Attempt

Under the common law it is a crime to attempt to commit any misdemeanor or felony. The basic components of attempt are:

1. a specific intent to commit a crime and
2. an act that takes a step toward completing the crime.

The intent or mens rea aspect of attempt has two elements to it. The first is that the defendant must have intent to commit an act that is necessary for the commission of a crime or an act that will result in the commission of the crime. The second is that the defendant must have the intent for the result of the crime itself. Keep in mind that this second element is missing from all crimes but specific intent crimes. To commit a crime of intent, a defendant must actually desire the criminal result to come about. See People v. Matthews, 258 N.E.2d 378 (Ill. 1970). For example:

Yogi is a homeless man who lives on the streets of Jellystone. During one particularly cold winter night Yogi decides to break into the basement of Mr. Ranger’s house and spend the night there. Yogi approaches Mr. Ranger’s house and begins to pry open a basement window but is arrested as he is doing so. In this case, Yogi cannot be convicted of attempted burglary. Attempted burglary requires both the intent to commit the acts that make up the burglary (which are the breaking and entering of the dwelling of another at night) and the intent necessary for the actual burglary which is the intent to commit a crime once inside the dwelling. Here, Yogi does satisfy the first element of the men’s rea test because he did intend to break and enter Mr. Ranger’s house at night. However, he did not meet the second element because he never intended to commit a crime once inside the house. In other words, Yogi intended to commit the acts constituting a burglary but he never intended to commit the actual burglary. Therefore, Yogi cannot be convicted of attempted burglary.

Most jurisdictions hold that there is no such thing as attempt to commit crimes that require a mens rea less than intent (ex. crimes committed through recklessness) for the simple reason that, by definition, you cannot attempt to be reckless. See State v. Dunbar, 817 P.2d 1360 (Wash. 1991). For example:

Luckless, upset over the fact that he has just been laid off, closes his eyes and throws a knife onto a crowded sidewalk. Luckily, the knife misses all the people on the sidewalk and lands harmlessly on the pavement. Had the knife injured or killed someone, Luckless could have been charged with homicide or assault because his action was clearly reckless. However, he can not be charged with attempted homicide or attempted assault because he did not specifically intend to hurt or kill anyone.

Even if the victim does sustain an injury through the defendant's reckless actions, there cannot be an attempted murder charge unless the defendant intended for the victim's death to result. For Example:

After helping the Boston Red Sox win their first World Series championship in eighty five years Ramon Garcia climbs to the top of the green monster in left field and in a fit of celebration begins to fling baseball bats down onto the crowd below. One of the bats hits a fan on the head fracturing his skull and severely injuring him. The fan is rushed to the hospital and remains in a near death state for the next two weeks. However, the fan eventually recovers. Had the fan died, Garcia could have been convicted of homicide because he acted with the awareness that his actions bore a high risk of death or serious injury to one of the fans below, which is enough to prove intent for homicide purposes. However, this mens rea is not enough for attempted murder. Attempted murder always requires the intent to kill. Here, Garcia did not have the intent to kill. He merely acted recklessly and there is no such thing as attempted recklessness.

As far as the actus reus element of attempt is concerned, what is required is the commission of an act that represents a step toward the committing of the crime. However, this step must be something beyond simple "preparation." See State v. Bereman, 276 P.2d 364 (Kan. 1954).

Although case law has established a number of different definitions as to what constitutes an act that progresses toward the commission of the crime, the most straightforward definition comes from the Model Penal Code which requires that 1) the act be a substantial step in the events that are supposed to result in the commission of the crime; and 2) that the act be strong evidence of the defendant’s criminal purpose. See United States v. Jackson, 560 F.2d 112 (2nd Cir. 1977).

The Model Penal Code goes on to list a number of acts that qualify as a "substantial step." They are 1) lying in wait for a victim; 2) luring a victim to the place where the crime will be committed; 3) staking out a place where the crime will be committed; 4) unlawfully entering the place where the crime will be committed; 5) the gathering of material that is necessary to commit the crime either at or near the place where the crime is going to be committed; and 6) soliciting another person to assist in the criminal activity. Please note, however, that if a defendant stakes out a number of different potential victims and never settles on a victim for the intended crime, he cannot be convicted of attempt because the staking out does not constitute the necessary act. For example:

Mitch has decided to rob one of the banks in Grand Cayman. Grand Cayman has six banks and Mitch drives around, staking out each one of the six banks. However, he decides, after looking around, that it would be too hard to rob any of the banks and abandons his plan. In this case, Mitch cannot be convicted of attempted robbery because the fact that he never identified a specific target of his crime means that his actions have not gone far enough to constitute attempt. See People v. Smith, 593 N.E.2d 533 (Ill. 1992).

There are several possible defenses that can be employed if a defendant is charged with an attempt to commit a crime. The first is impossibility. In a situation where the defendant believes he can commit a crime but, for reasons that are not known to him, it is impossible to actually commit the crime, actions that would ordinarily be enough for a conviction may, in some circumstances, not constitute attempt because of the impossibility of actually committing the crime.

