SPEAKER_01 0:00

So welcome to this deep dive into the search material. I'm your host, and I'm sitting down with our resident legal expert to uh unpack a really fascinating topic today.

SPEAKER_00 0:10

Thanks for having me. I'm uh really looking forward to getting to this one. It's a bit of a brain bender.

SPEAKER_01 0:15

It really is. And to start us off, I want you, the listener, to just imagine a scenario. Picture two people in your mind.

SPEAKER_00 0:21

Okay, I'm picturing them.

SPEAKER_01 0:22

Right. So both of these people, for whatever dark, twisted reason, have decided they want to end someone else's life.

SPEAKER_00 0:29

Wow, okay, starting heavy.

SPEAKER_01 0:30

Yeah, we're diving right in. So they both save up money, they both buy a gun, and they both spend, you know, weeks tracking down their intended victim. Aaron Powell Right.

SPEAKER_00 0:40

So they're totally premeditating.

SPEAKER_01 0:41

Exactly. Completely calculated. Finally, the moment arrives for both of them. They both raise their weapons, they aim square at the target's chest, and they have this absolute cold-blooded intent to kill.

SPEAKER_00 0:53

A truly chilling scenario.

SPEAKER_01 0:54

Right. And they both pull the trigger. But uh here is where their paths violently diverge, and it actually has absolutely nothing to do with their choices.

SPEAKER_00 1:02

Aaron Powell The outcome is totally out of their hands at this point.

SPEAKER_01 1:05

Exactly. So the first person pulls the trigger, the firing pin strikes the primer, the gun fires, hits the target, and they commit first-degree murder, the ultimate crime.

SPEAKER_00 1:15

Aaron Powell And society locks them away. As they should.

SPEAKER_01 1:19

Right. But the second person they pull the trigger, and all they hear is a click.

SPEAKER_00 1:23

Ah, a misfire.

SPEAKER_01 1:24

Trevor Burrus, Jr.: Yeah, just a mechanical failure, like maybe a microscopic flaw in the manufacturing of the bullet, pure dumb luck for the victim who just, you know, walks away unharmed.

SPEAKER_00 1:33

Trevor Burrus, Jr. And incredibly bad luck for the shooter.

SPEAKER_01 1:35

Aaron Powell Right. So the intent was completely identical. The moral culpability, you could easily argue, is indistinguishable. Both of these individuals are exactly as dangerous to society as the other.

SPEAKER_00 1:46

Aaron Ross Powell I mean, they both do the exact same series of actions.

SPEAKER_01 1:50

Aaron Ross Powell Exactly. But the result is entirely different. So the question is: should that second person be punished exactly the same as the first?

SPEAKER_00 1:57

Aaron Ross Powell And that right there, that question, is basically the beating heart of our entire legal philosophy when it comes to incomplete crimes.

SPEAKER_01 2:04

Aaron Powell Because the law doesn't punish bad thoughts.

SPEAKER_00 2:07

No, absolutely not. Fundamentally, you can sit in your living room and think the most horrific, violent things imaginable, and the justice system doesn't care.

SPEAKER_01 2:15

It can't care.

SPEAKER_00 2:15

Right, it can't. We don't police the human mind. But the moment you start acting on those thoughts, the moment you step over a certain kind of invisible line in the sand, that's when the law intervenes.

SPEAKER_01 2:25

Aaron Ross Powell And so today's mission for this deep dive is exploring exactly that, what the law calls inchoate or incomplete offenses. Specifically, we're digging into the crime of attempt. Right. How does the justice system manage to punish people for crimes they actually failed to commit? It just seems like a massive challenge.

SPEAKER_00 2:45

Aaron Powell, it's a huge challenge. Because to convict someone of an attempt, the law essentially has to act as a mind reader, but uh a mind reader that demands physical, tangible proof.

SPEAKER_01 2:56

Which is an oxymoron.

SPEAKER_00 2:58

It kind of is. You have to find that exact moment where a dangerous thought manifests into a dangerous reality, even if the final catastrophe, you know, is somehow averted.

SPEAKER_01 3:06

So it's a balancing act.

SPEAKER_00 3:08

Completely. We are dealing with a profound tension here. Because if the police wait too long to intervene.

SPEAKER_01 3:14

Someone dies.

SPEAKER_00 3:15

Right. Someone dies, the barn burns down, the bank gets robbed. But if they intervene too early, they throw an innocent person in jail. Exactly. Or at least someone who might never have actually gone through with the crime. So to navigate this, the sources highlight that the law looks at two crucial halves of the puzzle.

SPEAKER_01 3:33

Okay, what are they?

SPEAKER_00 3:34

First, the physical act, which is called the actus reus.

SPEAKER_01 3:36

Yeah.

SPEAKER_00 3:37

Basically, how far along the path to a crime do you have to physically travel? Right. And second, the state of mind, the mens rea. What exactly was your specific intention at the precise moment you took that physical step?

SPEAKER_01 3:50

Let's start with that first half then, the continuum of a crime. The actus rius. Let's use a hypothetical.

SPEAKER_00 3:57

Okay. Sure.

SPEAKER_01 3:57

Let's say I'm furious at my neighbor, just incredibly angry, and I decide I'm gonna burn down their shed.

SPEAKER_00 4:03

Okay, classic arson scenario.

SPEAKER_01 4:05

Right. If I can't be arrested just for sitting on my couch imagining the flames, at what point between that thought and the moment I actually strike the match, does the law finally say, gotcha, you're guilty of attempted arson?

SPEAKER_00 4:18

Well, the foundational distinction the law makes is between mere preparation and perpetration.

SPEAKER_01 4:25

Preparation versus perpetration.

SPEAKER_00 4:26

Exactly. If you are just preparing, you are not guilty of an attempt.

SPEAKER_01 4:30

But once you cross over into perpetration, you are.

SPEAKER_00 4:32

Okay. I mean that sounds incredibly neat and tidy.

SPEAKER_01 4:35

On paper.

SPEAKER_00 4:36

But until you actually try to apply it.

unknown 4:38

Yeah.

SPEAKER_00 4:39

Because preparation and perpetration are literally just words. Where is the actual physical line? Like if I buy a gas can, is that preparation?

SPEAKER_01 4:47

Yes, usually.

SPEAKER_00 4:48

What if I fill it at the gas station? What if I put it in my trunk?

SPEAKER_01 4:50

And that's exactly where it gets messy. Courts realized very quickly that this distinction is incredibly slippery because it's so tricky to define. Different jurisdictions over the centuries basically developed a whole menu of different legal tests. To figure out if someone crossed the line.

SPEAKER_00 5:06

Right, to try and find that line between preparation and perpetration. And looking at these tests, it isn't just, you know, a dry history lesson. It shows you exactly how much courts struggle with the whole concept of preventative justice.

SPEAKER_01 5:21

So the sources outline five classic approaches. And I find these fascinating because each one tries to solve the problem by looking at the continuum of a crime from a completely different angle.

SPEAKER_00 5:32

Right. They all have a different focus.

SPEAKER_01 5:34

So let's walk through them and let's keep our arsonist hypothetical in mind.

SPEAKER_00 5:38

Sounds good.

SPEAKER_01 5:39

The first one is the physical proximity approach, which I mean seems to be the most literal geographic interpretation.

SPEAKER_00 5:46

It is. It's very literal. The court looks at the actual physical distance between the defendant and the intended crime. Like how close were you to the target?

SPEAKER_01 5:54

Okay. So if I'm planning to burn down that shed and the cops arrest me buying matches at the hardware store three towns over, then the physical proximity test would likely say that's just preparation.

SPEAKER_00 6:04

You are literally too far away. But if you're standing on your neighbor's property, staring at the shed with a full gas can in your hand.

SPEAKER_01 6:12

Then I'm proximate.

SPEAKER_00 6:13

Exactly. You are physically proximate. Under this test, you've crossed the line into attempt.

SPEAKER_01 6:19

But I mean, distance alone feels a bit hollow, doesn't it?

SPEAKER_00 6:22

How so?

SPEAKER_01 6:22

Because I could be physically standing right next to the shed, but if my matches are locked in a safe back at my house, I'm not actually an immediate threat, despite my geography.

SPEAKER_00 6:31

Aaron Ross Powell That's a great point. And that flaw brings us to the second test: the dangerous proximity approach.

