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66.1 Attempt: General Principles

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PRACTICE NOTE: The crime of attempt, a relatively recent development of the common law, consists of: (1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation. (See generally FORECITE National™ 305.1.18 [Attempts].)    

LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.2, pp. 29-30.

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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RATIONALE: Since an attempt requires an intent to commit the underlying offense, the jury should be instructed that there must be an intent to commit each element of that offense.

POINTS AND AUTHORITIES: Any instruction on attempt must require the jurors to find a specific intent to "commit the crime charged...." (See United States v. Rivera-Sola, 713 F2d 866 (1st Cir. 1983); United States v. Ivic, 700 F2d 51 (2nd Cir. 1983); United States v. Mowad, 641 F2d 1067 (2nd Cir.1981); United States v. Manley, 632 F2d 978 (2nd Cir. 1980); United States v. Contreras, 950 F2d 232 (5th Cir. 1991); United States v. Cartlidge, 808 F2d 1064 (5th Cir. 1987); United States v. Fooladi, 746 F 2nd 1027 (5th Cir. 1984); United States v. Briscoe, 742 F2d 842 (5th Cir. 1984); United States v. Woolery, 735 F2d 818 (5th Cir. 1984); United States v. Williams, 704 F2d 315 (6th Cir. 1983); United States v. Joyce, 693 F2d 838 (8th Cir. 1982); United States v. Snell, 627 F2d 186 (9th Cir. 1980); United States v. Bunney, 705 F2d 378 (10th Cir. 1983); United States v. McDowell, 705 F2d 426 (11th Cir. 1983).)

    For example, specific intent in an attempt to commit the crime of rape embraces every element of the crime of rape except its accomplishment. (See e.g., State v. Gager (HI 1962) 370 P2d 739, 751.) Intent, which is essential to support a conviction of an attempt to commit rape, cannot be assumed, but must be proven beyond a reasonable doubt. (Ibid.)

    In sum, it is constitutional error to fail to instruct the jury that the crime of attempt includes the element of intent to commit the substantive crime. (See State v. Aumick (WA 1995) 894 P2d 1325, 1328.)

    See also FORECITE National™ 66.3.3 [Attempt: Defense Theory That Completed Act Would Not Have Been A Crime].

    See also FORECITE National™ 66.3.4 [Attempt: Legal Impossibility As Defense].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Int. 10-1, Comment.

WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 100.02 [Attempt-Elements] comment (West, 2nd ed. 1994).

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

    The prosecution must prove beyond a reasonable doubt that the defendant intended to commit each and every element of the crime of _____________________.

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PRACTICE NOTE:  Crimes may not be attempted which are based on negligence. (See e.g., In re Kent (CA 1986) 181 CA3d 721, 723-24 [226 CR 512] [reckless causing of a fire]; see also People v. Broussard (CA 1977) 76 CA3d 193, 196-97 [142 CR 664] [involuntary manslaughter]; State v. Moore (HI 1996) 921 P2d 122, 130 [no offense of attempted reckless manslaughter]; State v. Hemmer (NE 1995) 531 NW2d 559, 564 [no crime of attempted reckless assault]; State v. Vigil (UT 1992) 842 P2d 843, 848 [no such crime as attempted depraved indifference homicide]; but see People v. Thomas (CO 1986) 729 P2d 972, 975 [attempted reckless involuntary manslaughter exists when defendant intends to "engage in and complete the risk-producing act or conduct"].)

Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 10-1, Comment, p. 10-10.

LaFave & Scott, Substantive Criminal Law (West, 1986) § 59; see also Schulhofer, "Attempt" in Encyclopedia of Crime and Justice 91, 93 (S. Kadish, ed. 1983).

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Crimes such as assault, which are based on an attempt, should not be charged separately as an attempted offense. (See e.g., In re James M. (CA 1973) 9 C3d 517, 521-22 [108 CR 89].)

Attempt to Commit Assault as Criminal Offense, 79 ALR2d 597.

See generally, FORECITE National™ 305.1.18 [Attempts].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: It is often stated that an attempt is a lesser included of the charged offense. (See e.g., People v. Vanderbilt (CA 1926) 199 C 461, 464 [249 P 867]; People v. Williams (NY 1983) 465 NYS2d 648, 653 [attempts which are legally possible of commission are lesser-included offenses of the substantive crimes]; State v. Staggs (TN 1977) 554 SW2d 620, 624 [attempt to commit offense charged is lesser included offense]; but see People v. Shelton (MI 1984) 360 NW2d 234, 237 [attempt is not a necessarily lesser included offense of crime attempted].)

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "Failure, if and by whatever means the actor’s efforts are frustrated, is relevant only insofar as it may negate any inference that the actor did in fact possess the necessary criminal intent to commit the crime in question." (Berry v. State (WI 1979) 280 NW2d 204, 209; see also State v. Kordas (WI 1995) 528 NW2d 483, 485 ["The intervention of some extraneous factor that prevents commission of a crime is irrelevant to a defendant's attempt to commit the crime unless the factor 'may negate any inference that the actor did in fact possess the necessary criminal intent to commit the crime in question'"].)

