Outline - Criminal Law - IX - Attempt

Criminal Law (2005 Fall)

IX. ATTEMPT

1. Intent
   1. Specific Intent – Must have specific intent regardless of the intent requirement for the completed crime (Note: Under this standard, it’s impossible to be guilty of attempted involuntary manslaughter).
      1. Smallwood – HIV-positive defendant convicted of rape not guilty of attempted murder where he lacked specific intent.
      2. Hinkhouse – HIV-positive defendant who actively concealed condition from consensual sex partners liable for attempted murder.
   2. MPC § 5.01 – Regular intent (for the offense)
2. Act – How much is enough?
   1. Dangerous Proximity (attempt vs. preparation) [Rizzo – Defendant was stopped before robbing intended victim who was nowhere in sight. No liability because not in dangerous proximity.]
   2. Equivocality Test/Res Ipsa Loquitur (hardest to prove)
   3. MPC (easiest to prove)
      1. General Rule – Substantial step, corroborative of normal intent for offense
      2. Abandonment (renunciation) must be voluntary and complete.
      3. McQuirter (Alabama, 1953) – Black man hanging around near white woman convicted of attempted assault with intent to rape.
      4. Jackson – Under MPC, defendants who gave up robbery twice found guilty of attempted robbery.
      5. Harper – “Bill trap” not a substantial step.
      6. Mandujano – Dealer who never came back guilty of attempt.
      7. Joyce – Dealer who didn’t open package not guilty of attempt.
3. Solicitation
   1. Davis – Defendant who merely solicited another to kill intended victim, unaccompanied by an act, not guilty of attempted murder.
   2. Church – Defendant who did just about everything to ensure successful kill guilty of solicitation and attempted murder.
   3. Many states hold solicitation is not attempt because solicitor doesn’t purpose to commit the offense personally.
   4. However, many states hold solicitation as an independent offense.
4. Impossibility
   1. Factual Impossibility
      1. E.g., picking an empty pocket.
      2. Not a defense
   2. Legal Impossibility
      1. E.g., buying stolen property that’s not actually stolen.
      2. May be a defense
   3. MPC – Circumstances as defendant believed them to be