Week 9- Supplement Chapter 14 Solicitation and Chapter 15 Attempt

Week 9 of Crim Law 1L Summer. This is a deep dive on Chapters 14 (Solicitation) and 15 (Attempt and Related Preparatory Crimes) from the book Mastering Criminal Law Second Edition by Ellen Podgor, Peter J. Henning, and Neil P. Cohen. 

Transcript

SPEAKER_00 0:00

You know, usually when we talk about a medical diagnosis, there's this expectation of absolute precision. Right. You break your arm, the x-ray shows that jagged white line, and the doctor just points and says, There it is, broken or not broken. It's clean, it's binary.

SPEAKER_01 0:14

Exactly. It's very categorized.

SPEAKER_00 0:15

Yeah. We like things to be visible. But then you step into the world of criminal law, specifically, the law of what happens before a crime actually occurs, and suddenly that X-ray machine is completely broken.

SPEAKER_01 0:27

We are looking at a diagnostic landscape that is incredibly murky.

SPEAKER_00 0:31

Aaron Powell Oh, it's the absolute definition of diagnostic muddy waters.

SPEAKER_01 0:34

Aaron Powell Because we are basically asking the law to do something almost impossible, you know, to read minds.

SPEAKER_00 0:40

Trevor Burrus, Jr.: Yes. The law refers to these as incoate offenses, which essentially means uh undeveloped or incomplete crimes. And you're hitting on the central tension right away. A civilized society cannot punish someone just for having an evil thought. Trevor Burrus, Jr.

SPEAKER_01 0:54

Right. Thought crimes are a terrifying concept.

SPEAKER_00 0:57

Precisely. But society also cannot afford to wait until the bullet is fired to intervene. We have to draw a line somewhere in the sand. I mean, we have to. And before we lay out the roadmap of what we're covering in this deep dive today, I want to ground this in a real-world scenario that perfectly captures how bizarre this gets for you listening. Think about a classic undercover sting.

SPEAKER_01 1:18

Oh, those are always the best examples.

SPEAKER_00 1:20

Right. So a guy, let's call him the defendant, decides he wants his wife dead, but he doesn't want to pull the trigger himself. So he meets up with a guy he thinks is a hitman. The defendant slides an envelope with $50,000 across a dimly lit table, gives him a photo, and says, do it.

SPEAKER_01 1:37

But the hitman is actually an undercover cop.

SPEAKER_00 1:39

Exactly. The cop takes the money, but obviously takes zero actual steps toward killing the victim. When the defendant is arrested, he is absolutely furious. He argues nobody got hurt.

SPEAKER_01 1:50

Right. He thinks it's a trap.

SPEAKER_00 1:51

Yeah. He says, the guy I hired was never gonna do it. The threat was a complete illusion.

SPEAKER_01 1:56

Aaron Powell It's a very common defense argument, actually. The defendant feels that because the physical manifestation of the crime was essentially a theater production put on by law enforcement, he hasn't actually harmed society.

SPEAKER_00 2:09

But the law doesn't see it that way. In this deep dive, our mission is to map out that gray area using textbook material, statutes, and case law. We are exploring the architecture of anticipatory crime.

SPEAKER_01 2:21

And specifically, we're dissecting two major preparatory offenses, solicitation, which is the act of enlisting others, and attempt.

SPEAKER_00 2:30

Right. So over the course of this discussion, we are going to explore the definitions and core elements of solicitation and then how it intersects with attempt through what's called the merger doctrine.

SPEAKER_01 2:41

And then we really have to get into the psychological stuff, the mens rea or the mental state requirements for attempt.

SPEAKER_00 2:46

Yeah. Reading the mind. After that, we'll evaluate the physical act, the actus reus, by comparing six distinct doctrinal tests that courts use to distinguish mere preparation from actual perpetration.

SPEAKER_01 2:58

Aaron Powell It gets very granular there.

SPEAKER_00 2:59

Aaron Powell It does. And finally, we will look at legal defenses, like when a crime is literally impossible, or when someone just changes their mind and completely abandons the plan.

SPEAKER_01 3:09

And for this analysis, we're going to be getting into the weeds. We're adopting a very precise graduate level approach to the legal doctrine here.

