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Attempt
Definition of Attempt
A person, with intent do commit an offense
and, in furtherance of that intent, performs an act that goes beyond mere preparation
NOTE: at c/l criminal attempt does not apply to assaults (due to c/l development of law
of attempt)
In TX, attempt also does not apply to DWI
Mens Rea Requirement
D must intentionally commit act(s) w/ spc intent of committing target crime
Ex: if D shoots into crowded room, but doesn’t hit anyone, is D liable for attempted
murder?
Only if D had specific intent to kill another
If D was acting recklessly, no attempted murder
Mens Rea
Attempted FM?
Majorityno attempted FM because no spc intent to kill; D had spc intent to
commit bank robbery only.
Attempted invol MS?
Brakes on D’s car have malfunctioned and D knows this. But D needs groceries,
so very carefully drives to store and back home. Police officer knows about D’s
bad brakes & arrests D for attempted involuntary manslaughter (recklessness).
D not liable for attempted invol MS; not logical to have spc intent for
recklessness or depraved heart murder.
Attempted VMS?
D finds wife in bed with lover and shoots gun at lover. Misses. Is D guilty of
attempted voluntary manslaughter?
Majorityyes. D had specific intent to kill lover. Acting in heat of
passion.
Actus Reus: Act Beyond Mere Preparation (tests)
Last Act Test
Physical Proximity Test
Dangerous Proximity Test
Indispensable Element
Probable Desistance
Abnormal Step
Unequivocality Test (res ipsa loquitor test)
Substantial Step Test [MPC]
MPC Substantial Step Test
Substantial step must be strongly corroborative of criminal purpose
Evidence to consider (note 2, p 227)
Lying in wait
Enticing
Reconnoitering
Unlawful entry
Possession of materials to use
Soliciting innocent agent
Merger
Criminal attempt merges into completed offense
May charge with conspiracy and attempted offense
Defense of Abandonment
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Not a defense at c/l
MPC allows voluntary & complete renunciation if D abandons effort or prevents
TPC 15.04: req vol & complete renunciation; abandoning or preventing (if
abandonment insufficient to avoid commission); mitigates punishment only
But no defense if D is just postponing attempt or is thwarted
D can’t claim defense if has performed last nec act or caused V serious hrm
Abandonment Hypo
D decides to burn down X’s house. Gets gasoline, goes to house and pours gasoline on
house. D has a change of heart and hoses gas off house. Goes home intending never to
set fire again.
Abandonment/renunciation?
c/l?
MPC/TX?
Defense of Impossibility
Legal Impossibility: what D set out to do is not a crime. This is a defense.
D has sex w/ 17 yr old. D thinks it is statutory rape if girl is under 18 (but it’s not
for 17 yr olds).
Factual impossibility: the intended crime is impossible to accomplish, but that’s
unknown to D. This is not a defense.
D wants to kill V & stands outside V’s window & fires gun. But V is not at
home.
Hybrid legal impossibility: may be a defense; depends on whether you call it legal or
factual impossibility
MPC/ Modern Approach
MPC Test: Look at D’s subjective belief. D guilty of attempt “if such crime could have
been committed had the attendant circumstances been as such person believed them to
be.”
Look at facts as D believed them to be.
Policy: punish dangerousness
MPC & Pure Legal Imposs.
Commentary to MPC says that it does not abolish the defense of pure legal impossibility.
“it is of course necessary that the result desired or intended by the actor constitute a
crime.”
