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Class 17

Uploaded by

cab20n
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Criminal Law

• Professor Banteka
Attempt crimes
are one of three
“inchoate”
offenses
(“in–KO-ate”)
Attempts =

criminal offenses that consist of


conduct that would constitute a
completed offense (the “target
offense”), except that one element is
missing
Name the kind
of actus reus 1. D shoots at V, intending to kill him, but D
element that misses
2. D wants to punch V, who is facing away
is missing: from D. D quietly draws his arm back to
Conduct, prepare a punch, and leans forward toward V.
Just then, D trips, hits his head and falls
Circumstance, unconscious.
Causation, or 3. D slits V’s throat. As V lay dying, lightning
strikes killing V. Question is about D
Consequence/ 4. State v. McElroy
Result
Attempts: Why Punish?
• Consequentialist considerations
– Preventing harm
– Incapacitating, rehabilitating, or deterring dangerous potential
offenders

• Retributivist considerations
– Defendants who commit attempts are just as culpable (blameworthy)
as those who commit completed offenses and thus deserve
punishment
Multiple Convictions Not Allowed

If the target offense is completed (in the same


transaction or event), D cannot be convicted on
charges of both attempt and the completed
offense.

But if an attempt and target offense are


committed in separate transactions, then
multiple convictions are allowed.
Attempts: Mens rea
• General rule =. Regardless of the intent necessary for the completed crime,
an attempt always requires a specific intent (e.g. the intent to commit the
crime)

• Attempts are always specific intent crimes


– Attempted murder = mens rea is a specific intent to kill
– Attempted theft = mens rea is a specific intent to steal
– Attempted drug possession = mens rea is a specific intent to possess
drugs

• Remember: honest mistake of fact (even if unreasonable) can negate


specific intent
Common Law Attempt.
• Mens rea.
– Specific intent to commit target crime

• Actus reus.
– Overt act
– D comes “dangerously close” to completing target crime
• “D fails to complete conduct (eg, trigger jams)
• D completes conduct but fails to cause intended result (eg, V
survives shooting)
– Not as common as MPC/modern approach

8
MPC §5.01 (p. 510, n2)
Mens rea = “purpose” (intent to commit target
crime) – same as in common law more or less

Actus reus = three variations

• D mistaken re: attendant circumstances (McElroy)


• Did what defendant thought would cause the result.
• Incomplete-conduct – “substantial step” (Acosta)
• Note: “substantial step” easier to prove than common law’s
“dangerously close” test
9
MPC’s “Substantial Step” Test

• MPC 5.01(2) lists examples of D’s conduct that the fact finder is entitled to rely
upon in finding that D committed the attempt
• Lying in wait, searching, or following the contemplated victim
• Enticing the victim to come to the place contemplated for the
commission of the crime
• Reconnoitering (scoping out) the place contemplated for the
commission of the crime (“casing the joint”)
• Unlawful entry into a structure, vehicle or enclosure in which it is
contemplated that the crime will be committed
• Possession of materials …specially designed for [criminal] use or that
can serve no lawful purpose of the actor under the circumstances
• Possession, collection or fabrication of materials…at or near the place
contemplated for its commission…serv[ing] no lawful purpose of the
actor under the circumstances
Substantial Step vs Proximity

11
State v. McElroy

• What happened?

• Impossibility.
– Legal.
– Factual.

• How do they differ?

12
Factual impossibility vs. Legal
impossibility

13
Impossible Attempts Simplified

• Is D making a mistake of law?


– D probably has a defense (“legal impossibility”)

• Is D making a mistake of fact?


– D probably does not have a defense (“factual
impossibility”)
Factually Impossible Attempts:
MPC 5.01(1)(a)

• D guilty of an attempt…if he
– purposely engages in conduct that would constitute the
crime…
– if the attendant circumstances were as he believes them
to be
• In other words…
– D is mistaken about a fact
– If D’s mistake were actually true, then D would be
committing the target crime
(Fill in the D thinks she D thinks she
blank) has baking has cocaine
soda

D actually has
baking soda

D actually has
cocaine
(Fill in the D thinks she D thinks she
blank) has baking has cocaine
soda

D actually has
baking soda

D actually has D is guilty of


cocaine possession of
cocaine
(Fill in the D thinks she D thinks she
blank) has baking has cocaine
soda

D actually has
baking soda

D actually has D lacks mens D is guilty of


cocaine rea for possession of
possession – cocaine
so not guilty
(Fill in the D thinks she D thinks she
blank) has baking has cocaine
soda

D actually has D is guilty of


baking soda attempted
possession of
cocaine
D actually has D lacks mens D is guilty of
cocaine rea for possession of
possession – cocaine
so not guilty
(Fill in the D thinks she D thinks she
blank) has baking has cocaine
soda

D actually has D is baking D is guilty of


baking soda attempted
possession of
cocaine
D actually has D lacks mens D is guilty of
cocaine rea for possession of
possession – cocaine
so not guilty
People v. Acosta

• What happened?

• Was evidence sufficient to establish attempted cocaine possession?

• Is this case easier for prosecution under Common Law approach or MPC
approach?

• Why was Abandonment/Reunciation not recognized as a defense?

21
Renunciation of Attempt under MPC

• MPC 5.01(4): it is an affirmative defense that he abandoned his effort to


commit the crime or otherwise prevented its commission, under
circumstances manifesting a complete and voluntary renunciation of his
criminal purpose.
• Within the meaning of this Article, renunciation of criminal purpose is not
voluntary if it is motivated, in whole or in part, by circumstances, not present
or apparent at the inception of the actor’s course of conduct, that increase
the probability of detection or apprehension or which make more difficult
the accomplishment of the criminal purpose. Renunciation is not complete if
it is motivated by a decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another but similar
objective or victim.

• Renunciation must be:


– Complete / Not Postponed
– Voluntary / Properly motivated
Note difference even among MPC Jurisdictions

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