SPEAKER_01 6:37

Aaron Powell Which the sources note is sometimes called the Holmes test, right? After the Supreme Court Justice Oliver Wendell Holmes.

SPEAKER_00 6:43

Yes, exactly. Holmes recognized the exact flaw you just pointed out. He added this uh psychological and pragmatic layer to the analysis.

SPEAKER_01 6:51

Aaron Powell So it's not just a tape measure anymore.

SPEAKER_00 6:53

Right. It's not just about how many feet away you are, it's about the nearness of the danger itself, the substantiality of the harm, and crucially the apprehension felt by the potential victim or by society.

SPEAKER_01 7:05

Ah, so it blends the physical distance with the actual gravity of what's about to happen. So it scales based on the horror of the crime.

SPEAKER_00 7:12

Exactly. Lighting a match near a pile of damp leaves might be physically close, but it doesn't create much dangerous proximity. However, striking a match near a powder keg, massive danger. Massive level of dangerous proximity and apprehension. Even if you are technically standing a bit further back, Holmes was basically saying we have to look at how close the harm is to being realized.

SPEAKER_01 7:36

Which is a much more flexible standard, even if it's a bit subjective.

SPEAKER_00 7:39

Definitely more subjective.

SPEAKER_01 7:40

Okay, so we have physical space and we have the proximity of danger. Then we have the third one, which honestly feels very mechanical, the indispensable element approach.

SPEAKER_00 7:50

Yeah, this one reads like a forensic checklist.

SPEAKER_01 7:52

Right. So how does this one work?

SPEAKER_00 7:54

It is entirely focused on what the criminal still needs to do. The court looks at the entire plan and asks, is there an indispensable element missing from the perpetrator's control?

SPEAKER_01 8:05

Okay.

SPEAKER_00 8:06

And if there is, they haven't crossed the line into attempt yet.

SPEAKER_01 8:09

Wait, really? So if our hypothetical arsonist has the motive, the plan, they've walked onto the property, they are standing outside the shed, they have the gasoline all over the wood, but they realize they forgot their lighter.

SPEAKER_00 8:21

Yep.

SPEAKER_01 8:22

Under this specific test, they are not guilty of attempt.

SPEAKER_00 8:26

Under a strict application of the indispensable element test, they might not be guilty. Because the lighter is an indispensable element to their specific plan of starting a fire, and they just don't have it.

SPEAKER_01 8:38

That is I mean, that seems absurdly generous to the criminal.

SPEAKER_00 8:42

It really does.

SPEAKER_01 8:42

You're basically saying, oh, you were sloppy and forgot your tool, so you're not attempting a crime today. Have a good evening, try again tomorrow. It completely ignores the intent and the massive steps they already took.

SPEAKER_00 8:53

Which is exactly why this test fell out of favor in a lot of jurisdictions. Yeah. It creates a massive loophole for incompetent criminals. I mean, society doesn't feel any safer knowing the arsenist was only stopped because he forgot his lighter in his other jacket.

SPEAKER_01 9:07

Right. He's still a highly dangerous individual who made it all the way to the shed. So if looking forward at what's missing is flawed, what about looking backward? That seems to be the philosophy behind the fourth test, the probable desistence approach.

SPEAKER_00 9:21

Yeah, now we're moving out of mechanical checklist and into psychology. This test asks a very specific question. Has the criminal gone so far past the point of no return that a normal person in the ordinary course of events would not suddenly think better of it and turn back?

SPEAKER_01 9:38

It's the psychological point of no return, the Rubicon.

SPEAKER_00 9:41

Precisely. It assumes that human beings have a natural hesitation before committing a serious crime.

SPEAKER_01 9:47

A conscience, basically.

SPEAKER_00 9:48

Right. So if you've just bought the ski mask for a bank robbery, you might still throw it away in a moment of clarity. Sure. But if you are physically pulling that ski mask down over your face while you're pushing open the heavy glass doors of the bank lobby, you're committed. Yeah. The law assumes most ordinary people aren't going to suddenly experience a profound change of heart at that exact microsecond. You have passed the point of probable desistence. The momentum of the crime has just taken over.

SPEAKER_01 10:14

I mean, I like the realism of that test, but it still requires a jury to guess what a normal person would do, which is always a slippery slope.

SPEAKER_00 10:22

It definitely relies on a lot of assumptions.

SPEAKER_01 10:24

Okay, here's the fifth one. And honestly, this is my favorite from the sources purely for the mental image it creates. The equivocality approach, which is also known by the Latin phrase res ipsa loquiter.

SPEAKER_00 10:36

Which translates to the thing speaks for itself. And this is perhaps the most elegant, but also the most frustrating of the common law tests.

SPEAKER_01 10:45

The way I conceptualize this one is imagine you're watching a movie, but the sound is completely muted and you have absolutely no idea what the plot is or who the characters are.

SPEAKER_00 10:55

The silent film test.

SPEAKER_01 10:56

Yes, the silent film test. You pause the movie on a specific frame of a character's actions. Do those isolated physical actions speak for themselves? Right. So if you pause and see a guy wearing all black, wearing a ski mask, holding a crowbar, and prying at the frame of a jewelry store window at 2 a.m., there is no innocent explanation for that behavior.

SPEAKER_00 11:17

None whatsoever.

SPEAKER_01 11:18

The act has no other possible purpose than committing a burglary. The physical action is completely unequivocal. It literally speaks for itself.

SPEAKER_00 11:27

But apply that same silent film test to a slightly earlier moment in the timeline.

unknown 11:31

Okay.

SPEAKER_00 11:32

You pause the movie, and the guy is just walking down the street at 2 a.m. carrying a crowbar. He's not at the window yet.

SPEAKER_01 11:38

Right. If I see that it's ambiguous, he could be, I don't know, a late-night mechanic walking to a broken down car. He could be a guy who just found a crowbar on the sidewalk and picked it up.

SPEAKER_00 11:47

Exactly. It is equivocal. It has multiple possible innocent meanings.

SPEAKER_01 11:52

And therefore, under the equivocality approach.

SPEAKER_00 11:55

Just walking down the street with the crowbar, even if we later find out his internal monologue was screaming, I'm gonna rob that store, would not be an attempt. The act itself doesn't prove the crime without the external context.

SPEAKER_01 12:07

Aaron Powell But here is the massive problem with the silent film test. What if the guy walking down the street with the crowbar had previously texted his friend, I'm going to use this crowbar to break into the jewelry store at 2 a.m.

SPEAKER_00 12:20

A conf Yeah.

SPEAKER_01 12:21

We have his confession, we know his intent. But if we strictly apply the equivocality test and only look at the physical act of walking, he walks free. The act still doesn't speak for itself, even though we have the text message.

SPEAKER_00 12:35

And you've just hit on the exact reason why the common law became a tangled, contradictory mess.

SPEAKER_01 12:40

It just doesn't hold up.

SPEAKER_00 12:42

No, it doesn't. Courts were cherry-picking these different tests to fit the outcomes they intuitively felt were right, which just led to massive inconsistency. A guy in one state gets 10 years, a guy in the next state goes free for the exact same behavior.

SPEAKER_01 12:54

Which is a terrible legal system.

SPEAKER_00 12:56

Right. And that chaos brings us to the modern era and the creation of the Model Penal Code, or the MPC.

SPEAKER_01 13:02

Right, the MPC. Which was essentially an attempt by legal scholars to look at this massive pile of conflicting tests and say, let's standardize this. Let's create a rule that actually makes sense for modern society. So what is the modern standard for crossing the line into attempt?

SPEAKER_00 13:19

The MPC basically throws out all those old common law tests and introduces a unified concept called the substantial step test.

SPEAKER_01 13:26

The substantial step.

SPEAKER_00 13:27

Yes. Specifically, under section 5.01, a person is guilty of attempt if they purposely do something that constitutes a substantial step in a course of conduct planned to culminate in the commission of the crime.

SPEAKER_01 13:40

I have to push back here though.

SPEAKER_00 13:42

Go ahead.

SPEAKER_01 13:42

Because substantial steps still sounds incredibly vague. How is that any better than preparation versus perpetration? I mean, substantial is entirely in the eye of the beholder, isn't it?

SPEAKER_00 13:53

Aaron Powell It would be vague, except the drafters of the MPC provided a massive clarifying rule to anchor it. They stated that a step is not substantial unless it is strongly corroborative of the actor's criminal purpose.