Mistake, Redux
Defense of impossibility similar to mistake
Review them together for exam
D takes umbrella he mistakenly believes is his (not guilty; mistake of fact)
D knew umbrella was not his, but mistakenly believed that the law did not punish stealing (guilty;
mistake of law)
D tries to take umbrella he mistakenly believes is not his, but is prevented. (guilty of attempted
larceny; factual impossibility)
D takes his own umbrella, but thinks it’s a crime. He is prevented. (D not guilty of attempted
larceny; pure legal impossibility)

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• • • • • • • Attempt Definition of Attempt – A person, with intent do commit an offense – and, in furtherance of that intent, performs an act that goes beyond mere preparation – NOTE: at c/l criminal attempt does not apply to assaults (due to c/l development of law of attempt) – In TX, attempt also does not apply to DWI Mens Rea Requirement – D must intentionally commit act(s) w/ spc intent of committing target crime – Ex: if D shoots into crowded room, but doesn’t hit anyone, is D liable for attempted murder? • Only if D had specific intent to kill another • If D was acting recklessly, no attempted murder Mens Rea – Attempted FM? • Majority—no attempted FM because no spc intent to kill; D had spc intent to commit bank robbery only. – Attempted invol MS? • Brakes on D’s car have malfunctioned and D knows this. But D needs groceries, so very carefully drives to store and back home. Police officer knows about D’s bad brakes & arrests D for attempted involuntary manslaughter (recklessness). • D not liable for attempted invol MS; not logical to have spc intent for recklessness or depraved heart murder. – Attempted VMS? • D finds wife in bed with lover and shoots gun at lover. Misses. Is D guilty of attempted voluntary manslaughter? • Majority—yes. D had specific intent to kill lover. Acting in heat of passion. Actus Reus: Act Beyond Mere Preparation (tests) – Last Act Test – Physical Proximity Test – Dangerous Proximity Test – Indispensable Element – Probable Desistance – Abnormal Step – Unequivocality Test (res ipsa loquitor test) – Substantial Step Test [MPC] MPC Substantial Step Test – Substantial step must be strongly corroborative of criminal purpose – Evidence to consider (note 2, p 227) • Lying in wait • Enticing • Reconnoitering • Unlawful entry • Possession of materials to use • Soliciting innocent agent Merger – Criminal attempt merges into completed offense – May charge with conspiracy and attempted offense Defense of Abandonment 1 – – Not a defense at c/l MPC allows voluntary & complete renunciation if D abandons effort or prevents • TPC 15.04: req vol & complete renunciation; abandoning or preventing (if abandonment insufficient to avoid commission); mitigates punishment only • But no defense if D is just postponing attempt or is thwarted • D can’t claim defense if has performed last nec act or caused V serious hrm • Abandonment Hypo – D decides to burn down X’s house. Gets gasoline, goes to house and pours gasoline on house. D has a change of heart and hoses gas off house. Goes home intending never to set fire again. – Abandonment/renunciation? • c/l? • MPC/TX? • Defense of Impossibility – Legal Impossibility: what D set out to do is not a crime. This is a defense. • D has sex w/ 17 yr old. D thinks it is statutory rape if girl is under 18 (but it’s not for 17 yr olds). – Factual impossibility: the intended crime is impossible to accomplish, but that’s unknown to D. This is not a defense. • D wants to kill V & stands outside V’s window & fires gun. But V is not at home. – Hybrid legal impossibility: may be a defense; depends on whether you call it legal or factual impossibility • MPC/ Modern Approach – MPC Test: Look at D’s subjective belief. D guilty of attempt “if such crime could have been committed had the attendant circumstances been as such person believed them to be.” – Look at facts as D believed them to be. – Policy: punish dangerousness • MPC & Pure Legal Imposs. – Commentary to MPC says that it does not abolish the defense of pure legal impossibility. – “it is of course necessary that the result desired or intended by the actor constitute a crime.” Mistake, Redux • Defense of impossibility similar to mistake • Review them together for exam • D takes umbrella he mistakenly believes is his (not guilty; mistake of fact) • D knew umbrella was not his, but mistakenly believed that the law did not punish stealing (guilty; mistake of law) • D tries to take umbrella he mistakenly believes is not his, but is prevented. (guilty of attempted larceny; factual impossibility) • D takes his own umbrella, but thinks it’s a crime. He is prevented. (D not guilty of attempted larceny; pure legal impossibility) 2 Name: Description: ...
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