Introduction

Elements of Criminal Attempt

Introduction

A person who buys matches intending to burn a haystack has not attempted arson, but if that same person goes to the haystack and lights one of the matches there, the intent has ripened into a criminal attempt.¹ The purpose is identical in both situations, so the difference in outcome has to come from what the person did, and that difference is the main problem of this chapter. Attempt is an inchoate offense, which means an offense that is incomplete by nature: it punishes an effort aimed at a target crime without requiring that the crime be finished.² It is a separate crime from the one attempted, and it can be pictured simply as a substantial but unsuccessful effort to commit a particular crime.³

Two elements make up that effort: a specific intent to commit the target crime, and an overt act, meaning a visible step in the world, that goes beyond mere preparation.⁴ The pair exists because criminal law sits between two poles. It will not punish thoughts, so some observable act must be present, and without it a conviction would rest on nothing more than what the defendant imagined. Yet the law also need not wait for harm, since a person who has acted on a firm purpose to commit a crime is a manifest danger to society, and the affirmative step is what makes that danger visible.⁵ The intent requirement does the matching work from the other side. It ties liability to a culpable purpose, so that conduct that merely looks like the start of a crime, such as buying matches for a campfire, does not become an attempt by accident.

The act element is where courts divide. Older common-law decisions asked how close the defendant had come to success and required conduct in dangerous proximity to completing the offense, so that even highly purposeful preparation fell short. The Model Penal Code, in § 5.01, moves the line earlier in the sequence of events: it asks for a substantial step toward the crime, and it adds that the step must strongly corroborate the actor's criminal purpose, a standard that most modern codes have adopted.⁶ Under that approach, enticing, lying in wait for, or following the intended victim, or unlawfully entering a building where the crime is expected, can qualify.⁷ Impossibility, renunciation, attempts to aid another, and the merger of an attempt into the completed crime belong to other readings and are not developed here. This chapter takes intent first, because it is the simpler element, and then spends most of its length on the act element and the two tests that compete to define it, beginning with the specific intent the defendant must have held when acting.