Attempt Actus Reus
- Going beyond preparation to attempt
- Have they translated evil intent into action?
- Policy judgment – incapacitation, deterrence, stigma value
- Value for police: when can they intervene to prevent a crime and still have a case?
Types of Attempt Tests
- Physical Proximity
- Dangerous Proximity
- Res Ipsa Loquitur
- MPC Substantial Step
Physical Proximity Test
Q: Has he achieved a physical proximity to the completion of the offense? How near is he to the completed crime? How many steps separate actor from target offense?
Look at what is left to be done, see how close in time and space to completion
Ex: People v. Rizzo
Dangerous Proximity Test
Q: Was there a dangerous proximity to success?
Look at what is left to be done and how serious the crime is, how much apprehension it is creating in the community, how likely a person is to succeed
Res Ipsa Loquitur Test
Q: Does the conduct speak for itself?
Look at what has already been done (not what is left to do), see if it shows criminal intent on the face of it
Overt acts, must be unequivocally referable to commission of the specific crime, must manifest or be symbolic of the crime
Harder to establish…the devil may lose the contest, albeit late in the hour
Silent movie – does not include confessions or other representations of purpose, only conduct (don’t look at stated intention)
Supposed to establish independent evidence of intent
Ex: Bowen and Rouse (below)
MPC Substantial Step Test
Q: Given what we otherwise know about the actors’ purpose, is there enough conduct to corroborate/confirm purpose?
An act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime
Substantial step = strongly corroborates criminal purpose
Includes - lying in wait or searching for victim, unlawful entry of place where crime will be committed, possession of the materials to be used in the commission of the crime –list is not exhaustive
Thinks devil is less likely to lose the battle
People v. Bowen and Rouse
- Defendants were allowed into old woman’s house (had previously been handyman, said there to do work). Police arrived. House was a mess (dresser drawers open). Charged with larceny of rings and necklace.
- Court said there needed to be some overt act to support a conviction of attempted larceny in addition to intent.
- Court said that coming to/entering the house with the intent to commit larceny was not an overt act and does not support attempt charge, presence of the defendant at the house didn’t indicate their intention because they were let in
- Uses language of res ipsa and physical proximity tests, but eventually endorses res ipsa
• Not enough that they just showed up at the house
• Prosecutor needs to prove attempt by proving events that happened after they entered the house with felonious attempt.
• Silent movie – going into house, ransacking place, hiding jewelry
People v. Rizzo
- D planned to rob a payroll clerk, left in the car to find him, didn’t find him, police convicted him of attempt to commit robbery.
- Court reversed because they were still looking for the guy, didn’t come near to the completion of robbery, wasn’t yet a “reasonable likelihood of its accomplishment but for the interference,” must be near to accomplishment of crime
US v. Harper
- Police found men in a rental car in a bank, had created a bill trap which shuts the ATM down and notifies the company monitoring the ATM So that technicians come to repair it
- Theory was they were going to rob the technicians of the money in the ATM → attempted bank robbery
- Robbery in future, hadn’t moved toward bank, still had as much as 90 minutes away (response time for ATM Technicians)
- Has language of many tests
• Proximity – haven’t taken a physical step to the bank
• Res Ipsa
• Not MPC test
US v. Gladish
- Agent pretended to be a 14 y.o. in a chat room, D solicited her to have sex with him, discussed possibility, arrested for attempting to get an underage girl to have sex with him
- Not guilty of attempt, didn’t take the substantial step, only speech, not convinced he was going to go through with it
Ray Mettetal Case
- D wandering around parking garage of hospital wearing disguise. Searched and found syringe on him, he was Dr. in another state. Had grudge against Dr. at hospital for stalling his career. Searched home (in another state) and found guns, books, info about Dr. and ricin (deadly toxin). Had storage unit near hospital.
- Charged w/attempted homicide.
Attempt Mens Rea - Common Law
Specific intent for all elements (conduct, circumstances, result)
Attempt Mens Rea - MPC
Conduct –> Purposefully engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be
Result –> does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part
Circumstances –> Same mens rea as completed crime
Attempt Mens Rea - Thomas Rule
Conduct –> Purpose
Circumstances and Result –> Same as completed crim
People v. Thomas (Special Rule)
- D got a call from ex-gf who said she’d been raped by neighbor, he pretended to be policeman, took him down to gf’s apartment, she said it was him, man fled, D fired 3 shots (two struck him, one fired from outside near his window)
- Convicted of attempted reckless manslaughter, SC upheld this offense
- Must intend to engage in/complete the risk producing act or conduct, engage in those acts with conscious and unjustifiable disregard of risk that act/conduct will result in death
Thacker v. Commonwealth (Common Law)
- Drunk, P shot 3 times into tent, 2 shots almost hit woman and her baby
- Not attempted murder – no specific intent to commit murder
Abandonment under Common Law
Conventional approach under common law
- Abandonment not exculpatory once you’ve crossed into attempt, don’t get to abandon attempt (Ross v. Mississippi didn’t follow this approach)
- Failure to commit crime cannot be due to extraneous cause
- Non-extraneous case = persuasion by verbal urging, feeling sympathy, and of free will
Ross v. Mississippi
- Ross knocked on door, asked for directions, pulled gun on her and ordered her to get undressed, shoved her onto couch, she says she has a little girl who’ll be home soon, he says he wouldn’t do anything, tells her to walk outside, and he leaves, attempted rape
- Question- did he abandon his attack? Yes, voluntary abandonment may negate attempt
- Doesn’t count if ceased efforts because victim or third party intervened or prevented him from furthering the attempt
- Subjective inquiry into what made Ross leave (said it was “pang of conscience” responding sympathetically to victim saying he had a little girl, she persuaded him to abandon the attempt).
- Opposing argument is that he left because the daughter was going to be home soon and intervene.
Abandonment under MPC
Very limited:
- Affirmative defense if he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose (true renunciation would involve turning yourself into police)
- Doesn’t count if motivated by circumstances that increase probability of detection or apprehension or that makes it harder to accomplish crime or if saved for later
