The Actus reus for Attempt - Preparation vs.
Attempt
Case: People v. Murray [pp. 670-671]
Facts: Δ is charged with attempt to contract an incestuous marriage. He elopes with his niece, and requests one
of his witnesses to get magistrate to perform the ceremony.
Holding: Court says although there's definitely an intent, you need more than this to show attempt. There's a
big difference between preparation for the attempt and the attempt itself. The preparation consists in devising or
arranging the means or measures necessary for the commission of the offense; the attempt is the direct
movement toward the commission after the preparations are made. The attempt contemplated by the statute
must be manifested by acts which would end in the consummation of the particular offense, but for the
intervention of circumstances independent of the will of the party.
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Notes: [pp. 671-673]
• The preparation/attempt boundary - generally, the individual who has engaged only in "preparatory
activity" is not criminally liable, while the individual who has gone "beyond mere preparation" may be
charged with an attempt. So where do we draw the line between preparation and attempt? The MPC
rejected these approaches:
o The physical proximity doctrine - the overt act required for an attempt must be proximate to the
completed crime, or directly tending toward the completion of the crime, or must amount to the
commencement of the consummation.
o The dangerous proximity doctrine - the greater the gravity and probability of the offense, and the
nearer the act to the crime, the stronger is the case for calling the act an attempt
o The indispensable element test - a variation of the proximity test which emphasizes any
indispensable aspect of the criminal endeavor over which the actor has not yet acquired control
o The probable desistance test - the conduct constitutes an attempt if, in the ordinary and natural
course of events, without interruption from an outside source, it will result in the crime intended
o The abnormal step approach - an attempt is a step toward crime which goes beyond the point
where the normal citizen would think better of his conduct and desist
o The unequivocality test - an attempt is committed when the actor's conduct manifests an intent to
commit a crime
o MPC - in addition to requiring criminal purpose, attempt would require an act that was a
substantial step in a course of conduct designed to accomplish a criminal result, and in order to
be substantial such an act must strongly corroborate criminal purpose.
• MPC § 5.01. Criminal Attempt
(1)Definition of Attempt. A person is guilty of an attempt to commit a crime if,
acting with the kind of culpability otherwise required for commission of the
crime, he:
• (c) purposely does or omits to do anything that, under the circumstances as
he believes them to be, is an act or omission constituting a substantial step
in a course of conduct planned to culminate in his commission of the
crime.
(2) Conduct That May be Held Substantial Step under Subsection (1)(c). Conduct
shall not be held to constitute a substantial step under subsection (1)(c) of this
Section unless it is strongly corroborative of the actor's criminal purpose. Without
negativing the sufficiency of other conduct, the following, if strongly
corroborative of the actor's criminal purpose, shall not be held insufficient as a
matter of law:
• (a) lying in wait, searching for or following the contemplated victim of the
crime;
• (b) enticing or seeking to entice the contemplated victim of the crime to go
to the place contemplated for its commission;
• (c) reconnoitering the place contemplated for the commission of the crime;
• (d) unlawful entry of a structure, vehicle or enclosure in which it is
contemplated that the crime will be committed;
• (e) possession of materials to be employed in the commission of the crime,
that are specially designed for such an unlawful use or which can serve no
lawful purpose of the actor under the circumstances;
• (f) possession, collection or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its
commission, where such possession, collection or fabrication serves no
lawful purpose of the actor under the circumstances;
• (g) soliciting an innocent agent to engage in conduct constituting an
element of the crime.
• Unequivocality
o According to the MPC, the object of the unequivocality approach is to subject to attempt liability
conduct which unequivocally demonstrates that the actor is being guided by a criminal purpose.
But how do we determine unequivocality? Some actions will appear unequivocally criminal that
match stereotypes of criminal behavior.
• Both strength & weakness of the Unequivocality test that it links attempt liability to
"community" alarm
Strength - it explains why attempts must proceed beyond mere preparation, even
where there is overwhelming evidence of criminal purpose.
• We punish attempts not only because they manifest an intent to do harm,
but also because they erode the public sense of security. So attempts aren't
entirely inchoate - they do cause some harm.
Weakness - the public alarm may be based on nothing more than prejudice
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Class Notes
• Δ trying to marry his niece. In preparation, he tries to get magistrate, he declares his intentions.
• This is the most severe example of the stinginess the CL showed towards attempt.
• Last step - Δ does not cross this line
• We don’t prosecute ppl for intentions alone, but we do for attempters (the substantive offense), but
where between these 2 points do we start punishing?
Intentions only ---------------------------------------------------------------------------- Substantive offense
↑ here CL would want someone to
be to punish for attempt (last step)
↑ MPC goes further back on
this scale.
• Different tests for attempt: (standard to hold liable for attempt gets more relaxed going down)
o CL - "Last Step" Doctrine
o CL - Physical proximity - how close Δ got to completed crime (similar to last step doctrine)
o CL - Dangerous proximity - how probable the crime would occur
o CL - Indispensable element test - no criminal act until Δ had every indispensable element he
needed to complete the act
o CL - Probable assistance test - whether in the natural course of things, the substantive crime was
likely to be completed but for the interruption
o The abnormal step approach - whether Δ, in preparation, did something that stands out as being a
line that an innocent person wouldn’t cross
o Unequivocality test - if Δ's acts manifested intention to commit a crime
o MPC § 5.01 - "Substantial step" test
• This is the modern trend
• At CL, only punishing for the actual harm, but now, trend to is to deter, and to catch
dangerous people before they can cause harm. If they attempt a crime, very likely they
are dangerous, etc.
