Inchoate crimes; parties - Attempts

Learning Outcomes

This article explains inchoate crimes and attempt liability for the MBE, including:

• Identifying the required mens rea for attempt, emphasizing specific intent and how it differs from general intent, recklessness, and negligence in tested crimes.
• Recognizing the actus reus of attempt by distinguishing mere preparation from an overt act or substantial step under common-law and MPC-style tests.
• Distinguishing attempt liability from liability for the completed offense and applying the merger doctrine when the target crime is actually accomplished.
• Analyzing factual, pure legal, and hybrid legal impossibility, and determining when each does or does not bar an attempt conviction on the exam.
• Evaluating when abandonment or renunciation can operate as a defense under common-law and MPC formulations, with particular attention to voluntariness and prevention of the crime.
• Determining the scope of party liability where principals, accomplices, and accessories interact with attempt, including accomplice to attempt and the separate role of accessories after the fact.
• Applying these rules to MBE-style fact patterns to select the correct offense, identify available defenses, and avoid common traps such as attempted felony-murder.

MBE Syllabus

For the MBE, you are required to understand inchoate offenses and party liability, with a focus on the following syllabus points:

• Definition and elements of criminal attempt.
• Mens rea for attempt, including specific intent and its interaction with crimes of recklessness or negligence.
• Actus reus tests for attempt (substantial step, overt act, dangerous proximity, and preparation).
• Defenses to attempt, especially factual vs. legal impossibility and abandonment/renunciation.
• Liability of principals, accomplices, and accessories when the crime is attempted or incomplete.
• Merger of attempt with completed offenses and its relationship to other inchoate crimes (solicitation and conspiracy).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT an element of criminal attempt?
   1. Specific intent to commit a crime
   2. A substantial step toward commission
   3. Completion of the crime
   4. Overt act beyond mere preparation
2. Which statement about impossibility as a defense to attempt is correct?
   1. Both factual and legal impossibility are valid defenses
   2. Only factual impossibility is a defense
   3. Only legal impossibility is a defense
   4. Neither is a defense
3. If a person aids and encourages another to commit a crime, but the crime is not completed, the person may be liable as:
   1. Principal only
   2. Accomplice to attempt
   3. Accessory after the fact only
   4. No liability
4. Which best describes the merger doctrine for attempts?
   1. Attempt and completed crime are separate offenses
   2. Attempt merges into the completed crime if the crime is accomplished
   3. Attempt is always punished more severely than the completed crime
   4. Attempt cannot be charged if the crime is not completed

Introduction

Inchoate crimes are incomplete offenses that involve steps toward committing a substantive crime. The most frequently tested inchoate crime on the MBE is attempt. Understanding the elements of attempt, the available defenses, and the liability of parties involved is essential for applying criminal law rules accurately.

Key Term: Inchoate Crime
An offense involving conduct that constitutes a step toward the commission of another substantive crime, even if the substantive crime is never completed.

The exam often presents fact patterns where the target substantive crime is never completed or where something goes wrong (for example, the intended victim is not present, or the defendant abandons the plan midway). In those settings, you must be able to identify if and when attempt liability attaches, whether any defenses apply, and how party liability (accomplices, accessories) interacts with attempt.

Elements of Attempt

At both common law and under modern statutes, criminal attempt has two core elements:

• Mens rea: The defendant must have the specific intent to commit a particular substantive crime.
• Actus reus: The defendant must take an overt act that goes beyond mere preparation and constitutes a substantial step toward commission of that crime.

Key Term: Attempt
An inchoate offense in which a person, with the specific intent to commit a particular crime, performs an act constituting a substantial step toward its commission, but the crime is not completed.

Intent Requirement (Mens Rea)

Attempt is always a specific intent crime. This is one of the most heavily tested points.

• Even if the completed offense can be committed with general intent, recklessness, or negligence, attempt requires proof that the defendant intended to bring about the criminal result.
• There is no attempted felony-murder, no attempted involuntary manslaughter, and no attempted reckless homicide. Those crimes do not require an intent to kill, so attempt liability (which demands intent) does not fit.

Key Term: Specific Intent (for Attempt)
A mental state in which the actor has the conscious objective or purpose to bring about the elements of the target offense, especially the criminal result.

Examples:

• Attempted murder requires the intent to kill. Acting with extreme recklessness toward human life (depraved heart) is not enough for attempt.
• Attempted battery or attempted rape requires the intent to commit the target offense, even if the completed offense could be established with a lesser mental state.

