Preparation and attempt

Last updated

Preparation and attempt are related, but different standards in criminal law. [1] :681–4

Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws. Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation, rather than on punishment or rehabilitation. Criminal procedure is a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of the offender.

An attempt to commit an unconsummated crime is viewed as having the same gravity as if the crime had occurred. But preparation that falls short of an actual attempt is not, although it may be punishable in some other way.

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent and some conduct toward completion of the crime.

Courts have not been able to draw a clear bright line as to when acts committed in preparation for a crime are actually an attempt to commit the crime.

Some approaches, summarized in the case of United States v. Mandujano , include the physical proximity doctrine, the dangerous proximity doctrine, the indispensable element test, the probable desistance test, the abnormal step approach, and the uneqivocality test.

United States v. Mandujano, 425 U.S. 564 (1976), was a United States Supreme Court case that determined that it is not necessary to provide full Miranda warnings to a person called to testify before a grand jury; and that false statements given during that testimony may not be suppressed in a subsequent prosecution for perjury.

The physical proximity doctrine is a standard in criminal law for distinguishing between preparation and attempt. "Physical" refers to the physical element of a criminal act, as distinguished from the mental element of a guilty mind. When a person makes preparation to commit a crime, and one of the preparatory acts is close or proximate to the completed crime, the preparation is considered to have merged into being an actual attempt. The standard is not a clear bright line standard. The closer the preparatory act is to the completed crime, the stronger the case for calling it an attempt. The determination as to whether the standard has been met is a matter for the jury to determine.

The dangerous proximity doctrine is a standard for distinguishing between preparation and attempt in a criminal case. It was advocated by Justice Oliver Wendell Holmes Jr. The standard is not a clear bright line. The evidence that preparatory acts are an actual attempt is considered to be stronger if the offense is more probable and more grave or serious. It has similarities with the physical proximity doctrine.

The Model Penal Code approach requires a substantial step, in addition to having a criminal purpose.

The Model Penal Code (MPC) is a text designed to stimulate and assist U.S. state legislatures to update and standardize the penal law of the United States of America. The MPC was a project of the American Law Institute (ALI), and was published in 1962 after a ten-year drafting period. The chief reporter on the project was Herbert Wechsler, and contributors included Sanford Kadish and numerous other noted criminal law scholars, prosecutors, and defense lawyers.

Related Research Articles

An assault is the act of inflicting physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in either criminal and/or civil liability. Generally, the common law definition is the same in criminal and tort law.

Mens rea is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes.

An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the following: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."

In criminal law, entrapment is a practice whereby a law enforcement agent or agent of the state induces a person to commit a criminal offense that the person would have otherwise been unlikely or unwilling to commit. It "is the conception and planning of an offense by an officer or agent, and the procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer or state agent."

Solicitation is the act of offering, or attempting to purchase, goods or services. Legal status may be specific to the time or place where occurs. The crime of "solicitation to commit a crime" occurs when a person encourages, "solicits, requests, commands, importunes or otherwise attempts to cause" another person to attempt or commit a crime, with the purpose of thereby facilitating the attempt or commission of that crime.

Attempted murder is a crime of attempt in various jurisdictions.

An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime as a joint principal. The distinction between an accessory and a principal is a question of fact and degree:

United States v. Thomas 13 U.S.C.M.A. 278 (1962) is a famous case of a military court-martial involving a failed attempt to commit a crime, in this case, rape and the use of the "impossibility" defense.

Joint criminal enterprise concept in international criminal law

Joint criminal enterprise (JCE) is a legal doctrine used during war crimes tribunals to allow the prosecution of members of a group for the actions of the group. This doctrine considers each member of an organized group individually responsible for crimes committed by group within the common plan or purpose. It arose through the application of the idea of common purpose and has been applied by the International Criminal Tribunal for the former Yugoslavia to prosecute political and military leaders for mass war crimes, including genocide, committed during the Yugoslav Wars 1991–1999.

In criminal law, a lesser included offense is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime. It is also used in non-criminal violations of law, such as certain classes of traffic offenses.

The importance of corroboration is a unique feature of Scots criminal law. A cornerstone of Scots law, the requirement for corroborating evidence means at least two different and independent sources of evidence are required in support of each crucial fact before a defendant can be convicted of a crime. This means, for example, that an admission of guilt by the accused is insufficient evidence to convict in Scotland, because that evidence needs to be corroborated by another source. However, testimony from some experts, such as forensic medical examiners or doctors, is accepted by courts on the basis of the expert's report alone, therefore requiring no corroboration.

Inchoate offences in English law are offences in England and Wales that cover illegal acts which have yet to be committed, primarily attempts to commit crimes, incitement to crime or encouraging or assisting crime, and conspiracy to commit crimes. Attempts, governed by the Criminal Attempts Act 1981, are defined as situations where an individual who intends to commit an offence does an act which is "more than merely preparatory" in the offence's commission. Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance. Incitement, on the other hand, is an offence under the common law, and covers situations where an individual encourages another person to engage in activities which will result in a criminal act taking place, and intends for this act to occur. As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". It was abolished by the Serious Crime Act 2007, but continues in other offences and as the basis of the new offence of "encouraging or assisting" the commission of a crime.

Crime preparations are acts or actions performed by criminal offenders during any period of time before the actual crime is committed and range from mere intent to overt action.

The probable desistance test in the United States is a criminal law approach to distinguishing conduct that constitutes the crime of attempt of a crime, from mere preparation to commit the crime. In United States v. Mandujano (1974) the court wrote that under the probable desistance test, "the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended".

The indispensable element test is a standard for distinguishing preparation and attempt in a criminal case. A person who does every act needed to commit a crime, except for one necessary or indispensable element, is not guilty of having made an attempt.

The probable desistance test is a standard for distinguishing between preparation and attempt in a criminal case. Under this standard, a person is guilty of attempt if they intended to commit a crime and acted in such a way that the offense would have been committed, but for intervention by some external factor not in the control of the defendant, such as being stopped by law enforcement.

The abnormal step approach is a standard for distinguishing between preparation and attempt in a criminal case. If a person takes a series of steps in preparation for a crime, then takes a step that a normal noncriminal person would have come to their good senses and held back from taking, then that is evidence of an attempt.

The unequivocality test is a standard for distinguishing between preparation and attempt in a criminal case. When a person's conduct, in itself, shows that the person unequivocally and without reasonable doubt, actually intends to carry out a crime, then the conduct is a criminal attempt to commit that crime.

References

  1. ↑ Criminal Law - Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John Kaplan, Robert Weisberg, Guyora Binder, ISBN   978-1-4548-0698-1,
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.