sect10_pros_memo - SECTION 10 ATTEMPT LIABILITY Attempt v...

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S ECTION 10: A TTEMPT L IABILITY – O CTOBER 10, 2006 Attempt v. Mere Preparation - Determine point of criminal liability o Some point in chain of events from thinking about committing an offense to completing it o Point where mere preparation becomes a criminal attempt - Act may escape liability for attempt if he voluntarily and completely renounces the attempt Proximity Tests – refer to footnotes - Physical proximity doctrine o How close to the location of contemplated conduct - Dangerous proximity doctrine o How close the danger was to happening - Indispensable element approach - Probable desistance test o Chance of actor reasonably desisting - All measure the point of attempt by the actor’s closeness to commission of the substantive offense - Objective view of criminality: o Requires harm or evil Tangible or intangible o Does not require the actual occurrence of the offense o Requires that the actor actually have come close to committing the offense o Requires a real present danger that the offense will be committed Res Ipsa Loquitur Test - Unequivocality test - Focuses on the actor’s conduct manifestation of the actor’s intent o Not on how close the actor actually comes to committing the substantive offense - Preparation is intent - Conduct speaks for itself o Excludes all other innocent possibilities (possible conduct) - Attempt liability depends upon the actor’s intention to commit the offense - Res ipsa test will bar attempt liability even if evidence of culpability is overwhelming o If that culpability does not show in the actor’s conduct Substantial Step Test - Actor must take a “substantial step” toward commission of the offense - How far from the pure intention to commit the offense the actor has gone - Actor’s conduct must “strongly corroborative of the actor’s criminal purpose” 1
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o Need only corroborate his or her intent o Help support in a modest way the existence of the alleged intent - Subjective view of Criminality o Actual danger of commission is not required Culpability Requirements: Criminalizing otherwise Innocent Conduct - Culpability requirements core of offense - Objective elements can be satisfied by conduct that otherwise would be lawful o Made criminal by virtue of the attempter’s culpable state of mind - One’s intention can make otherwise innocent conduct criminal Specific Intent Requirement - Attempt said to be a “specific intent offense” o Requiring a higher level of culpable state of mind than a “general intent” offense General intent – actor’s intention could be assumed from his or her conduct o Specific intent requirement of attempt typically is taken to require a purpose to commit the object offense Purpose Requirement in Attempt - Murder requires only that the actor knew his acts created a strong probability of causing death of great bodily harm o Attempted murder requires this also - Attempt liability requires that: o Actor intend to engage in the conduct constituting the substantive offense o Actor intend
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