Review of the Inchoate Crime of ATTEMPT:

* To constitute an attempt, there must be (a) the specific intent to 
commit the crime, and (b) direct ineffectual act done towards its 
commission.

* To amount an attempt, the act or acts MUST GO FURTHER than MERE 
PREPARATION (buzz word!); they must be such as would ordinarily 
result in the crime except for the interruption.

* MERGER doctrine applies-- ATTEMPT and the CRIME attempted merges. 
A defendant CANNOT be convicted of both attempt and the crime 
attempted. (IE attempted murder & murder NO!)

* There are 8 TESTS to chose from when determining whether or not an 
act went beyond MERE PREPARATION. 

1. Common Law-- ABOLISHED! "LAST ACT TEST"
Focus: CONDUCT
A person is guilty of an attempt with the Defendant has 
completed all the acts necessary for committing the target crime. 
(The test was abolished because it waited too long; the crime was 
already committed by the time this test determined that the attempt 
occurred. EXAMPLE: the house must be already burning to constitute 
an attempted arson!)

2. MODEL PENAL CODE-- "SUBSTANTIAL STEP TEST" (New York follows)
Focus: MENTAL
Subjective BELIEF of the defendant. What did he believe? Look 
at the substantial step (NOT THE OVERT ACT) and the step must be 
corroborative of the criminal intent.

3. CALIFORNIA-- "RES IPSA TEST" aka UNEQUIVOCALITY TEST
Focus: CONDUCT
Look at the Defendant's actions as a FILM TAPE. The conduct 
must show that unequivocally the Defendant was on his way to commit 
the crime.

4. MODERN variation-- "LAST PROXIMATE ACT TEST" aka Physical 
Proximity Test

5. MODERN variation-- "DANGEROUS PROXIMITY TEST"
Dangerously close... Ask if the Victim have fear? And balance 
the factors to measure the degree of danger.

6. MODERN variation-- "INDISPENSIBLE ELEMENTS TEST"
The defendant already has the TOOLS at their disposal. They 
have the gun, the mask, the car, all the necessary tools for 
everything in place except something out of their control.

7. MODERN variation-- "PROBABLE DESISTANCE TEST" (you could have 
desisted)
"Past the point of no return"
Determine where a REASONABLE PRUDENT PERSON would've stopped.

8. MODERN variation-- "ABNORMAL STEP TEST"
The step that a REASONABLE PRUDENT PERSON wouldn't have taken.
This is much EASIER than the Probable Desistance Test because you 
could prove attempt at EARLIER stages of their actions.
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DEFENSES to ATTEMPT:

* IMPOSSIBILITY- 
Factual Impossibility (NOT A DEFENSE)
LEGAL Impossibility (Defense) 
NOTE- MPC abolished Impossibility as a Defense.

* WITHDRAWAL-
NOT A DEFENSE

* ABANDONMENT-
The Defendant changed her mind and abandoned the plan before the 
intended crime was completed. (California)
1. VOLUNTARY
Internal (out of Defendant's own volition)
External (stopped because of some outside force)
* MUST BE INTERNAL, cannot be external.
2. COMPLETE
MUST completely abandon the plan, not take it up tomorrow.
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EXAMPLES of ATTEMPT: (note- these are all CAL cases)

* Acts held SUFFICIENT to find GUILTY of Attempt:

1. Defendant, intending to kill his wife by dynamiting her place of 
business, procured someone to make the bomb, went with him to the 
spot, and there, while getting ready, was arrested.
*********HELD- attempted murder.

2. Defendant, after having expressed intention to kill his wife with 
a rifle, drove accomplice to her home. D told accomplice to go inside 
and choke his wife and that D would then enter and "do the rest". 
When the accomplice entered the house, police officers came out and 
arrested the D as he sat in his car with his loaded rifle.
*********HELD- attempted murder.

3. D intending to bomb a train track, noticed officers watching him 
while he was a block away from the track and fled. 
********HELD- this was an attempt.

4. D pointed gun at victim and said, "I want to rape you," and on 2 
other occasions did rape victims.
********HELD- attempted rape. (physical touching of V not req'd)

5. D was arrested behind a store wearing gloves, carrying a ladder, 
and burglary tools.
********HELD- attempted burglary.

6. D partially drilled holes through the floor above a bank vault.
********HELD- attempted burglary.

7. D approached liquor store with a rifle and tried to hide on an 
adjacent pathway when he was seen by a customer.
********HELD- attempted robbery.

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* Acts held INSUFFICIENT to find guilty of Attempt:

1. D, after making threats to kill J for alleged annoyances, took a 
rifle to a field where J was working. D loaded gun and walked toward 
J, who fled.
********HELD- there was no attempt; the court suggested that D might 
have come merely to demand the arrest of J.

2. A husband and a wife negotiated for a bribe. The money was then 
delivered to the wife without the husband's knowledge.
*******HELD- as to the HUSBAND, there was only preparation, no attempt

3. The offense of attempted sexual battery requires touching of the 
skin, and there was no evidence that D attempted to touch the skin 
directly. 
******HELD- attempted sexual batter NOT PROVED
(later, the statute amended to include touching through clothing.)


Hope this helped. If I've only confused you more, please email.
---Anna