SPEAKER_01 14:05

Strongly corroborative, meaning the physical action has to vividly back up the internal intent.

SPEAKER_00 14:11

Exactly. The MPC doesn't just leave courts guessing. It actually provides a specific list of examples of conduct that shouldn't be dismissed as mere preparation, assuming they strongly corroborate the intent.

SPEAKER_01 14:22

What kind of examples?

SPEAKER_00 14:23

Things like lying in wait for a victim. Or searching for or following the contemplated victim, enticing a victim to go to the place where the crime will happen, reconnoitering or casing the place where the crime is planned.

SPEAKER_01 14:35

Okay, that's much more specific.

SPEAKER_00 14:37

Right. Or possessing materials specifically designed for unlawful use, like lock picks or burglary tools near the scene of the crime.

SPEAKER_01 14:45

Okay, so this is where the theory actually hits the pavement. Let's look at a real-world case from the sources that perfectly illustrates this substantial step test in action. Evans v State.

SPEAKER_00 14:56

Oh, this case is a fantastic lens for understanding how the MPC shifts power to law enforcement.

SPEAKER_01 15:01

So we have two guys, Evans and Tinch. It's nighttime. They are driving around a mall parking lot, and they are driving very, very slowly for 45 minutes.

SPEAKER_00 15:11

And it's not just one parking lot. They are meticulously driving up and down the aisle, staring at vehicles, and then they move on to two other nearby shopping center lots to do the exact same thing.

SPEAKER_01 15:21

Right. It's highly suspicious behavior. But what elevates it is what they have inside their car. They are armed with screwdrivers, pliers, and a large collection of various car keys.

SPEAKER_00 15:33

Burglary tools.

SPEAKER_01 15:34

Exactly. They are explicitly there, according to the evidence presented later, to find a specific type of car to break into and steal the stereo equipment. But here is the massive kicker of this case. They never actually touch a single car.

SPEAKER_00 15:49

Not one. They never get out of their vehicle, they never pry a lock, they never lift a screwdriver to a window.

SPEAKER_01 15:55

They eventually leave the parking lot without doing anything because they get spooked. They notice a pickup truck has been following them for a while, and that truck turns out to be driven by an undercover police officer who was watching that every move.

SPEAKER_00 16:07

Busted.

SPEAKER_01 16:08

Right. The cops pull them over and arrest them. Now their defense lawyer goes into court and essentially says, Your Honor, this is outrageous. My clients were merely driving around a public place. They were just preparing. They never touched a vehicle. They didn't even select a specific target vehicle yet.

SPEAKER_00 16:23

Aaron Powell, which is a fair argument under the older rules.

SPEAKER_01 16:26

Exactly. The lawyer says you cannot convict them of criminal attempt to enter an automobile if they never actually attempted to enter one.

SPEAKER_00 16:33

Aaron Powell And under some of the old common law tests we just discussed, like the indispensable element test or even the equivocality test, Evans and Tinch might have won that argument. They still needed to pick a car, park, get out, and actually use the tools.

SPEAKER_01 16:47

But this jurisdiction was using the model penal code's substantial step test, and the court completely eviscerated the defense's argument. How did they justify a conviction when no car was touched?

SPEAKER_00 17:00

The court methodically applied the MPC framework. They said, look, if you just possess screwdrivers and were sitting in your own driveway 50 miles away talking about stealing a stereo, that is mere preparation.

SPEAKER_01 17:11

Because it doesn't corroborate anything.

SPEAKER_00 17:12

Right. That doesn't strongly corroborate anything. You could just be fixing your own car. But you went way beyond remote acts of preparation.

SPEAKER_01 17:19

The geography and the timeline mattered.

SPEAKER_00 17:21

Yes. You drove to the target location, you spent nearly an hour actively hunting for a victim in this case, a specific type of car to enter. You were casing the joint.

SPEAKER_01 17:31

Casing the joint, which, as you mentioned, is explicitly listed in the MPC guidelines as a potential substantial step.

SPEAKER_00 17:37

Exactly. You were reconnoitering the area with the tools of the trade sitting right in your laps. The court ruled that, taken as a whole, those acts directly tended toward the commission of the crime.

SPEAKER_01 17:48

So it's a shift in perspective.

SPEAKER_00 17:50

It is. What the MPC does beautifully here is it shifts the focus of the court. The old common law used to focus on what is left to be done. Evans and Tinch would say, we still had to pick a car and break the glass. But the substantial step test asks, what has the actor already done?

SPEAKER_01 18:07

Have they already shown they mean business?

SPEAKER_00 18:09

Right. Have they already demonstrated a firmness of criminal purpose? The court looked at the 45 minutes of slow driving, the tools, the multiple lots, and said, yes, the criminal purpose was firmly established, convictions affirmed.

SPEAKER_01 18:22

It makes total sense from a public safety perspective. I mean, we want the police to stop the crime before the innocent person's car window is smashed, but it is a massive amount of power to give to the state.

SPEAKER_00 18:32

It definitely expands their reach.

SPEAKER_01 18:34

It allows police to arrest you for the trajectory of your actions rather than the final act itself. And to show just how far that trajectory can be stretched, I want to throw a hypothetical scenario at you from the source text. This is problem 33, and it pushes the substantial step boundary to its absolute mind-bending limit. So imagine you are on the jury for this one.

SPEAKER_00 18:56

All right, set the scene for me.

SPEAKER_01 18:57

We have a husband, Armani. He is going through an incredibly bitter, contentious divorce with his wife, Jayden. It's so bad that she actually has a personal protection order against him.

SPEAKER_00 19:08

Okay, highly volatile situation.

SPEAKER_01 19:10

Early in the afternoon, Armani is highly intoxicated and he is spiraling. He tells the neighbor, My house is being foreclosed on, I plan to kill Jaden, and then myself. Later that evening, he tells the neighbor the exact same thing again. Tonight's the night, I'm gonna kill her.

SPEAKER_00 19:25

Okay, so we have deeply troubling, explicit statements of specific intent. But as we established, words alone without an act aren't an attempt.

SPEAKER_01 19:35

Exactly. The neighbor is terrified, obviously, and calls the police. The police immediately call Jaden. She happens to be working the evening shift at the local hospital. They tell her, do not leave the building. Stay inside while we look for Armani.

SPEAKER_00 19:49

Good protocol.

SPEAKER_01 19:50

And where do the police find him? They find his car parked in a dark lot near the hospital. The engine is off. Armani is inside the car, but he is completely unconscious.

SPEAKER_00 20:01

Unconscious.

SPEAKER_01 20:01

He has passed out from the alcohol. And when they search his vehicle sitting right there with him, they find an ice pick, a box cutter, and a pair of binoculars.

SPEAKER_00 20:10

That is a terrifying set of facts.

SPEAKER_01 20:12

Armani is arrested and charged with attempted murder. Now, this jurisdiction uses the MPC, the substantial step test. Armani's defense lawyer files a motion to dismiss the charges before it even gets to a jury.

SPEAKER_00 20:25

I can guess what the argument is.

SPEAKER_01 20:27

Yeah, the lawyer argues this is fundamentally ridiculous. My client was literally unconscious. He was asleep in a parked car with the engine off. An unconscious man cannot possibly be actively taking a substantial step to murder someone. He wasn't doing anything but snoring. So, under the strict rules of the MPC, is sleeping in a car with weapons a substantial step?

SPEAKER_00 20:47

That is a phenomenal law school exam question, because it pits raw intuition against statutory interpretation. I mean, the defense's argument is intuitively brilliant. He is asleep, he has no agency in that exact second, he poses no immediate kinetic threat.

SPEAKER_01 21:04

I don't know. It just feels like a stretch to charge him with attempt. How do you commit an actus reus while asleep?

SPEAKER_00 21:10

Ah. But if we rigorously apply the model penal code framework we just discussed, the prosecution actually has an incredibly strong case.

SPEAKER_01 21:18

Really?

SPEAKER_00 21:19

Because you cannot isolate the moment of sleep from the continuum of actions that brought him to that parking lot. You have to look at the entire timeline. Under the MPC, lying in wait, searching for or following the contemplated victim is explicitly listed as conduct that can constitute a substantial step.

SPEAKER_01 21:37

As long as it corroborates the purpose.

SPEAKER_00 21:38

Exactly. Think about the sequence of events. Armandy didn't just magically teleport into that hospital parking lot while unconscious.

