Strongly Corroborative Conduct

Strongly Corroborative Conduct

The Model Penal Code's attempt provision attaches a second subsection to the substantial-step standard, and its two sentences do different work. The first sentence is a filter: conduct does not constitute a substantial step under subsection (1)(c) unless it is strongly corroborative of the actor's criminal purpose.¹ To corroborate is to confirm something already asserted, so the question is whether the conduct, read with the surrounding circumstances, confirms the purpose the prosecution attributes to the actor. An act that someone with innocent plans might just as readily have done confirms very little, while an act that is hard to explain without a criminal plan confirms a great deal. That inquiry differs from the one pursued earlier in this chapter about how far the step advanced the plan, because a step can be a real advance and still reveal little about what the plan was.

The second sentence of the subsection lists kinds of conduct, and three phrases in its lead-in govern how the list may be used. It opens by saying that the list does not negative the sufficiency of other conduct, so an act that appears nowhere on it can still be a substantial step if it passes the filter.² It then makes each listed kind conditional, because the conduct counts only if it is strongly corroborative of the actor's criminal purpose. Finally it provides that conduct meeting that condition shall not be held insufficient as a matter of law, which restrains the trial judge from dismissing an attempt charge merely because a listed act looks like preparation and leaves the question whether the act confirms purpose to the factfinder on the evidence.³ Read together, the phrases make the list non-exhaustive and non-automatic. It identifies conduct a court may not reject outright, and it never relieves the prosecution of showing corroboration.

The wording follows from what the Code is trying to accomplish. Because the substantial-step test looks at what the actor has already done rather than at what remains to be done, a court accustomed to proximity reasoning may be tempted to call acts such as following a victim or scouting a building mere preparation, and cases taking the proximity approach have sometimes found such acts insufficient where the victim had not reached the scene or the defendant was still searching for the victim.⁴ The list tells a court that remaining work is no ground for rejecting these acts outright. The corroboration condition answers the opposite risk, which is that a list of preparatory acts would turn into a list of offenses and sweep in people who never settled on a crime.⁵ Together the two features send borderline cases to the factfinder with a standard to apply, so that the earlier intervention the Code permits stays tied to reliable proof of purpose.

Not every jurisdiction that uses a substantial-step test keeps the filter. Some states adopted the Code's formula without the requirement that the conduct strongly corroborate intent, Georgia and Illinois among them, while Colorado defines a substantial step as one strongly corroborative of the firmness of the actor's purpose.⁶ Substantial-step statutes more often than not include the requirement, and the states that follow the Code in other respects have mostly declined to write the listed categories into their statutes.⁷ In State v. LaTraverse the Rhode Island Supreme Court declined to add to the long effort to fix the exact line between preparation and attempt and adopted the approach of § 5.01 instead, filter and list included.⁸ Where the statute omits the filter, the question reduces to whether the conduct is a substantial step, and the list serves only as persuasive illustration.

A federal court of appeals reviewing attempted bank robbery convictions shows the filter satisfied. The defendants had, on two separate occasions, reconnoitered the bank and carried loaded sawed-off shotguns, extra shells, a toy revolver, handcuffs, and masks.⁹ The district judge found them seriously dedicated to the crime and ready to assault the bank had outside factors not dissuaded them: a crowd of patrons on the first date and detection of FBI surveillance on the second. The court of appeals affirmed, reasoning that reconnoitering the place and possessing paraphernalia specially designed for unlawful use were each enough as a matter of law if they strongly corroborated criminal purpose, and that here both coincided on both dates along with other conduct confirming the firmness of the defendants' intent.¹⁰ No innocent account explains shotguns, handcuffs, and masks carried to a bank, which is why the conduct confirms purpose so strongly.

Both versions hold the listed category constant and vary only what else the conduct could mean, which isolates the point that a listing is not itself corroboration. The list tells the court which conduct it may not reject out of hand, and the corroboration condition tells the factfinder what to look for. A prosecution that rests on a listed act and a bare statement of ill will gains nothing from the act when an innocent account explains it equally well, since conduct that confirms nothing cannot lend support to the statement. The point also runs the other way. Mickey's purchase of a pistol, discussed earlier in this chapter, likely falls outside the materials category because a pistol can serve lawful purposes, yet the lead-in keeps open the possibility that the purchase, together with other facts, strongly corroborates a purpose to kill.

