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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Thursday, April 1, 2010

4 - Crimes – Preliminary Crimes (Attempt)

4 - Crimes – Preliminary Crimes (Attempt)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

In the last criminal law session, we looked at conspiracy. Now we’ll start the topic of the third preliminary crime - attempt.

Remember our timeline: 

-> Ask/Solicitation -> Agree/Conspiracy -> Act/Attempt ->

Attempt: (1) An intent to do an act or to bring about a certain consequence which would in law amount to a crime and (2) in most states, an overt act in furtherance of that intent.

Under the traditional, common law rule, an attempt is that which comes dangerously close to succeeding. The old common law rule is that an attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion. The MPC utilizes the substantial step test, that is, to act in a way that would bring about the crime if the attendant circumstances were as he believed then to be true. 5.01

Final comments on attempt:

     1. The physical act is a substantial step toward the commission of a crime (or last act/dangerous proximity and the mental state required is the intent to commit the crime.
     2. The merger rule says that one cannot be convicted of both the attempt and the target crime, but rather only one or the other. (This is NOT the case for conspiracy.)
     3. But the modern view is that a defendant may be convicted on a charge of attempt even if it is shown that the crime was completed. Does this mean that D can be CONVICTED of both the target crime and the attempt? Probably not.
     4. Abandonment: The traditional view is that there is no abandonment if the elements of attempt are present, though the MPC allows for a complete and voluntary abandonment. Abandonment is not voluntary if the defendant is motivated by unexpected resistance, the absence of an instrumentality essential to the completion of the crime, or some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense, or if the defendant merely postpones the criminal endeavor until a better opportunity presents itself.
     5. Impossibility
          [A] General Rule – At common law, legal impossibility is a defense; factual impossibility is not. However, today, most jurisdictions no longer recognize legal impossibility as a defense. However, one cannot be criminally liable for attempting an act that he is physically incapable of performing. But one must be wholly incapable of performing – truly impossible. A poverty stricken parent is not criminally liable if it is truly impossible for him to obtain necessaries of life, but he would be liable if he failed to go to an available welfare agency for help.
          [B] Factual Impossibility – Impossibility based on factual circumstances. "Factual impossibility" exists when a person’s intended result constitutes a crime, but he fails to consummate the offense because of an attendant circumstance unknown to him or beyond his control. Examples of factual impossibility are a pickpocket putting his hand in the victim’s empty pocket; shooting into an empty bed where the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at a person.
          [C] "Inherent" Factual Impossibility – Although largely academic, the doctrine of inherent factual impossibility has been recognized as a statutory defense in at least one state (Minnesota). Where recognized, the defense applies if the method to accomplish the crime was one that a reasonable person would view as inadequate to accomplish the criminal objective.
          [D] Pure Legal Impossibility – impossibility based on or with reference to a law. "Pure legal impossibility" arises when the law does not proscribe the result that the defendant seeks to achieve. The MPC does not expressly address the defense of pure legal impossibility.
          [E] Hybrid Legal Impossibility MPC §5.01(1) – Hybrid legal impossibility (or "legal impossibility") exists if the defendant’s goal is illegal, but commission of the offense is impossible due to a factual mistake (and not simply a misunderstanding of the law) regarding the legal status of an attendant circumstance that constitutes an element of the charged offense, e.g., receiving unstolen property under the belief that such property was stolen, or shooting a corpse believing it is alive. Today, most states have abolished the defense of hybrid legal impossibility on the theory that a defendant’s dangerousness is plainly manifested in such cases.

In the next crimes session, we’ll move on to third-party liability – accomplice liability.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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