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Checklist: Failure to consummate the target offense Specific-intent to do the target offense Issues to think about: a How do we know that d was actually going to go through with crime? b How, why and how much to punish? Rule statements

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CL Attempt


  • Failure to consummate the target offense

  • Specific-intent to do the target offense

Issues to think about:

a) How do we know that D was actually going to go through with crime?

b) How, why and how much to punish?

Rule statements:

Criminal attempt occurs when a person with the intent to commit an offense, performs any act constituting a substantial step, beyond mere preparation, toward the commission of that offense. (ACL, 406)

Complete attempt is when D does every act planned but for reasons beyond her control, harm doesn’t result. (743)

Incomplete attempt is when before D has taken all steps necessary to achieve target offense, her effort is prevented, voluntarily or involuntarily. (743)

Rule of Merger states that a person cannot be committed both of a completed offense AND an attempt to commit it. (ACL, 408)

MR: criminal attempts require two MR: the intent to commit the act of attempt, and the specific intent to commit the completed offense. (750)

Gentry – D removed a knife from his pocket and stabbed his co-worker. Did D form specific-intent to kill? No. (748)

Bruce – guy tried to rob shoe store w/ gun but cash register was empty and accidentally shot cashier – attempted FM is not a crime b/c its not a specific-intent crime. (753)


(Acts already done v. Acts left to be done)

Preparation alone is not enough, there must be some unequivocal fragment of crime committed, or in progress of being completed prior to interruption. (Mandujano, 755)

Courts consider various tests and factors in determining when attempt occurs. (ACL, 424). Some factors include

(1) whether the act appears to be dangerously close to causing harm, that cops must intervene.

(2) the seriousness of the threatened harm: the more serious the crime attempted, the further back along spectrum courts are willing to go.

(3) the strength of the evidence of actor’s MR: the more clear the intent is, the less proximate the acts need to be. (ACL, 424).

Some tests used are:

The Physical Proximity doctrine states that the overt act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime

The Dangerous Proximity doctrine where the greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger the case for attempt.

The Indispensable Element test which emphasizes any indispensable aspect of the criminal endeavor over which the actor is not yet in control over.

The Probable Desistance test says the conduct constitutes an attempt if, without interruption from outside source, the conduct would of resulted in crime intended.

The Abnormal Step approach says an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist.

The Res Ipsa Loquitor or Unequivocality test says an attempt is committed when the actor’s conduct manifests an intent to commit a crime.

(Mandujano, 756)

Peaslee – P set up fire in building but changed his mind and never lit the fire. It was mere preparation so no attempt under dangerous proximity test. (759)

Rizzo - D w/ guns set to rob payroll guy but was arrested before finding the guy. No attempt b/c no attempt could be made. (763)

Reeves – D was 12 and tried to kill teacher by bringing rat poison – it was a substantial step b/c it was brought to scene and served no lawful purpose. (768)

Most states punish attempts as a lesser included offense (742)

Homicide problems:

Most states don’t consider attempted felony-murder an offense. (Bruce, 753)

A person may be convicted of voluntary manslaughter but not involuntary manslaughter because its unintentional and you can’t intentionally commit an unintentional crime (Bruce, 753)


If there were no inchoate offenses, cops would lack the legal authority to stop criminal activities before they are consummated (ACL, 414)

Anyone who attempts to commit a crime is dangerous. Id.

Individuals should be held criminally liable for what they intended to do. (745)

Attempted Assault:

  • CL assault was an attempt to commit a battery (801)

  • MPC 211.1 Assault:

    • A person is guilty of assault if he attempts to cause or P, K, or R causes bodily injury to another or

    • Negligently causes bodily injury to another w/ a deadly weapon or

    • Attempts by physical menace to put another in fear of imminent serious bodily injury

MPC Attempt


  • purpose to commit the target offense

  • conduct constituting a “substantial step” toward the commission of the target offense

Rule statements:

A person is guilty of attempt to commit a crime if acting with the MR required for the crime, it is his conscious object to engage in the target offense OR he intends to commit an act with the purpose or belief that it will cause result. (MPC 5.01(1)(a)(b).

MR: it must be his conscious objective to engage in or cause the offense or believe that result will occur. (ACL, 442)

If it is an incomplete attempt, a person must purposely do an act constituting a substantial step toward the crime (MPC 5.01(1)(c).

AR: the act must have been a substantial step towards completing the crime. (ACL, 443)

  • Conduct is not a substantial step unless it strongly corroborates D’s criminal purpose (MPC 5.01(2).