SPEAKER_00 3:16

Aaron Powell No watering things down today.

SPEAKER_01 3:18

No, not at all. We're going to analyze exactly how the Model Penal Code or the MPC, along with various state statutes and pivotal case law, grapple with these concepts. Right. It is essential here to distinguish carefully between majority and minority jurisdictional approaches. Because depending on what state you are standing in, the exact same action might be a simple preparatory act that you can walk away from, or it might be a major felony that puts you behind bars.

SPEAKER_00 3:48

So let's start at the very beginning of the timeline. Before someone attempts to pull off a heist or a murder themselves, they might try to recruit a proxy. They want someone else to do the dirty work. We call this solicitation.

SPEAKER_01 3:58

Yes, solicitation.

SPEAKER_00 3:59

And the really wild part to me is the timing. Because the crime isn't when the proxy goes out and does the D. The timing is everything.

SPEAKER_01 4:06

It's entirely about the timeline. In legal terms, solicitation is defined as the crime of asking another person to join in a course of criminal conduct with the specific intent that the other person commit the target crime or participate in its commission.

SPEAKER_00 4:21

Okay, specific intent is key there.

SPEAKER_01 4:23

Absolutely. And to your point about timing, the crime of solicitation is fully complete. The very microsecond the communication is made, the solicites response is completely irrelevant.

SPEAKER_00 4:34

So whether the person you ask emphatically refuses or eagerly agrees or just, you know, laughs in your face, assuming you're making a dark joke. It doesn't matter. It doesn't matter at all to the charge of solicitation.

SPEAKER_01 4:45

It doesn't matter at all. The harm to society in the eyes of the law is the introduction of a dangerous idea and the attempt to incite another person to break the social contract.

SPEAKER_00 4:55

Wow, okay. Going back to your undercover sting example then.

SPEAKER_01 4:58

Right. The defendant can't be charged with attempted murder in most jurisdictions because the undercover officer didn't take any steps toward the perpetration, and the defendant didn't do anything beyond asking and paying.

SPEAKER_00 5:11

So he just gets solicitation.

SPEAKER_01 5:13

Well, he also can't be charged with conspiracy in jurisdictions that require a genuine two-way agreement between two people since the officer was faking it. But yes, the defendant is absolutely guilty of solicitation because he communicated the request with the specific intent that the murder occur.

SPEAKER_00 5:29

How has this evolved? Because I imagine historically the kings and queens of England weren't throwing people in dungeons for asking someone to steal an apple. It feels like a very modern, almost proactive form of policing.

SPEAKER_01 5:42

Your intuition is entirely correct. The early common law was actually very narrow. It limited the offense of solicitations strictly to solicitations of perjury in a judicial proceeding or conduct related to the bribery of a public official.

SPEAKER_00 5:56

Okay, so just protecting the crown, basically.

SPEAKER_01 5:58

Exactly. The crown was primarily concerned with protecting the integrity of its own institutions, the courts and the government. It wasn't until much later around the early 19th century that courts began expanding solicitation to cover requests to commit general felonies and serious misdemeanors that involved a breach of the peace.

SPEAKER_00 6:15

And today?

SPEAKER_01 6:16

Today, modern statutes vary significantly. Some states strictly limit the object crime to felonies. Others, following the model penal code, extend solicitation laws to cover misdemeanors as well.

SPEAKER_00 6:30

I think we need to look at the actual statutory language because the wording here really shows how different states try to build a fence around human communication. It's fascinating how lawmakers try to capture something as slippery as conversation.

SPEAKER_01 6:43

The exact wording is critical, and we will be quoting several statutes directly today so you can hear how legislatures construct these boundaries. To quote the Illinois statute, 720 ILCS, Section 58, Act 1, directly, quote, a person commits solicitation when, with intent that an offense be committed, other than first-degree murder, he commands, encourages, or requests another to commit that offense. End quote.

SPEAKER_00 7:07

Commands, encourages, or requests. That's a pretty broad net. I mean, encourages almost feels like you could just be hyping someone up.

SPEAKER_01 7:13

It does sound like that, doesn't it?