Step three decides most contested cases, because by the time police intervene a defendant has usually done something that resembles a listed act. Students lose this issue when they treat membership on the list as proof of corroboration, which skips the only question the subsection actually asks. The listed kinds of conduct fall into natural groups according to what they have in common: conduct aimed at the victim, conduct at the crime scene, possession of materials, and the use of an innocent agent. Each group is taken up below, with the reason it tends to corroborate purpose and the facts that can weaken that effect.

Pursuing the Victim

The first two entries on the Code's list of qualifying conduct have one feature in common: each describes something the actor does to or around the person the actor means to harm. Entry (a) covers lying in wait for, searching for, or following the contemplated victim, and entry (b) covers enticing or seeking to entice the victim to go to the place contemplated for the crime.¹² Like every item on the list, each counts only if it is strongly corroborative of the actor's criminal purpose, and each, if it meets that condition, may not be held insufficient as a matter of law.¹³ What remains is to see why this kind of conduct tends to confirm purpose, how it changes the outcome in a case the proximity test rejected, and what keeps the category from sweeping in innocent behavior.

A plan to harm a particular person cannot move forward without that person, which is why conduct aimed at the victim carries so much information. An actor who hides in wait, trails a chosen individual, or goes looking for one has already decided who the target is and is acting on that decision, so the plan has passed from a general wish to a directed effort at a real person. Such conduct also resists innocent explanation more than most preparation does, since few people lie in wait for another person without a purpose connected to that person. And because the substantial-step standard looks at what the actor has already done rather than at what remains to be done, the fact that the victim has not yet reached the scene, or has not yet been found, does not remove the conduct from consideration.¹⁴

The contrast with dangerous proximity appears most clearly in People v. Rizzo. Four men planned to rob Charles Rao of a payroll of about $1,200 that he was to carry from a bank. Two of them had firearms, and Rizzo, who claimed he could identify the messenger, was to point him out to the others. They rode around in a car looking for Rao, stopping at the bank and at various construction sites of the company whose payroll he was to carry, until police who had been following them made the arrests, and neither Rao nor anyone else with a payroll was at the place where they were caught.¹⁵ The court held that there was no attempt, because the men had not found or reached the presence of the person they meant to rob, and under the proximity test the acts must be so near to accomplishment that the crime would probably have been committed but for interruption.¹⁶

Run the same facts through the Code and the result changes at the first step. Looking for the intended messenger in a car, with a companion assigned to pick him out, is searching for the contemplated victim, which is the very conduct entry (a) names.¹⁷ Cases taking the proximity approach have sometimes found such conduct insufficient where the victim had not arrived at the intended scene or the defendant was still searching, and the Code's list shows how its approach reaches a different answer.¹⁸ The Rizzo facts also supply much of the corroboration the filter demands. Two men were armed, one had the assigned job of identifying the victim, and the route led to the bank and work sites tied to the payroll, a combination for which a lawful explanation is hard to construct. The conduct is therefore eligible for a substantial-step finding, and a court could not reject it merely because the messenger was never located. Eligibility is all the Code supplies. The factfinder must still decide that the conduct confirms the purpose, and the prosecution may add confessions and other proof of the actor's state of mind to that inquiry.¹⁹

Students lose this issue when they carry a proximity result into a Code problem because the victim was never found. The Code asks what the conduct confirms about the actor's purpose, and the distance between the actor and the victim is not the measure.

Entry (b) works on the same logic from a different direction. An actor who entices the victim to the place contemplated for the crime has chosen both the target and the setting, and is using the victim's own movements to build the opportunity. The words seeking to entice matter here, because they put the weight on what the actor did, so a victim who refuses the invitation or sees through it does not erase the step.²⁰ Cases applying other tests have sometimes found insufficient an offer of a reward to the intended victim for going to the place where the crime was to occur, and the Code treats that conduct as eligible.²¹ One published illustration shows how the pieces combine. Suzy, intent on killing Bob, bought a gun, became proficient with it, and lured Bob to a spot where she could pass the killing off as an accident, then aimed at his heart and pulled the trigger, though the gun held blanks. The Code analysis counts the luring among the conduct that made her step strongly corroborative of her purpose.²²

Each pair holds the listed category constant and varies only what else the conduct could mean. The listing keeps the conduct before the factfinder, and the corroboration condition decides how much weight it carries. That is also why Rizzo and the Code part ways: under proximity the missing victim ended the case even though the conduct pointed overwhelmingly toward a robbery plan, while under the Code the missing victim drops out and the live question is whether an innocent account explains the conduct equally well. The Code does not promise a conviction on such facts. It promises only that the conduct is eligible and that corroboration remains the question.