  • Factual circumstances that might constitute substantial step:

    • Lying in wait

    • Searching for the victim

    • Reconnoitering the crime scene

    • Unlawful entry into building where crime will be committed

    • Possessing tools to commit the crime

    • Soliciting an innocent agent to do an element of the crime

A person may be convicted of a criminal attempt, although a crime never happen nor attempted if:

  • the purpose of her conduct is to aid another in the crime and

  • such assistance would have made her an accomplice (MPC 5.01(3)

A person who attempts to aid in the commission of an offense is as dangerous as one who successfully ids in its commission. (ACL, 445)

Attempt, solicitation, and conspiracy are graded the same as the target crime (MPC 5.05)



  • Factual impossibility exists when a person intends to commit a crime, but fails to b/c mistake in AC. (Not a defense) (785)

    • EX: pickpocket putting hand in victim’s empty pocket

  • Pure legal impossibility arises when D mistakenly thought he was committing a crime, but D’s act didn’t violate law. (complete defense) (785)

  • Hybrid legal impossibility exists if D’s goal was illegal, but commission was impossible b/c of factual mistake regarding the legal status of AC. (786)

    • EX: intending to receive stolen property, which isn’t in fact stolen

  • Most states have abolished hybrid legal impossibility as a defense b/c it becomes factual impossibility, which is not a defense (ACL, 437)

Thousand – internet chat room w/ a fake minor planned to meet at McDonalds. Legally impossible b/c no minor. (783)

MPC 5.01(1)(a) abolishes impossibility defense.

Abandonment is a complete defense to attempt if D voluntary and completely renounces his criminal purpose. (799)

  • Abandonment is not voluntary if it happens b/c of unexpected resistance or change in circumstances that increase likelihood of arrest or otherwise cause D to postpone or desist (ACL, 440)

  • A D can’t claim abandonment as a defense once harm has been done. Id.

McCloskey – D planned to escape prison but changed his mind and got caught. It was vol. abandonment so it’s a complete defense. (797)

MPC adopts vol. and complete abandonment as a defense (MPC 5.01(4)

CL Solicitation


  • An act to solicit

  • w/ specific intent for the other person to commit a crime

*anytime you see more than one D in a fact pattern, consider conspiracy and solicitation

Rule statements:

Solicitation involves the asking, enticing, inducing, or counseling of another to commit a crime (Mann, 804)

Rule of Merger: solicitation merges into the crime solicited if the crime is target crime is committed or attempted by the solicited party. (804)

MR is the specific intent that the other person will do the solicited crime. (ACL, 449)

AR occurs when a person invites, requests, commands, hires, or encourages another to commit a particular crime (ACL, 450)

Solicitation is complete the instant the actor communicates the solicitation to the other person. Id.

Cotton – jail inmate solicited wife to commit criminal activities by mail but it never reached her – no solicitation b/c no actual communication (805)

Decker – solicitation for murder of sister but hit man was undercover cop – solicitation alone is not enough for attempt; must be coupled with overt acts (809)

MPC Solicitation

Rule statements:

A person is guilty of solicitation to commit a crime if the actor’s purpose is to promote or facilitate the commission of a substantive offense and with such purpose, he commands, encourages, or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or complicity. (MPC 5.02(1)

An uncommunicated solicitation is itself a solicitation (MPC 5.02(2)


It’s a complete defense to solicitation if a person completely and voluntarily renounces his criminal intent and either persuades the solicitor to not commit the crime or prevents him from committing the crime (MPC 5.02(3)


Solicitation is graded the same as the target offense (MPC 5.05(1)

CL Conspiracy


  • An agreement

  • Btw. 2 or more D to commit a crime

Rule statements:

A CL conspiracy involves an agreement to commit a crime or to commit a lawful act in an unlawful manner. (811)

Pinkerton Liability makes co-conspirators criminally responsible for each other’s crime. (Pinkerton, 813)

MR: A twofold specific intent is require for conviction: intent to combine with others, and intent to accomplish the illegal objective (Carter, 809)

Swain – must have intent to kill so can’t be guilty of conspiracy to commit 2nd degree murder b/c its implied malice (818)

Lauria – D had an answering machine business and knew prostitutes used it but didn’t intend to further their criminal activities - must show knowledge AND intent (822)

Intent may be proven by:

  • direct evidence or

  • inferred by evidence of circumstances like

    • when there’s a stake in the venture

    • when there’s no legitimate use for the goods/services

    • when volume of business is grossly disproportionate to any legitimate demand

    • a special interest in the activity or

    • the aggravated nature of the crime itself

AC: courts are split w/ MR regarding AC. Some say conspiracy cannot be proven unless parties have knowledge of the AC. Others say policies of the underlying crime should apply to the conspiracy charge. (827)

AR: no overt act is required (ACL, 459)

  • A mere tacit understanding suffices (ACL, 463)

  • A conspiracy may be inferred from circumstances. Id.

Azim – where D drove the getaway car - conspiracy may be inferred by showing the relationship, conduct, and circumstances (829)

Cook: where D watched and held belt while his brother raped a girl, there was no conspiracy b/c no evidence of an unlawful agreement. Neither association with a criminal nor knowledge of illegal activity constitute proof of participation in a conspiracy. (831)

A person can be convicted of conspiracy by proving he was an accomplice in the conspiracy

Rule of Merger: conspiracy does not merge with a conviction of the completed crime, so one may be convicted of BOTH conspiracy and the target offense(Carter, 809)


  • Collective action involves a greater risk to society than individual action toward the same crime (810)

  • It’s a preventative intervention against people who manifest disposition toward crime (ACL, 459)


No defenses to conspiracy.