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Despite the absence of a comprehensive statutory definition of attempt in federal criminal law, federal courts have uniformly adopted the standard set forth in section 5.01 of the American Law Institute’s Model Penal Code that the requisite elements are (1) an intent to engage in criminal conduct, and (2) conduct constituting a "substantial step" towards the commission of the substantive offense, which strongly corroborates the actor’s criminal intent. (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 10-1, Comment, p. 10-4.)

    The circuits have added instructional language to explain this requirement:

1st Circuit: "Second, that [defendant] engaged in a purposeful act that, under the circumstances as [he/she] believed them to be, amounted to a substantial step toward the commission of that crime and strongly corroborated [his/her] criminal intent. [¶] A "substantial step" is an act in furtherance of the criminal scheme. A "substantial step" must be something more than mere preparation, but less than the last act necessary before the substantive crime is completed. [¶] The "substantial step" may itself prove the intent to commit the crime, but only if it unequivocally demonstrates such an intent." (1st Circuit Pattern Jury Instructions - Criminal, 4.01 paragraphs 3, 4 & 5.)

5th Circuit: "Second: That the defendant did an act constituting a substantial step towards the commission of that crime which strongly corroborates the defendant's criminal intent." (5th Circuit Pattern Jury Instructions - Criminal 1.32, 5th ¶.)

6th Circuit: "And second, that the defendant did some overt act that was a substantial step towards committing the crime of ____________. [¶ ] Merely preparing to commit a crime is not a substantial step. The defendant's conduct must go beyond mere preparation, and must strongly confirm that he intended to ____________. But the government does not have to prove that the defendant did everything except the last act necessary to complete the crime. A substantial step beyond mere preparation is enough." (6th Circuit Pattern Jury Instructions - Criminal 5.01, ¶¶ (B) and (C).)

7th Circuit: "To "attempt" means that the defendant knowingly took a substantial step toward the commission of the offense with the intent to commit that offense." (7th Circuit Pattern Jury Instructions - Criminal, 4.07.)

8th Circuit: "The crime charged in [Count _____ of] the indictment is an attempt to (describe attempted act, e.g., sell counterfeit currency.) A person may be found guilty of an attempt if [he] [she] intended to (describe attempted act, i.e., sell counterfeit currency) and voluntarily and intentionally carried out some act which was a substantial step toward that (describe attempted act, i.e., sale)." (8th Circuit Pattern Jury Instructions - Criminal, 8.01.)

9th Circuit: "Second, the defendant did something which was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step. [¶] Mere preparation is not a substantial step toward the commission of the [crime charged]." (9th Circuit Pattern Jury Instructions - Criminal 5.3, ¶¶ 3 & 5.)

11th Circuit: Second: "That the Defendant engaged in conduct which constituted a substantial step toward the commission of the crime and which strongly corroborates the Defendant’s criminal intent. [¶] A "substantial step" means some important action leading to the commission of a crime as distinguished from some inconsequential or unimportant act. It must be something beyond mere preparation; it must be an act which, unless frustrated by some condition or event, would have resulted, in the ordinary and likely course of things, in the commission of the crime being attempted. (11th Circuit Pattern Jury Instructions - Criminal, SI 11, ¶¶ 5 & 6.)

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PRACTICE NOTE: It has been held that the "substantial step" requirement for attempt liability requires that "the defendant acts, taken as a whole, must strongly corroborate the required culpability; they must not be equivocal." (United States v. McDowell, 705 F2d 426, 428 (11th Cir. 1976); see also United States v. Oviedo, 525 F2d 881, 885 (5th Cir. 1976) ["...the objective acts performed, without any reliance on the accompanying mens rea, mark the defendant’s conduct as criminal in nature"].)

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    66.1.7.3    Substantial Step: Mere Preparation Insufficient

PRACTICE NOTE: Many federal circuit model instructions specifically inform the jurors that "mere preparation" is not a "substantial step" necessary for attempt liability: 1st Circuit Pattern Jury Instructions - Criminal, 4.01 paragraphs 3, 4 & 5; 5th Circuit Pattern Jury Instructions - Criminal 1.32, 5th ¶; 6th Circuit Pattern Jury Instructions - Criminal 5.01, ¶¶ (B) and (C); 7th Circuit Pattern Jury Instructions - Criminal, 4.07; 8th Circuit Pattern Jury Instructions - Criminal, 8.01; 9th Circuit Pattern Jury Instructions - Criminal 5.3, ¶¶ 3 & 5; 11th Circuit Pattern Jury Instructions - Criminal, SI 11, ¶¶ 5 & 6. For additional discussion, sample instructions and specific examples regarding "mere preparation" see FORECITE National™ 66.2 [Attempt: Mere Preparation Or Intent Not Sufficient].

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    66.1.8     Attempt: Federal Circuit Model Instructions And Notes

See 1st Circuit Pattern Jury Instructions - Criminal 4.01.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.32.

See also 6th Circuit Pattern Jury Instructions - Criminal 5.01.

See also 7th Circuit Federal Jury Instructions - Criminal 4.07.

See also 8th Circuit Model Jury Instructions - Criminal 6.21.846B.

See also 8th Circuit Model Jury Instructions - Criminal 8.01.

See also 9th Circuit Model Jury Instructions - Criminal 5.3.

See also 11th Circuit Pattern Jury Instructions - Criminal, SI 11.