking, a criminal attempt under the Code contains two elements: (1) the purpose to commit the target offense; and (2) conduct constituting a "substantial step" toward the commission of the target offense.

 

[B]  Mens rea – In general, a person is not guilty of a criminal attempt unless it was his purpose, i.e., his conscious object, to engage in the conduct or to cause the result that would constitute the substantive offense.  A person is likewise guilty of an attempt to cause a criminal result if he believes that the result will occur, even if it were not his conscious object to cause it. [MPC §5.01(1)(b)]

 

The mens rea of "purpose" or "belief" does not necessarily encompass the attendant circumstances of the crime. For these elements, it is sufficient that the defendant possesses the degree of culpability required to commit the substantive offense.

 

[C]  Actus reus – The Code shifts the focus of attempt law from what remains to be done, i.e., the defendant’s proximity to consummation of the offense, to what the defendant has already done. Subsection 5.01(1)(c) provides that, to be guilty of an offense, a defendant must have done or omitted to do something that constitutes a "substantial step in a course of conduct planned to culminate in his commission of the crime."

 

Section 5.01(2) provides a list of recurrent factual circumstances in which a defendant’s conduct, if strongly corroborative of his criminal purpose, "shall not be held insufficient as a matter of law," including lying in wait; searching for or following the contemplated victim of the crime; reconnoitering the contemplated scene of the crime; unlawful entry into a structure or building in which the crime will be committed; and possession of the materials to commit the offense, if they are specially designed for a criminal purpose.

 

[D]  Attempt to Aid – Under § 5.01(3), a person may be convicted of a criminal attempt, although a crime was neither committed nor attempted by another, if:

 

 

[E]  Hybrid Legal Impossibility – There is no defense of hybrid legal impossibility under MPC §5.01(1).

 

[F]  Pure Legal Impossibility – The Code does not expressly address the defense of pure legal impossibility.

 

[G]  Renunciation (Abandonment) – Under the Code, a person is not guilty of an attempt if: (1) he abandons his effort to commit the crime or prevents it from being committed; and (2) his conduct manifests a complete and voluntary renunciation of his criminal purpose. [MPC § 5.01(4)]  Under this provision, renunciation is not complete if it is wholly or partially motivated "by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim" or if motivated by "circumstances . . . that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose."