Attempt, Part 2

For a defendant to be guilty of attempt, they must go beyond mere preparation. We want to give people a chance to turn back. But where is the line separating preparation from attempt? It’s important to define attempt somewhere short of the actus reus. We can’t have police standing idly by while murders take aim at their victims.

Let’s use Lost as an example. When the Oceanic 6 met Ben on the dock, Sayid gave Ben a warning. Something along the lines of “If I ever see you again, it’s going to be very unpleasant for both of us.” Although that is a little vague, let’s pretend that we now have clear evidence of intent to murder.

Sayid soon found himself back on the island, where he met young Ben. I suppose this is where he began planning/preparing. After tricking Ben into letting him out of the cage, Sayid took Jin’s pistol and shot Ben in the chest. (For the sake of this example, we'll also have to pretend that Ben isn’t purposefully setting up all these little mousetraps. He freaking WANTED Sayid to travel back in time and shoot him.)

At what point did Sayid's actions cross the line from planning to attempted murder? There are a number of tests to help us distinguish preparation from attempt.

The Dangerous Proximity Test looks at how close the victim is to danger. Under this test, once Sayid had possession of the weapon, and was close enough to shoot Ben, he had completed attempted murder. Sayid would be guilty of attempted murder the moment he took Jin’s gun.

The Equivocality Test looks only at physical actions of the defendant. These actions must speak for themselves, and show clear intent to commit a crime. This test can push the line forward or backward relative to the Dangerous Proximity Test. I’m guessing a jury made up of Losties would not convict Sayid of attempted murder until the moment he pointed the gun at Ben. I think this action shows a clear intent to attempt murder, beyond a reasonable doubt.

Most jurisdictions, as well as the MPC, use the Substantial Step Test. Prosecution will attempt to show a substantial step that is strongly corroborative with attempt. The defendant must produce a compelling and innocent explanation, or they will be found guilty. Sayid could come up with pretty solid explanations for his behavior until he pointed the gun at little Ben. For instance, he might argue that he took Jin’s gun for protection (Smokie, polar bear, Others).

People v. Rizzo (1927, New York)

Facts
A group of men were driving around looking for a specific guy they wanted to rob. They were arrested before finding him.

Question
Was this attempted robbery?

Holding
No

Reasoning
New York was using the Dangerous Proximity Test. The victim was not in dangerous proximity because they couldn’t find him.

State v. Duke (1998, Florida)

Facts
Duke was trying to pick up a child in a chat room for sex. But the “child” was an undercover detective. They made a plan to meet in a parking lot, where Duke would flash his headlights. Duke showed up and flashed his headlights.

Question
Was this attempted statutory rape?

Holding
No

Reasoning
Again, Dangerous Proximity Test. No child was present.

Notes
This case is held up as an example of why the Dangerous Proximity Test does not work. We must put people in harms way to get convictions.

United States v. Jackson (1977)

Facts
Three defendants were in a conspiracy to rob a bank. They picked a day, and went to the bank with weapons and masks. After looking around they decided it wasn’t the best time. They made a plan to come back in a week.

In the meantime, one of the men was arrested for something else. He told the police about the conspiracy.

The men came back the next week with weapons, masks, and a fake license plate. They were arrested and charged with attempted robbery.

Question
Was this attempted robbery?

Holding
Yes

Reasoning
Substantial Step Test. The jury strongly inferred an attempt to rob the bank. The defendants were unable to come up with a compelling and innocent explanation.

summarized from Life of a Law Student