SPEAKER_00 7:15

Yeah, like if my friend is complaining about his boss and I say, Yeah, you should totally key his car, am I committing solicitation in Illinois?

SPEAKER_01 7:20

That is exactly the danger of broad language, and why the specific intent requirement is so vital. If a jury believes you were just blowing off steam and didn't actually have the specific intent for your friend to key the car, you aren't guilty.

SPEAKER_00 7:34

Okay, so context matters.

SPEAKER_01 7:36

Exactly. But the language itself is deliberately broad to catch subtle mob boss type language, where a command is veiled as a mere suggestion.

SPEAKER_00 7:45

Right, like won't someone rid me of this meddlesome priest?

SPEAKER_01 7:48

Exactly that. Now let's contrast Illinois with a state that closely follows the Model Penal Code. If we look at the exact wording of the New Hampshire statute, NA Crevan stat, section 629.2, which follows MPC section 5.021, it says, quote, a person is guilty of criminal solicitation is, with a purpose that another engage in conduct constituting a crime, he commands, solicits, or requests such other person to engage in such conduct. End quote.

SPEAKER_00 8:14

Notice how New Hampshire actually uses the word solicits to define criminal solicitation.

SPEAKER_01 8:19

Yes, it is a bit circular.

SPEAKER_00 8:20

It's almost completely circular, which kind of proves how much legislatures struggle to nail down exactly what this behavior looks like in the real world. But I want to test the boundaries of this physical act. What if I don't ask you to commit the crime for me, but I ask you to help me commit it?

SPEAKER_01 8:36

Okay, give me a hypothetical.

SPEAKER_00 8:37

Like I go to my neighbor and say, Hey, I need to borrow your crowbar to break into the warehouse downtown tonight. I'm not asking my neighbor to rob the warehouse. I'm gonna rob it. Does that count as solicitation?

SPEAKER_01 8:50

That is a fundamental distinction in the doctrine. Under traditional common law, your request for the crowbar might not be considered a solicitation because you aren't asking the recipient to participate directly in the criminal conduct of the burglary. You're just asking for a tool.

SPEAKER_00 9:05

So under common law, I'm clear.

SPEAKER_01 9:07

Yes. But the model penal code radically changes this framework. Under MPC section 5.0231, your request to borrow the crowbar absolutely is solicitation.

SPEAKER_00 9:18

Wait, really?

SPEAKER_01 9:19

Yes. The MPC explicitly includes requests that would establish the other person's complicity in the crime or attempted crime. By asking for the tool, you are asking your neighbor to become an accomplice. Therefore, you are legally soliciting them.

SPEAKER_00 9:35

Wow. Wait, let me stop you there and push back with a different scenario. What if I use someone, but they have no idea they are helping me commit a crime? The law calls this an innocent instrumentality.

SPEAKER_01 9:46

Yes, innocent instrumentality.

SPEAKER_00 9:48

Let's say I want to steal a massive, expensive flat screen TV from a house down the street, but I have a bad back. So I ask my buddy, let's call him Sam, to go over to the house, walk into the living room, and bring the TV out to my truck. But I lie to Sam. I say, Hey, that's my TV. I lent it to the guy. He said I could grab it today.

SPEAKER_01 10:05

Oh, okay. I see where you're going.

SPEAKER_00 10:07

Yeah. So Sam goes and gets it. Is Sam just a human drone here? And am I guilty of soliciting Sam to commit burglary?

SPEAKER_01 10:14

You are not guilty of solicitation in that scenario. Yes. And yes, Sam is effectively a human drone, an innocent instrument. Remember the core definition we just covered. You have to ask someone to engage in criminal conduct. Sam has absolutely no intent to steal.

SPEAKER_00 10:30

Because he thinks it's mine.

SPEAKER_01 10:32

Right. Sam genuinely thinks he is just helping a friend move their own property. Because Sam lacks the required men's revelation of the mental state for larceny or burglary, you are not asking Sam to commit a crime. You are asking him to do something he believes is perfectly lawful.

SPEAKER_00 10:48

So I just get away with it. I'm immune because I tricked him.

SPEAKER_01 10:52

Oh, not at all. The law steps back and looks at the whole picture. The law treats you, the person pulling the strings, as if you had personally committed the physical act performed by the innocent agent.

