Attempt liability is the most common form of inchoate liability.
A criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense.
A defendant must intend both his conduct and to bring about the crime.
In most jurisdictions, one cannot attempt crimes of recklessness since they do not involve a defendant intending to cause the resulting harm in the first place.
Impossibility is a common defense to attempt crimes. It is divided into factual impossibility and legal impossibility.
Factual impossibility occurs when the defendant's objective is illegal but, unbeknownst to him, impossible to accomplish under the circumstances.
e.g., pointing a gun at someone and pulling the trigger, but the gun jams
Factual impossibility is rarely a valid defense.
Legal impossibility is further divided into pure legal impossibility and hybrid legal impossibility.
The Model Penal Code and most jurisdictions only allow pure legal impossibility as a defense.
Pure Legal Impossibility
Pure legal impossibility is when one engages in conduct he thinks to be illegal, but it actually is legal for him to do.
Situations with pure legal impossibility are not a basis for criminal liability.
Hybrid Legal Impossibility
Hybrid legal impossibility is when the defendant's goal is illegal but impossible due to the legal status of some factor relevant to his conduct.
Most jurisdictions do not allow hybrid legal impossibility as a defense.
- Taking stolen property that turns out to not be stolen
- Trying to bribe a juror when the person is not actually a juror
- Trying to solicit an FBI agent posing as an underage girl in a chatroom
- Trying to hire an undercover cop posing as a hitman
Abandonment is a defense to attempt crimes if, after reaching the threshold for the attempt crime, the defendant voluntarily abandons his crime.
Abandonment is not a defense if it occurs as a result of victim resistance or police detection.
For a threat to constitute assault
, it must place the victim in a reasonable apprehension of immediate bodily harm. Usually this requires purposely
causing the apprehension.