Complete attempt v.

Incomplete
 Complete- everything they wanted to do but because of external
circumstances they weren’t aware of they couldn’t finish crime
o Trying to kill bob but he had a decoy and couldn’t
 Incomplete- haven’t finished the act
o Being tackles by assistant before destroying Brinkley’s office

Specific intent to engage in social harm specified in statute (Mens Rea)

How far does someone have to go before being punished for attempt?

Attempt
1. Look at what they are being charged with
2. Have they acquired anything unlawful yet?
a. No, so what would prosecutor need to argue?

 CL (attempt at line drawing)- often used in conjunction with each other

o Proximity Test (pg. 775; N. 5)- Know these tests
o All share in common distinction between “mere preparation” and
“actual perpetration”
 Physical
 Peaslee: planning arson and gathered all materials,
planned to go light materials but stopped a quarter mile
away.
 Doesn’t cross line, still in zone of preparation
o Farther a D is from completing attempt, greater
likelihood someone may not follow through
 Dangerous
 Test: amounts to an attempt when it is so near to the
result that the danger of success is very great
 Rizzo:
o Not close enough, good action by police officers
b/c they hadn’t been close enough to victim
 Critique:
o Does it give law enforcement enough time to
intervene, if they don’t know any of their
intentions and you are just looking at how close
you are to completing--- not enough leeway to
stop someone
o How are you supposed to know that behavior is
innocent or not?
 UNDER MPC Rizzo just looking would not meet either?
 Indispensible Test

  Probable Desistance Test
 Peaslee: Would an ordinary person in the D’s shoes be
likely to desist at this point??
o Test: Likely or not ordinary p in d’s would resist?
 Critique: how are you supposed to know if ordinary
person will stop since ordinary person don’t commit
crimes  stupid
o Without looking at D himself is likely himself,
objective test which is counterintuitive
o Speculative as well
 Last act
 At least engaged in last act necessary to engage in
course of action

o Unequivocally/Res Ipso Loquitor

 Miller
 Drunk D approaches P, and D have said he’s going to kill
him, he stop pauses and loads gun but doesn’t aim it.
Police can take gun without resistance
o Was there a good reason for D to have the gun for
reasons other than to kill?
 D did not reach unequivocal point, could
have had the gun for another reason
 B/c he didn’t aim the riffle, they couldn’t
say with certainty what the intent of the D
is
 Didn’t desist
 Test: Presupposes some direct act or movement in execution of
the design, as distinguished from mere preparation, which
leaves assailant only in the condition to commence the first
direct act towards consummation of his design
 Critique:
 Throws common sense out window
 Doesn’t allow enough time for law enforcement to stop
 Theory of CL
o Objective test- watching someone in front of you, observing have they
gone far enough to getting close enough to completing crime in order
to punish them
 Critique:
 Need to ascertain D’s state of mind and what his action
intentions were subjectively
 MPC
o Substantial step (Defined in MPC, but other things could be too)
 Reeves:
  Critiques CL distinction between preparation and action
is impossible
 Court emphasizes (like MPC)
o Intent to carry through action + substantial step
o Circumstances
 (E)-just having for special use like killing
 (F)
o Would have been guilty earlier in MPC- the
earliest point (when poison in purse)
 No other reason to bring it to school
 Holding on pg. 796
 Reeves in CL
o Equivocality test: any difference for person at
desk with rat poison (no other reason than
killing)- prosecution
 Defendant- just wanting to show off, not
actually going to do it OR that the girls are
joking after telling people in front of class,
they should have known how not to get
caught/wouldn’t tell people and do it in
front of everyone
 Wouldn’t hang out
o Had they cross line from preparation to
perpetration then look at how close they are to
completing offense, just a step towards doing it
not enough!  What you need in CL
 Question of fact (analogize to cases)
 Less like people driving around
 But more like case driving on way there
and stops!
 **HOW YOU ANALOGIZE HOW CLOSE
YOU ARE TO COMPLETING IT
o Intent to commit X
o No finding as to whether or not an actor or reasonable person in shoes
of D would have probably desisted at certain point
 Once you have intent and substantial step- that is sufficient to
meet!
 Less hurdle for prosecution than CL approach (pg. 1047!!)