The general rule is that if the impossibility is a "legal" impossibility, the defendant can mount an impossibility defense. However, if the impossibility is only a "factual" impossibility he cannot mount the defense. See People v. Dlugash, 41 N.Y.2d 725 (1977).

Legal impossibility is basically where the defendant sets out to commit an act that he thinks is criminal. However, his actions are not, in fact, illegal. In this case the defendant’s misunderstanding concerns the law itself. In other words he mistakenly believes that the law criminalizes his actions when in fact it does not. In such a case the defendant will be able to mount an impossibility defense. For example:

The city of Kingston has passed a law allowing the free use of marijuana. The law is to go into effect on April 1st and, as of April 1st, the use and sale of marijuana will be legal. Bob is under the mistaken impression that marijuana will only be legalized on May 1st. Nevertheless on April 15th, believing that his actions are criminal, Bob sells marijuana to Peter. In this case, Bob is not guilty of attempt to sell marijuana because he can mount an impossibility defense. The reason for this is that it is legally impossible to commit the crime he was trying to commit. In this case, Bob’s mistake was in regard to the law itself. Bob set out to commit a criminal act by selling marijuana but, because of his misunderstanding the law, his actions were in fact legal. Since it was clearly legally impossible for Bob to commit the crime he attempted to commit, he has a viable impossibility defense in this case.

Factual impossibility is where the defendant sets out to commit an act that, if successful, would constitute a crime but, because of certain factors that the defendant does not know about, it is impossible for him to actually commit the crime. In this situation, the defendant’s mistake is not in regard to the actual law but, rather, in regard to the factual circumstances surrounding his actions. This is considered factual impossibility, and factual impossibility is not a defense to a charge of attempt. See People v. Fiegelman, 33 Cal. App. 2d 100 (1939). For example:

Knowing it is a crime to sell marijuana, Bob goes out and sells Peter what looks to be a dime bag of pot. Bob is not a particularly bright drug dealer and he accidentally sells Peter a bag of oregano. In this case, it is impossible for Bob to actually violate the crime of selling marijuana because the substance he has sold is not marijuana. However, Bob’s mistake is not one regarding the law. Bob knows that it is illegal to sell marijuana and it is, in fact, illegal. Rather, his mistake involves the circumstances surrounding his actions. That being the case, even though it is impossible for Bob to violate the law he is trying to violate, this is only a factual impossibility and, since factual impossibility is not a defense to attempt, Bob can be convicted of the attempt to sell marijuana.

The second possible defense against a charge of attempt is withdrawal. The traditional rule was that withdrawal from an attempt was never a defense even if it was completely voluntary. See United States v. Shelton, 30 F.3d 702 (6th Cir. 1994). However, the Model Penal Code and the statutes that are based on it allow withdrawal to be used as a defense so long as two conditions are met. First, the withdrawal (the abandonment of the attempt) must be entirely voluntary. This means that the withdrawal cannot be based on any circumstances regarding the difficulty of actually committing the crime or the chances of being caught that the defendant was unaware of when he began his attempt. For example:

Mitch decides to rob the First National Bank of Grand Cayman. He then proceeds to case out the bank and gather special drilling tools that he will use in breaking into the bank’s vault. However, Mitch eventually realizes that the security at the bank is better than he initially thought it would be and so he abandons his plan to rob the bank. In this situation, although Mitch has withdrawn from his attempt to rob the bank, he can still be convicted of the attempt because his withdrawal was not completely voluntary. Rather, it was based on circumstances that Mitch was unaware of initially that relate to the difficulty of successfully committing the crime. Had Mitch woken up on the morning of the robbery and decided not to rob the bank because stealing is not the right thing to do, that would be an entirely voluntary withdrawal and would therefore offer him a legitimate defense to a charge of attempted robbery.

Second, in order for the withdrawal to be valid under the Model Penal Code, the withdrawal must be complete. That is to say, the defendant must completely cancel his plans to commit the crime. If he only postpones his plans to commit the crime it is not considered a complete withdrawal and he can still be charged with the attempt.

As far as the penalty for attempt is concerned, at common law attempt is punishable by a lesser penalty than the actual completed crime. However, the Model Penal Code allows for the same penalty to be handed down for both the attempt and the completed crime.

Another important point regarding attempt is that an attempt to commit a crime "merges" with the completed crime. The effect of this is that an individual cannot be convicted of both an attempt to commit a specific crime and the completed crime. Thus a defendant who shoots and kills a victim cannot be charged with both the murder of the victim and the attempted murder of the victim, even though, technically, he has satisfied the elements of both the murder and the attempted murder.

Finally, it is worthwhile to note that an attempt to commit a crime is a "lesser included offense" of the completed crime. Therefore, a defendant who is put on trial for a murder cannot later be put on trial for attempting that same murder. Since one offense is a lesser included offense of the other, putting the defendant on trial for both would violate the "double jeopardy" clause of the Fifth Amendment, which prohibits trying a defendant twice for the same offense.