Criminal Law Class Notes 11/17/03


Actus reus of attempt


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 New York.  In most states, all of these tests and more are out there and may be considered.


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 Tennessee statute basically uses the Model Penal Code, but not completely.


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.


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