Attempt: The Overt Act

When the MBE tests the crime of attempt, an issue often tested is how close one needs to come to completing the crime to be guilty of attempting to commit that crime.

You'll want to initially note that under the common law, and therefore on the MBE, unless stated otherwise, an overt act in addition to a specific intent was required for the crime of attempt. But simply stating that an overt act is required doesn't go far enough in addressing the issues tested on the MBE.

So, assume X has the intent necessary to commit common law murder. If the murder is not carried out, you'll need to determine how close X came to carrying out his intent. The overt act required must render X significantly close to committing the murder, if X is to be found guilty of attempted murder.

"Significantly close" is rather vague, however. Under the common law the requirement of an overt act was satisfied if the defendant had performed the last act necessary to achieve the desired result. So, if X had intended to shoot his victim, then the overt act required for attempt would only have been satisfied if X had pulled the trigger (perhaps to find that the gun had no bullets).

The modern view, and the view that seems to apply on the MBE, does not require that defendant perform the last act necessary; rather, defendant must perform an act that is a substantial step towards commission of the crime.

In a sense, the "last step" standard is easier to analyze, as one needs only to determine whether the last step prior to the commission of the crime was taken. The "substantial step" analysis seems to lend itself to a bit more subjectivity, but one approach that works well is to determine whether the acts taken by defendant constituted mere preparation to commit the crime. If so, then the substantial step towards commission of the crime has not been satisfied, but if the acts constituted anything more than mere preparation, then a substantial step towards commission of the crime has been taken, and defendant can be found guilty of attempt.