Overview of Inchoate Offenses
An inchoate offense is a crime that has not yet been completed but we want to prosecute those involved before they have the chance to commit such a crime. There are three major reasons for this:
- To deter the completion of the crime and to allow officers to arrest before the crime has been fully completed.
- The actors conduct may be relevant to past and future crimes, not just the current occurrence and we want to deter those activities.
- They chose to carry out the activity and failed so we should punish them accordingly.
Under the MPC there are three potential ways to find attempt:
- Engages in conduct that would constitute a crime (Complete)
- Causing a particular result (Complete)
- Substantial step towards the result (Incomplete)
For this third part, it requires a purposeful mens rea because we want to make sure that you are actually wanting to commit the crime. The substantial step is the actus reus, you need both the actus reus and the mens rea. The issue is that we have a hard time where to draw the line.
Attempt – Overview
Ira P. Robbins – Double Inchoate Crimes
26 Harvard Journal on Legislation 1 (1989), 9-12.
There are two types of attempt. First, incomplete attempt. This is when a person sets out to do something but desists because of other factors (interrupted by police). The second is complete attempt. This is when a person accomplishes everything they desired to do except for the desired result (shoots and misses).
It is important to note that a person cannot be convicted of both the completed offense and the attempt to commit the completed offense. Attempts are always considered a lesser offense but is substantive (can be charged on by itself).
Mens Rea
People v. Gentry
510 N.E.2d 963 (Ill. App. 1987).
Convicted of attempted murder.
Question
Did the trial court error in the instructions provided to the jury that allowed all mens rea to be included with the attempt instruction?
What is the mens rea for attempt murder?
Rule
A person must act with the intent to commit the offense of murder to be convicted of attempt.
Holding
Reversed and retrial with proper instructions.
Facts
The defendant and his girlfriend had an argument. They were both drunk and high. The defendant had poured gasoline on the girlfriend which ignited in some manner. Then, the defendant smothered the flames but the girlfriend was severely burnt.
He was convicted of attempted murder. There were two instructions provided. The first instruction defined attempt as having specific intent to commit murder and then defined murder as the intent, knowing, reckless, or negligent killing. The jury mixed up the two instructions saying that because he would have been practically certain of the result, that he had attempted that result.
Analysis
The definition of attempt says that there must be intent. Only intent is sufficient. Even if you can prove that death is practically certain, if he did not intend death to occur, then the mens rea is missing. He cannot be guilty. As such, this needs to be retried.
Takeaway
There are two parts of attempt. First, the intent to do something (pulling a trigger) and, second, the intent for the consequence (actual killing). Both intents need to be present to find a conviction. One can have the intent for one and not the other. When the first is lacking, the latter will always be lacking. When the first is there, then the case for the latter is stronger. However, even when the first is present, it is still possible to show that the latter did not happen. This final scenario is what happened in this case (i.e. intended to poor the gasoline but did not intend to kill the girlfriend).
Additional Notes
The mens rea required for attempt is the “intent to kill”. The intent is what matters. If you intend to throw a match at the person, knowing that it will likely catch her on fire, but don’t want to kill her, then there was no attempt of murder.
Bruce v. State
566 A.2d 103 (Md. App. 1989).
Convicted of attempted first degree felony murder, robbery with a deadly weapon, and two handgun charges.
Question
Is attempted felony murder a crime?
Rule
Attempt consists of specific intent to commit the offense with some act that goes beyond preparation.
Felony-murder is unintentional
Holding
Attempted felony murder is not a crime in Maryland.
Facts
In the course of a robbery, the defendant pointed a gun at the victim and said something along the lines of, “if you don’t tell me where the money is, I’m going to kill you.” As the victim attempted to escape, the defendant’s gun fired and wounded the victim.
Analysis
The felony-murder rule is an unintentional homicide and attempt requires the intentional actions of the defendant. So, he can’t be found guilty of an attempted felony-murder because the mens rea is lacking.
Takeaway
Attempt can only apply to intentional crimes, not unintentional. Florida is the only exception.
Additional Notes
The issue here is that there is a mismatch between the requirements for a felony-murder and an attempt. Attempt requires intent and felony-murder is unintentional (no mens rea). You can’t intend to commit a crime that has no mens rea. That even applies to recklessness and negligence.
