ARTICLE 80 – ATTEMPTS

Preventing Criminal Activity

The purpose behind the law of attempts is to provide a basis for law-enforcement to intervene in a criminal enterprise before an individual can complete the offense. Criminal attempts are of two varieties – completed attempts and incomplete attempts. In a completed attempt, the accused does every act planned, but is unsuccessful in the outcome. An incomplete attempt is usually thwarted by some intervening cause – usually either law enforcement or incompetence.

Elements

• That the accused did a certain overt act
• That the act was done with the specific intent to commit a certain offense under the code
• That the act amounted to more than mere preparation
• That the act apparently tended to effect the commission of the intended offense

Overt Act Requirement

An attempt requires a specific intent to commit an offense accompanied by an overt act “which directly tends to accomplish the unlawful purpose.”[2] Most issues at trial center on whether the overt act amounted to more than mere preparation. The line between preparation and a direct movement towards the offense is typically a question of fact, not law.[3] In Smith, the Court referred to the line between preparation and direct movement towards the offense as the “twilight zone.”[4] That is certainly an apt description.

The ALI Model Penal Code identifies certain acts that can be strongly corroborative of an actor’s criminal purpose. The list is not exhaustive, but may be of help to the military practitioner. The list includes acts such as: lying in wait for a victim, enticing a victim to go to a certain place, reconnoitering the contemplated location of a crime, unlawful entry of a structure where the crime will be committed, possession of materials to be used in the commission of the offense, and soliciting innocent agents to engage in conduct constituting an element of the crime.

Specific Intent Requirement

Generally, criminal attempts have two forms of intent. Firstly, the accused must intentionally commit the acts that form the basis for the overt act. Secondly, the accused must commit the acts with the specific intent of committing the substantive offense. Usually, the facts on both issues merge. Defense counsel, however, should be cautious to carefully investigate the facts underlying the alleged overt act.

The facts must show that the accused engaged in conduct that is strongly corroborative of his or her criminal intent.[5] It is not only the acts that determine the intent of the person committing them, but also the circumstances in which the acts were done can be indicative of a person’s intent.[6]

The Requirement of More than Mere Preparation

The third element of an attempt requires that the overt act be more than mere preparation.[7] The military has adopted the substantial step test. Whether the act is only preparatory or is a substantial step towards the commission of the crime is determined on a case-by-case basis.[8]

The overt act need not be the ultimate step in completing the crime. An accused is still liable for an attempt even if extraneous causes intervene to prevent the completion of the intended offense.[9]

Sufficiency of the Pleadings

In attempt cases, the government does not have to allege the overt act in the specification.[10] In fact, the overt act need not even be illegal.[11] The government should, however, allege that the attempt was wrongful.[12]

In attempted robbery cases, all of the essential elements should be alleged. Any specification failing to allege that the attempted taking was from the person or in the presence of the victim is fatally defective.[13] Likewise, in a larceny case where there are graduated punishments depending on the value of the property, the value, type of property (particularly if military property), or other factors should be alleged.