SPEAKER_00 11:02

So I'm the burglar.

SPEAKER_01 11:03

You are liable as the principal in the first degree for larceny or burglary, even though you never set foot in the neighbor's house. You just use Sam the same way you might use a remote controlled robot or a trained animal. You committed the completed crime, you just didn't solicit one.

SPEAKER_00 11:16

That is wild. The state of mind of the person you are talking to completely changes the structural nature of the crime you are charged with.

SPEAKER_01 11:24

It really does.

SPEAKER_00 11:24

And that actually leads right into what I think is the craziest debate and solicitation. Uncommunicated solicitation.

SPEAKER_01 11:32

Ah, yes.

SPEAKER_00 11:33

What happens if I write a letter begging someone to commit a crime? I put a stamp on it, I drop it in the mailbox, and the mail carrier drops it down a storm drain, it never arrives. The person I'm soliciting has no idea. Am I guilty?

SPEAKER_01 11:48

This is where courts across the country are sharply divided. It comes down to a profound philosophical question about what society is actually trying to punish.

SPEAKER_00 11:57

Are we punishing the intent or the act?

SPEAKER_01 11:59

Exactly. Are we punishing the dangerousness of the individual's intent, the fact that you have a criminal mind and try to act on it? Or are we punishing the actual risk created in the real world, the fact that another person was exposed to your dangerous idea? Let's look at two fascinating real-world cases that tackle this exact problem with prison letters.

SPEAKER_00 12:18

Set the scene for us.

SPEAKER_01 12:20

The first is State v. Cotton, a 1990 case from the New Mexico Court of Appeals. The defendant was incarcerated, awaiting trial on a molestation charge. While in jail, he wrote two letters to his wife. Okay. In these letters, he essentially asked his wife to dissuade their daughter from testifying against him in the upcoming trial, which is soliciting a crime, witness tampering. But here's the catch. The letters were intercepted by jail authorities. They never reached his wife.

SPEAKER_00 12:49

Ah, so uncommunicated.

SPEAKER_01 12:51

Right. The state prosecuted him for solicitation anyway, arguing he did everything in his power to solicit the crime. But the New Mexico Appellate Court overturned his conviction.

SPEAKER_00 12:59

Really? Even though his intent was crystal clear on the page in his own handwriting.

SPEAKER_01 13:04

Yes. The court looked closely at the state statute and found an implicit legislative intent that the solicitation must actually reach the intended recipient or an intermediary.

SPEAKER_00 13:14

So the message has to land.

SPEAKER_01 13:16

Exactly. Under their legal analysis, the crime simply does not take place until the receipt of the criminal request. Why? Because until that letter is opened and read, there is absolutely no possibility the communication will be acted upon by the other person. No receipt means no threat of a crime occurring, which means no tangible harm caused to society.

SPEAKER_00 13:37

That feels like an incredible lucky break for the defendant just because a mailroom guard happened to do their job well.

SPEAKER_01 13:43

It does seem arbitrary.

SPEAKER_00 13:44

It seems absurdly arbitrary that his criminality depends on the Postal Service or the prison guards. What's the other case?

SPEAKER_01 13:50

Ten years later, we have State v. Safem, a 2000 case from the California Court of Appeals. Incredibly similar facts. An incarcerated defendant writes a letter soliciting a crime, and prison authorities intercept it before it ever leaves the facility.

SPEAKER_00 14:05

So exact same setup.

SPEAKER_01 14:07

Pretty much. And the California Court agreed with New Mexico on one foundational point. They held that the California statute's requirement that a person solicits another meant the communication must reach the intended recipient. Therefore, he was not guilty of the completed crime of solicitation.

SPEAKER_00 14:22

But I'm guessing California didn't just let him walk away scot-free.

SPEAKER_01 14:27

They did not. The California court creatively applied their general attempt statute to the situation. They ruled that while the completed crime of solicitation didn't happen because the letter wasn't received, the intercepted letter constituted attempted solicitation.

SPEAKER_00 14:42

Attempted solicitation? That sounds like an inception-level legal concept.

SPEAKER_01 14:46

It is a bit layered.

