Attempts
What is an "attempt"
An "attempt" is when a person with intent (mens rea) to commit an offense performs a "substantial step" (actus reus) toward committing it. The substantial step must go beyond mere preparation or perpetration
True or False
Voluntary intoxication IS an excuse defense
FALSE
Voluntary intoxication is NOT actually an excuse defense. However, it can sometimes preclude the formation of a required specific intent element. Additionally, at CL voluntary intoxication was not a "defense" at all.
What is the focus of all competency determinations?
The focus of all competency determinations is on the defendant's present ability to comprehend the legal process at stake.
Competence to stand trial, plead guilty, & be executed requires a defendant
1) have the present ability to consult with a lawyer with a reasonable degree of rational understanding, and
2) have rational and factual understanding of the proceedings
NOTE: this is a very low standard in practice
Why do we excuse the insane?
An actor is not capable of being morally culpable if they are insane. It is just wrong to punish someone who is insane and it's useless because it doesn’t serve any of the purposes of criminal law - rehabilitation, deterrence, or retribution
An art collector had frequented a particular art gallery for years. The collector knew the gallery’s collection by heart and was familiar with the gallery’s sophisticated security system. The collector had grown particularly fond of one of the gallery’s pieces and spent hours thinking about ways to steal the piece for the collector’s home collection.
Under which of the following tests, if any, would the collector be most likely to be convicted of attempted burglary of the gallery?
A. The Physical Proximity Test
B. The Probable Desistance Test (Last Proximate Act Approach)
C. Res Ispsa Loquitur Test
D. None
D. None
In general, an attempt occurs if an actor, with the specific intent to commit a target offense, engages in some act in furtherance of the target offense that does not result in its completion. Mere intent is not enough by itself because there is no liability for criminal thoughts alone. Thus, attempt liability also demands an actus reus—that is, a culpable act. And in order to be culpable, the act must go beyond the threshold of merely preparing for a crime; it must represent a step in the crime's actual commission. Therefore, without more, the collector’s thoughts about ways to steal the piece are insufficient to support a conviction for attempted burglary of the gallery.
True or False
For all "attempts" under the MPC the person does NOT need to act with the kind of culpability required for commission of the crime attempted when it comes to attendant circumstances.
FALSE
For ALL MPC "attempts" person must act with the "kind of culpability . . . required for commission of the crime" attempted when it comes to attendant circumstances (MPC § 5.01(1))
True or False
Under the MPC, any kind of intoxication is a defense if it "negatives an element of the offense.
True or False
Under the MPC, voluntary intoxication is a defense to a crime of recklessness (i.e. if defendant would have been aware of risk if he/she had been sober)
TRUE
Under the MPC §2.08(1), any kind of intoxication is a defense if it "negatives an element of the offense"
FALSE
Under the MPC voluntary intoxication is NOT a defense to a crime of recklessness (MPC § 2.08(2). Note that under the MPC the act of voluntarily getting drunk is itself reckless because the risks of excessive drinking are so well known which justifies holding voluntarily drunk defendants accountable for recklessness while drunk.
What is the "Product" Test for Insanity?
Under the "Product" Test for Insanity - an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect
- allows for broad psychiatric and medical testimony
- not focused on entirely cognitive or entirely volitional approach
NOTE: product test is very unpopular today
Why are excuse defenses important as it relates to moral blame/culpability?
Excuse defenses are important because they recognize that moral blame/culpability is foundational in criminal justice system and it's simply wrong and inappropriate to punish acts that are "morally blameless" (e.g. acts of insane) AND acts that we, as imperfect humans ourselves, conclude we "can't" or shouldn't blame the actor for, because we worry that most or many of us would do the same thing under the circumstances (e.g. duress)
A carjacker jumped into the passenger seat of a motorist’s car, pointed a gun at the motorist’s head, and demanded that the motorist drive to a nearby bank. The motorist complied with the carjacker’s instructions. At the bank, the carjacker exited the car, entered the bank, and robbed it. The motorist was charged with being an accessory before the fact to armed bank robbery.
In a Model Penal Code (MPC) jurisdiction, which of the following issues is dispositive of whether the motorist acted under duress?
A. Whether the motorist had reasonable, legal alternatives to complying with the carjacker's instructions.
B. Whether the motorist attempted to resist the carjacker before complying with the carjacker's instructions.
C. Whether a person of reasonable firmness would have resisted the carjacker.
D. Whether the carjacker's conduct threatened serious bodily harm or death.
C. Whether a person of reasonable firmness would have resisted the carjacker.
Under the MPC, the elements to a duress defense are:
1) defendant was coerced to violate law by use/threat of unlawful force by another against defendant/other
2) person of reasonable firmness in same situation would have been unable to resist (objective standard but the standard is not that of a reasonable weak-willed person)
3) defense unavailable if defendant purposely/recklessly put self in "situation" where duress likely; if negligently put self in the situation, defense available, except against offenses requiring only negligence
Therefore, whether a person of reasonable firmness would have resisted the carjacker is dispositive of whether the motorist acted under duress
True or False.