Scouting and Entering

The next two entries on the Code's list concern the place where the crime is meant to happen, where the earlier entries concerned the person it is meant to happen to. Entry (c) covers reconnoitering the place contemplated for the commission of the crime, and entry (d) covers unlawful entry of a structure, vehicle, or enclosure in which it is contemplated that the crime will be committed.²⁴ The two belong together because each ties the actor's conduct to a specific location. They differ in kind, though: reconnoitering is observation that may be done from a perfectly lawful position, while unlawful entry is intrusion into the very space where the crime is to be carried out. As with every listed kind of conduct, each counts only if it is strongly corroborative of the actor's criminal purpose, and each, if it meets that condition, may not be held insufficient as a matter of law.²⁵ This section takes observation first and intrusion second.

Reconnoitering means surveying the place the actor plans to use, and it tends to corroborate purpose because casing a location has almost no function except to prepare for what will happen there. An actor who watches a building's doors, notes when its occupants leave, or studies the approaches to a bank is gathering the information that turns a general intention into a plan for a particular place at a particular time. That fixes the intention to a real location, which is the firmness of purpose the filter looks for, and it is evidence of what the actor has already done rather than what remains to be done.²⁶ The category also carries its own limit. Ordinary people look at buildings for many reasons, so the observation corroborates a criminal purpose only when surrounding facts such as the actor's statements, secrecy, or possession of equipment outweigh the innocent explanations.

In Young the court adopted the substantial step standard over the proximity, probable desistance, and equivocality approaches, and then applied it to a defendant whom the police had watched casing banks.²⁷ His observations of the banks were made in a manner unusual for law-abiding people and under circumstances that warranted alarm, and he also parked behind the bank he apparently meant to rob, disguised himself with an eyepatch, sunglasses, and a knit cap pulled down over his forehead, put on rubber surgical gloves, and kept a scanner with a police bank frequency clipped to his belt.²⁸ The court held the evidence sufficient to prove an attempted armed robbery, and the concealment and disguise are what let the casing answer the question an innocent glance at a bank would leave open, namely why anyone would study it while hiding who he was.²⁹ The federal bank robbery defendants discussed earlier show the category carrying legal weight by itself. The court of appeals reasoned that reconnoitering the place, standing alone, was sufficient as a matter of law to constitute a substantial step if it strongly corroborated the defendants' purpose, although there it coincided with possession of shotguns, handcuffs, and masks on both dates.³⁰

The same conduct fares differently under the older tests, which is part of the reason the list exists. Under the physical proximity test, reconnoitering in advance of the time for the crime probably would not suffice, and whether it would suffice at common law more generally is unclear, because the decided cases usually rest on other facts as well, such as possession of necessary equipment.³¹ The Code settles the question of eligibility by naming the conduct, and what remains for the factfinder is the corroboration question: read with everything else the prosecution offers, does the casing confirm that the actor means to commit the crime at that place?

Entry (d) reaches an actor who unlawfully gets into the structure, vehicle, or enclosure in which the crime is contemplated.³² It is usually the more forceful of the two illustrations, for two reasons that come from the shape of the conduct. The first is location: an actor who has moved from watching the place to occupying it has left little distance between that step and the completed offense, since whatever is to be stolen, damaged, or attacked is now within reach. The second is the word unlawful, which removes the most common innocent explanation. A person with a right to be somewhere has an ordinary reason for being there, but a person who forces a lock or climbs through a window has none, so the factfinder is left asking only what criminal purpose the entry served. The entry must still be strongly corroborative of that purpose, and an unlawful entry made for some unrelated reason, such as seeking shelter from the rain, confirms nothing about an intent to steal or attack.

