Attempt is defined as an inchoate crime where an individual, with the intent to actually commit a crime, undertakes an action in furtherance of that crime, but ultimately fails. Attempt is therefore comprised of three elements: (1) intent to commit a crime; (2) conduct that constitutes a substantial step toward completing the crime and (3) a failure to complete the crime.
Because an attempt does not result in the actual commission of a crime, prosecuting an individual for attempt requires clear evidence of intent to commit the crime. Individuals cannot be charged with attempt for accidentally committing a crime. Rather, a prosecutor must show that the defendant specifically intended to commit the crime that he attempted, and he simply fell short. Attempt is therefore categorized as a “specific intent” crime. This means that acting negligently or recklessly is not enough to support a charge of attempt.
One caveat to this general rule is the concept of transferred intent. Under transferred intent, an individual who intends to commit a crime against one person, but ends up hurting another person, may be held responsible for one or both crimes. For example, if a man intends to shoot his wife, but when he discharges the gun he accidentally hits his wife’s friend who is standing nearby, the man may be guilty of the murder of the friend (because his intent transfers to her) and also be guilty of the attempted murder of his wife (because he did originally intend to murder her).
In addition to intent, most states require that a prosecutor also establish that the defendant took a substantial step toward the completion of the crime. A substantial step goes beyond mere preparation to commit the crime. Simply discussing the crime or contemplating it with a friend is also not enough. Rather, the act must be such that it moves the defendant toward the successful completion of the crime, even though the crime is never fully executed. For example, if a person wishes to commit arson, but merely considers a possible plan in his head, or talks about it with another, this is probably not enough to charge the person with attempt. However, if that same individual wishes to commit an arson, goes out and buys kerosene and matches, and drives to the building, but is arrested before starting the fire, this is probably enough to support a charge of attempted arson.
Failure to Complete
A charge of attempt also requires that the defendant did not actually complete the crime that he was committing. This is because attempt is a distinct and separate crime that cannot be simultaneously charged with the crime itself. Rather, if the defendant actually completed the crime, for instance, murder, he would be charged with murder rather than attempted murder.
Punishments for attempt are typically less severe than the punishment would be had the crime been completed. Additionally, the punishment for an attempted crime is typically proportional to the severity of the crime at issue. Thus, a defendant will face a stiffer penalty for attempted murder than attempted theft. Some states have specific statutes addressing certain attempt crimes, such as attempted murder or attempted rape. You should check your state’s penal code to determine if this is the case in your state.
A defendant facing a charge of attempt may argue several defenses, including that he fully and completely abandoned his efforts to attempt the crime, or that the attempt was a logical or factual impossibility.