Preparation Versus Attempt

Preparation Versus Attempt

The second element of attempt is an overt act, meaning a visible step taken in the world, and every jurisdiction requires one: thoughts, plans, and wishes are never enough, however firmly held.¹ A defendant whose conduct has not progressed beyond mere preparation has not performed the act that attempt demands, so no amount of proven intent can fill the gap.² The requirement follows from the shape of the offense. An attempt has no completed harm to prove, which leaves observable conduct as the only thing separating a dangerous person from someone who merely daydreams about a crime. Words alone are poor evidence of purpose, because a person who talks about a crime may be bluffing or may entertain an idea without ever acting on it.³ An act gives the factfinder something to see from which it can infer that the intent was real, and it keeps the state to punishing conduct rather than private thought.

Agreeing that an overt act is required settles little, because the hard question is which acts count. Nearly every step toward a crime tends toward it in some sense. The New York Court of Appeals made the point in People v. Rizzo, observing that the statutory word tending is indefinite, that any act in preparation has some tendency toward the crime, and that the law nevertheless treats many such acts as too remote to be an attempt.⁴ The familiar instruction that the defendant must go beyond mere preparation therefore restates the problem without resolving it.⁵ An exam answer that announces mere preparation is not enough and stops has told the reader nothing about where the line falls or how a given jurisdiction draws it.

The matches-and-haystack contrast shows the line in an everyday case. A person who buys matches intending to burn a haystack has done something too remote from the completed arson to be an attempt, while the same person who walks to the stack and lights one of the matches has crossed the line.⁶ The purpose never changed, so what moved the answer was how far the conduct had advanced and how plainly it pointed at the haystack. A purchase of matches fits a campfire or a kitchen stove, while a lit match at the stack fits very little else.

A court has to decide which link in a chain like Ortega's first becomes an attempt, and the answer is a choice about when the state may intervene. A line drawn late leaves the public exposed to a clearly dangerous person who is allowed to come closer and closer to success. A line drawn early lets the police stop that person sooner but risks punishing someone who would have turned back on their own. The choice also has a practical side, because officers need a line they can apply, and one court that adopted the substantial-step approach stressed that police must be able to tell with reasonable assurance when intervention is proper.⁷

Courts have answered the question in two broad ways. The first family asks how close the defendant came to success. Its strictest member, the last-proximate-act test, requires the final act needed to commit the offense, such as pulling the trigger rather than merely aiming.⁸ No jurisdiction within the Anglo-American tradition applies that test literally, because it would deny an attempt to a shooter who has aimed but not yet fired, and to a poisoner whose first dose begins a series of doses, though the first dose is treated as attempted murder.⁹ The looser proximity variants ask whether the defendant is physically near the crime in time and place, whether the defendant has gained control of some indispensable element, or, in Justice Holmes's dangerous-proximity formulation, how grave and probable the offense is and how near the act stands to completing it. Other formulations ask whether the conduct would probably have ended in the crime absent outside interruption, or whether the defendant passed the point where a normal person would think better of it and desist.¹⁰ Those variants are background here, useful mainly as vocabulary when a court or an exam question uses them.

The second family asks how clearly the conduct reveals criminal purpose. Under the unequivocal, or res ipsa loquitur, test, conduct is an attempt only when the act, standing alone, is consistent with nothing but an intent to commit the crime. In the New Zealand decision Campbell and Bradley v. Ward, men who entered a parked car, fled when police appeared, and later confessed that they meant to steal a battery and radio had their attempted-larceny convictions reversed, because their acts alone, apart from the confession, were too equivocal to establish intent.¹¹ A test built only on clarity misorders cases, however. A person who makes a careful diagram of a home to be burglarized, with the point of entry marked, has done something relatively unequivocal, yet stands much farther from the burglary than the car entrants, so the test would convict the diagrammer and acquit them.¹² Closeness and clarity are therefore separate measures, and the common-law tests taken together ask the defendant to come near the target offense and to leave strong evidence of criminal intentions.¹³

The modern trend moves the line earlier in the chain of acts. The Model Penal Code asks whether the defendant took a substantial step in a course of conduct planned to culminate in the crime, and it adds that the conduct must be strongly corroborative of criminal purpose.¹⁴ Many states have adopted that approach, and courts often use it to interpret attempt statutes that never defined the act requirement.¹⁵ The substantial-step inquiry looks at what the defendant has already done rather than at what remains to be done, which is why the line falls earlier and the police may intervene sooner.¹⁶ The Code thus draws on both families, because it measures progress toward the crime as the proximity tests do, though with a less demanding closeness, and it demands that the conduct point clearly at criminal purpose, as the equivocality test does, though in a softened form.

The next two sections take up the two tests a student must be able to apply. The dangerous-proximity test, the traditional common-law answer, comes first, with People v. Rizzo as its leading application. The Model Penal Code's substantial-step test follows, together with the corroboration filter that gives it its shape.