Attendant circumstances. For circumstances that are elements of the completed crime (for example, that property is “stolen”), the defendant’s culpability for attempt is usually the same as for the completed crime. If the completed crime requires knowledge that property is stolen, attempt liability requires at least that same knowledge or belief.

Overt Act: Beyond Mere Preparation

The second element of attempt is an act that is more than mere preparation.

Key Term: Overt Act (for Attempt)
Conduct that goes beyond planning or preparation and moves the actor sufficiently close to committing the target offense to justify imposition of attempt liability.

At common law, courts used several overlapping tests to decide when an act went far enough:

• Dangerous proximity test: Did the defendant get dangerously close to completing the crime?
• Unequivocality test (res ipsa loquitur): Does the defendant’s conduct, standing alone, unequivocally demonstrate a criminal intent (i.e., “the act speaks for itself”)?
• Last-act test (strict, rarely applied): Has the defendant done the very last act needed for the crime, such that completion would occur without further interference?

Modern statutes, and the MBE, most often apply the Model Penal Code “substantial step” test.

Key Term: Substantial Step
An act or omission that is strongly corroborative of the actor’s criminal purpose and that moves the actor significantly toward commission of the target offense.

Under this test, courts look for conduct that clearly confirms the criminal intent. Examples of substantial steps include:

• Lying in wait or searching for the intended victim.
• Reconnoitering the place where the crime is to occur.
• Unlawful entry of a structure where the crime is to be committed.
• Possession, collection, or fabrication of materials specially designed for the crime (for example, forged checks, burglary tools) that have no lawful purpose.
• Soliciting an innocent agent to engage in criminal conduct.
• Bringing the required instruments or weapons to the scene.

Mere preparation—such as buying ordinary supplies or casually talking about a plan—is not enough. On the exam, when in doubt, ask whether the conduct, viewed in context, strongly corroborates the intent to commit the crime.

Distinguishing Attempt from a Completed Offense

A defendant who actually completes the target offense is guilty of the substantive crime, not of attempt (because of the merger doctrine, discussed below). If the exam facts clearly show all elements of the completed crime, the correct answer will usually be liability for the completed offense, not attempt.

The key dividing line is:

• If the defendant satisfies all elements of the offense: completed crime (attempt merges).
• If the defendant intended the crime but fell short (for any reason other than pure legal impossibility): attempt.

Impossibility as a Defense

Defendants frequently invoke impossibility to argue that they cannot be guilty of attempt. The MBE approach is consistent with the modern rule:

• Factual impossibility is not a defense.
• Pure legal impossibility is a defense.

Key Term: Factual Impossibility
A situation where external or factual circumstances, unknown to the defendant or beyond the defendant’s control, prevent completion of the intended crime (for example, picking an empty pocket, shooting into an empty bed).

Key Term: Legal Impossibility
A situation where the defendant’s intended conduct, even if carried out exactly as planned and as the defendant believes, would not constitute a crime under the governing law.

Factual impossibility.
These cases involve the defendant doing exactly what would be required to commit the crime, but some fact makes completion impossible:

• The victim is not where the defendant believes.
• The wallet is not in the pocket.
• The gun is unloaded when the defendant believes it is loaded and fires at the victim.

On the MBE, if the defendant believed that completion was possible and took a substantial step, the defendant is guilty of attempt despite the factual impossibility.

Pure legal impossibility.
This is a narrow category and is a defense. If, even assuming the facts as the defendant believes them to be, the contemplated conduct is not criminal at all, there is no attempt:

• Believing it is illegal to sell an herbal supplement when there is no such law.
• Believing it is illegal to import an item that is actually legal to import.

Because criminal law punishes dangerous intent combined with conduct moving toward a crime, there must be an actual crime in the background. If the target conduct is not criminal, there is no attempt.

Hybrid legal impossibility.
Some sources discuss a third category where the defendant’s goal is illegal, but the crime requires certain circumstances that are absent. For example, receiving property that the defendant believes is stolen, but the property was never actually stolen. The modern trend (and the MBE approach) treats this as factual impossibility, which is not a defense.

Abandonment (Renunciation)

Abandonment—also called renunciation—is the idea that a defendant who voluntarily gives up on a crime might avoid liability.

Key Term: Abandonment (Renunciation)
The voluntary and complete decision to give up the criminal plan and not complete the target offense.

At common law, abandonment is not a defense once the defendant has committed an overt act that constitutes an attempt. If the defendant has already taken a substantial step, later changing their mind does not erase liability.

However, two important distinctions matter:

• If the defendant abandons before taking a substantial step, there is no attempt yet, so there is simply no crime of attempt.
• If the defendant abandons after a substantial step, attempt liability is already complete at common law.

