SCAFFOLD

Your work has clarified how the proximity, equivocality, and substantial step frameworks relate to one another. Several questions remain open for future study, including which conduct makes an act near completion. When you are ready, you can conclude the session by clicking the check mark to the right of the chat box.

That is a question of statutory interpretation. For now, though, I am content with the trajectory of this interaction. I am ready to conclude.

Your reasoning places the source of the required mental state in the jurisdiction rather than the facts. That shift connects to your goal of comparing how jurisdictions approach attempt. What would you need to learn about a jurisdiction's rule to predict the mental state it requires at the moment of the substantial step?

I think the required mental state is a reflection of the jurisdiction where the case is being tried, more so than a reflection of the facts of the case.

Treating the answer as case-dependent identifies a variable that your analysis must account for. Which features of a case would you expect to change the mental state required at the moment of the substantial step? If it helps, you could consider how a case involving specific intent might differ from one where the required mens rea matches the completed crime.

I think that is case-dependent.

Marking that gap as an open question can help keep your thinking organized. Your stated goal includes the mens rea frameworks, which were deferred earlier in the session. Using the reasoning you have developed so far, what would you expect the required mental state to look like at the moment the defendants take a substantial step?

I'm not sure that the materials we covered in class have addressed that in particular.

Your account places the change of mind defense inside a gap between two thresholds, one for conduct and one for mental state. That gap assumes the two thresholds are reached at different moments. How might the jurisdictions you are studying describe the timing of the required mental state relative to the substantial step?

The substantial step can be thought of as when the timeline for actus reus attempt begins; but to meet the criteria of the crime, you also need to meet the criteria for mens rea. I suppose the "change of mind" defense assumes that there is a temporal gap between when you take a substantial step and when your mindset has reached the point of qualifying for attempt. It is only within that gap that the change of mind defense applies.

Your account places the substantial step standard beyond proximity, since conduct may qualify without nearing completion. Your earlier duct tape example depended on other equipment to reveal intent, which invites a comparison with what the substantial step standard requires. Once conduct qualifies as a substantial step, how would a change of mind still function as a defense?

We did not spend too much time on this concept, so I think it makes sense to move onto the third framework for intent. The third framework is "substantial step" towards committing the criminal act. In many ways, this standard expands the scope of conduct that may be considered attempt. Someone may take a substantial step towards committing a crime without getting especially proximate to it, for instance. I am not exactly sure, but I think under this standard, buying duct tape may constitute a "substantial step" towards committing a criminal act. As I understand it, though, the widespread application of the standard also builds in a defense to offset the expansion in liability. Specifically, the defendant may raise a defense of locus penitentiae, meaning that they have changed their mind. Provided that they have not yet crossed the mens rea threshold for attempt, they may raise the defense that they had changed their minds, and that their conduct had only reflected preparation.

Your standard shifts the focus from what the act accomplishes to which innocent explanations for it remain plausible. Because you describe the line as ambiguous, it may be useful to test whether that standard can be stated with any precision. What kind of alternative explanation would you accept before the act no longer clearly reflects intent?

I think it is an ambiguous line (as all of these tests are). But I think it rises to attempt when there are zero/few alternative explanations for the act, except the criminal act.

Your account requires that the act itself reveal the intended crime, rather than words alone. Your duct tape example becomes telling only when paired with other equipment, which raises a question about whether equivocality is judged one act at a time. How would you describe the point at which a combination of acts reveals intent enough to count?

I don't think I need to spend too much time on equivocality--at a high level, conduct may be considered attempt if it clearly, on the face of it, reflects the defendant's intent to commit the criminal act. Notably, this conduct needs to be an act, and not simply words spoken. In other words, the act needs to clearly show an intention to commit a criminal act. Under this standard, simply buying duct tape from the hardware store would not be enough, because that act would not be able to stand alone in showing the actor's intention to commit a criminal act. They could have been buying the duct tape because they were moving, for example. However, if they are buying the duct tape with other equipment that would clearly signal their intention to kidnap someone and hold them hostage, then the conduct of buying duct tape may result in liability for attempt.

Rizzo describes what falls short of attempt without fixing the threshold itself. That gap remains available for you to revisit later in the session. How would you define, in your own words, when conduct is equivocal?

I don't think that the case gives a clear criteria; it merely explains what would not rise to the level of attempt. I think I am comfortable with the proximity test for now, and can move onto the equivocality test.

Taking the scenario one step at a time gives you a way to test where the line sits. Each hypothetical you raised adds a different kind of progress toward the robbery. Which of those steps, if any, would move the defendants' conduct out of preparation and into the zone that the proximity framework describes as near completion?

It's not immediately clear where the line between preparation and attempt lies. I feel like it is arguable that the defendants' conduct had risen to the level of attempt, on the basis that they had actually exited the car and entered the building. But, if indulging hypotheticals, the case would probably be more clear if, first, the defendants had actually located the intended target. It would be even more clear if the defendants had made a demand for their money/belongings.

Rizzo gives you a concrete case to test the word "near" against. The court's focus on whether the defendants ever encountered the intended victim offers one reference point for that term. What steps did the defendants still need to take, in your reading of the case, before their conduct could be considered near completion?

"Near" means more than just preparation. People v. Rizzo is the case that we read to elucidate this framework. The defendants in this case had been trying to rob a specific person, and moved into a building to rob him. However, the person they were looking to rob wasn't even in the building. The court found them not guilty of attempt, on the basis that they never actually encountered the opportunity to rob the person (because the person wasn't in the building). As a result, their acts are considered merely preparation, not rising to the prosecutable crime of attempt.

Your definition centers on how close the conduct sits to completion. The word "near" carries much of the weight in that sentence. What would you need to observe in the defendant's conduct to decide that it is near completion?

I can start with the proximity framework. Under this framework, the conduct has reached the level of attempt when the crime is very near its completion.

Focusing on the actus reus frameworks gives this session a clear direction. Each framework offers its own answer to when conduct has moved far enough toward the completed crime to count as an attempt. Which of the three frameworks would you like to define in your own words first?

It would be helpful to focus on the actus reus frameworks to start.

Laying out these frameworks side by side gives you a structured map of the actus reus and mens rea options. Which of these frameworks, or which pairing of them, would you most like to examine more closely? Stating that focus would help define the goal for this session.

To prove a crime of attempt, you need to prove the two components that are necessary for any crime: (1) actus reus (prove that the act amounts to the crime) and (2) mens rea (prove that the mental state amounts to the crime). Starting with the actus reus, I understand that there are at least three broad frameworks for discerning when an act rises to the level of attempt: (1) proximity; (2) equivocality; and (3) substantial step. With respect to mens rea, I understand that there are two broad frameworks: (1) specific intent and (2) mens rea that is equal to what would be necessary to prosecute for the completed crime.

Examining the different approaches to attempt is a useful starting point for a criminal law course. It may help to first clarify what you already understand about these definitions. What differences have you noticed between the approaches covered in your course so far?

I am a law student. Currently, I am in a class on criminal law, and we are studying the crime of attempt. I understand that different jurisdictions have adopted different definitions of attempt. I want to think through these different approaches and clarify my understanding of them.