Attempt

This is the first of two posts on attempted crimes.

The word “attempt” implies intentional action. When considering attempt, the mens rea of the statute is automatically raised to knowingly. Therefore you cannot negligently or recklessly attempt a crime.

Hypothetical
A man builds a catapult, and is launching flaming projectiles out of his backyard. He lives in a crowded neighborhood, and accidentally kills someone a few blocks away. This would be depraved heart murder. But if his neighbor survived, it would not be attempted murder. Again, recklessly does not satisfy attempt.

Solicitation
In some states, you have to attempt the crime yourself to be charged with attempt. But most states, as well as the MPC, say soliciting a hitman completes attempted murder.

Abandonment
This is a defense to attempt. It is based on the defendant arguing that they abandoned the crime before completion. Abandonment works in the majority of states and under the MPC. The abandonment must be of the defendants own free will. You can’t abandon the attempt because the crime is going poorly.

Factual Impossibility
This is when you attempt to commit a crime, but fail because you don’t have all your facts straight. An example would be trying to poison someone with a substance that is not poison. Or, a pedophile has sex with a “minor”, only to find out that the victim is actually of legal age. Under the MPC, such acts successfully complete attempt.

Smallwood v. State (1996, Maryland)

Facts
Smallwood was HIV positive, and had been warned by counselors not to have unprotected sex. He raped several women without wearing a condom. Among other charges, he was prosecuted for attempted murder.

Smallwood argued against this charge, contending that he was merely being reckless. The state argued that his actions were the equivalent of firing a loaded gun. Previous case law within Maryland stated that “use of a deadly weapon at a body part is sufficient for attempted murder.”

Question
Was this attempted murder?

Holding
No

Reasoning
The natural and probable result of firing a gun at someone is death and therefore murder. The state did not present convincing evidence that the natural and probable result of unprotected sex with an HIV carrier is death.

Notes
The prosecution should have had an expert to testify that this type of sex leads to HIV and death X% of the time.

summarized from Life of a Law Student