Proximity Test

The proximity test measures the defendant’s progress by examining how close the defendant is to completing the offense. The distance measured is the distance between preparation for the offense and successful termination. It is the amount left to be done, not what has already been done, that is analyzed (Commonwealth v. Hamel, 2010). In some jurisdictions, if the defendant’s criminal intent is clear, the defendant does not need to come as close to completion of the offense (People v. Dillon, 2010). Generally, the defendant does not have to reach the last step before completion (People v. Dillon, 2010), although many defendants do.

Res Ipsa Loquitur Test

Res ipsa loquitur means “the thing speaks for itself” (USLegal.com, 2010). The res ipsa loquitur test, also called the unequivocality test, analyzes the facts of each case independently. Under res ipsa loquitur or unequivocality, the trier of fact must determine that at the moment the defendant stopped progressing toward completion of the offense, it was clear that the defendant had no other purpose than commission of the specific crime at issue. This determination is based on the defendant’s act—which manifests the intent to commit the crime (Hamiel v. Wisconsin, 2010).

Probable Desistance Test

The probable desistance test examines how far the defendant has progressed toward commission of the crime, rather than analyzing how much the defendant has left to accomplish. Pursuant to this test, a defendant commits attempt when he or she has crossed a line beyond which it is probable he or she will not desist unless there is an interruption from some outside source, law enforcement, or circumstances beyond his or her control (U.S. v. Mandujano, 2010).

Model Penal Code Substantial Steps Test

The Model Penal Code developed the substantial steps test in response to the large variance between different jurisdictions in evaluating the criminal act element required for attempt. The substantial steps test is intended to clarify and simplify the attempt act analysis, to prevent arbitrary application. It is also a test that is more likely to result in a conviction because it classifies as “substantial” those acts the other tests might consider only “preparatory” (People v. Dillon, 2011).

The substantial steps test has two parts. First, the defendant must take substantial steps toward completion of the crime. As the Model Penal Code states, “[a] person is guilty of an attempt to commit a crime if…he…does…anything which…is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime” (Model Penal Code § 5.01(1)(c)). Second, the defendant’s actions must be “strongly corroborative of the actor’s criminal purpose” (Model Penal Code § 5.01(2)). To further elucidate the test, the Model Penal Code provides seven examples of actions that constitute substantial steps, as long as they are corroborative of the defendant’s intent. The seven examples are lying in wait; enticing the victim to go to the scene of the crime; investigating the potential scene of the crime; unlawfully entering a structure or vehicle where the crime is to be committed; possessing materials that are specially designed for unlawful use; possessing, collecting, or fabricating materials to be used in the crime’s commission; and soliciting an innocent agent to commit the crime (Model Penal Code § 5.01(2)).

Example of the Substantial Steps Test

Kevin wants to rob an armored car that delivers cash to the local bank. After casing the bank for two months and determining the date and time that the car makes its delivery, Kevin devises a plan that he types on his computer. On the date of the next delivery, Kevin hides a weapon in his jacket pocket and makes his way on foot to the bank. Thereafter, he hides in an alley and waits for the truck to arrive. When the truck drives up and parks in front of the bank, Kevin walks over to the driver’s door and reaches for his weapon. He is immediately apprehended by a security guard who saw him emerge from the alley. If Kevin is in a substantial steps jurisdiction, he has probably committed the criminal act element required for attempt. Kevin cased the bank, planned the robbery, showed up on the appointed date and time with a concealed weapon, and hid in an alley to wait for the truck to appear. These actions are (1) investigating the potential scene of the crime, (2) possessing materials to be used in the crime’s commission, and (3) lying in wait. Thus Kevin has completed three substantial steps that corroborate his intent as expressed in the plan he typed, which is most likely sufficient to constitute the attempt criminal act element under the Model Penal Code.

Figure 8.1 Various Tests for Attempt Act

Figure 8.2 Crack the Code

Preparatory Crimes

Some states have statutes criminalizing behavior that would be considered preparatory under any of the four attempt act tests. For example, some statutes prohibit the mere possession of burglar’s tools (N.Y. Penal Law, 2010) or even the manufacture of burglar’s tools (Conn. Gen. Stat., 2010). A defendant could be convicted of a preparatory crime and attempt if the criminal act element for both is present under the circumstances.

Example of a Case Lacking Attempt Intent

Eric is hiking in a jurisdiction that criminalizes reckless burning. Eric pauses in front of a sign that states “Fire Danger Today: High.” Eric reads the sign, pulls out a cigarette, lights it, and throws the lit match into some dry brush near the sign. He starts hiking and when he finishes his cigarette, he tosses the lit cigarette butt into some arid grass. Neither the brush nor the grass burns. Eric probably does not have the requisite criminal intent for attempted reckless burning. Attempt requires purposeful conduct. Eric’s conduct is reckless because he is aware of a risk and disregards it. If Eric takes the match or lit cigarette and tries to ignite a fire with them, it is likely that he has the appropriate criminal intent for attempted arson. However, in this case Eric’s actions demonstrate careless behavior that probably is not sufficient for the crime of attempt.

Example of Legal Impossibility

Review the example given in Section 8 “Res Ipsa Loquitur Test” with Melissa and Matthew and the attempted poisoning of the neighbor’s dog. Assume that Melissa is eighteen. Melissa believes that an individual must be twenty-one to purchase rat poison because that is the law in the state where she lived five years ago. Actually, the state in which Melissa currently resides allows the purchase of rat poison by those who are eighteen or older. The first store Melissa enters asks for identification when she tries to pay for the rat poison, so Melissa makes an excuse and leaves. The second store Melissa enters does not ask for identification, and she successfully makes the rat poison purchase. Melissa has probably not attempted to purchase rat poison illegally in the first store she entered. Melissa’s act in attempting to purchase the rat poison is legal under the circumstances. Thus her mistaken belief that she is attempting to commit a crime does not transform this legal act into an illegal one.

Example of Factual Impossibility

Recall from the example given in Section 8 “Res Ipsa Loquitur Test” that Matthew threw a filet coated with rat poison over the fence into the neighbor’s yard with the intent to poison the neighbor’s dog. Both Melissa and Matthew are under the mistaken belief that the dog is present and will eat the filet. However, the dog is on an overnight camping trip with its owners. This mistake of fact probably will not excuse Melissa and Matthew’s attempt. Melissa and Matthew purposely engaged in conduct that would result in the poisoning of the dog if the facts were as Melissa and Matthew believed them to be. Thus Melissa and Matthew have most likely committed attempted destruction of property or animal cruelty regardless of the fact that their plan could not succeed under the circumstances.

Example of Voluntary Abandonment as a Defense to Attempt

Review the example with Melissa and Matthew in Section 8 “Res Ipsa Loquitur Test”. If Melissa changes her mind after purchasing the rat poison and talks Matthew out of poisoning the neighbor’s dog, Melissa has voluntarily abandoned the crime and cannot be charged with attempt. If Matthew changes his mind after coating the filet with rat poison and throws the filet away, Matthew has voluntarily abandoned the crime and cannot be charged with attempt. Note that both Melissa’s and Matthew’s actions are in the very early stages of the crime of destruction of property or animal cruelty and probably will be considered preparatory, rather than constituting the criminal act element required for attempt. When Melissa climbs over the fence, picks up the filet, and takes it back to her house for disposal, it is most likely too late to voluntarily abandon the crime. At this point, the crime of attempt has already been committed, and neither voluntary abandonment nor factual impossibility can function as defenses.