SPEAKER_00 14:48

Try to get someone to commit a crime, but honestly, it makes a lot more sense than letting him go. How does the model penal code handle this mailroom mix-up? Do they buy into this attempted solicitation workaround?

SPEAKER_01 14:59

The MPC takes a much cleaner, though minority, approach. It cuts through the knot by focusing entirely on the culpability of the defendant, not the luck of the mail delivery. To quote MPC Section 5.02 directly, it is, quote, immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to affect such communication, end quote.

SPEAKER_00 15:22

Designed to affect such communication. So if I hit send on the email or drop the letter in the box, I'm guilty of full-blown solicitation under the MPC, period.

SPEAKER_01 15:30

Exactly. Under the MPC, the act of sending is enough.

SPEAKER_00 15:34

That makes total sense to me if we're judging the person's character and intent, which provides a perfect organic transition into how these incoate crimes overlap. If asking someone is step one, what happens when you try to do it yourself, or when your asking actually sets a successful crime in motion, how do these charges stack up?

SPEAKER_01 15:53

The transition from preparation to perpetration brings us squarely into the realm of attempt law. When prosecuting attempts, jurisdictions generally use one of two statutory frameworks. Many states have a general attempts statute. This is a generic catch-all offense that can be attached to virtually any crime authorized by state law. You could have attempted theft, attempted arson, attempted embezzlement.

SPEAKER_00 16:15

Right, it's like a prefix you can legally attach to any crime in the penal code.

SPEAKER_01 16:19

Exactly like a prefix. But second, many states also enact specific attempt provisions for certain highly dangerous crimes, often to dramatically enhance the punishment.

SPEAKER_00 16:29

Oh, like murder.

SPEAKER_01 16:30

Yes. For instance, to quote the exact language of the California Penal Code Section 664A, quote, if the crime attempted is willful, deliberate, and premeditated murder, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. End quote.

SPEAKER_00 16:48

Life with parole for an attempt. That brings up a massive philosophical question that I know legal scholars argue about constantly. How severely should we punish someone who fails?

SPEAKER_01 16:59

It's a hugely debated topic.

SPEAKER_00 17:00

Right. Because if I shoot a gun at you and miss completely, I didn't actually physically harm you. I scared you, sure. But should I get the same punishment as if I had actually killed you?

SPEAKER_01 17:09

That is a profound debate in criminal jurisprudence, and it divides the country. The majority rule in the United States authorizes a lesser punishment for attempts than for the completed target crime.

SPEAKER_00 17:20

Because no one died.

SPEAKER_01 17:21

Exactly. The rationale is highly pragmatic. An attempt has not caused the same actual societal harm as a completed crime. There is no dead body, no burned building, no stolen money. So the unsuccessful criminal deserves a lesser punishment. Often this means capping the sentence at up to one half the authorized term for the completed crime, or classifying the attempt one grade below the target offense.

SPEAKER_00 17:46

Aaron Powell, So if a robbery is a Class B felony, attempted robbery is a Class C felony.

SPEAKER_01 17:51

Correct.

SPEAKER_00 17:52

That almost rewards failure in a weird way. It says, well, you're a bad criminal, so we'll give you a discount. What's the minority rule?

SPEAKER_01 17:59

The minority rule, which is heavily championed by Model Penal Code Section 5.05, assigns the exact same punishment for the attempt as for the target crime, with some narrow exceptions for capital offenses. None. We see this actively applied in states like Hawaii. To quote the Hawaii Reference Stat, Section 705502, quote, an attempt to commit a crime is an offense of the same class and grade as the most serious offense attempted, end quote.

SPEAKER_00 18:24

What's the MPC's justification for that? It seems incredibly harsh to punish a miss exactly the same as a hit.

SPEAKER_01 18:29

The MPC explains this approach is based on the fact that the antisocial disposition of the defendant and the demonstrated need for a corrective sanction are exactly the same regardless of whether the crime occurs.

SPEAKER_00 18:41

Okay, I think I see what you mean.

SPEAKER_01 18:43

Think about it this way: if two people both carefully plan a murder, aim a rifle, and pull the trigger, and one misses only because a sudden gust of wind deflects the bullet in the eyes of the MPC, their mental culpability and the sheer danger they pose to society are identical. The sentencing shouldn't depend on the weather.