Actus Reus
United States v. Mandujano
499 F.2d 370 (5th Cir. 1974).
Question
What is the difference between preparation and attempt?
Takeaway
The courts are undecided on where to draw the line between the two. One theory is that the person needs to have set out on the course of committing the action to be in the realm of attempt.
Additional Notes
There are several tests that could be used. Ultimately, however, when we are more sure of the intent, the sooner we can draw the line. When we are less certain about the intent, then the later we can draw the line.
Commonwealth v. Peaslee
59 N.E. 55 (Mass. 1901).
Convicted for attempt to burn a building to injure the insurers of the building.
Question
Did the defendant’s actions come near enough to find him punishable?
Rule
If he was the last person to touch and was stopped on his way there, he can be found liable.
Holding
Reversed
Facts
The defendant had prepared the building to burn down. All that had to be done was to move a lit candle. He asked a boy to do the job but he refused. So, the defendant began working his way to the building when he changed his mind and turned around about a quarter of a mile away.
Analysis
The challenge here is where to draw the line between preparation and attempt. Had the person been stopped, scared away, or otherwise, his actions would have been seen as an attempt. However, because he turned away on his own choice (and he was the last step for completion), then there was no attempt.
Additional Notes
We must be very near the completion of the act. This varies depending on the apprehension of the crime. Here, he would need the collection of the materials and the present intent to light it.
People v. Rizzo
148 N.E. 888 (N.Y. 1927).
Convicted of attempted robbery to the first degree.
Question
Did the steps taken by the defendant suffice to uphold the charge of the crime?
Rule
The attempt occurs when the act is so close to the result that the danger of success is very great. “Dangerous proximity test.”
Holding
Was not sufficiently close. Reversed and remanded.
Facts
Defendant and others were planning a bank robbery. They would hold up a person who would transport money from one place to another. However, they were not able to find the person and traveled across town several times looking. As they were searching, the police became aware of the actions and arrested the defendant and his accomplices.
Analysis
The issue here is that they were never able to locate the person they were looking for. As a result, there was no way they were close to their desired result (robbing the person of his property). Therefore, their convictions for attempted robbery cannot be upheld.
Takeaway
Dangerous proximity has to be much closer than you might think.
Additional Notes
Once again, this is a sliding scale. If you know the mens rea, then you don’t need as much actus reus. Without the mens rea, you need to be much closer. We need to determine, how much is left to do.
State v. Reeves
916 S.W.2d 909 (Tenn. 1996).
Here, the defendants were convicted of attempt to commit second degree murder.
Question
Did the girls take a “substantial step” towards the commission of a second degree murder?
Rule
A person commits a criminal attempt if their (c) conduct constitutes a substantial step towards the commission of the offense. Here, a substantial step can include when the person has the materials that will be used at the scene of the crime.
Holding
This is a jury question. Here, the jury found that it was a sufficient attempt, affirmed.
Facts
Two twelve year old girls plotted to kill their teacher by administering rat poison in her cup. They collected the materials and were about to distribute the material when the teacher walked into the classroom. The girls left the desk that they were standing over. Then, the teacher walked to the desk, discovered the purse of one of the girls containing the rat poison. Significantly, the poison was not distributed into the cup.
Analysis
A while ago, the legislature had a rule. Recently, the changed the rule to be nearly identical to the MPC. Unfortunately, they did not provide a definition to “substantial step”, preferring to let the courts define that principle. As such, the courts have conflicting sources to examine for which test they want to adopt.
First they consider the Dupey rule. This rule states that the actor needs to have an attempt at an overt act. There are several weaknesses with this rule. For instance, by the time the opportunity to arose after the overt act had happened (putting the poison in the cup), it would have been too late (the teacher would already be helpless). Therefore, the courts overrule the Dupey rule.
Second, they adopt the exceptions that are used in the MPC. That is, if a person takes the material to the scene of the crime, then that can be determined a significant step.
Additional Notes
This is the same question as the last couple of cases. Where do we draw the line?
Under the MPC, the defendant is clearly guilty. Even though this isn’t a direct adoption of the MPC, it is a really close example.
Common law requires you to be much closer than the MPC does.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
