Criminal Attempt

Criminal attempt is a foundational doctrine in criminal law that addresses conduct falling short of a completed crime but deserving punishment due to its dangerous intent. It allows the justice system to intervene before harm occurs, balancing societal protection against punishing mere thoughts. For you as a legal student or practitioner, mastering attempt is essential for understanding liability, defenses, and the nuances of prosecuting incomplete crimes.

The Elements of Criminal Attempt

Criminal attempt is defined as the specific intent to commit a crime coupled with a substantial step toward its commission that goes beyond mere preparation. This two-pronged standard ensures that only blameworthy and dangerous behavior is penalized.

The first element, specific intent (or mens rea), requires that you intend to engage in conduct that constitutes a crime and, for result crimes, intend to cause the criminal result. This is a higher mental state than recklessness or negligence. For example, if you plan to steal a car, you must have the conscious objective to unlawfully take another's vehicle. Without this purposeful intent, even if your actions are careless, attempt liability does not attach.

The second element, a substantial step, involves conduct strongly corroborative of criminal purpose that moves beyond planning into execution. Mere preparation—like purchasing tools or casing a location—is insufficient. Courts look for actions that signify a firm commitment to the crime. For instance, aiming a loaded gun at a victim with intent to kill is a substantial step, whereas merely buying the gun is typically preparation. The Model Penal Code (MPC) provides a non-exhaustive list of substantial steps, including lying in wait, soliciting an innocent agent, or reconnoitering the crime scene.

Tests for Determining When Preparation Crosses into Attempt

Since the line between preparation and attempt is often blurry, several legal tests have evolved to guide your analysis. Different jurisdictions may apply one or a combination of these frameworks.

The proximity test asks how close the defendant's actions were to completing the crime. It focuses on temporal and spatial nearness. For example, if you are arrested while walking toward a bank with a robbery note, you might only be preparing, but if you are at the bank door with a mask on, you are likely attempting. This test is criticized for being too rigid and potentially letting dangerous individuals off the hook too early.

The equivocality test (or res ipsa loquitur—"the act speaks for itself") examines whether the defendant's conduct, viewed alone, unequivocally demonstrates criminal intent. If the actions could be interpreted as innocent, no attempt exists. For instance, carrying a crowbar near a store might be for legitimate repair work, but using it to jimmy a window lock clearly indicates burglary.

The substantial step test, embraced by the MPC and many modern statutes, is the most prevalent. It evaluates whether the defendant took a step that strongly confirms criminal intent and poses a public danger. This test is more defendant-friendly in some ways, as it allows intervention earlier than the proximity test. Examples include assembling bombs, entering a building unlawfully to commit theft, or testing security systems with illicit intent.

The Defense of Abandonment

Abandonment (or renunciation) is a defense where a defendant voluntarily and completely renounces their criminal purpose after taking a substantial step but before completing the crime. This reward for change of heart aims to encourage desistance and prevent harm.

For abandonment to be valid, it must be voluntary—not motivated by increased difficulty, fear of detection, or postponement. It must also be complete, meaning you genuinely give up the criminal enterprise entirely, not just shift targets or methods. For example, if you abandon a burglary because you see a police car, that is likely involuntary and not a defense. However, if you have a change of heart due to moral realization and leave the scene, you may assert abandonment. The MPC requires that the renunciation be motivated by a change in circumstances or a sincere remorse to qualify.

Impossibility Doctrines

Impossibility refers to situations where a crime cannot be completed due to some factual or legal circumstance. The treatment of impossibility as a defense varies, and you must distinguish between two main types.

Factual impossibility occurs when extraneous facts prevent completion, but the intended act would be criminal if facts were as the defendant believed. Traditionally, this is not a defense. For instance, if you attempt to pick a victim's pocket, but it is empty, you are still guilty of attempted theft because your intent and substantial step (reaching into the pocket) are present. The law punishes the culpable mindset and dangerous conduct.

Legal impossibility arises when the completed act, even if carried out as planned, would not actually constitute a crime. Pure legal impossibility is a defense. For example, if you attempt to receive what you believe are stolen goods, but the goods are not actually stolen, you cannot be guilty of attempted receipt of stolen property because no such crime exists under those facts. However, courts often blur this with factual impossibility, so modern approaches like the MPC largely abolish the impossibility defense unless the defendant's conduct or intent is inherently innocent.

How Attempt Merges with the Completed Offense

The merger doctrine in criminal law states that lesser included offenses merge into greater offenses upon conviction. For attempt, this means that if a defendant completes the crime, the attempt charge typically merges into the completed offense. You cannot be punished separately for both the attempt and the completed crime; instead, the attempt is subsumed.

For example, if you are charged with attempted murder but evidence shows the victim died, you would be prosecuted for murder, not attempt. The attempt charge disappears. However, merger has nuances: if the attempt involves different elements or separate acts, prosecutors might charge both in some jurisdictions, but sentences would run concurrently to avoid double jeopardy. Understanding merger is crucial for charging decisions and plea negotiations, as it affects sentencing and resource allocation in the legal system.

Common Pitfalls

1. Confusing Preparation with Attempt: A frequent error is assuming any action toward a crime constitutes attempt. Remember, a substantial step must strongly corroborate intent. Correction: Always analyze whether the conduct moved beyond planning into execution, using jurisdiction-specific tests. For instance, buying a weapon is preparation; pointing it at a victim is attempt.

1. Misunderstanding Impossibility: Students often conflate factual and legal impossibility, leading to incorrect defense applications. Correction: Focus on whether the crime is impossible due to facts (no defense) or law (potential defense). Use the MPC approach as a modern benchmark: impossibility is rarely a defense unless conduct is inherently lawful.

1. Overlooking Specific Intent: Attempt requires specific intent, not just general recklessness. Correction: In any attempt analysis, first establish that the defendant had the conscious objective to commit the crime. For crimes like murder, distinguish between intent to kill (attempt) and intent to cause serious harm (may not suffice for attempt in some jurisdictions).

1. Assuming Abandonment is Always Available: Believing that any withdrawal qualifies as abandonment can be misleading. Correction: Emphasize that abandonment must be voluntary and complete. Scenarios where withdrawal is due to external pressures like police presence do not qualify, and the defendant bears the burden of proof.

Summary

• Criminal attempt requires specific intent to commit a crime and a substantial step beyond mere preparation, focusing on conduct that strongly confirms criminal purpose.
• Tests like the proximity test, equivocality test, and substantial step test help distinguish preparation from attempt, with the substantial step test being widely adopted for its balance of early intervention and fairness.
• The defense of abandonment allows exoneration if the defendant voluntarily and completely renounces criminal intent, but it is narrowly applied to encourage genuine desistance.
• Impossibility doctrines include factual impossibility (no defense) and legal impossibility (potential defense), though modern trends minimize these defenses to uphold attempt liability based on intent and conduct.
• Merger ensures that attempt charges do not stand separately from completed offenses, preventing double punishment and guiding prosecutorial discretion in charging decisions.