§ 27.06 ACTUS REUS OF CRIMINAL ATTEMPTS

• Jurisdiction: United States

§ 27.06. Actus Reus of Criminal Attempts⁸⁸

[A] Policy Context

Neither the common law nor most statutes provide a clear vision of the actus reus aspect of a criminal attempt. Unhelpful conclusory statements are frequently expressed. For example, an attempt involves "perpetration" rather than "preparation"⁸⁹; or the defendant's conduct must be "proximate" to completion, rather than "remote."⁹⁰ Beyond this, courts have developed a myriad of sometimes overlapping rules or tests meant to identify the point, or line, past which conduct constitutes a criminal attempt. One court has conceded "that the line of demarkation is not a line at all but a murky 'twilight zone.'"⁹¹ Indeed, the crime of attempt "expands and contracts and is redefined commensurately with the substantive offense"⁹²—t hat is, the more serious the offense, the sooner a criminal attempt will likely be found.

A major difficulty in drawing a line between noncriminal preparation and a criminal attempt is that courts are torn by competing policy considerations. On the one hand, there is the understandable desire of courts and legislators to ease the burden on the police, whose goal it is to prevent crimes from occurring. Thus, as one court has candidly put it, an attempt occurs when "acts of preparation when coupled with intent have reached a point at which they pose a danger to the public so as to be worthy of law's notice."⁹³ On the other hand, if courts authorize premature police intervention, innocent persons, as well as those with still barely formed criminal intentions—persons who might voluntarily turn back from criminal activity — may improperly or needlessly be arrested.

The struggle to find the proper demarcation line is also a function of the debate between advocates of subjectivism and objectivism, contrasting theories of inchoate liability described in § 27.03 of this chapter. Generally speaking, subjectivists favor an actus reus test of attempt that allows for early attachment of guilt. This generalization follows from the underlying premises of the doctrine. For subjectivists, proof of an actor's dangerousness, as evidenced by her mens rea, is paramount. Intention, however, can be proved through confessions, independent evidence of the actor's motive to commit the offense, and/or third-party testimony regarding the defendant's state of mind. It follows from this that any conduct, no matter how slight, that corroborates the defendant's alleged mens rea, should suffice for a criminal attempt.

For objectivists, the actus reus element has independent significance, because adherents to this theory do not believe that society should use its coercive power against inchoate conduct unless the actor has caused some social harm, at least in the intangible form of societal apprehension of criminal activity. Often, however, conduct does not lose its ambiguity and result in societal apprehension until well into the criminal transaction.

Objectivists believe that unchecked subjectivism, with its emphasis on mens rea and de-emphasis on conduct, endangers civil liberties, and too easily results in conviction of innocent persons. They fear that subjectivism may result in criminal liability for little more than bad thoughts. Moreover, guilt may too often be based on unreliable confessions, and other circumstantial evidence of an actor's alleged motivations. In contrast, subjectivists reason that if a society must wait until conduct unambiguously demonstrates criminality, crime prevention will be frustrated and greater harm will occur.

[B] The Tests

[1] General Observations

"Much ink has been spilt in an attempt to arrive at a satisfactory standard for telling where preparation]] ends and attempt begins."⁹⁴ Generally speaking, the "attempt" tests that have developed over the years fall into two categories: those that focus on how much remains to be done before the crime is committed; and those that consider how much has already occurred.

In light of the conflicting policy considerations relating to attempt law discussed above, there is little or no way to predict with certainty where a court will draw the critical line between preparation and perpetration in a particular case. However, various factors come into play, including: (1) whether the act⁹⁵ in question appears to be dangerously close to causing tangible harm, so that police intervention cannot realistically be delayed;⁹⁶ (2) the seriousness of the threatened harm, i.e., "the more serious the crime attempted . . . , the further back in the series of acts leading up to the consummated crime should the criminal law reach in holding the defendant guilty for an attempt";⁹⁷ and (3) the strength of the evidence of the actor's mens rea, i.e., the more clearly the intent to commit the offense is proven, the less proximate the acts need to be to consummation of the offense.⁹⁸

The most frequently used common law tests or factors are described below. (The "substantial step" test, formulated by the American Law Institute and included in the Model Penal Code, is described at § 27.09, infra.) It should be noted at the outset, however, that: (1) most states rarely adopt a single test as the exclusive basis for determining when an attempt has occurred;⁹⁹ and (2) the names of the tests (if, indeed, they are provided) and their descriptions vary by jurisdiction.

[2] "Last Act"Test

Some courts long ago used to state that a criminal attempt only occurred when the person performed all of the acts that she believed were necessary to commit the target offense.¹⁰⁰ Applying this standard, an attempted murder-by-shooting does not occur until D pulls the trigger of the gun; an attempted theft of a museum painting does not take place until D begins to remove the property from the wall; and an attempted arson does not occur unless D sets fire to the dwelling that she hopes to destroy. Today, there is general agreement that an attempt occurs at least by the time of the last act, but no jurisdiction requires that it reach this stage on all occasions.

As a practical matter, little commends the last-act standard, except for its bright-line nature. The police would be stymied by such a rule; it would virtually be impossible to prevent commission of a substantive crime.¹⁰¹ To the extent that subjectivist principles are important, an actor's dangerousness can be identified well before the last act; and, from an objectivist viewpoint, social harm can occur, and the criminality of an actor's conduct can often be discerned, before the final act.¹⁰²

[3] "Physical Proximity" Test

Some courts state that, while an actor's conduct need not reach the last act, it must be "proximate" to the completed crime, in that "it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made."¹⁰³ Or, as another court has explained, for an act to constitute an attempt, "it must go so far that it would result, or apparently result in the actual commission of the crime it was designed to effect, if...