Criminal
Law Class Notes
Actus
How
far do you have to do from thought to completion in order to have an attempt?
Tests
for attempt
1. Last act test
2. Physical
proximity test
3. Dangerous
proximity test
4. Indispensable
element test
5. Probable
desistence test
6. Unequivocality
(res ipsa loquitur) test
Courts
don’t usually mention these tests with these terms. These tests are only here to help us
remember.
With
only a few exceptions, most jurisdictions that follow the common law don’t
follow one particular test. Usually, a jurisdiction
will use multiple versions of these tests.
For the purposes of the exam and for purposes of being a lawyer in a
non-Model Penal Code jurisdiction, you must be familiar with all the
tests. The Model Penal Code has its own
test, so you would use that test in a Model Penal Code jurisdiction.
There
are a few states that really actually apply a particular common law test, like
Drawing
the preparation-perpetration line
You
will frequently see courts saying that the line between a non-attempt and an
attempt is the line between preparation and perpetration. This is the thing courts will talk about most
frequently. When you’re preparing, you’re
not attempting. When you’re
perpetrating, you’re attempting. But
this is an admittedly useless standard.
Consider
the facts as set out in Dressler, pp. 716-717.
We will discuss the January 15th situation, steps 1-10. There is nothing intellectually inconsistent
about convicting someone for two counts of attempted murder of the same person.
If
we assume that we know that Anne wants to kill Bob, when can we arrest her for
attempted murder? If we know she’s
dangerous and culpable, why don’t we stop her?
Who
do we use in the probable desistence test?
Is it an objective test or a subjective test? It’s usually viewed as an objective test. But what is the standard by which we judge
the accused?
Some
of these tests are very hard to justify from a subjectivist perspective.
What
about preventative law enforcement?
What’s
the dividing line?
In
a Model Penal Code jurisdiction, there is a defense of “renunciation”. You must freely and completely give up your plan. If you’re an objectivist, what is your position? Should we recognize a defense of genuine
abandonment of the criminal plan? The
objectivist would reject the defense, while a subjectivist would accept the defense. If you have truly renounced your dangerous
intentions, you are no longer dangerous or culpable.
The
common law tends to be objectivist, while the Model Penal Code tends to be
subjectivist.
We
don’t want to find attempt too close to the mere “thinking” stage because that
would be unjust, but we don’t want to find attempt to close to the “completion”
stage because we want a shot at preventing the criminal conduct.
State
v. Reeves
Two
middle school students plan to kill their teacher with rat poison. They actually did take rat poison to
school. But they were giggling.
Look
at the Model Penal Code approach. The
Look
at § 5.01(1)(c) because this was an incomplete
attempt. You will be guilty if you do a “substantial
step” towards the commission of the crime.
In
§ 5.01(2), there are a bunch of things that are examples of things that may
be sufficient to corroborate the actor’s criminal purpose. We don’t want to punish innocent people.
Nothing
in the Model Penal Code requires that we figure out purpose merely from
physical conduct. If somebody says, “I’m
gonna kill X”, we want to see conduct that strongly corroborates their
statement that they’re going to kill X.
The
poison in the purse is presumably strongly corroborative.
But
if any of the categories § 5.01(2)(a) through (g) are
present, it just means that it’s not legally permissible for a judge to hold
that it’s not legally sufficient. To put
it another way, if any of these factors are present, the case should go to a jury
and it would be wrong to direct a verdict of acquittal for a defendant if they
meet one of those categories and it’s strongly corroborative of criminal
conduct.
The
categories (a) through (g) are only for the judge. They are not read to the jury. The jury only hears the “substantial step”
language.
The
Model Penal Code is strongly distinguished from the common law in that most of
the common law tests look back to see how close the defendant has come
to completion. The Model Penal Code test
asks how far the defendant has gone from the thought process. If the defendant has taken a substantial step
towards committing the crime, even if there is a lot more to be done,
you can convict. Therefore, it’s much
easier to convict under the Model Penal Code than at common law.
What
if they thought that they brought poison, but it was really sugar? That’s the impossibility defense.
The
case for tomorrow involves Internet chat.
The defendant is charged with attempting to send pornography to an
underage female when in fact he sent pornography to an overage male. Is there a defense there? This is a complicated issue.