How It's Tested: Attempt

An issue that comes up often in Criminal Law questions is whether a person has taken part in an act sufficient to deem that person guilty of the crime of attempt. The best way to approach these types of questions is to determine, based upon the facts provided, whether the person has committed some act , beyond mere preparation to commit the underlying crime, with the intent of bringing about the desired consequences. It's always important to keep in mind that the crime of attempt is a specific intent crime, and oftentimes questions will turn on that point.

Take, for example, a situaiton between a drug dealer and an undercover police officer. Assume that they agree to meet so that the officer can buy cocaine from the dealer (as an aside, this would not be considered a conspiracy under the common law, because the officer never truly intended to commit the crime). The dealer tells the officer that he'll have the drugs in a week, and when they meet in a week, he will sell them to the officer.

An hour later, the police enter the drug dealer's home and arrest him for the crime of attempted poessession of cocaine. The drug dealer is later prosecuted, and the question is whether he should be convicted.

You should examine the facts to determine whether the facts provide a basis for such a conviction. Is there anything in the facts that indicate that the drug dealer went beyond mere preparation to obtain the drugs. If not, it's not attempt. An important point to understand is that simply agreeing to commit a crime does not rise to the level of intent necessary to convict for the crime of attempt, though it may very well be enough for a conspiracy under certain circumstances.

Under the Model Penal Code (sometimes tested on the MBE), the standard is changed. Rather than asking whether a person has taken an act beyond mere preparation, the code asks whether there was a "substantial step towards commission of the crime."

Regardless, in the facts provided here, neither standard has been satisfied, so the correct response would be to state that there should be no conviction for attempt.