SPEAKER_01 21:45

Right. He drove there.

SPEAKER_00 21:46

He formed the intent, explicitly stated it twice, acquired deadly weapons, an ice pick, and a box cutter, along with binoculars, which suggests tracking or surveillance. He then drove himself to the specific location. Where he knew his victim was vulnerable, and he parked in her vicinity.

SPEAKER_01 22:04

He positioned himself on the chessboard.

SPEAKER_00 22:06

Precisely. He had already taken massive, volitional, substantial steps to position himself for the kill. The fact that he subsequently passed out from intoxication does not retroactively erase the steps he already took.

SPEAKER_01 22:18

So the driving was the step.

SPEAKER_00 22:20

The prosecution will argue that driving to her workplace with weapons, after repeatedly stating his intent to murder her, was the substantial step. He had already crossed the invisible line from preparation to perpetration before his eyes ever closed. Wow. The sleep is just a physiological pause button on a criminal attempt that was already fully in motion.

SPEAKER_01 22:38

A pause button. That is a chilling way to frame it, but it makes total sense. And it perfectly illustrates why the law had to evolve away from those old common law tests. If the police had to wait for Armani to wake up, shake off the hangover, get out of the car, and walk toward the hospital doors with the ice pick raised.

SPEAKER_00 22:56

They're risking Jaden's life.

SPEAKER_01 22:57

Right. The substantial step test gives law enforcement the legal footing to step in earlier in the continuum, but only because his prior intent was so crystal clear.

SPEAKER_00 23:08

Which highlights the absolute necessity of the second half of our deep dive, the mens rea.

SPEAKER_01 23:13

Right. Let's move to that. Because catching the act is essentially physical. It's geography, it's tools, it's timing. But as we just saw with Armani, it's not enough just to take a step, even a substantial one. You have to look at what was happening inside the invisible workings of the person's head.

SPEAKER_00 23:29

This is the tricky part.

SPEAKER_01 23:30

Here's where the philosophy of the law gets profoundly interesting. Because for an attempt charge, the law requires what is known as specific intent.

SPEAKER_00 23:39

Yes. And this is a major deliberate hurdle placed in front of prosecutors to prevent government overreach. For most standard crimes, a general intent or acting with recklessness is enough to convict you if someone actually gets hurt.

SPEAKER_01 23:54

Right. If you do the damage, you're on the hook.

SPEAKER_00 23:56

But for an attempt charge, recklessness is not enough. You have to prove, beyond a reasonable doubt, that the defendant specifically, purposefully, intended to bring about that exact criminal result. They had to want the crime to happen.

SPEAKER_01 24:11

And this requirement of specific intent leads to some of the most bizarre, brain-breaking legal paradoxes found in the source text. For example, can you attempt to commit an accidental crime?

SPEAKER_00 24:22

The short answer is no, because human language and logic literally break down when you try to combine those two concepts.

SPEAKER_01 24:28

It really does break your brain if you think about it too long. The sources bring up specific cases from Hawaii and Colorado that had to grapple with this exact semantic nightmare.

SPEAKER_00 24:36

Oh, yeah, those are great examples.

SPEAKER_01 24:38

The Hawaii Supreme Court had to review a charge where a defendant was accused of attempted involuntary manslaughter.

SPEAKER_00 24:44

All right, let's parse the grammar of that charge. The word attempt in a legal context requires you to purposefully desire a specific outcome. You want a specific result to materialize in the real world.

SPEAKER_01 24:57

Okay.

SPEAKER_00 24:57

But involuntary manslaughter is by definition an unintentional killing. It happens when you are acting recklessly or negligently. You didn't mean for anyone to die, but you are acting so dangerously, say, driving a hundred miles an hour blindfolded that someone did die.

SPEAKER_01 25:12

So to be guilty of attempted involuntary manslaughter, you would have to specifically, purposefully intend to accidentally kill someone.

SPEAKER_00 25:21

It is a complete logical contradiction. The Hawaii court ruled that it is utterly impossible to conceive of an attempt to act recklessly. You either act recklessly or you don't. You cannot purposely try to have a reckless access.

SPEAKER_01 25:33

It's like trying to draw a square circle.

SPEAKER_00 25:35

Exactly. As the Colorado Court of Appeals put it, when dealing with a similar charge of attempted criminally negligent homicide, the words themselves are at war with one another. They are internally inconsistent.

SPEAKER_01 25:45

So if the underlying crime only requires you to be reckless or negligent, you generally cannot be charged with attempting it. You either complete the reckless act and cause the harm, in which case you are charged with the full crime, or you don't cause the harm, in which case the attempt laws can't touch you. You can't attempt to be reckless.

SPEAKER_00 26:03

It is a fascinating, necessary limitation on how far the net of incoite crimes can be thrown. The state cannot prosecute you for failing to have an accident.

SPEAKER_01 26:14

But even when a crime does require specific intent, like murder, proving that intent when the crime is incomplete is notoriously difficult.

SPEAKER_00 26:21

Oh, incredibly difficult.

SPEAKER_01 26:23

Because you don't have the final result, a dead body, a stolen wallet to point to as proof of what they wanted. You almost always have to rely on circumstantial evidence. And that brings us to a gripping case from the text involving a getaway driver. Baldwin v. Commonwealth.

SPEAKER_00 26:38

This case is an absolute masterclass in how finally appellate courts will slice the concept of intent based on like fractions of a second and a few degrees of the steering wheel.

SPEAKER_01 26:48

Let's set the scene. We are in a residential area. A Chesterfield County police officer, Mark Bowen, is on patrol. He clocks a car driven by Demetrius Baldwin, going about 25 miles over the speed limit.

SPEAKER_00 27:01

Routine traffic stop.

SPEAKER_01 27:02

Right. Officer Bowen flips on his lights to initiate a stop. Surprisingly, Baldwin complies immediately. He pulls over into a paved right-hand turn lane. The path directly in front of Baldwin's car is completely clear. Okay. Officer Bowen parks his cruiser behind Baldwin, gets out, and walks up to the driver's side. But he doesn't walk all the way up to the driver's window. He stops near the driver's side rear passenger window. So he is standing slightly behind the driver's door, maintaining a tactical position.

SPEAKER_00 27:32

And Bowen is keeping his hand pressed down on the trunk of the car, which is standard procedure, just in case the driver tries to pop the door open suddenly.

SPEAKER_01 27:39

Exactly. Bowen taps on the window. And Baldwin doesn't roll it down. He doesn't acknowledge the officer at all. Instead, Baldwin grabs the steering wheel with both hands, cranks the wheels hard toward the left toward where Officer Bowen is standing and floors the accelerator.

SPEAKER_00 27:54

Very bad move.

SPEAKER_01 27:55

The carfish tails proceeds over two lanes of traffic and speeds off. Officer Bowen later testifies that as the car violently accelerated, he literally had to push himself off the back of the vehicle to prevent the rear wheels from crushing his feet. Baldwin leads the police on a high-speed chase and is eventually caught seven miles away. Which, if you are a layperson sitting on a jury, you hear those facts and you think, yeah, absolutely. He aimed a two-ton machine at a cop and peeled out, nearly running him over. That is attempted murder. Definitely sounds like it. But here's the plot twist. The Virginia Supreme Court looked at this case and completely reversed the attempted murder conviction. How on earth did they justify that?

SPEAKER_00 28:49

They reversed it entirely based on the rigid requirement of specific intent. The prosecution in an attempt case doesn't just have to prove that Baldwin acted recklessly, or that his actions were incredibly dangerous, or even that he intended to flee.

SPEAKER_01 29:04

They have to prove more.

SPEAKER_00 29:05

They had to prove, beyond a reasonable doubt, that Baldwin had the specific, conscious intent to kill Officer Bowen.

SPEAKER_01 29:12

But he turned the wheels toward him. He cranked the wheel left.

SPEAKER_00 29:16

He turned the wheels left to merge into the flow of traffic to escape. And to explain why that distinction is the difference between 15 years in prison and a much lesser charge, the court compared Baldwin's specific geometry to two other precedents from the textbook, which perfectly illustrate where the law draws the line.

SPEAKER_01 29:33

Okay, let's look at the first case, Coles. What were the physical facts in Coles?