Under the MPC Approach to Actus Reus of Attempt, the focus of the approach is on the kind of culpability required for the underlying offense and the actor's criminal purpose (i.e. subjective intent of the defendant)
If true, what do the acts already done by the defendant reveal about the defendant's intent for the following:
- For Completed Attempts:
- For Incomplete Attempts:
TRUE.
Under the MPC Approach to Actus Reus of Attempt, the focus of the approach is on the kind of culpability required for the underlying offense and the actor's criminal purpose (i.e. subjective intent of the defendant)
The acts already done by the defendant reveal the following about the defendant's intent:
- For Completed Attempts: Action(s) must show purpose regarding conduct attempted OR purpose/knowledge/belief regarding result attempted
- For Incomplete Attempts: Action(s) must be a substantial step toward the commission of the crime which requires that act(s) be strongly corroborative of actor's criminal purpose
What are the elements under the traditional CL Duress Defense?
Under the traditional CL, the elements of a Duress Defense are:
1) unlawful threat by another to kill or grievously injure defendant or someone else unless defendant committed certain illegal act(s)
2) defendant reasonably believed threat was genuine
3) threat was present, imminent, and impending at time of criminal act
4) no reasonable opportunity to escape (except through compliance)
5) defendant was not at fault in exposing self to threat
NOTE: CL duress defense was NOT available as defense to murder
What is the MPC approach to insanity defense (i.e. when is a person not responsible for their criminal conduct)?
Under the MPC §4.01(1), a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either:
1) to appreciate the criminality [wrongfulness] of his conduct, OR
2) to conform his conduct to the requirements of law
MPC Test: Mental Disease or Defect Excluding Responsibility § 4.01
- test recognizes BOTH cognitive & volitional impairments and allows for broad testimony about "shades of gray" regarding both
- focus is on "lack of substantial capacity" not just inclination or personality (to violate law)
- excludes antisocial personality disorder (i.e. sociopaths/psychopaths) from coverage as "mental disease or defect" MPC § 4.01(2)
What are some of the theoretical basis for no condemning and punishing conduct as criminal based on excuse defenses?
- can't deter such conduct anyway
- should only punish behavior that is "freely" chosen - full human choice as key element for culpability
- should only blame/punish conduct that an actor had both the capacity and a fair opportunity to freely choose to engage in (or not)
- with such excuses, actor was not true "cause" of the harm (but rather some other condition/person)
- under the circumstances, the criminal act doesn't reflect the true character of the actor
A defendant was charged with murdering a victim and invoked the insanity defense. The jurisdiction follows the M'Naghten rule. Which of the following showings would most undermine the defendant's insanity claim?
A. Before the murder, the defendant had no history of mental illness.
B. Before the murder, the defendant and the victim argued.
C. After the murder, the defendant cleaned the crime scene and disposed of the body.
D. After the murder, the defendant returned to work and appeared normal to the defendant's coworkers.
C. After the murder, the defendant cleaned the crime scene and disposed of the body.
Under the M’Naghten rule, a defendant will be found not guilty by reason of insanity if, as a result of a mental disease or defect, (1) the defendant did not know the nature or quality of the criminal act, or (2) if the defendant did know the nature and quality of the act, the defendant did not know it was wrong. Therefore, if a defendant cleaned the crime scene and disposed of the body, it would be evidence that the defendant knew that what the defendant did was wrong and was trying to avoid detection, which would undermine the defendant’s insanity claim under the second prong of the M’Naghten test.
What is the MPC Approach to Attempts?
What must be shown for each of the following:
- Completed Attempt Conduct Crimes
- Completed Attempt Result Crimes
- Incomplete Attempt Crimes
MPC Approach to Attempt under MPC §5.01
1) Determine if attempt involves completed or incomplete attempt
2) For completed attempts, determine if crime is a conduct crime (e.g. drunk driving) or result crime (e.g. murder)
Completed Attempt Conduct Crimes: Defendant must purposely engage in conduct that would constitute the crime if the attendant circumstances were as defendant believes them to be [i.e. must have purpose to commit conduct; can attempt conduct crime that wasn't possible at the time)
Completed Attempt Result Crimes: Defendant must act or not act with the purpose of causing or with the belief that [act/inaction] will cause [required[ result without further conduct [i.e. must act with purpose of causing prohibited result or with belief that such result will occur
Incomplete Attempt Crimes: Defendant must purposely act or not act such that, under the circumstances as he/she believes them to be, such act(s)/omission(s) constitute a substantial step in a course of conduct planned to culminate in the commission of the crime (i.e. looking for a substantial step)
What are the four types of "involuntary intoxication?"
Types of Involuntary Intoxication:
1) coerced intoxication - due to duress/coercion
2) pathological intoxication - unexpected grossly excessive reaction to an intoxicant
3) intoxication by innocent mistake
4) intoxication due to medical prescription - unexpected reaction to a prescribed drug
NOTE: This is rare but it could be a true excuse defense if proven. This defense would be available to both specific and general intent crimes b/c there was no consent to the intoxication [or the level of intoxication that "caused" crime]
What is the Traditional M'Naghten Test for Insanity?
