Overt Act

• Author: Jeffrey Lehman, Shirelle Phelps

Page 340

An open, manifest act from which criminality may be implied. An outward act done in pursuance and manifestation of an intent or design.

An overt act is essential to establish an attempt to commit a crime. It is also a key element in the crime of TREASON and has become a component of federal and some state criminal conspiracy laws. It also plays a role in the right of SELF-DEFENSE.

An attempt to commit a crime is an offense when an accused makes a substantial but unsuccessful effort to commit a crime. The elements of attempt include an intent to commit a crime, an apparent ability to complete the crime, and an overt act. An overt act is an act that is performed to execute the criminal intention and will naturally achieve that result unless prevented by some external cause. The act must directly move toward commission of the crime and must be more than acts of planning or preparation.

Defining when an act is more than preparatory has proved difficult. Several tests have been used to determine when an overt act has been committed. The "unequivocal" test states that a defendant's act, standing alone, is unequivocally

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consistent only with her or his intent to commit the allegedly attempted crime. This test has been criticized as too lenient on criminals because no act is truly unequivocal. A person who shoots someone several times can argue that she was only trying to injure the victim and that it was her skilled shooting and not luck that prevented the victim's death.

Some jurisdictions favor the "substantial act" test. They permit an attempt conviction when a defendant with the requisite criminal intent performs a substantial act towards the commission of the crime. Under this test, for example, a prospective burglar can be convicted of attempted BURGLARY if apprehended in an alley with burglary tools, even though he had not determined which building he was going to burglarize.

The "probable desistence" test asks whether the defendant had gone so far down the road of crime that it is unlikely that she or he would have voluntarily desisted from completing the crime. One way of measuring this probability is to look at the past criminal record of an accused. Thus, an accused with a previous record may be convicted under this test, because her past propensity makes it unlikely that she would have stopped taking the acts leading to the crime.

The need for an overt act also is required in federal and...