SPEAKER_00 29:37

In Coles, the police car was parked at an angle to the left in front of the defendant's car. The officer had gotten out and was confronting the defendant from the front, standing essentially right in his path. The defendant had plenty of room to just drive straight ahead and escape the scene without hitting anyone. Instead of taking the clear path to freedom, the defendant deliberately swerved his vehicle to the left and aimed it directly toward the police officer.

SPEAKER_01 30:03

So in Coles, the driver went out of his way to target the officer when he absolutely didn't have to in order to escape.

SPEAKER_00 30:09

Exactly. The physical action was unequivocal. It strongly corroborated a specific intent to run the officer down. The court upheld the specific intent to kill in that case.

SPEAKER_01 30:19

Makes sense.

SPEAKER_00 30:20

Now let's compare that to the second case called Haywood. In Hawood, the defendant was running from the police and drove his truck at high speed straight through police roadblocks. He didn't aim at a specific officer. He was just trying to smash through the physical barrier of cars to get to the other side. The court in Hawood reversed his attempted murder conviction.

SPEAKER_01 30:40

Because smashing a roadblock is about the obstacle, not the person.

SPEAKER_00 30:44

Precisely. The court said the evidence just showed he was attempting to escape. He was acting with extreme recklessness regarding the lives of the officers, but he didn't have the specific intent to murder them. He just wanted to get past them.

SPEAKER_01 30:58

So applying the logic of Coles and Haywood back to our getaway driver, Baldwin.

SPEAKER_00 31:04

The Supreme Court looked at the scene and said Baldwin was much more like Haywood. Officer Bowen was standing slightly behind the driver's door. Yes, the path straight forward into the turn lane was clear. But to escape into the main traffic lanes, Baldwin had to turn his wheels outward to the left.

SPEAKER_01 31:20

Into the road.

SPEAKER_00 31:21

Right. There was no evidence he aimed his vehicle directly at Bowen's body or intended to inflict bodily harm. He just wanted to get his car out of the turn lane and run. Even Bowen's own testimony was that the car never backed up toward him. Baldwin never tried to strike him with the front of the cart, he just sped off, and the back wheels nearly caught the officer's feet in the process.

SPEAKER_01 31:40

And Baldwin actually testified in his own defense. He said he panicked because he knew he had an outstanding warrant for a DUI probation violation. He knew if he rolled down that window, he was going to jail. He just wanted to run.

SPEAKER_00 31:52

Right. So while his actions were undeniably dangerous, criminally reckless, and he was rightfully convicted of the felony of eluding police, the court said the circumstantial evidence simply did not support a finding that he formed the specific intent to use his vehicle as a murder weapon. The intent was to escape, not to kill.

SPEAKER_01 32:12

It is such a microscopic line to draw, but it is the difference between a relatively minor felony and spending 15 years in a penitentiary. And it highlights how deeply ambiguous circumstantial evidence can be when you are trying to reconstruct a thought.

SPEAKER_00 32:25

It's all about interpretation.

SPEAKER_01 32:26

Which reminds me of another crazy case in the text regarding intent, and this one involves a screen door. State v. Ricks.

SPEAKER_00 32:32

Ah, the screen door case. The split opinions in this case are a wild read and a perfect illustration of judicial philosophy.

SPEAKER_01 32:39

Let's lay out the facts. It is just after midnight. A guy named Harold Truman is asleep in his apartment. He is startled awake by a noise at his back door. Fearing an intruder, he grabs his.38 caliber pistol and goes to investigate.

SPEAKER_00 32:55

Okay, tensions are high.

SPEAKER_01 32:56

He looks out and sees a man standing on his back porch in the dark. The screen door latch has been physically pulled loose. Truman yells out, What are you doing here? The guy gives absolutely no response. Truman warns him, I'm gonna shoot, and the guy just yells a profanity back at him. From Truman's perspective, it looks like the guy's coming in, so Truman fires, shoots him right in the leg.

SPEAKER_00 33:17

A very dramatic, violent escalation in the middle of the night.

SPEAKER_01 33:20

The police arrive, follow a blood trail, and find the guy whose name is Rix, hiding in the shadows of a vacant apart building next door. Now, based on breaking the latch, Rick's is charged with attempted burglary. But Rickx goes to trial and testifies in his own defense. He says, Hey, I wasn't trying to rob anyone. I was just super drunk. I've been drinking heavily all day and night. And I actually know the woman who shares this apartment with Truman. Her name is Sally Talbert. We've been friends for a year. I even helped paint that very apartment once. I was just drunkenly stopping by to give her a holler.

SPEAKER_00 33:51

And it's important to note that several witnesses at trial corroborated that Rix had indeed been drinking heavily. And the woman, Sally, took the stand and admitted she had known him for a year, though she firmly denied he had ever been inside the apartment to paint it.

SPEAKER_01 34:06

So the fundamental question for the jury is what was his specific intent when he pulled that screen door latch? Was his intent to commit a felony once inside, which would legally make it an attempted burglary? Or was he just a drunken idiot trying to visit a friend at an inappropriate hour, which might be trespassing, but is certainly not burglary?

SPEAKER_00 34:27

The jury didn't believe his story. They convicted him of attempted burglary.

SPEAKER_01 34:31

But when the case was appealed to the Louisiana Supreme Court, the justices completely fractured on how to read the circumstantial evidence.

SPEAKER_00 34:38

The written opinions are a fantastic study in how two brilliant legal minds can look at the exact same set of facts and see two entirely different realities.

SPEAKER_01 34:48

Let's look at Justice Watson first. I am fully on Justice Watson's side here. Watson looked at the evidence and said this conviction has to be thrown out immediately. He pointed out that Rick's was completely unarmed, he carried no lockpicks, no crowbar, no burglary tools of any kind.

SPEAKER_00 35:04

Right, no tools.

SPEAKER_01 35:05

He didn't steal anything or attempt to steal anything before he was shot. Furthermore, there was no evidence presented that Rick had any history of burglaries. Justice Watson argued that in a case based purely on circumstantial evidence, the state has the burden to exclude every reasonable hypothesis of innocence.

SPEAKER_00 35:22

Every single one.

SPEAKER_01 35:22

And Watson said the state completely failed to exclude the reasonable hypothesis that Rix just intended a social visit, however drunken, obnoxious, and ill-advised it was.

SPEAKER_00 35:32

Watson gave Rick the benefit of the doubt regarding the chaos of intoxication. But then you have Justice Lemon. And Justice Lemon is not buying the drunken social visit excuse for a single second.

SPEAKER_01 35:45

What was Lemon's argument?

SPEAKER_00 35:47

Lemon writes this rapid-fire series of rhetorical questions, in his opinion, that basically dismantle Rick's entire story through the lens of common sense. Lemon asks, if you were genuinely there to visit your friend Sally, why would you physically break the screen door latch instead of just knocking or calling out her name to be let in?

SPEAKER_01 36:06

Good question.

SPEAKER_00 36:06

Breaking a latch implies a desire for stealth, which implies a criminal intent. Second, when a man points a gun at you and asks what you were doing, why did you yell a profanity instead of immediately explaining, hey, I'm Sally's friend, I'm just here to see her?

SPEAKER_01 36:19

Okay. Those are fair points, but drunk people don't act logically.

SPEAKER_00 36:23

True. But Lemon saves his most damning piece of circumstantial evidence for last. He asks, why did Rick's run and hide in a vacant dark building after being shot in the leg instead of seeking immediate medical help?

SPEAKER_01 36:34

Because he was scared.

SPEAKER_00 36:35

Well, Lemon points out that innocent people who get shot by mistake usually collapse and cry out for an ambulance. They want the police to know they are the victim. Criminals who get shot while trying to break into a house run away and hide in the shadows to avoid arrest.

SPEAKER_01 36:50

So Lemon looks at the totality of the behavior after the shot as proof of the intent before the shot.

SPEAKER_00 36:56

Exactly. Justice Lemon concluded that the jury rightfully rejected Rick's innocent explanation because it defied logic. Rick's claimed he was there to visit Sally, but he didn't call out for her. He claimed he was too drunk to intend a crime, but he was sober enough to break a latch, yell a profanity, flee, and hide himself in an adjacent building.

SPEAKER_01 37:16

It's a really compelling counter-argument.

SPEAKER_00 37:18

Therefore, Lemon argued, the only logical remaining explanation for violently breaking into an apartment at midnight is that he specifically intended to commit a crime inside.

SPEAKER_01 37:27

It perfectly captures the profound challenge of men's ray. When the crime is incomplete, you don't have a stolen TV or a dead body to point to.

