Attempt Grading

KEY TAKEAWAYS

• An inchoate crime is a crime that might not be completed.
• General attempt statutes set forth the elements of attempt and apply them to any crime. Specific attempt statutes define attempt according to specified crimes, such as attempted murder, robbery, or rape.
• The four tests jurisdictions use to ascertain the criminal act element required for attempt are proximity, res ipsa loquitur, probable desistance, and substantial steps.
• The proximity test determines how close the defendant is to committing the crime by analyzing how much is left to accomplish after preparation for the offense.
• The res ipsa loquitur test, also called the unequivocality test, examines the defendant’s actions at a moment in time to determine whether the defendant has no other purpose than committing the crime at issue.
• The probable desistance test analyzes whether the defendant has progressed so far that it is probable he or she will not desist without interruption from law enforcement or other intervening circumstances.
• The substantial steps test is the Model Penal Code test and ascertains whether the defendant has completed substantial steps toward commission of the crime that are corroborative of the defendant’s criminal intent.
• Preparatory crimes criminalize preparing to commit a crime, which would be a stage that is too premature to constitute the criminal act element required for attempt.
• The criminal intent element required for attempt is specific intent or purposely to commit the crime at issue.
• Aside from failure of proof defenses to attempt act and intent, two potential defenses to attempt are legal impossibility and voluntary abandonment.
• Factual impossibility means the defendant cannot complete the crime because the facts are not as the defendant believes them to be. Factual impossibility is generally not a defense to attempt. Legal impossibility means the defendant believes he or she is attempting to commit a crime, but the defendant’s actions are actually legal. Legal impossibility is generally a defense to attempt.
• Voluntary abandonment is when the defendant voluntarily and completely withdraws from commission of the offense before it is consummated.
• In many jurisdictions, attempt merges into the offense if it is completed, which means that a defendant cannot be charged with attempt and the completed crime.
• In a jurisdiction that allows for transferred intent, a defendant’s intent can transfer from the intended victim to the actual victim. The defendant can thereafter be criminally responsible for the completed crime against the actual victim and attempt against the intended victim.
• Some jurisdictions grade attempt lower than the completed offense; others grade attempt the same as the completed offense, with exceptions.