The Traditional M'Naghten Test for Insanity asks:
Whether at the time of the act, the defendant was suffering from a defect of reason caused by disease of the mind, such that defendant did not know/understand:
1) the nature and quality of the act committed OR
2) that the act committed was wrong
- here the focus is entirely on defendant's knowledge/understanding --> asks whether defendant was capable of understanding nature of acts and right v. wrong at time of act (cognitive focus)
- MAJORITY APPROACH**
A rambunctious teen was wildly shooting a pellet gun in a parking lot, trying to break car headlights. One of the pellets narrowly missed a bystander.
Could the teen be subject to liability for common-law attempted murder of the bystander?
A. Yes, because the teen intended to discharge the pellet gun
B. Yes, because the pellet could have killed the bystander
C. No, because the teen lacked the specific intent to kill the bystander
D. No, because the bystander was not killed
C. No, because the teen lacked the specific intent to kill the bystander
While there is no clear rule under the CL about whether acting with belief/knowledge that death will occur is enough for attempted murder, many jurisdictions require actual purpose/intent to kill. Here, the teen had the specific intent to commit property damage, not the specific intent to kill the bystander. Therefore, the teen might not be liable for attempted murder.
People v. Gentry - Court held that attempted murder requires specific intent to kill; intent to injure not enough and knowledge of risk of death or serious injury not enough.
NOTE: Unlike the crime of murder, attempted murder requires actual intent to kill
What are the varying Common Law Approaches to Defining "Attempt"
1)
2)
3)
4)
5)
6)
1) "Last Proximate Act" Approach (also known as probable desistance test) - when a person has done everything in her power to commit a crime but crime was intercepted by some outside force (Mandujano - an attempt shall be when the defendant has passed beyond preparation for the crime although he has been interrupted before he has taken the last of his intended steps
2) Physical Proximity Test - Over act required for attempt must be proximate to completed crime. Put another way, the overt act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime, or must amount to the commencement of the consummation of the crime
3) Dangerous Proximity Test - Focus on the gravity of the crime & how close it was to being committed. Put another way the test states that the greater the gravity and probability of the offense and the nearer the act is to the crime, the stronger the case for calling the act an attempt
- in that test you are looking at: nearness of the danger, the greatness of the harm, and the degree of apprehension felt
4) Res Ipsa Loquitur Test - focus on the objective acts actually committed and ask: Do such acts, standing alone, reveal commitment to completing the crime? Put another way, an attempt is committed when the actor's conduct objectively manifests an intent to commit a crime
5) Declared/clear intent to commit crime + "slight acts" done to further design
6) Conduct revealing firm commitment to specific illegal venture, rather than contemplation of possible future crime
- the issue is whether conduct sufficiently unambiguous to establish illegal intent
What are the elements of a duress defense under the MPC?
Under the MPC, the elements to a duress defense are:
1) defendant was coerced to violate law by use/threat of unlawful force by another against defendant/other
2) person of reasonable firmness in same situation would have been unable to resist (objective standard but the standard is not that of a reasonable weak-willed person)
3) defense unavailable if defendant purposely/recklessly put self in "situation" where duress likely; if negligently put self in the situation, defense available, except against offenses requiring only negligence
NOTE: Defense IS available even in murder cases. It also doesn't require threat of deadly force/grievous injury or that threatened harm be "imminent"
What is the "Irresistible Impulse" or "Control" Test for Insanity?
Whether at the time of the act, the defendant was suffering from a defect of reason caused by a disease of the mind, such that the defendant did not know/understand:
1) the nature and quality of act committed, OR
2) that the act committed was wrong (M'Naghten)
OR ASKS
*3) whether, at the time of the act, the defendant acted from an irresistible and uncontrollable impulse, such that the defendant lacked power to choose between right and wrong or to avoid doing the act in question; OR that the defendant's will was completely destroyed, such that defendant's actions were beyond the defendant's control
NOTE: This is an "all-or-nothing" approach in that it requires TOTAL incapacity, either cognitive or volitional. This test also suggests that insanity is comparable to a "sudden and explosive fit" rather than acting after brooding or due to sustained psychotic compulsion
A defendant charged with murder asserted an insanity defense at trial. Accordingly, the judge gave the jury the following instruction: “If you believe that the defendant, because of a mental disease or defect, lacked substantial capacity either to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of law, you must find the defendant not guilty by reason of insanity.”
In which type of jurisdiction was the defendant tried?
A. A federal jurisdiction
B. An irresistible impulse jurisdiction
C. A M'Naghten Jurisdiction
D. A Model Penal Code (MPC) Jurisdiction
D. A Model Penal Code (MPC) Jurisdiction
The MPC provides that a defendant is not guilty by reason of insanity if, as a result of a mental disease or defect, the defendant lacks substantial capacity either to (1) appreciate the criminality (wrongfulness) of the defendant’s conduct or (2) conform the defendant’s conduct to the requirements of the law. Model Penal Code § 4.01(1). Therefore, the defendant here was likely tried in an MPC jurisdiction.