Under the Model Penal Code, abandonment can be an affirmative defense to attempt if:

• The renunciation is complete and voluntary, and
• The defendant actually prevents the commission of the crime.

Renunciation is not voluntary if motivated by:

• Fear of detection or arrest.
• Decision to postpone the crime or to choose a different victim or target.

The MBE may describe a statute following the MPC approach. If so, pay attention to whether renunciation was complete, voluntary, and actually prevented the crime.

Parties to Attempt: Accomplice Liability

Attempt often overlaps with party liability. A person who helps or encourages another to attempt a crime can be liable even if the crime is never completed.

Key Term: Accomplice
A person who, with the intent that the crime (or attempt) be committed, aids, counsels, or encourages another person in the commission or attempted commission of that offense.

Key Term: Principal
The main actor who actually commits or attempts to commit the crime.

Key Term: Accessory After the Fact
A person who, knowing that a crime has been completed, assists the offender in escaping detection, arrest, or prosecution.

Scope of Accomplice Liability in Attempt

Key exam rules:

• A person who aids, counsels, or encourages another, with the intent to facilitate an offense, is liable as an accomplice for:
  • The completed offense, if it occurs, or
  • The attempt, if the offense is not completed but the principal has committed an attempt.
• Accomplice liability requires dual intent:
  • Intent to aid or encourage, and
  • Intent that the target crime (or at least the type of offense) be committed.

Thus, if the principal only reaches the stage of attempt, the accomplice is guilty of accomplice to attempt. This is the correct answer choice in many MBE questions.

Importantly:

• An accomplice can sometimes be liable even when the principal is not. For example, if the principal is acquitted based on an excuse (such as insanity), the accomplice may still be guilty of attempt because the accomplice’s own conduct and intent satisfy the elements.
• An accessory after the fact is not liable for the attempt or the completed crime; this is a separate offense (often obstruction-type) that occurs only after the crime has been completed.

Withdrawing as an Accomplice

Withdrawal (by an accomplice) is distinct from abandonment (of attempt). For accomplice liability, an accomplice can sometimes avoid liability for future crimes by communicating withdrawal in time and taking steps to neutralize prior assistance, depending on the jurisdiction. However:

• Withdrawal does not erase liability for attempt if the attempt is already complete.
• If the accomplice withdraws before the principal has taken a substantial step, there may be no attempt yet by anyone.

Merger Doctrine

Attempt merges into the completed offense when the target crime is accomplished.

Key Term: Merger (of Attempt)
The rule that a defendant may not be convicted of both attempt and the completed offense for the same conduct; the attempt merges into the substantive crime if the crime is completed.

Practical consequences:

• If the prosecution proves all elements of the completed crime, the defendant can be convicted of the completed crime, but not both the crime and attempt for the same act.
• If the crime is not completed, attempt does not merge into anything, and the defendant can be convicted of attempt.

Comparison with other inchoate crimes:

• Solicitation (requesting or encouraging another to commit a crime) generally merges into the completed crime or into the conspiracy if an agreement is reached.
• Conspiracy, unlike attempt and solicitation, does not merge into the completed offense. The defendant can be convicted of both conspiracy and the completed crime.

The MBE may ask which combinations of convictions are permissible. Remember:

• Attempt + completed offense for the same target crime: not allowed (attempt merges).
• Conspiracy + completed offense: allowed.
• Solicitation + completed offense: generally not allowed (solicitation merges).

Punishment for Attempt

While not always heavily tested, it is useful to know the general rule:

• At common law, attempt was often punished less severely than the completed offense.
• Under the Model Penal Code and many modern statutes, attempt is punishable to the same degree as the completed offense, except for the most serious offenses (for example, attempt of a capital crime may be treated differently).

Unless a question gives a specific statute and asks about grades of punishment, the exam is usually more focused on liability than sentencing.

Worked Example 1.1

A intends to rob a bank. He buys a mask and a toy gun, drives to the bank, and enters the lobby. Before he can approach the teller, he sees police and flees. Is A guilty of attempted robbery?

Answer:
Yes. A had the specific intent to commit robbery and took a substantial step (entering the bank armed with a realistic-looking toy gun and mask, clearly corroborating his intent). The fact that he did not complete the robbery is irrelevant; abandonment after a substantial step is not a defense at common law. Under the MPC, renunciation would not be voluntary if motivated by fear of arrest.

Worked Example 1.2

B tries to pickpocket a wallet from C, but C's pocket is empty. Is B guilty of attempted larceny?

