Specific Intent Requirement

Specific Intent Requirement

The first element of attempt is a mental state: the defendant must have acted with the intent to commit the target crime, meaning the particular offense the effort was aimed at.¹ Courts call this specific intent, and the label tells you what the law is looking for. A general wish to do wrong does not satisfy it, and neither does awareness that one's conduct is risky. The question is whether the defendant was trying to bring about the crime itself, whether that crime is a theft, a killing, or a burning. An attempt is an effort, and an effort has a goal, so the aim behind the act is the ingredient that separates a failed try from an accident or from innocent conduct that happens to resemble the start of a crime.² On one influential view of criminal liability, this aim is the core of attempt, to the point that a prosecution should fail only for want of proof of intent and never merely because the act looked unremarkable.³

The rule reaches further than many students expect, because the intent required is intent to commit the target crime even when the completed crime could be committed with something less. A completed homicide, for example, can in many jurisdictions rest on malice shown by recklessness about human life, since the death has occurred and the law need not ask whether the defendant wanted it. An attempt has no completed result to rest on, so the only thing that makes an unfinished act culpable is the purpose behind it. A person who did not aim at a killing was not trying to kill, which means attempted murder requires an intent to kill, and recklessness or malice that would suffice for the completed offense does not carry over.⁴ The requirement also protects against overreach. Many acts are ambiguous about their aim, such as a shot fired or a substance slipped into a drink, and without an intent requirement the law could punish them as attempts at serious offenses they were never aimed at. Tying the mental state to the specific target crime ties the punishment to what the defendant was actually trying to do.

The act is the same in both situations, so the fact that moved the answer is what each defendant was trying to accomplish. That is also why intent so often drops out of the dispute in real attempt cases and leaves the act element to carry the argument.

Real cases show the same split. In People v. Rizzo, four men planned to rob a payroll messenger and rode around looking for him, and the court observed that there was no doubt the defendant intended to commit robbery if he got the chance. It then turned to the separate question whether his acts were preparation or an attempt.⁵ Intent is not always conceded, of course, and when it is contested it is proved the way any state of mind is proved, from circumstances. A defendant named Young was watched casing banks, parking behind the one he had apparently chosen, and putting on an eyepatch, sunglasses, a pulled-down cap, and rubber surgical gloves while wearing a police-frequency scanner, and the court held that this evidence more than sufficed to prove beyond a reasonable doubt a specific intent to commit armed robbery.⁶ Prosecutors may also draw on evidence apart from the act itself, such as confessions and diaries, to show what the defendant meant to do.⁷

The Model Penal Code writes the intent element into the opening words of its definition. A person is guilty of attempt only if he acts with "the kind of culpability otherwise required for commission of the crime."⁸ That lead-in governs every route to attempt liability and sets a floor, because attempt cannot be proved on a weaker mental state than the target crime itself demands. The routes then add purpose directed at the defendant's own conduct and, where the crime has a result element, at the intended result.⁹ Courts applying the same approach describe a two-tiered inquiry: first the culpability otherwise required for the crime attempted, and second a substantial step toward it.¹⁰ Intent is therefore the first tier, and the act element, which occupies most of this chapter, is the second.

One refinement belongs here only as a flag. Because the lead-in points to the culpability the target crime itself requires, attendant circumstances, meaning surrounding facts the crime requires such as a victim's age or the ownership of property, are measured by the mental state the target crime demands for them, while the purpose language attaches to the defendant's conduct and intended result.¹¹ Most exam problems never reach that wrinkle. They turn on whether the defendant was aiming at the conduct and the result that make up the target crime.