MPC Conspiracy


Rule statements:

A person is guilty of conspiracy with another person(s) to commit a crime if with the purpose of promoting or facilitating its commission he:

  • agrees that they will engage in the crime or

  • attempt to commit the crime or

  • solicits another to commit an offense or

  • aid another person in the planning or commission of the crime (MPC 5.03)

MR is the purpose (conscious object) to bring about the prohibited result/conduct – knowledge is not enough (ACL, 474)

AR is an overt act in pursuance of conspiracy, proven to be done by him or by his co-conspirators. (MPC 5.03(5)

AC: its enough that the goal is criminal conduct. MPC left it to judicial resolution. (827)

MPC rejects Pinkerton Liability: An agreement to commit multiple crimes constitutes only one conspiracy (MPC 5.03(3)

Rule of Merger: A person may NOT be convicted of both conspiracy and the target offense or an attempt to commit the target offense, unless there is a separate conviction for the crime (MPC 1.07(1)(b)


Its an affirmative defense to conspiracy if the conspirator completely and voluntarily renounces his criminal purpose, and stops the conspiracy. (MPC 5.03(6)

CL Accomplice Liability


  • intent to assist

  • intent for crime to occur

  • physical conduct or encouragement

Rule statements:

Principal in 1st degree is one who actually commits the crime, by himself or by an innocent agent

Principal in 2nd degree is one who is guilty of aiding in the presence of the crime

Accessory before the fact is one who aided before the crime (now merged into 2nd degree)

Accessory after the fact is one who helps protect a felon from getting arrested, detected, or punished (now merged with lesser included offense) (Ward, 861)

An accomplice is not guilty of an independent crime of aiding and abetting; instead is guilty of the substantive offense committed by the perpetrator (862)

MR of an accomplice is a dual intent:

  1. intent to assist the principal and

  2. intent for underlying offense to occur

    1. intent to have P commit conduct required for offense

    2. intent to have P commit offense itself

    3. intent as to AC (866)

Lauria – undercover agents are not accomplices b/c no intent (867)

Majority rule is a MR of purpose, not knowledge (868)

Riley – 2 guys shot at a crowd but couldn’t tell who’s gun killed – held an accomplice in the conduct causing result is an accomplice if he acts with the kind of MR as the crime – so can be an accomplice to reckless/negligent crimes. (870)

Natural-and-Probable-Consequences Doctrine

Linscott – an accomplice is liable for any other offenses that was a natural and probable consequence of the crime aided and abetted. (875)

To apply:

  1. did P commit target offense?

  2. if yes, did accomplice assist in the crime (was he an accomplice?)

  3. if yes, did P commit any other crimes?

  4. if yes, were the crimes reasonably foreseeable consequences of the target offense? (878)

AC: one approach is to require purpose or knowledge as to AC. Alternatively, an accomplice may be convicted if he acts with the same kind of culpability that is sufficient to convict the principal (880)

AR of accomplice liability may consist of the solicitation, active assistance, encouragement, or failure to prevent commission of the crime if there’s a legal duty (866)

  • Knowledge and mere presence alone is insufficient to satisfy accomplice liability (Vaillancourt, 881)

  • There must be active participation. Id.

  • A person is not an accomplice unless his conduct in fact assists the crime (ACL, 508)

  • Any aid, no matter how trivial, suffices (ACL, 508)

Hoselton – D said he was a look-out but it wasn’t enough to show that he shared the criminal intent (863)


  • He who chooses to aid in a crime forfeits his right to be treated as an individual (ACL, 499)


  • Legislative-Exemption Rule states that a person can’t be an accomplice to a crime if he by definition protected by the law (ACL, 526)

  • Abandonment states that one who communicates and makes b.f. effort to neutralize the effect of his prior assistance can avoid accountability for the principal’s subsequent criminal acts (ACL, 527)

MPC Accomplice Liability (Complicity)

Rule statements:

A person is an accomplice of another person of a crime if with the purpose of promoting or facilitating the crime he solicits, aids or agrees or attempts to aid, or breaches a legal duty (MPC 2.06(3)

MR is the purpose of promoting or facilitating the commission of the crime (MPC 2.06(3)(a)

When causing a particular result is an element of an offense, a person is an accomplice of that offense if he acts with the kind of culpability of that crime (MPC 2.06(4)

MPC rejects the natural-and-probable-consequences doctrine (879)

AC: MPC does not address this, so a court might determine that the requirement of purpose extends to AC (880)

AR is when a person solicits, aids, agrees, attempts to aid, or has a legal duty to prevent the crime and fails to do so. (MPC 2.06(3)(a)(i)-(iii)

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