Attempt - Next Generation Bar Exam
- What is the effect of factual impossibility on attempt liability?
- It is not a defense. A defendant who would have committed the crime had the facts been as believed is guilty of attempt.
- Why can there be no attempt to commit a crime defined only by recklessness or negligence?
- Attempt requires the purpose to bring about the criminal result. One cannot intend to cause an unintended result.
- What is the effect of true legal impossibility on attempt liability?
- It is a defense. If the intended conduct, even if completed, would not be a crime, there is no attempt.
- Under the Model Penal Code, when does abandonment provide a defense to attempt?
- When the renunciation is complete and voluntary. It is not voluntary if motivated by fear of detection, and not complete if the crime is merely postponed.
- A man brings goods into the country believing a customs duty applies and conceals them, but in fact the goods are duty-free. On what ground is he not guilty of attempting to evade customs duties?
- True legal impossibility: completing the intended conduct would not be a crime. His mistaken belief about what the law requires does not make lawful conduct criminal.
- Under the Model Penal Code, what conduct satisfies the act requirement for attempt?
- A substantial step strongly corroborative of the actor's criminal purpose. Examples include lying in wait, reconnoitering the place, and possessing materials for the crime near the scene.
- What is the traditional common-law position on abandonment as a defense to attempt?
- Abandonment is not a defense once the attempt is complete. The Model Penal Code departs from this rule.
- What are the elements of attempt?
- Specific intent to commit the target crime and conduct going beyond mere preparation toward it. The intent requirement applies even if the target crime requires a lesser mental state.
- Intending to kill his enemy, a man shoots at a tree stump he mistakes in the dark for the enemy. Of what is he guilty?
- Attempted murder. Factual impossibility is no defense to attempt.
- Under the common-law proximity approach, what conduct satisfies the act requirement for attempt?
- Conduct dangerously close to completing the crime. This test requires more than the Model Penal Code's substantial step.
- What is the relationship between attempt and the completed crime for conviction purposes?
- Attempt merges into the completed crime, so a defendant cannot be convicted of both. A defendant charged with a completed crime may be convicted of attempt as a lesser included offense.