Attempt punishes a defendant who tried to commit a crime and did not complete it. It has two parts. The defendant must have intended to bring about the criminal result, and must have gone far enough beyond mere preparation that the law is willing to intervene. The first part is usually easy to state and the second is where every hard case lives, because there is no bright line between planning a crime and attempting one.
Elements
- Specific intent. The defendant must have intended to commit the target offense, even where the completed crime requires only recklessness.
- An overt act beyond preparation. The common tests include dangerous proximity to success, the last act the defendant needed to take, unequivocal conduct that speaks for itself, and the Model Penal Code substantial step corroborating criminal purpose.
- Factual impossibility. Not a defense. A defendant who could not have succeeded because of a fact he did not know is still guilty.
- Legal impossibility. A defense in some jurisdictions where the conduct, even as the defendant believed it to be, would not have been a crime.
- Abandonment. Not a defense at common law. Under the Model Penal Code, a complete and voluntary renunciation of the criminal purpose is an affirmative defense.
- Merger. Attempt merges into the completed offense, so a defendant cannot be convicted of both.
Leading cases
- Commonwealth v. Peaslee: preparation is not attempt, and the conduct must come near enough to the completed crime for the law to act.
- People v. Rizzo: men driving around looking for a payroll clerk they never found were not guilty of attempted robbery, because they never came into dangerous proximity to the crime.
- United States v. Jackson: applying the substantial step approach, conduct strongly corroborative of criminal purpose was enough even though the robbery was still some way off.
Where students go wrong
The first mistake is naming only one test. Jurisdictions differ, and the substantial step approach catches conduct much earlier than dangerous proximity does. Run both and show where the facts fall on each.
The second is missing that attempt is a specific intent crime. There is no attempted negligent homicide, and attempted felony murder is generally not an offense, because you cannot intend an unintended killing.
The third is treating impossibility as one doctrine. Separate the factual and legal versions, because only the second has ever been a real defense and even that is disappearing.
FAQ
Is abandonment a defense to attempt?
Not at common law once the attempt is complete. The Model Penal Code recognizes it where the renunciation is both complete and voluntary, not prompted by a greater chance of being caught.
Can you attempt a crime that is impossible to commit?
Yes where the impossibility is factual, such as picking an empty pocket. Pure legal impossibility, where the intended conduct was never criminal, may still be a defense in some states.
How is attempt punished?
Traditionally less severely than the completed offense. The Model Penal Code grades most attempts at the same level as the target crime, except for the most serious offenses.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.