#17085 - Attempt Mens Rea, Actus Rea - Criminal Law

Attempt separate crime from completed crime

Mens Rea

• Common Law:

  • Conduct – purpose

  • Attendant circumstances – Underlying

  • Result - purpose

    • Requires specific intent that result will occur (unintentional attempt is an oxymoron) even if lesser mens rea would suffice for conviction of the completed crime

      • Infer intent from circumstance evidence (acts, conduct, words)

        • Can be inferred if result is natural and probable consequence (ex. If point gun at someone, death is natural result)

        • Explicit statements/actions demonstrating intent

    • Smallwood: D convicted of attempt to murder through his rapes without condoms even though he was HIV positive; evidence does not show that D had intent to kill through this action; rejects government argument that HIV rape is same as shooting loaded gun (harm not immediate and certain)

    • Compare Hinkhouse: D convicted because his words indicated intent to kill victims through sexually transmitting HIV

• MPC 5.01

  • Conduct: purpose

    • 5.01(1)(a) Completed attempt: purposely engages in conduct that would constitute crime if circumstances were as D believed OR

    • 5.01(1)(c) Incomplete attempt: purposely engaged in act/omission that constitutes substantial step in the course of the conduct

  • Attendant circumstances: same as the underlying offense

  • Result: purpose

    • 5.01(1)(b) purpose or belief that result will occur (cannot attempt unintentional crime)

Actus Reus (distinguish between preparation and attempt)

• 2 competing concerns (1) allow actor to change mind/repent voluntarily and completely (not because about to caught) (2) allow law enforcement stop crimes

• 4 possible tests

• (1) last step test (Eagleton)

  • Defendant must have taken the last act needed along the road of criminal intent

  • [good for checking law enforcement abuses and allowing change of mind]

• (2) res ipsa/equivocal test

  • Defendant's act speaks for itself and unequivocally showing criminal intent

    • If act is innocent on its fact or could be explained in different acts > not attempt

  • If applied to McQuirter - cannot convict

  • [problem: act can be very proximate but still ambiguous)

• (3) dangerous proximity test (focus on how far D has left to go)

  • Defendant's act dangerously proximate to commission of crime, act so near to its accomplishment (commission of crime) that in all reasonable probability the crime would have been committed but for timely interference

  • Physically and spatially proximate

  • Policy: places threshold of criminality very close to the last act to give the defendant chance to change his mind

    • This prevents undercover operations (because D never gets close to actual crime)

  • Rizzo - not dangerously proximate because had not found defendant

• (4) substantial step test/MPC test (focus on how far D has already gone)

  • Substantial step is an act that strongly corroborates criminal intent

    • D will offer innocent explanations of conduct to refute that it was strongly corroborative

  • Policy: allows police to intervene and stop defendant earlier than other tests, allows undercover operations

  • MPC 5.01(2) list

    • Includes but not limited to A-G scenarios

    • (a) searching for v: lying in wait, searching for or following the contemplated victim

    • (b) enticing v to go to crime scene: enticing or seeking to entice the contemplated victim to go to the place contemplated for commission of the crime

    • (c) reconnoitering: reconnoitering the place contemplated for the crime

    • (d) unlawful entry of crime scene: unlawful entry of a place where it is contemplated the crime will be committed

    • (e) possess materials specially designed for crime with no lawful purpose: possession of materials which are specially designed for such unlawful use OR can serve no lawful purpose of the actor under the circumstances

    • (f) possess materials with no lawful purpose near crime scene: possession, collection or fabrication of materials that serve no lawful purpose under the circumstances near the contemplated crime place

    • (g) soliciting innocent agent: soliciting an innocent agent to engage in conduct constituting an element of the crime

  • Jackson - bank robbery with tools and at the scene of crime > shows intent

• Main tests are DP and SS

• MPC 5.01(4) allows abandonment/renunciation of criminal purpose as affirmative defense

  • Complete and voluntary renunciation of criminal purpose (invalid if motivated by unexpected circumstance that would lead to increased detection or makes crime more difficult)

• Interaction with MR

  • McQuirter - MR is unclear because intent is inferred from confession (example of what we want to wait for more info)

    • Juries tend to have (1) racial biases (2) deference for authorities (3) difficulty separating lies and truths (4) difficulty understanding why someone makes a false confession

  • If MR is fuzzy/difficult to infer from circumstances, want an actus test that requires more action and indicates more men rea to justify criminal punishment (prefer DD)

• Note MPC 5.05(2) mitigation - if conduct is inherently unlikely to culminate in crime, judge has discretion to lower punishment or dismiss the case (ex. Weapon not likely to cause intended injury - voodoo doll doesn't actually kill someone)

POLICY for punishing attempts even though there was no harm

• (1) retribution: criminal intent shows culpability/blameworthiness sufficient for punishment, same moral blameworthiness as people who succeed in crime

• (2) utilitarian: want to deter people from attempting to commit crimes

• (3) incapacitation: incapacitate people with criminal inclinations

• Response: retribution - when there is harm, public wants greater punishment

Punishment

• MPC punishes attempt the same way as completed crime

  • UNLESS crime is serious and punishment is life imprisonment/death, not same punishment (because retributive concerns outweigh utilitarian concerns)

• Common law: attempt is graded one step lower than actual crime