Attempt
An attempt to commit a crime consists of an intent to commit the target offense plus an act going far enough toward its completion — short of completion — to constitute a punishable step.
Elements / Test
Two elements required:
- Mens rea: Specific intent (purpose) to commit the target crime — recklessness or negligence is insufficient for attempt even if sufficient for the completed crime
- Actus reus: A substantial step toward commission
Tests for the actus reus (jurisdictions vary):
- Substantial step (MPC § 5.01): Act that is “strongly corroborative of the actor’s criminal purpose” — e.g., lying in wait, enticing victim, reconnoitering, unlawful entry. Most used test.
- Dangerous proximity test: Act must be “dangerously proximate” to completion (People v. Rizzo — defendant drove around looking for victim, never found him; conviction reversed)
- Last proximate act: Must have performed the last act necessary for completion (very narrow; nearly abandoned)
- Unequivocality test: Acts must unequivocally manifest criminal intent from objective observer
Exceptions and Edge Cases
- Factual impossibility: No defense — defendant intended the crime and did everything within their power (e.g., picking an empty pocket)
- Legal impossibility: Traditional defense — if the completed act would not be a crime, there can be no attempt. MPC abolishes the distinction (§ 5.01(1))
- Voluntary abandonment (MPC § 5.01(4)): Complete and voluntary renunciation — must be (1) voluntary (not due to increased risk of detection) and (2) complete (not just postponed). Affirmative defense.
- Merger doctrine: Attempt merges into the completed offense — cannot be convicted of both
- Attempt to attempt: Generally not punishable; solicitation and conspiracy may cover this gap
Policy Rationale
Punishes dangerous actors before harm occurs; incapacitation and deterrence rationale. Concern: punishing mere intent without sufficient overt act threatens to penalize thought. Tests balance crime prevention vs. liberty.
Key Cases
| Case | Rule |
|---|---|
| People v. Rizzo (N.Y. 1927) | Dangerous proximity test; driving around looking for victim without finding him insufficient |
| United States v. Jackson (1977) | Substantial step test; defendants who staked out bank had committed attempt |
| State v. Reeves (Tenn. 1996) | MPC substantial step — girl’s notes showing plan to poison teacher = attempt |