SPEAKER_00 19:02

Okay, that makes a terrifying amount of sense when you put it like that. Now let's talk about the mechanics of how these crimes stack up on a prosecutor's desk. Because if I solicit someone to commit a crime and then we plan it together and then we try to do it, can a prosecutor just bury me in a mountain of separate charges for all those preparatory steps? Can they hit me with solicitation and conspiracy and attempt, all for the exact same event?

SPEAKER_01 19:24

This is where the doctrine of merger comes in as a vital safeguard for defendants. Attempt is considered a lesser included offense of the target crime. If you succeed in committing a murder, the attempt essentially merges into the completed crime. You cannot be convicted of both attempted murder and murder for the same act.

SPEAKER_00 19:42

Ah, double jeopardy.

SPEAKER_01 19:44

Exactly. The double jeopardy clause of the Constitution bars multiple punishments for the same offense. To see how states codify this, we can quote the Georgia Statute, Georgia Codan, Section 16-4-2, which specifically bars convictions for both. It says, quote, a person may be convicted of the offense of criminal attempt if the crime attempted was actually committed in pursuance of the attempt, but may not be convicted of both the criminal attempt and the completed crime, end quote.

SPEAKER_00 20:12

Let's run a hypothetical application to see how solicitation, attempt, and conspiracy all interact with this merger idea because it gets tangled quickly. Let's say we have two guys, Alan and Bob. Alan wants to burn down his own warehouse for the insurance money. Alan goes to Bob and asks him to help commit the arson. That's the solicitation. Bob agrees. Now they have a conspiracy. Bob goes to the hardware store, buys a massive amount of lighter fluid, drives to the warehouse in the middle of the night, and is caught by a security guard right as he's pouring the fluid on the walls. How does the merger doctrine untangle that mess of NKH crimes?

SPEAKER_01 20:47

Let's break it down sequentially. Bob is arrested before lighting the fire. Bob's conduct has gone far beyond mere preparation. Pouring the accelerant means he is guilty of attempted arson. Now look at Alan. Alan solicited Bob. Alan also conspired with Bob when they formed the agreement.

SPEAKER_00 21:04

So Alan has three potential charges.

SPEAKER_01 21:07

Under the traditional rules in most jurisdictions, Alan cannot be convicted of solicitation and conspiracy and attempt, all for the same conduct aimed at the same warehouse. The lesser preparatory offenses, like solicitation, are deemed to merge with a more advanced and catered offense, like attempt or conspiracy.

SPEAKER_00 21:23

Are there statutes that explicitly mandate that you can't just stack these charges endlessly?

SPEAKER_01 21:28

Yes, quite explicitly. To quote the Alaska stat and section 11.31.140, quote, a person may not be convicted of more than one crime for conduct designed to commit or culminate in commission of the same crime. End quote.

SPEAKER_00 21:42

Simple and clear.

SPEAKER_01 21:43

And Model Penal Code Section 5053 also specifically bars convictions for more than one inchoate crime for conduct designed to commit the same crime. So the state has to choose its highest charge.

SPEAKER_00 21:54

So extending that logic, if Bob actually strikes the match, lights the fire, and the place burns down, they are Both just guilty of arson. Everything else, the asking, the planning, the buying the fluid, just melts into the final completed crime.

SPEAKER_01 22:07

Precisely. The lesser incoate offenses merge into the greater completed harm.

SPEAKER_00 22:12

So we've established the structural framework of how these crimes relate. Now we need to dive into what is arguably the most difficult aspect of prosecuting an attempt. The mens rea, the mindset.

SPEAKER_01 22:22

This is where cases are won or lost.

SPEAKER_00 22:24

Right, because to prove an attempt, the government has to prove two distinct things beyond a reasonable doubt. The mindset, the mens rea, and the physical action, the actus reason. Let's stay inside the offender's mind for a minute. The literature is very clear that attempt is always a specific intent to crime.

SPEAKER_01 22:42

It is a fundamental bedrock principle of criminal law. To be convicted of an attempt, the prosecutor must prove that the defendant specifically intended to commit the target offense. This is a crucial distinction. It doesn't matter if the target crime itself only requires general intent or recklessness. The attempt requires you to have the specific conscious purpose to bring about that criminal result.