The older tests treat unlawful entry unevenly, which is the divergence the list was built to capture. Under the proximity approach such an entry could be expected to suffice, although there is some questionable authority to the contrary, and under the equivocality approach, which asks whether the conduct by itself reveals the criminal purpose, it well might not, as Campbell & Bradley illustrates.³³ The proximity reasoning appears in a case where a defendant entered a company's premises carrying dynamite with intent to destroy one of its buildings, and the entry sufficed for attempted destruction by dynamite because waiting until the explosive was placed or lit would have left almost no chance to prevent the harm.³⁴ Under the Code the same kind of entry is eligible without any showing that the actor was one step from completing the crime, and the factfinder asks whether the entry, read with the actor's statements and the other circumstances, confirms the purpose.³⁵

Students lose this issue when they read entry (d) as though it covered any entry, dropping the word unlawful, or when they conclude that lawful presence ends the analysis. Lawful presence defeats entry (d) but leaves entry (c) open, because a person with permission to be inside a building can still reconnoiter it for a planned crime, and the permission then explains the access without explaining the casing.

Each pair holds the listed category constant and varies the fact that supplies or removes the innocent explanation. The open-house visit and the keyed entry each offer a complete account of the conduct, while the hedge and the pried window do not. Brandt's position would change only if other facts moved the conduct into a different category. Had he told a friend that he planned to empty the building's safe, and spent his lawful hours mapping the alarm panel and the guard's rounds, his entry would still not be unlawful, but his conduct could be reconnoitering the place contemplated for the crime, and the filter would turn on how strongly that mapping confirmed his statement. The two illustrations therefore cover different ground: entry (c) asks what the actor has studied about the place, and entry (d) asks whether the actor had any right to be inside it.

Possessing Materials

The last two entries on the Code's list turn from the place of the crime to its tools. Entry (e) covers possession of materials to be employed in the commission of the crime that are specially designed for unlawful use or that can serve no lawful purpose of the actor under the circumstances.³⁷ Entry (f) covers possession, collection, or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for it, where the possession, collection, or fabrication serves no lawful purpose of the actor under the circumstances.³⁸ Like every other listed kind of conduct, each may not be held insufficient as a matter of law if it is strongly corroborative of the actor's criminal purpose.³⁹ Possession is the most ambiguous conduct on the list, because nearly every object has some use that has nothing to do with crime. Both entries answer that ambiguity with the same limit: the materials count only when the actor has no lawful use for them. The entries differ in what supplies that absence of a lawful use, and this section takes them in order.

Entry (e) works through the nature of the object. It offers two routes. Materials specially designed for unlawful use, such as burglar tools, carry their purpose in their design, since an item built to defeat other people's locks has no function except that one. The second route reaches materials that were not built for crime but that, in this actor's hands and under these circumstances, can serve no lawful purpose. Neither route mentions location, and the omission makes sense, because an object whose only function is the crime corroborates the actor's purpose wherever it is found. In Gibson, a prospective burglar was convicted of attempted burglary after being apprehended in an alley with burglar tools, even though he had not yet determined which building he would burglarize.⁴⁰ Not knowing the target did not matter, because the tools themselves answered the question of purpose. Possession of a still and mash has likewise been held sufficient for an attempt to manufacture intoxicating beverages illegally.⁴¹

The federal bank robbery defendants discussed earlier show how a court reads this entry against a whole kit. On two separate dates they possessed loaded sawed-off shotguns, extra shells, a toy revolver, handcuffs, and masks, which the court of appeals described as specially designed for unlawful use and as serving no lawful purpose under the circumstances.⁴² Handcuffs or a toy revolver might have an innocent explanation if each were found alone, but the phrase under the circumstances lets the factfinder read the items together, and together they left no lawful account. The court reasoned that possession of such paraphernalia, standing alone, was sufficient as a matter of law to constitute a substantial step if it strongly corroborated the defendants' purpose.⁴³