Answer:
Yes. This is factual impossibility, which is not a defense. B intended to commit larceny (steal a wallet) and took a substantial step (reaching into C’s pocket with that intent). The fact that the pocket was empty does not excuse liability.

Worked Example 1.3

C believes that selling a certain herbal supplement is illegal, but in fact, it is not prohibited by law. C advertises and sells the supplement. Is C guilty of attempted sale of a controlled substance?

Answer:
No. This is pure legal impossibility. Even if C’s conduct were completed exactly as intended, it would not constitute a crime because there is no law prohibiting the sale of the supplement. Legal impossibility is a defense to attempt.

Worked Example 1.4

D, intending to kill V, fires a gun at V's bed, believing that V is sleeping in it. In fact, the bed is empty, and no one is harmed. Is D guilty of attempted murder?

Answer:
Yes. D had the specific intent to kill V and took a substantial step by firing at the bed where D believed V was sleeping. This is factual impossibility (V was not actually present), which is not a defense. There is no completed homicide, but D is guilty of attempted murder.

Worked Example 1.5

E, planning to commit arson, buys gasoline and matches, drives to F’s house, pours gasoline on the porch, and lights a match. Just before tossing it, E has a change of heart, blows out the match, and leaves. The jurisdiction follows the common law rule on abandonment. Is E guilty of attempted arson?

Answer:
Yes. E had the specific intent to commit arson and took a substantial step (pouring gasoline on F’s porch and lighting a match). Abandonment after these acts does not undo attempt liability at common law. Under the MPC, E might raise renunciation, but only if the renunciation were complete, voluntary, and actually stopped the crime.

Worked Example 1.6

G encourages H to rob a store, gives H a detailed plan, and drives H to the store, intending that H commit the robbery. H enters, but upon seeing a police officer, loses his nerve and leaves without drawing his gun. The jurisdiction applies the MPC substantial-step test. What is G’s liability?

Answer:
G is liable as an accomplice to attempted robbery if H’s conduct amounted to an attempt. Driving H to the store with intent to facilitate the robbery and encouraging H clearly establish G’s accomplice intent. If entering the store with a gun, as part of the planned robbery, is deemed a substantial step, H is guilty of attempted robbery and G is guilty as an accomplice to attempted robbery. Neither can be convicted of the completed robbery because it did not occur.

Exam Warning

Attempt is always a specific intent crime. There is no such thing as attempted felony-murder or attempted involuntary manslaughter on the MBE. Even if the completed crime can be committed with general intent, recklessness, or negligence, attempt requires proof that the defendant specifically intended the criminal result (for example, intended to kill for attempted murder).

Revision Tip

When analyzing an attempt question, move through a checklist: (1) Identify the target offense; (2) Ask whether the defendant had the specific intent to commit that offense; (3) Determine whether the defendant took a substantial step beyond mere preparation; (4) Consider whether the defense being raised is factual impossibility (not a defense) or pure legal impossibility (a defense); and (5) Remember that abandonment after a substantial step is generally not a defense at common law.

Key Point Checklist

This article has covered the following key knowledge points:

• Attempt is an inchoate crime requiring specific intent and an overt act that constitutes a substantial step toward commission of the target offense.
• Attempt remains a specific intent crime even when the completed offense can be committed with general intent, recklessness, or negligence; there is no attempted felony-murder or attempted involuntary manslaughter.
• The substantial-step requirement focuses on conduct strongly corroborating the defendant’s criminal purpose and going beyond mere preparation.
• Factual impossibility (for example, empty pocket, unloaded gun, absent victim) is not a defense to attempt liability.
• Pure legal impossibility (where the intended conduct is not criminal even if fully completed) is a defense to attempt.
• Abandonment is not a defense to attempt at common law once a substantial step has been taken; under the MPC, a complete and voluntary renunciation that actually prevents the crime can be a defense.
• Accomplices who aid, counsel, or encourage an attempt with the required intent are liable as accomplices to attempt, even if the substantive crime is not completed.
• Accessories after the fact commit a distinct offense; they are not liable for the attempt or the completed crime itself.
• Attempt merges into the completed offense; a defendant cannot be convicted of both attempt and the completed crime for the same conduct.
• Conspiracy does not merge into the completed offense, while solicitation and attempt generally do.

Key Terms and Concepts

• Inchoate Crime
• Attempt
• Specific Intent (for Attempt)
• Overt Act (for Attempt)
• Substantial Step
• Factual Impossibility
• Legal Impossibility
• Abandonment (Renunciation)
• Accomplice
• Principal
• Accessory After the Fact
• Merger (of Attempt)