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92.14 Attempted Murder
92.14.3 Attempted Murder: Defenses And Defense Theories
92.14.3.1 Attempted Murder: Lack Of Intent To Kill As Defense Theory
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92.14.3.1 Attempted Murder: Lack Of Intent To Kill As Defense Theory
RATIONALE: Because an attempt requires an intent to commit the underlying offense, attempted murder necessarily requires an intent to kill.
POINTS AND AUTHORITIES: See People v. Murtishaw (CA 1981) 29 C3d 733, 750-52 [175 CR 738]; see also People v. Harris (IL 1978) 377 NE2d 28; Smallwood v. State (MD 1996) 680 A2d 512, 516-18; State v. Gilliam (NJ 1988) 541 A2d 309, 311 [attempted murder must be limited to attempts to cause death, not serious bodily injury]; Goodson v. Commonwealth (VA 1996) 467 SE2d 848, 856; State v. Dunbar (WA 1991) 817 P2d 1360, 1361; ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 6.05X [Definition Of Attempt First Degree Murder] p. 172 (West, 4th ed. 2000).)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].
RESEARCH NOTES:
See generally, FORECITE National™ 305.1.17 [Attempted Murder].
RELATED FEDERAL MODEL INSTRUCTIONS:
See
FORECITE National™ 92.14.1.2 [Federal Circuit Model Instructions And Notes].SAMPLE INSTRUCTION:
It is a theory of the defense that the prosecution failed to prove beyond a reasonable doubt that the defendant intended to kill ____________________ (name of alleged victim).
If after consideration of all the evidence, you have a reasonable doubt that the defendant intended to kill, you must give the defendant the benefit of that doubt and find [him] [her] not guilt of attempted murder.
[See generally People v. Murtishaw (CA 1981) 29 C3d 733, 750-52 [175 CR 738]; People v. Harris (IL 1978) 377 NE2d 28; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.66 [Attempted Murder] (West, 6th Ed. 1996).]
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92.14.3.2 Accomplice Liability For Attempted Murder: Perpetrator Must Harbor Malice
PRACTICE NOTE: See
FORECITE National™ 92.7.2.7 [Intentional Murder: No Accomplice Liability For Intentional Murder Unless Perpetrator Intended To Kill] for special instruction for use in accomplice liability/aiding and abetting cases requiring the perpetrator to form an intent to kill.RESEARCH NOTES:
See generally, FORECITE National™ 305.1.17 [Attempted Murder].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 92.14.1.2 [Federal Circuit Model Instructions And Notes].
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92.14.3.3 Attempted Murder: Justification
See FORECITE National™ Chapter 253 [Justification: Self Defense, Defense Of Others, Parental Discipline, Etc.].
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92.14.3.4 Attempted Murder: Excuse
See FORECITE National™ Chapter 254 [Excuse: Duress/Coercion, Necessity, Choice Of Evils, Etc.].
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92.14.3.5 Attempted Murder: Accident
See FORECITE National™ 252.2 [Accident].
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92.14.3.6 Attempted Murder: Applicability Of Heat Of Passion/Provocation
RATIONALE: Without special instruction the jury may convict the defendant of attempted murder by finding an intent to kill even though the defendant acted in the heat of passion.
POINTS AND AUTHORITIES: Where the defendant intends to kill and acts in the heat of passion but the victim is not killed, many jurisdictions hold that the crime should be attempted voluntary manslaughter. (See cases cited in State v. Holbron (HI 1995) 904 P2d 912, 924; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.2.) Otherwise the defendant could be convicted of attempted murder and receive a higher penalty than for the completed homicide committed under the same circumstances. (See People v. Williams (CA 1988) 199 CA3d 469, 475 [245 CR 61]; State v. Robinson (NJ 1994) 643 A2d 591, 596-98; State v. Seifert (WI 1990) 454 NW2d 346, 351 ["because imperfect self defense manslaughter is a crime requiring a showing of intent, there is a crime of attempted imperfect self defense manslaughter"]; but see People v. Lopez (IL 1995) 655 NE2d 864, 865-67 [no such thing as attempted second-degree murder [defined as voluntary manslaughter in other jurisdictions, because then defendant "must intend the presence of a mitigating factor, which is an impossibility"]; Curry v. State (NV 1990) 792 P2d 396, 397 [though court notes 18 of 24 states have ruled otherwise, the court holds no crime of attempted voluntary manslaughter, as "one cannot logically specifically intend to act pursuant to a spontaneous, unanticipated and, therefore truly irresistible passion"].)
"The better practice, particularly in a case involving a legal issue of justification, excuse, or mitigation, would be to instruct the jury that the attempt must be accompanied by a specific intent to kill and must occur under circumstances that would not legally justify or excuse the killing or mitigate it to manslaughter if death should result." [Emphasis in original.] (State v. Earp (MD 1990) 571 A2d 1227, 1231; see also Cox v. State (MD 1988) 534 A2d 1333, 1337 [if the attempt includes a specific intent to kill but is done under mitigated circumstances, the crime is attempted voluntary manslaughter].)
See also
FORECITE National™ 92.7.3.3 [Intentional Murder: Impact Of ProvocationAnd Heat Of Passion/Hot Blood On Premeditation And Deliberation].See also
FORECITE National™ 92.11.3.1 [Heat Of Passion Or Hot Anger May Negate Mens Rea Of Lying In Wait].FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.1.17 [Attempted Murder].
RELATED FEDERAL MODEL INSTRUCTIONS:
See
FORECITE National™ 92.14.1.2 [Federal Circuit Model Instructions And Notes].SAMPLE INSTRUCTION:
To prove the defendant guilty of attempted murder the prosecution must prove:
1) the defendant committed the act constituting the attempt with an intent to kill; and
2) the act was not committed in the heat of passion, based on provocation, as defined elsewhere in these instructions.
[Source: FORECITE National™.]
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92.14.3.7 Attempted Murder: Intoxication
See FORECITE National™ 256.5 [Intoxication, Involuntary].
See FORECITE National™ 256.6 [Intoxication, Voluntary].
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92.14.3.8 Attempted Murder: Mental, Medical Or Physical Impairment Of Defendant
See FORECITE National™ 256.7 [Mental, Medical Or Physical Impairment Of Defendant].
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92.14.3.9 Attempted Murder: Additional Defenses And Defense Theories
PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally
FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)