Entry (f) reaches materials whose character is less obvious, and it compensates by adding two things. The first is location: the possession, collection, or fabrication must occur at or near the place contemplated for the crime.⁴⁴ The second is breadth of conduct, since the entry covers an actor who gathers components piece by piece or builds a device, activity that a bare possession category would miss. The entry drops the specially-designed route, and that makes sense, because gasoline, rags, and wire are ordinary goods with no criminal character of their own. For such goods the place supplies what the object cannot: a person who arrives with a full set of fire-setting materials at the premises to be burned, and who has no lawful reason to have them there, has removed the innocent explanation that the same materials would have in a garage.⁴⁵ Arrival with inflammables at the premises to be burned has been held enough, although under the proximity theory the result would be otherwise if the crime was to be completed later.⁴⁶

Young shows the same logic at work with everyday items. The defendant parked behind the bank he apparently meant to rob, disguised himself with an eyepatch, sunglasses, and a pulled-down knit cap, put on rubber surgical gloves, and carried on his belt a scanner tuned to a police bank frequency.⁴⁷ Surgical gloves and a scanner each have lawful uses in other settings, but beside a bank he was casing, in disguise, with no account of why he needed them there, they lose that innocent explanation. The court held the evidence sufficient to prove attempted armed robbery.⁴⁸ The same reasoning explains why a lawful purchase rarely carries a case alone. In the published illustration of Suzy, who meant to kill Bob, the Code analysis treats her buying a gun and learning to use it as part of a sequence that also includes luring Bob to the planned scene, aiming at his heart, and pulling the trigger.⁴⁹ A gun has lawful uses that a pick set lacks, so its purchase corroborates purpose only through the company it keeps.

The two pairs vary different facts. In the first pair, design carried the corroboration, so a pick set mattered and a flashlight did not. In the second, place carried it, because identical goods moved from a garage to the doorstep of the intended target. The variable that separates entry (e) from entry (f) is therefore location: entry (e) has none, because the object speaks for itself, while entry (f) requires it, because the object cannot. The dividing line in both is the actor's lawful purpose, which the text measures as the actor's own under the circumstances, so one item can corroborate for one actor and say nothing about another. Students lose this issue when they treat any item connected to the crime as a tool of the crime, ignoring the lawful-purpose condition. Rope, gasoline, gloves, and a gun are connected to many crimes and are also found in many garages, and the listing keeps such possession before the factfinder only when the circumstances leave no lawful use.

Using an Innocent Agent

The last entry on the Code's list shifts from the actor's own hands to someone else's. Entry (g) covers soliciting an innocent agent to engage in conduct constituting an element of the crime.⁵¹ An innocent agent is a person who lacks the knowledge that would make the conduct criminal, such as a courier who believes a package holds an ordinary gift, so the agent is a tool of the plan and not a participant in it. The entry carries the same qualification as every other listed kind of conduct: it may not be held insufficient as a matter of law if it is strongly corroborative of the actor's criminal purpose.⁵² The substantial step is the actor's own act of enlisting the agent, and the agent's later conduct is the part of the crime the actor means to accomplish through another person's hands.

Two features of the setup explain why the Code lists this conduct. The first is that enlistment is usually the last thing the actor does. Once the agent holds the poisoned bottle and the delivery instructions, nothing remains for the actor to do, which is why this entry draws no dispute from the older tests: it would doubtless suffice at common law because the defendant has taken the last step.⁵³ Even the strictest proximity approach, which demands the last proximate act, reaches the same result, since a crime planned for an innocent agent is attempted as soon as the agent is briefed, although considerable time may pass before the agent acts.⁵⁴ The second feature concerns incentive. The agent's innocence means the actor alone holds the culpable purpose, so a rule that waited for the agent's conduct would let an actor route the plan through a person who cannot be blamed and leave the law unable to reach the actor until the harm was done. Listing the conduct closes that gap. The corroboration also tends to come from the arrangement itself, because an actor who gives an unwitting courier a tampered bottle and a false account of its contents has revealed the purpose through the deception.

The two scenes differ only in what the driver knows, and that fact decides whether the driver is a tool or a participant. With an innocent agent, only one person in the transaction holds the criminal purpose, so the actor's enlistment is itself the attempt. With a knowing confederate, two people hold it, and the analysis turns to what each agreed to do and what each did, which is the territory of solicitation, which the common law ultimately recognized as a crime for serious offenses, along with conspiracy and accomplice liability.⁵⁵ Students lose this issue when they apply entry (g) to any recruited helper, treating a knowing confederate as an innocent agent. The entry applies only when the person enlisted does not know what the conduct is for.