Attempts

Practice with Attempt

This is an exercise in classifying, requiring students to consider a number of scenarios that involve attempted crimes and form them into groups: Guilty and Not Guilty. It is usually fairly easy for the students to articulate their reasons for feeling that each perpetrator does or doesn't deserve to be charged with attempt.

Drawing conclusions. It gets more interesting when students are challenged to draw overall conclusions from their decisions. Explain to students that just as comparison essays are not effective until a point for comparing has been established, classification essays need to be more than just grouping for the sake of grouping. Ask students to articulate rationales for their groupings by writing "rules of thumb" that might help to explain how each item ended up in its group. It isn't necessary to come up with a master rule that accounts for all the items. Rather, lead students to make comparative or contrastive pairings and work from there.

For example, one student contrasted Grace with Cheswick by observing that the defining difference had to do with avoidability. Grace's bullet once fired could not be recalled, but any number of things could have happened to prevent Cheswick from realizing his crime. This was the student's basis for putting Grace in the Guilty group and Cheswick in the Not Guilty group. It doesn't matter whether the student was right to do so. She found a workable rule of thumb and was able to apply it to the other scenarios.

Avoiding Pitfalls. Some students will resist the paucity of facts and insist that they cannot make determinations without more background. They may even invent background. Head these problems off by explaining at the outset that they have to take the scenarios "as-is." This also means that students should not worry about whether a character would be believed, or how a character's private thoughts would be known. These are logical puzzles that assume that we know with certainty whatever the scenarios tell us. We are not trying to predict what would happen with human judges and jurors.

Accompanying Discussion. This activity can lead to interesting discussions about the social purposes of punishing attempt. Can crime be reduced by catching it in the preparatory phase? At what point does that become an invasion of privacy? Does it increase the chance of premature or mistaken arrests? Does the justification for charging attempt crimes depend on the kind of crime? What are the ethical problems of charging people for attempting crimes that could never actually have come to fruition? After wrestling with the scenarios, students will be well prepared to tackle these questions and provide further examples of their own in support of their answers.

The Legalese

Instructors, just as the students, need feel no pressure to know the "right answers" regarding these scenarios. But for those who want to be armed with a little extra theory, here are some principles for determining who is chargeable with attempt:

• A court will look for a substantial step that is strongly corroborative of an intent to commit the crime.
• If the court believes that a defendant was substantially certain that the crime would occur, that is equivalent to intending that it occurs.
• A popular question to ask is whether the defendant came within a "dangerous proximity to success," but there is really no consensus on how close is too close.
• Defendants may claim truthfully that it was impossible for their attempt to succeed. This will not help them in cases where they would have been successful had all facts been as they believed them to be. For example, a pickpocket tries to steal from an empty pocket. His crime was impossible, but had the pocket been full as he had believed it to be, a crime would have been committed. He has made an attempt.
• Just about the only viable excuse will be when the crime attempted is not even really a crime. For example, a person stops attending high school at the age of 17, believing that this breaks the law. If, in fact, the law does not require attendance at that age then there is no attempt crime.