SPEAKER_00 37:44

And it shows that even at the highest levels of the judiciary, specific intent often comes down to which narrative a judge finds more persuasive.

SPEAKER_01 37:53

Okay, so we've covered the physical act and we've covered the complexity of the mind. But what if a criminal has both? What if they have the absolute specific intent to commit a crime and they take a massive, unquestionable, substantial step to execute it? But the universe steps in and says, nope. What if the crime they are trying to commit is literally impossible to achieve?

SPEAKER_00 38:13

This brings us to section three, the impossibility defense. And this is historically one of the most intellectually agonizing and debated areas of criminal law.

SPEAKER_01 38:22

Let's pose a scenario to the listener to ground this. You decide for whatever reason, you are going to become a pickpocket. You go to a crowded train station, you spot a wealthy-looking tourist, you have the specific intent to steal their wallet.

SPEAKER_00 38:38

Okay. Intent is there.

SPEAKER_01 38:39

You take the substantial step of walking up to them, slipping your hand into their coat pocket, and grabbing absolutely nothing. The pocket is completely empty. You have failed. Can you use the legal defense that it was impossible for you to commit the crime of theft since there was literally nothing there to steal?

SPEAKER_00 38:57

Under the classic common law, the answer is no. And this introduces the crucial historical distinction between factual impossibility and legal impossibility.

SPEAKER_01 39:07

Yeah.

SPEAKER_00 39:07

The empty pocket scenario is the textbook. Classic definition of factual impossibility.

SPEAKER_01 39:12

Aaron Powell Because it's a physical fact about the world that you were mistaken about.

SPEAKER_00 39:15

Exactly. You were mistaken about the physical facts. But if the facts had been as you subjectively believe them to be, if there had actually been a wallet in that pocket, the crime would have been perfectly accomplished.

SPEAKER_01 39:25

Okay, give me another example.

SPEAKER_00 39:26

Another classic, slightly darker example from the text is the assassin. You want to kill your enemy. You sneak into their bedroom at night, you see a lump under the covers, you fire six bullets into the bed, only to discover your enemy is out of town, and you just murdered a pile of pillows.

SPEAKER_01 39:43

You are still guilty of attempted murder.

SPEAKER_00 39:46

Absolutely. Factual impossibility does not negate your evil intent, nor does it negate the dangerousness of your actions. You are a threat to society regardless of the pillows. So factual impossibility is never a defense.

SPEAKER_01 40:00

It essentially boils down to saying, I had bad luck and my criminal plan failed because I lacked full information, which is obviously not a defense. But then we have the other side of the coin, legal impossibility. How is that historically different?

SPEAKER_00 40:12

Legal impossibility was historically a valid defense that could get you completely off the hook. It exists in situations where even if you accomplished exactly what you set out to do, your final actions would not actually violate any written criminal statute.

SPEAKER_01 40:26

Wait, I need an example of that. How can you have criminal intent but not break a law?

SPEAKER_00 40:30

The most famous case that cemented this in the common law is People V Jaffe from New York in 1906. Jaffe was a guy who accepted delivery of some goods, I believe it was rolls of cloth, that he genuinely specifically believed were stolen property.

SPEAKER_01 40:47

Okay, so he's trying to be a fence.

SPEAKER_00 40:49

Right. He had the guilty mind, he wanted to buy stolen goods on the black market. He took the substantial step of paying for them and taking possession. But it turned out the goods were not actually stolen, they had been recovered by the police earlier, and the police were using them in a sting operation to catch fences.

SPEAKER_01 41:04

So his ultimate goal was to receive stolen property, but the physical property in his hands wasn't legally stolen.

SPEAKER_00 41:11

Right. And historically, the courts looked at this and said, Well, wait a minute. The statute says it is a crime to receive stolen property. It is legally impossible to commit that specific crime if the property isn't stolen. Even if Jaffe completes every single step of his master plan and achieves exactly what is in his head, he hasn't actually broken the statute because the status of the goods doesn't match the law. So the court ruled it was a legal impossibility. Jaffe walked free.

SPEAKER_01 41:37

Okay, I think I grasp the theoretical difference. Factual means the physical circumstances of the world stopped you from completing a real crime. Legal means the law itself wouldn't consider your completed successful act crime, even though you thought it was. But the sources note that modern law has basically thrown its hands up and said this distinction is a semantic nightmare and we hate it.

SPEAKER_00 42:00

Because it is. Right. That's the uh common sense approach. But a clever defense attorney utilizing the Jaffi precedent could stand up in court and argue it's actually legal impossibility. They could say, Your Honor, look at the statute for murder. It requires the killing of a human being. My client shot at a pile of cotton sheets. It is not a crime, at least not homicide, to shoot linens. Therefore, even if my client fully completed her physical act of shooting the object she aimed at, she did not break the murder statute. It was legally impossible for her to commit murder by shooting a pillow.

SPEAKER_01 43:00

Oh wow. That is pure semantic gymnastics. You are just redefining what her goal was.

SPEAKER_00 43:05

Exactly. You reframe her goal from killing Bobby to shooting the object in front of her, and it forced courts for decades into absurd, hair-splitting, philosophical debates about whether someone was attempting to murder a human who happened to be absent or attempting to murder a pillow, which isn't a crime.

SPEAKER_01 43:21

That sounds exhausting for the courts.

SPEAKER_00 43:23

Because of this complete lack of underlying logic, today, most jurisdictions, including those following the model penal code, have completely eliminated the distinction. They recognize neither factual nor legal impossibility as a defense.

SPEAKER_01 43:37

So what is the modern rule? How do we solve the pillow problem?

SPEAKER_00 43:39

The modern approach is beautifully simple and subjective. We judge you based on the facts exactly as you believe them to be. We climb inside your head. If your objective, as you subjectively believe the circumstances to be, constituted a crime, you are guilty of attempt. Period.

SPEAKER_01 43:56

So what does the subjective rule mean in practice? Let's look at a wild. Case from the sources that perfectly illustrates the modern approach. Chen V State. This is from the early Wild West days of the internet, 1996. We're talking dial-up modems and AOL chat rooms.

SPEAKER_00 44:11

So a completely different technological era, but the legal principles regarding the mind remain exactly the same.

SPEAKER_01 44:17

So a guy named Chen puts a personal ad on an America online bulletin board. He says he's a generous, rich professional looking for a very attractive young nude dancer. Now, Detective Steve Nelson, a Dallas police officer working on an Internet Exploitation Task Force, sees this ad. He emails Chen back, posing as a 13-year-old girl, and he gives himself the screen name Julie Sherello.

SPEAKER_00 44:38

And over a series of emails, Chen explicitly and repeatedly acknowledges her stated age. He asks if she cares about the age difference. He suggests getting together in person. He assures her he won't hurt her. They discuss explicit sexual acts.

SPEAKER_01 44:52

They eventually arrange to meet at a best western motel on a Tuesday afternoon. Chen tells Julie he will be arriving in a champagne-colored minivan. The police set up a massive surveillance net around the motel. Chen arrives right on time in the champagne minivan. He goes into the lobby, looks around, comes back out, and as soon as he gets back into his van, the police swarm him and arrest him. They search his van and find Conham's and K.Y. Jelly sitting right on the console. He is charged with attempted sexual performance by a child.

SPEAKER_00 45:22

The evidence of his specific intent and his substantial steps to carry it out is absolutely overwhelming.

SPEAKER_01 45:28

But Chen's lawyer attempts an incredible legal loophole defense, relying on that old Jaffa logic. At trial, Detective Nelson takes the stand and admits, obviously, that he is a grown man and that Julie Sorello does not exist. She is entirely a fiction, a ghost created by the police department. So Chen's defense argues, Your Honor, it was legally impossible for my client to commit this crime. The Texas statute requires inducing a child to commit a sexual performance. But there was no child. Julie didn't physically exist in the universe, therefore, completion of the crime was impossible under the law.

SPEAKER_00 46:02

It's the exact same argument as the stolen goods in Jaffa, just updated for the Internet Age. I can't receive stolen goods if they aren't stolen. I can't exploit a child if there is no child.

SPEAKER_01 46:35

Right. They didn't define his goal as meeting Detective Nelson.

SPEAKER_00 46:39

Exactly. The fact that Julie Sorello did not exist was merely a factual condition of the universe that was unknown to Chan. It was no different than the empty pocket or the lump in the bed. It was a classic factual impossibility scenario.

