Criminal Law

XIII. Actus Reus of Attempt

When looking at an attempt to commit a crime, the primary issue is determining when a perpetrator has gone from mere preparation to beginning actual commission of the target offense. To aid in making this determination, courts from various states have created the following tests that will be examined here in more detail: the last act test, physical proximity test, dangerous proximity test, indispensable element test, unequivocality test, and substantial step test (Dressler, 2001).

The last act test looks at whether an attempt has occurred, at least by the time a person has performed all the acts believed to be necessary to commit the target offense. For example, an attempted robbery does not occur until the robber displays his or her gun and demands property (Dressler, 2001).

The physical proximity test determines that the defendant’s conduct need not reach the last act but must be “proximate” to, or near, the completed crime. The conduct must be a first or subsequent step beyond planning. For example, Fred’s attempted robbery of a store occurs when Fred leaves his car and walks toward the door of the store with his gun in his hand (Dressler, 2001).

The dangerous proximity test decides that an attempt occurs when the defendant’s conduct is in “dangerous proximity to success,” or when an act “is so near to the result that the danger of success is very great.” For example, Barney and Betty plan a home invasion robbery. They wait in the park next to the victim’s home with tape, guns, and ski masks. The intended victim appears. Police spot Barney and Betty and make an arrest for attempted robbery (Dressler, 2001).

The indispensable element test looks at whether an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan. This test is disfavored because it does not give enough weight to criminal intent. For example, a robber is outside a jewelry store, but she is waiting for her brother to show up with a gun. She is missing her indispensable element: the gun (Dressler, 2001).

The unequivocality test looks at whether an attempt occurs when a person’s conduct, standing alone, unambiguously manifests his or her criminal intent. This test focuses on the overall conduct of the accused. An example with ambiguous conduct would be when Fred goes to the area of a jewelry store with a gun but does not approach the store. An example of a more obvious robbery attempt occurs when Fred drives to the store and walks across the parking lot toward the store with a gun (Dressler, 2001).

The substantial step test decides if an attempt occurs when the suspect has done something that constitutes a substantial step toward the commission of the target offense that strongly corroborates the suspect’s criminal intent. For example, the suspect purchases a handgun for the purpose of robbing a store. This substantial step test is the easiest for the prosecutor to apply to prove an attempt. The suspect does not have to be in close proximity and might be lacking the instrumentality to commit the crime. This test is criticized because ambiguous conduct can create criminal liability (Dressler, 2001).

When a suspect is interrupted and does not complete the crime, he is probably guilty of an attempt. However, if a suspect voluntarily and completely renounces her criminal purpose before the crime is completed, the affirmative defense of abandonment can be argued. There can be no circumstance that caused the suspect to abandon her efforts. If the crime is interrupted by another person, a barking dog, or the suspect’s tools break or malfunction, then abandonment does not apply. In those instances, the defendant did not voluntarily cease commission of the crime and would have continued if not for the interruption. When a suspect does completely stop her efforts and demonstrates her intent to not commit a crime, she is rewarded for her good judgment, and it is found that she never had a fully formed intent. Therefore, no crime was committed (Beale, 2002). For example, Barney is planning on robbing a store in Bedrock. After purchasing the gun, he will use in the robbery, he has second thoughts the morning before the crime is scheduled and decides that he will not carry out his plan and returns the gun for a full refund.

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