Inchoate crimes; parties - Attempts

Learning Outcomes

After reading this article, you will be able to identify and apply the legal requirements for criminal attempt, distinguish attempt from completed offenses, analyze impossibility defenses, and determine the liability of accomplices and other parties to inchoate crimes. You will be equipped to answer MBE-style questions on attempts and parties to crime with confidence.

MBE Syllabus

For MBE, you are required to understand the rules governing inchoate offenses, especially attempts, and the liability of parties involved. This article focuses your revision on:

  • The definition and elements of criminal attempt.
  • The distinction between attempt and completed crimes.
  • Defenses to attempt, including factual and legal impossibility.
  • The liability of accomplices, principals, and accessories.
  • The doctrine of abandonment.
  • The merger of attempt with completed offenses.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is NOT an element of criminal attempt?
    1. Specific intent to commit a crime
    2. A substantial step toward commission
    3. Completion of the crime
    4. Overt act beyond mere preparation
  2. Which statement about impossibility as a defense to attempt is correct?
    1. Both factual and legal impossibility are valid defenses
    2. Only factual impossibility is a defense
    3. Only legal impossibility is a defense
    4. Neither is a defense
  3. If a person aids and encourages another to commit a crime, but the crime is not completed, the person may be liable as:
    1. Principal only
    2. Accomplice to attempt
    3. Accessory after the fact only
    4. No liability
  4. Which best describes the merger doctrine for attempts?
    1. Attempt and completed crime are separate offenses
    2. Attempt merges into the completed crime if the crime is accomplished
    3. Attempt is always punished more severely than the completed crime
    4. Attempt cannot be charged if the crime is not completed

Introduction

Inchoate crimes are incomplete offenses that involve steps toward committing a substantive crime. The most frequently tested inchoate crime on the MBE is attempt. Understanding the elements of attempt, the available defenses, and the liability of parties involved is essential for MBE success.

Key Term: Inchoate Crime
An offense involving conduct that is a step toward the commission of another crime, but where the substantive crime is not completed.

Elements of Attempt

To prove criminal attempt, the prosecution must establish:

  1. Specific intent to commit a particular crime.
  2. Overt act constituting a substantial step toward the commission of that crime, going beyond mere preparation.

Key Term: Attempt
An inchoate offense where a person, with the intent to commit a crime, takes a substantial step toward its commission but does not complete it.

The "substantial step" must strongly corroborate the actor's criminal purpose. Mere planning or preparation is not enough.

Overt Act: Substantial Step

Courts require conduct that is more than mere preparation. The Model Penal Code and most jurisdictions use the "substantial step" test: the defendant must take a step that is strongly corroborative of the criminal intent.

Intent Requirement

Attempt is always a specific intent crime, even if the completed offense can be committed with general intent or recklessness. The defendant must have the purpose to bring about the criminal result.

Impossibility as a Defense

Defendants often claim impossibility as a defense to attempt. The law distinguishes between:

Key Term: Factual Impossibility
A defense where the intended crime could not be completed due to a factual circumstance unknown to the defendant (e.g., picking an empty pocket).

Key Term: Legal Impossibility
A defense where the intended act, even if completed, would not be a crime under the law.

Factual impossibility is not a defense to attempt. Legal impossibility is a defense. If the defendant's intended conduct would not be criminal even if fully carried out, there is no attempt liability.

Abandonment

Abandonment (or renunciation) is generally not a defense to attempt at common law. If the defendant voluntarily and completely abandons the criminal plan before the substantial step, there is no attempt. Once a substantial step is taken, most jurisdictions do not recognize abandonment as a defense, except under the Model Penal Code if the renunciation is complete and voluntary.

Parties to Attempt: Accomplice Liability

Anyone who aids, counsels, or encourages another to attempt a crime is liable as an accomplice to attempt. The accomplice must act with the intent to advance or facilitate the attempt.

Key Term: Accomplice
A person who, with the intent to assist or encourage, aids another in the commission or attempted commission of a crime.

Key Term: Principal
The main actor who actually commits or attempts to commit the crime.

Key Term: Accessory After the Fact
A person who assists another knowing that the other has committed a crime, after the crime is completed.

Merger Doctrine

Attempt merges into the completed offense. If the defendant completes the crime, he cannot be convicted of both attempt and the completed crime for the same act.

Key Term: Merger (of Attempt)
The rule that a defendant may not be convicted of both attempt and the completed crime for the same conduct.

Worked Example 1.1

A intends to rob a bank. He buys a mask and a toy gun, drives to the bank, and enters the lobby. Before he can approach the teller, he sees police and flees. Is A guilty of attempted robbery?

Answer: Yes. A had the specific intent to commit robbery and took a substantial step (entering the bank with a mask and toy gun). The fact that he did not complete the robbery is irrelevant; abandonment after a substantial step is not a defense.

Worked Example 1.2

B tries to pickpocket a wallet from C, but C's pocket is empty. Is B guilty of attempted larceny?

Answer: Yes. This is factual impossibility, which is not a defense. B intended to steal and took a substantial step. The fact that the wallet was not present does not excuse liability.

Worked Example 1.3

C believes that selling a certain herbal supplement is illegal, but in fact, it is not prohibited by law. C advertises and sells the supplement. Is C guilty of attempted sale of a controlled substance?

Answer: No. This is legal impossibility. Even if C's conduct was completed as intended, it would not be a crime. Legal impossibility is a defense to attempt.

Exam Warning

Attempt is always a specific intent crime. Even if the completed crime can be committed with general intent or recklessness, attempt requires proof that the defendant specifically intended the criminal result.

Revision Tip

On the MBE, factual impossibility is never a defense to attempt. Only legal impossibility will excuse attempt liability.

Key Point Checklist

This article has covered the following key knowledge points:

  • Attempt is an inchoate crime requiring specific intent and a substantial step toward commission.
  • Factual impossibility is not a defense; legal impossibility is a defense to attempt.
  • Abandonment is not a defense after a substantial step, except in limited circumstances.
  • Accomplices are liable for attempt if they aid or encourage with intent.
  • Attempt merges into the completed crime; a defendant cannot be convicted of both for the same act.

Key Terms and Concepts

  • Inchoate Crime
  • Attempt
  • Factual Impossibility
  • Legal Impossibility
  • Accomplice
  • Principal
  • Accessory After the Fact
  • Merger (of Attempt)
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