SPEAKER_01 46:53

So it's just bad luck for him.

SPEAKER_00 46:54

Right. Due to a physical fact, he was completely unaware of that Julie was actually a middle-aged detective sitting at a keyboard. He couldn't complete the crime. But under the modern rule, we judge him based on his belief. He had a specific intent, he believed Julie was a child, and he took substantial steps by driving to the motel with paraphernalia. His belief in the facts made his conduct a criminal attempt.

SPEAKER_01 47:19

It is a massive relief that the law works that way. Otherwise, practically every undercover sting operation, from drug buys to internet predators, would be completely impossible to prosecute because the victim or the contraband is always fake.

SPEAKER_00 47:32

Exactly. The modern approach focuses entirely on the dangerousness of the actor's mind. Chen demonstrated he was fully willing and prepared to commit this crime. Society shouldn't have to wait for him to find a real vulnerable victim before stepping in and stopping him.

SPEAKER_01 47:46

Let's test this modern rule with one more interactive prompt for the listener. This is problem 35 from the text, and it involves the laws of physics.

SPEAKER_00 47:54

Oh, I like this one.

SPEAKER_01 47:55

We have Morgan. Morgan is furious because a coworker, Jamie, got a promotion that Morgan desperately wanted. Morgan decides on revenge. He follows Jamie home from work. Jamie goes inside their apartment building. Morgan sneaks up to Jamie's parked car, pours two quarts of motor oil all over the roof and hood, and tries to light a rag with matches to burn the car down. But it's a super windy day. The matches keep blowing out before the rag can catch fire. A neighbor looking out their window sees this happening, calls the cops, and Morgan is arrested as he tries to drive away. Morgan is charged with attempted arson. Okay. But here is Morgan's defense. Morgan's lawyer files a motion to dismiss based on impossibility. They bring in a forensics expert who provides an affidavit stating that standard motor oil cannot actually be ignited by a dropped match. It doesn't vaporize and burn like gasoline. A simple match won't do it.

SPEAKER_00 48:50

So the science was flawed.

SPEAKER_01 48:51

Plus, the wind made it doubly impossible. So the defense argues it was scientifically impossible for Morgan to start the fire with the specific tools he brought. Is Morgan off the hook?

SPEAKER_00 49:04

Based on the subjective approach we just dissected, Morgan is definitively not off the hook. This is just another variation of factual impossibility dressed up with a little bit of science. Morgan had the specific intent to commit arson. He wanted that car to burn.

SPEAKER_01 49:18

And he poured the oil.

SPEAKER_00 49:19

Right. He took a massive substantial step by pouring the flammable liquid and striking the matches. The fact that he was ignorant of chemistry and chose the wrong type of oil, and the fact that the weather didn't cooperate, are simply factual conditions unknown to him that thwarted his plan.

SPEAKER_01 49:34

The universe said no, but the law says guilty.

SPEAKER_00 49:37

Precisely. If the facts had been as he subjectively believed them to be, if he thought motor oil lit exactly like gasoline, he would have successfully committed arson. He is fully liable for the attempt because his mind crossed the line, even if his chemistry skills failed him.

SPEAKER_01 49:52

Okay, so we've firmly established that you cannot blame the universe if your crime fails. You can't blame an empty pocket, you can't blame a decoy detective, and you can't blame bad weather or bad science. But what if you stop yourself?

SPEAKER_00 50:06

Ah, now we leave the realm of physics and enter the deeply personal territory of conscience.

SPEAKER_01 50:12

Right. What if you cross the line into an attempted crime? You take that substantial step, you have the specific intent, but then before you actually pull the trigger or light the fire, you have a genuine change of heart. Can you unring the bell of criminal liability?

SPEAKER_00 50:28

This brings us to section four abandonment and renunciation. And once again, when we look at the history, we see a massive philosophical split between the old common law and the modern trend under the model penal code.

SPEAKER_01 50:40

Let's start with the old rules. How did the common law handle a criminal's change of heart?

SPEAKER_00 50:44

It was incredibly strict and unforgiving. The common law did not recognize abandonment as a defense whatsoever.

SPEAKER_01 50:50

None at all.

SPEAKER_00 50:50

None. The logic was rigid. Once your conduct crosses that invisible line from preparation to perpetration, the crime of attempt is complete in the eyes of the law. Period. You are guilty the moment you cross the line. As one prominent Wisconsin Supreme Court case noted, if you try to abandon the crime after that point, it's legally irrelevant. It's like trying to put the toothpaste back in the tube. The attempt has already occurred.

SPEAKER_01 51:18

That seems completely counterproductive to public safety. If I'm a criminal and I'm standing on my neighbor's property with the match and I suddenly feel guilty, but I also know that legally I am already fully guilty of attempted arson just for being there. What is my incentive to stop?

SPEAKER_00 51:33

You don't have one.

SPEAKER_01 51:34

I might as well just drop the match and finish the job. I'm going to prison either way, might as well get the revenge I came for.

SPEAKER_00 51:39

And that exact pragmatic logic is why the drafters of the Model Penal Code introduced a radically different approach. They wanted to create a tangible legal incentive for criminals to stop their behavior before the ultimate harm occurs.

SPEAKER_01 51:52

Right. Encourage them to turn back.

SPEAKER_00 51:54

They wanted to encourage the actor to desist an escape penalty, which ultimately saves the lives and property of victims. So the MPC explicitly recognizes an affirmative defense of voluntary and complete abandonment, sometimes called renunciation.

SPEAKER_01 52:10

It's a legal off-ramp. But there has to be a catch. I assume I can't just run away when the cops show up and yell, I voluntarily abandoned my crime.

SPEAKER_00 52:19

No, you cannot. The caveat is massive. The defense rests entirely on the strict definitions of two words, voluntary and complete.

SPEAKER_01 52:27

Let's define those because they're clearly doing a lot of heavy lifting. What makes an abandonment not voluntary?

SPEAKER_00 52:33

The law states that it is not voluntary if your decision to stop is motivated, in whole or in part, by circumstances that increase the probability of detection or apprehension.

SPEAKER_01 52:43

Meaning you are only stopping because you are about to get caught.

SPEAKER_00 52:46

Exactly. If you are picking a lock and you hear police sirens in the distance, or a guard dog starts barking, or the victim suddenly wakes up, and that is what makes you drop your tools and run away.

SPEAKER_01 52:55

Right.

SPEAKER_00 52:55

That is not a voluntary change of heart. That is just basic self-preservation.

SPEAKER_01 52:58

Right.

SPEAKER_00 52:59

It is an extrinsic factor, an outside force that thwarted your plan. You didn't find your conscience, you just found a threat.

SPEAKER_01 53:07

Okay. That makes sense. What about the second word, complete? What makes an abandonment incomplete?

SPEAKER_00 53:12

It is not complete if you are simply postponing the criminal conduct until a more advantageous time. You can't stand outside a bank, see a lot of security, and say, ah, it's too risky to rob this bank today. I'll come back on Tuesday when the old guard is working.

SPEAKER_01 53:27

That's just a delay tactic.

SPEAKER_00 53:28

That's not abandoning the criminal purpose, that's just rescheduling it. Similarly, it's not complete if you just decide to transfer your criminal effort to a different, similar objective or victim. This house has a security system, I'll go rob a house next door instead. That is not a complete abandonment of the intent to commit a burglary.

SPEAKER_01 53:48

So you actually have to have a genuine internal change of heart. You have to repent. The Second Circuit Court of Appeals actually called it a somewhat anomalous defense in criminal law because usually once you commit the criminal acts, repentance doesn't absolve you of guilt. You can't unrob a bank by feeling sorry.

SPEAKER_00 54:04

But for attempt, the law carves out this one narrow space for redemption if the state believes it's genuine.

SPEAKER_01 54:10

And to see exactly how strictly and sometimes harshly courts apply this narrow window, we have to look at the case of Patterson v. State.

SPEAKER_00 54:18

This is a textbook example of a failed abandoned defense.

SPEAKER_01 54:22

It's 4.0 a.m. An 82-year-old woman, Julia Masajewski, is asleep alone in her house. She is suddenly awakened by the unmistakable sound of breaking glass.

SPEAKER_00 54:33

A truly terrifying moment.

