Unit 23: Attempt II


  • Dressler 371-376, 384-392 (skip Section E[1])

  • Rizzo (CP)

  • Reeves (CP)

  • Alkhabaz (CP)

  • Smith (CP)

Key terms: 

  • last act test

  • physical proximity test

  • dangerous proximity test

  • indispensable element test

  • probable desistance test

  • unequivocality test

  • substantial step

  • abandonment (renunciation)


Actus Reus Tests

Attempt liability requires more than subjective intent; there must be some objective act beyond mere preparation. In determining what constitutes that act, policy-makers must balance crime prevention and avoiding punishment of innocent actors. They consider several factors, including the seriousness of the crime, the temporal or physical proximity of the act to causing harm, and their level of comfort that the requisite mens rea existed (when the subjective intent is clear, slight acts indicating objective intent become more acceptable under subjectivist theories). Common law developed several tests to determine when the actus reus element of attempt is met.

The last act test considers only complete attempts as satisfying the actus reus requirement, and would never impose liability for incomplete attempts. No jurisdiction today follows this test.

The physical proximity test requires that the act be proximate to the completed crime, or directly tending toward the completion of the crime, or amounting to the commencement of the consummation. It must be within the actor’s power to complete the crime almost immediately. For example, a person who intends to rob a specific person, but does not have that person in his or her sights, has not satisfied the physical proximity test.

The dangerous proximity test, devised by Justice Holmes, is similar to the physical proximity test.  However, in addition to considering the nearness of the act to the completion of the crime, the dangerous proximity test also considers the gravity of the crime and the probability of the offense being completed. For example, if a person walked halfway across a bridge to town in order to murder someone and then turned back around, the dangerous proximity test is not satisfied.  On the other hand, if a person walks up and down the halls of an apartment building, dousing the floor and walls with gasoline, and then leaves the building, there is sufficient evidence of actus reus under the dangerous proximity test (People v. Johnson, 588 N.Y.S.2d 162 (N.Y.App.Div. 1992)). A more complicated example can be seen in People v. Smith, 148 Ill. 2d 454 (Ill. 1992). In that case, the defendant got into a cab and directed the cabdriver to a specific street, where he said he was looking for a jewelry store. As they passed a jewelry store, the cabdriver pointed it out, but the defendant said he was looking for a different jewelry store and he would recognize the building. The defendant then directed the cabdriver to a train station, where he stole the cab at gunpoint. He later confessed that he had intended to rob a jewelry store. At trial, the prosecution did not offer proof of any jewelry stores on the street other than the one that the cabdriver had pointed out. The Illinois Supreme Court held the defendant was not within “dangerous proximity of success” of robbing an unknown jewelry store.

The indispensable element test focuses on whether the actor has acquired all necessary materials to complete the crime. For example, if the actor planned to kill someone, but did not yet have the weapon, then the indispensable element test would not be satisfied.

The probable desistance test focuses on what the actor has already done (in contrast to the above tests, which focus on what remains to be done). The probable desistance test asks if in the ordinary and natural course of events, without interruption from an outside source, the act would result in a crime (or a completed attempt). If a reasonable person would be able to turn back without committing the crime, then the act does not constitute an attempt. If, however, the actor has done enough that an ordinary person would continue on their course and commit the crime, then the act constitutes an attempt.

The unequivocality test (also called res ipsa loquitur) requires that the act manifest unequivocally the actor’s intention to commit the crime. Critics attack the unequivocality test as impractical, as an act that is unambiguous can be made ambiguous again by a later act (For example, lighting a match near a haystack and then pulling out a pack of cigarettes).

Twenty-five states and many federal circuits have adopted the MPC’s substantial step test to determine if an act constitutes an attempt.  To satisfy the substantial step requirement, the act must strongly corroborate the actor’s criminal intent. The MPC approach focuses on what the actor has already done and combines the unequivocality test with subjectivist principles that consider the act in light of the actor’s mens rea. The MPC also includes a list of acts that the judge is not to rule insufficient as a matter of law, so long as the conduct is strongly corroborative of the criminal’s purpose. However, a jury would still get the chance to decide if the act constituted a substantial step or not, even if included on the list.

Attempt to Aid and Aiding an Attempt

At common law, a defendant could be convicted of aiding and abetting an attempt, but could not be found guilty of attempting to aid and abet. However, the MPC recognizes liability for both aiding an attempt and attempted aiding and abetting. If the principal attempts the crime, but is unsuccessful, then the accomplice has aided and abetted an attempt, recognized by the common law and the MPC. If the principal received aid from the accomplice, but never attempts the crime, then the accomplice can still be liable under the MPC of attempting to aid and abet.

Attempt Defense: Renunciation/Abandonment

The MPC recognizes abandonment as a defense to attempt. At common law, scholars disagreed over whether the defense was available, and many courts today do not recognize it. The abandonment defense conforms to subjectivist principles. Subjectivists argue that recognizing abandonment as a defense encourages deterrence and that abandoning one’s criminal purpose demonstrates a less dangerous character that does not necessarily need punishment to be corrected. Objectivists do not recognize the defense because the social harm caused by the attempt has already occurred, even if the actor abandons his criminal purpose later.

Under the MPC and common law, the abandonment defense requires that the defendant voluntarily and completely renounce his or her criminal purpose.  To be voluntary, the actor cannot be motivated by an increased likelihood of being unsuccessful or an increased likelihood of being caught. To be complete, the actor cannot merely postpone the crime or decide to change targets.

Connecting Some Dots

Think about the relationship between the act requirement in attempt law and the tension between due process concerns and law enforcements needs that we considered in cases like Morales and Papachristou when we discussed legality applications in Class 5.

Questions for Review:

Q1. From a policy standpoint, which of the tests to determine actus reus for attempt liability do you think is the best? Why? Do your views on subjectivism and objectivism affect your choice?

Q2. Suppose a man built a machine inside a building. The machine only required being lit by one match, and then the entire building would explode and burn to the ground. The man drove toward the building with matches, but when he was ¼ of a mile away, he turned around. Should he be guilty of attempt under the probable desistance test? What about under the dangerous proximity test? (Facts drawn from Commonwealth v. Peaslee, 59 N.E. 55 (Mass. 1901)).

Q3. Consider the last hypothetical. What if after the machine was built, the man told a boy that worked for him to go and light the machine, and the boy said nothing. The man then drove to light the machine himself, but turned around when he was ¼ of a mile away. Is the man guilty of attempt under the unequivocality test? Under the MPC (be sure to consider defenses)? Under the last act test?

Q4. Review the facts of People v. Rizzo. The defendants were not guilty of attempt as a matter of law under the dangerous proximity test. Would another test yield a different result? Make an argument.