SPEAKER_00 23:05

Here's where it gets really interesting, and I want to test this with a scenario that I think a lot of people might assume is an attempt. What if I go to a bar, I drink way too much, I get completely irresponsibly drunk, I stumble out to my car, starting up, and drive wildly through a crowded crosswalk.

SPEAKER_01 23:20

Okay, dangerous scenario.

SPEAKER_00 23:21

Right. People are diving out of the way, bags of groceries are flying. I didn't actually hit anyone, thank goodness. But I clearly expose dozens of people to massive lethal risk. Am I guilty of attempted reckless endangerment or attempted manslaughter?

SPEAKER_01 23:37

The legal answer is no. You cannot attempt a crime of recklessness or negligence. It is a logical impossibility in the law.

SPEAKER_00 23:44

Really? But I almost killed people.

SPEAKER_01 23:46

You did. But think about the words and what they mean legally. An attempt requires a specific intent to achieve a result. You have to want the outcome.

SPEAKER_00 23:55

Oh, I see. And I didn't want to hit them.

SPEAKER_01 23:56

Exactly. Recklessness means you consciously disregarded a substantial risk, but you didn't intend for the harm to happen. Negligence means you were unaware of a risk you should have seen. You can't intentionally try to be reckless about causing a result because you lacked the specific intent to kill or injure anyone in that crosswalk. You were just stupidly and criminally drunk. You cannot be guilty of attempted reckless endangerment or attempted manslaughter.

SPEAKER_00 24:20

That is a total mind-bender. You can't intentionally do an unintentional crime. But this brings up a massive evidentiary challenge for prosecutors. Short of a villain recording a video manifesto stating exactly what they plan to do, how on earth does a prosecutor prove what was actually inside someone's head?

SPEAKER_01 24:38

That is the daily struggle of the justice system. Juries cannot read minds. So they are allowed by law to infer intent from the circumstantial evidence. One of the most powerful tools prosecutors use is the legal inference that a person intends the natural and probable consequences of their acts.

SPEAKER_00 24:57

Natural and probable consequences.

SPEAKER_01 24:58

Okay. If you point a loaded gun at someone's chest from three feet away and pull the trigger, a jury can safely infer your specific intent was to kill them because death is the natural and probable consequence of that action. You don't need a confession.

SPEAKER_00 25:10

Let's look at how courts apply that inference with two illustrative cases that show where it works and where it completely falls apart. First, People V. Chinchilla, a California case from 1997. What happened there?

SPEAKER_01 25:22

In Chinchilla, the defendant was facing two police officers who were standing near each other. He raised his gun and fired a single bullet. The trial court convicted him of two counts of attempted murder.

SPEAKER_00 25:33

Wait, one bullet? Two counts of attempted murder. How does that work in a universe governed by physics? Did he think it was a magic bullet that would hit one and bounce to the other?

SPEAKER_01 25:43

The theory was based on the positioning of the officers and the nature of the weapon. The court found that by firing a high-powered weapon in the direction of two officers who were in close proximity to each other, a jury could reasonably infer he had the intent to kill both of them, even with a single shot.

SPEAKER_00 25:59

Just by shooting into the space they occupied.

SPEAKER_01 26:02

Yes. The natural and probable consequences of firing blindly at a tight group is that you intend to kill whoever is in that line of fire. The appellate court upheld this, stating that intent to kill two different people can be inferred from a single act of shooting into a crowd.

SPEAKER_00 26:17

Okay, so the natural and probable consequences net is pretty wide there. Now let's contrast that with a case where that inference broke down entirely. Smallwood V State, a highly controversial Maryland case from 1996. We need to set the historical scene for this one.

SPEAKER_01 26:33

This case is deeply tied to the context of the HIV epidemic in the mid-1990s. The defendant, Smallwood, knew he was infected with HIV. He proceeded to commit horrific crimes. He raped three women without taking any precautions to avoid spreading the virus.

SPEAKER_00 26:49

God, that's awful.