 Theory of MPC
o Subjective
 D’s intention and what he has already done as opposed to what
remained to be done
o Much lower standard- easier to punish people in MPC for attempt
 Factual v. Legal Impossibility (think about mens rea and what D was aware of
the attendant circumstances to be)
o HYPO:
 Accept crystal meth,
 That was sugar not crystal meth
 And I’m an undercover cop for attempted ingestion
 Argument- impossible it was just sugar, is that a crime
now
o You still have mens rea to do crystal meth
because you were under the assumption that you
were getting it that was your intent
 ARGUE MENS REA + ATTENDANT
CIRCUMSTANCES (not impossibility)
o D believed it was crystal meth
o Historically, factual impossibility was not a
defense to attempt
o Types
 Factual- never recognized as defense
 D grabs an unloaded gun and shoots but D doesn’t
realize it wasn’t loaded
 D was unable to consummate a crime b/c of facts
beyond control
 Legal
 Criminal law doesn’t prohibit conduct
 Thought doing something illegal by taking meth but in
jurisdiction where meth is not illegal
 Hybrid
 D’s goal is illegal but mistake of legal status/element of
offense
o Crime to shoot deer out of season, if D goes out
with intention to show deer out of season but
shoots stuff decoy put by law enforcement
o Bribe someone to be a juror but is not juror
 Critique:
o Any hybrid can just be re-characterized as factual
impossibility
o Thousand
 Not meaningful distinction between
factual and hybrid impossibility
 D tried to make hybrid impossibility
 In actually talking to cop, so no
actual 14 year old victim
 You can’t charge me to a minor if I
have been talking to adult cop
 entire time – DEFENSE
(impossibility)
 Really, mistake about attendant
circumstances
 Court- no legislative intent to have an
exception for mistaken about statutory
circumstances*
 The fact that there is no 14 years
old that is not a bar for charging
someone with attempt!
 Like Hypo about wanting to kill bob but
actually stuffed decoy
 What is described, as impossibility
is a mistake to the attendant
circumstances!!!
o MPC
 Thousand:
 5.01 (a)
o Complete he has done everything he intended to
do and CONDUCT CRIME
 Purposely engages in conduct
 If attendant circumstances are as he
believed them to be
o Yes, he believed it to be a young girl and he sent
this picture purposely---- he has met the burden
that prosecution needs
o Attendant circumstances: this is a minor and he
knew
o HYPO 2:
 Voodoo doll
 Result crime, complete 5.01 (b)
 Culpability there and purpose of causing neighbor to
die---purpose
 MPC has out for people who engage in highly unlikely
behavior
o Pg. 1050: 5.05
 (2) Mitigation:
 So inherently unlikely to result or
culminate, neither conduct or
actor presents a public danger,
court shall exercise power to
impose crime of lesser grade or
degree or may dismiss prosecution

 Abandonment
 o MPC recognizes voluntariness
 Subjective attempt of actor

o CL does not
o Commonwealth v. McCloskey
 Majority
 Contemplated but didn’t do it so he didn’t attempt
 He hasn’t gone far enough to be an attempt to escape

Concurrence
 Attempt, but non event
 Not guilty for different reason,
o Has gone far enough but we need to recognize he
abandoned his criminal attempt
 He’s gone far enough, abandonment is the defense to his
attempt
 What if he had been stopped in yard during MPC?
 Yes he would have gone far, snipping barbed wire and
crossed yard that is a substantial step
o Purposely and knowingly met
o 5.01-criminal attempt
 Conduct crime (c)incomplete stopped
before actually completed
o If he stopped at point where he was intending to
go through with it---meets culpability and the
prosecution can show he has taken substantial
step (yes by cutting wire)
o Possession of materials meet substantial step
analysis
o 1047- 5.01(4)
 Renunciation of criminal purpose
 Complete and voluntary renunciation of criminal
purpose
 Needs sincere abandonment not waiting for fear of
getting caught or strategic considerations (guard is
coming back, wait until tomorrow)

819- Problem 3!!! Look at this