SPEAKER_01 54:34

She gets out of bed to investigate, and as she walks through her house, she turns on the lights in each room she passes. When she finally gets to her son room at the back of the house, she finds a broken window pane, shattered glass all over the floor, and blood smeared on the curtains. She immediately retreats and calls the police.

SPEAKER_00 54:51

The police arrive quickly and set up a perimeter. They find a man, Patterson, lurking in the shadows behind her house. His hand is bleeding profusely. When the police catch him, he actually blurts out, I know I shouldn't have broken the window. Later, Julia identifies him as a man who had come to her door just a few days earlier looking for odd jobs, asking to shovel snow.

SPEAKER_01 55:10

So Patterson is arrested and charged with attempted burglary. And at his trial, his lawyer makes a strategic play. He asks the judge to instruct the jury on the affirmative defense of abandonment.

SPEAKER_00 55:22

Because he never went inside.

SPEAKER_01 55:23

Right. The defense argues, look, my client broke the window. Yes, that was a substantial step, but look at the facts. He never went inside. He stayed outside in the yard. He stopped. I want the jury to consider that he voluntarily abandoned his effort to commit the crime before consummating it.

SPEAKER_00 55:39

But the trial court judge refused to even give the jury the option to consider that instruction. The judge wouldn't even let them debate it. And the appellate court completely agreed with the trial judge. What? Because the evidence did not support a truly voluntary abandonment as defined by the law.

SPEAKER_01 55:55

It was the lights, wasn't it? The lights ruin his defense.

SPEAKER_00 55:58

It was absolutely the lights. The appellate court noted the timeline. Eighty-two-year-old Julia woke up and started sequentially turning on lights as she moved through the house toward the sunroom. The court concluded that the only reasonable inference to draw was that Patterson abandoned his attempt to climb through that broken window because he realized he was about to be discovered.

SPEAKER_01 56:18

The homeowner was awake and moving toward him.

SPEAKER_00 56:21

His abandonment was triggered by an extrinsic factor. The probability of detection skyrocketed the moment those lights clicked on. His decision to stay outside wasn't born from a sudden, pure wave of voluntary remorse. It was a calculated response to an outside threat.

SPEAKER_01 56:36

So it wasn't voluntary.

SPEAKER_00 56:38

Therefore, as a matter of law, it did not meet the strict definition of a voluntary abandonment. It couldn't even be presented to the jury. Patterson was convicted, and because he had a prior record as a habitual offender, he was sentenced to 50 years in prison.

SPEAKER_01 56:52

Fifty years for a broken window and standing in a yard. It is a staggering sentence, but it perfectly illustrates just how heavy the consequences are once you cross that line from preparation to perpetration, and how incredibly narrow the window is to legally change your mind once the momentum of the crime begins.

SPEAKER_00 57:10

It's a high wire act for the justice system, balancing the desire to let people repent against the need to punish dangerous behavior.

SPEAKER_01 57:18

Which brings us to the big picture of this entire deep dive. We've spent the last hour exploring how the law desperately tries to act like a preemptive mind reader, and we are left with this massive inherent tension in society. On one hand, we absolutely need to stop harm before it happens. Right. We want the police to be able to arrest the guys with the screwdrivers in the mall parking lot before they smash the window. We want them to arrest Armani in the hospital parking lot before he wakes up and walks inside with an ice pick.

SPEAKER_00 57:45

Yeah.

SPEAKER_01 57:45

We demand preventative justice.

SPEAKER_00 57:47

Aaron Powell, but on the exact other hand, we have a deep constitutional and societal fear of punishing people for mere thoughts or for entirely innocent preparation. We don't want to live in a dystopian society where buying a crowbar at a hardware store makes you a criminal just because a cop thinks you'd look suspicious.

SPEAKER_01 58:04

Exactly. We demand a line to be drawn. And watching the law constantly stretch and adapt to catch dangerous behavior earlier and earlier along that continuum brings up one final, really fascinating evolution from the sources. And that is the rise of modern stalking laws.

SPEAKER_00 58:21

Yes. The text's notes on stalking are incredibly revealing about where the philosophy of inchoate crimes is heading. Traditionally, if you wanted to stop someone who was obsessively following you, working outside your house, and implicitly threatening you, the law had to try and fit that behavior into the box of attempted assault.

SPEAKER_01 58:38

But based on everything we just learned, that's a terrible fit. Assault usually requires a present ability to commit the crime or an immediate kinetic threat of violent injury. If someone is just standing across the street watching you every single day, they might not be committing an attempted assault under the old rules because there is no immediate strike.

SPEAKER_00 58:58

Right. Under traditional attempt analysis, standing across the street was often considered mere preparatory conduct. It didn't cross the line into perpetration. And so for decades, traditional criminal statutes were completely ineffective at preventing this terrifying, psychologically damaging behavior.

SPEAKER_01 59:14

They couldn't do F.

SPEAKER_00 59:16

The police would literally tell victims, we can't do anything until he actually tries to hurt you. That is exactly why state legislatures began enacting specific stalking laws. They purposefully created a brand new crime that reaches much broader and much earlier preparatory conduct than traditional attempt statutes ever allowed.

SPEAKER_01 59:35

The Georgia Supreme Court discussed this exact tension in a case called state v. Rooks. Rooks was convicted of stalking, and he appealed. He argued that stalking is essentially just a fancy word for attempted assault. And since the state of Georgia doesn't actually recognize attempted assault as a discrete crime, his conviction for aggravated stopping was a legal impossibility.

SPEAKER_00 59:56

He was trying to use the old attempt rules to invalidate the new stalking law.

SPEAKER_01 1:00:00

Exactly. But the Georgia Supreme Court shut that argument down completely. They highlighted the crucial philosophical differences between the two concepts. Attempted assault requires proof of an immediate threat of violent injury. Stalking, however, under the Georgia statute, simply requires that the accused follows, places under surveillance, or contacts another person without their consent for the purpose of harassing and intimidating them.

SPEAKER_00 1:00:25

There is no immediacy requirement. There's no requirement that a violent act is about to happen in the next five seconds.

SPEAKER_01 1:00:31

None. The law criminalizes the preparatory tracking behavior itself. It criminalizes the surveillance as the completed crime. The court noted that it is not impractical to subject stalking to criminal sanction, even when those acts are done without the requisite specific intent to cause a reasonable fear of death or bodily injury. The act of stalking itself, the harassment, the surveillance, is the completed crime now.

SPEAKER_00 1:00:56

It's the law essentially saying we aren't going to wait to see if this surveillance turns into a substantial step toward murder or assault. We aren't going to play the attempt game. The surveillance is a crime. It bypasses the entire continuum we just spend an hour discussing.

SPEAKER_01 1:01:11

Which leaves me with a final, slightly provocative thought for you to mull over as we wrap up this deep dive into the source material. We've talked about physical proximity, we've talked about the analog world of buying ski masks, carrying crowbars, and driving slowly around mall parking lots. But think about the world we live in today.

SPEAKER_00 1:01:28

The digital world.

SPEAKER_01 1:01:29

Our digital surveillance is practically omniscient. Our search histories, our online purchases, our text messages, our real-time GPS location data, it is all tracked, recorded, and stored. As this technology gets better and AI gets better at pattern recognition, it is going to become easier and easier for the state to prove exactly what substantial steps a person is taking long before they ever leave their living room.

SPEAKER_00 1:01:53

Oh, absolutely.

SPEAKER_01 1:01:54

If you search for how to make a bomb, buy the fertilizer online with a credit card, and map the route to a government building on your phone, you've left an indelible digital trail of substantial steps that strongly corroborate a criminal intent. Are we moving toward a future of prosecuting pre-crime?

SPEAKER_00 1:02:12

It's a scary thought.

SPEAKER_01 1:02:13

As the line between an idle dark fantasy typed on a keyboard and a legally punishable attempt vanishes completely in the digital age, how far back along that continuum will the justice system reach?

SPEAKER_00 1:02:24

It is the ultimate question of the 21st century. Yeah. How much liberty and privacy are we willing to trade for the promise of early intervention and absolute safety?

SPEAKER_01 1:02:32

It's something to think about the next time you leave a digital footprint. Thank you for joining us on this deep dive into the source material. We hope it helped you understand the invisible lines that hold our justice system together and the profound difficulty of judging a human mind. Keep questioning the world around you. And remember that just because the gun misfires doesn't mean you didn't pull the trigger.