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ATTEMPT CRIMES

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CRIMINAL ATTEMPT

Criminal attempt, in its simplest terms, is when one attempts to commit a crime and fails. Some of the most common examples of criminal attempt include attempted murder, attempted arson, or attempted burglary or robbery. In order to be charged with criminal attempt, three things must happen. First, the person charged must have had the specific intent to commit the target crime. Second, the person must take actions in furtherance of the crime.

Finally, the crime must not have been completed. If the crime were completed, then the person can be charged with the actual crime, instead of the attempted crime. An example of this would be if Stephanie fired a gun at Adam, with the intent to kill him, but Adam survives his gunshot wounds. Since the underlying crime of murder requires a death to occur, Stephanie could be charged with the crime of attempted murder, since the act was not completed.

However, if Adam were to succumb to his injuries after Stephanie was charged with attempted murder, then her charges could be upgraded, and the attempted murder charge would be merged into a murder charge. You can read more on the merger doctrine below.

In the context of federal criminal law, it is important to understand that there is no “attempt” statute.  Attempt is a state crime prohibited by statute in most jurisdictions.  In the federal courts, however, attempt is not a separate crime but the conduct involving the attempt to violate a federal law can be an element of other federal crimes.  Nonetheless, there is a benefit to understanding the state crime of attempt.

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WHAT ARE INCHOATE CRIMES?

Inchoate crimes (pronounced in-KOH-it), or incomplete crimes, occur when a person indirectly participates in an illegal act. While the acts in and of themselves may not be crimes, they can become illegal when done in furtherance of an actual crime. Examples of inchoate crimes include things such as: criminal attempt, conspiracy, aiding and abetting, etc. Each of these examples of inchoate crimes are discussed in a little more detail below.

CONSPIRACY

The crime of conspiracy occurs when two or more people agree and plan to engage in criminal activity. When it comes to conspiracy, the agreement to commit a crime is the essence of the criminal act; if there is no agreement amongst the co-conspirators, there can be no conspiracy. 

In order to be charged with conspiracy, one of the co-conspirators must also take an act in furtherance of the conspiracy. For example, let’s say Jim and Jeremy decide to rob a bank. Jim rents a van to transport all the money and to use as the “getaway car”.

The moment Jim and Jeremy agreed to rob the bank, they became co-conspirators. Once Jim rented the van, he then completed an act to help further the underlying crime of robbery. Therefore, both Jim and Jeremy could be charged with conspiracy to commit robbery, whether they actually robbed the bank or not.

AIDING AND ABETTING

Aiding and abetting occurs when a person, usually not present at the scene of the crime itself, helps in the commission of the crime typically through advice, encouragement, actions, inactions, or financial support. Aiding and abetting is often also referred to accessory crimes or accomplice crimes.

In order to be found guilty of aiding and abetting, generally a prosecutor must be able to prove that: (1) a crime was committed, (2) the accused helped, counseled, commanded or induced the person committing the crime, (3) the accused acted with the intent to further the commission of the crime, and (4) the accused acted before the crime was committed.

While aiding and abetting typically occurs before a crime is committed, a person who takes actions to help protect the perpetrator after the crime is committed, is usually referred to as an accessory-after-the-fact.

THE MERGER DOCTRINE

With the exception of conspiracy, the merger doctrine is a legal principle that applies to the inchoate crimes of attempt, aiding and abetting, and solicitation. The merger doctrine simply says that if a person is charged with the target crime, all inchoate offenses merge into the target crime. This means that if a person actually robs a bank, they cannot be charged with both robbery and attempted robbery, as the attempt will merge into the actual crime.

The merger doctrine does not apply however to conspiracy crimes. Using our earlier example of Jim and Jeremy, if they were to actually carry out their plan and rob the bank, Jim and Jeremy could be charged with both conspiracy to commit robbery and the separate charge of robbery itself. This is because the law considers the agreement and planning of a crime to be serious enough to be considered a “separate evil”.

DEFENSES TO INCHOATE CRIMES

Are there any ways out of these crimes? The law does provide for several defenses when charged with an inchoate crime. One of the defenses is impossibility. This defense simply provides that the accused should not be charged because what he or she was trying to do is not actually a crime. For example, if a hunter is aiming at a deer and misses, almost hitting another hunter, he should not be charged with attempted murder because he was intending to shoot the deer, not the hunter.  

Another possible defense is abandonment. This defense is used when the accused can show that he or she completely and voluntarily stopped all actions in furtherance of the crime. To be successful, this defense requires the accused to be able to show he or she withdrew completely from the acts involved, and that the motivation for the accused to abandon the act is not increased risk of detection. Inchoate crimes can be just as serious as the underlying crimes themselves.