SPEAKER_01 26:50

It was horrific. The state charged him with, and a jury initially convicted him of, three counts of attempted murder, in addition to the sexual assaults. The prosecutor's argument relied heavily on that inference. Death is a natural and probable consequence of exposing someone to HIV. Therefore, he intended to murder them.

SPEAKER_00 27:07

But the appellate court reversed those attempted murder convictions. Why? The public outrage must have been massive.

SPEAKER_01 27:13

The outrage was massive, but the appellate court had to separate moral revulsion from strict legal doctrine. They ruled there was insufficient evidence of the specific intent to kill.

SPEAKER_00 27:22

Even though the disease could be fatal.

SPEAKER_01 27:24

Right. They held that while the transmission of HIV was a known risk, medical evidence at the time showed that transmission and subsequent death was not the legally probable result of a single exposure to the virus during an assault. It was possible, but not probable. Therefore, the natural and probable consequences inference could not legally be used to establish a specific intent to kill.

SPEAKER_00 27:47

So they drew a line between the assault and murder.

SPEAKER_01 27:50

Exactly. The court drew a sharp, necessary line. Intending to commit a heinous sexual assault is not legally the same as specifically intending to commit murder. The mental states are distinct.

SPEAKER_00 28:01

The intent to commit the underlying crime didn't automatically transfer to an intent to kill.

SPEAKER_01 28:05

Exactly. The court refused to allow the mens rea for a rape to substitute for the mensria for a murder. Conversely, the court noted that if you look at a different scenario, for instance, an HIV-positive prisoner who explicitly states out loud, I am going to infect and kill you, and then intentionally bites a guard to transmit the virus. In that case, the oral statements provide independent proof of the specific mensrea. The bite, coupled with the stated intent, fulfills the requirement for attempted murder. It all comes back to proving what was explicitly in the mind.

SPEAKER_00 28:37

That is a phenomenal distinction. So we've established that the prosecutor has to prove what's in the defendant's dark heart, their specific intent. But the law can't just punish a wicked mind, society demands physical action. That brings us to arguably the most heavily litigated, debated issue in all of inchoate crimes, the actus reus of attempt. At what precise physical point does lawful, even if sketchy preparation cross the line into an illegal attempt?

SPEAKER_01 29:01

This is known as the preparation versus perpetration divide. The law has long recognized that defendants must do more than just a minor preparatory act. Preliminary acts like buying a ski mask or reading a map do not indicate enough imminent social dangerousness to warrant punishment.

SPEAKER_00 29:19

You can buy a ski mask just to go skiing.

SPEAKER_01 29:22

Right. An attempt occurs only when the actor has crossed a barely discernible line into actual perpetration. And because there's no single mathematical formula for this, jurisdictions over the centuries have developed six distinct doctrinal tests to figure out where that line is.

SPEAKER_00 29:36

Okay, to make these six tests real, let's set up a hypothetical scenario, a timeline. For you listening, picture this timeline in your head. Let's say on Monday, a guy, we'll call him the assassin, forms a clear, specific intent to kill a particular politician. Monday night, the intent is locked in. Tuesday, he googles the politician's travel schedule and finds out they are staying at a local hotel.

SPEAKER_01 29:57

Very common prep work.

SPEAKER_00 29:59

Wednesday, the assassin drives to the hotel, walks around the lobby, scouts the exits, figures out a sniper angle from a nearby parking garage. Thursday, the assassin puts a high-powered rifle in the trunk of his car and drives toward the hotel. Now, let's run this exact timeline through the six-doctrinal test to see exactly when the assassin becomes a criminal. Test one, the dangerous proximity test.

SPEAKER_01 30:22

This test was pioneered by the legendary justice Oliver Wendell Holmes. It looks primarily at the physical aspects of the conduct. It asks how close the defendant was to the actual completion of the offense. The greater the gravity of the crime, the more remote the conduct can be. But generally, the action must be in dangerous proximity to success. It focuses on what is left to be done rather than what has already been done.

SPEAKER_00 30:44

What's the classic case that defines this?

SPEAKER_01 30:46

The most famous application is People v. Rizzo, a New York Court of Appeals case from 1927. Charles Rizzo and three accomplices planned to rob a man named Rao, who carried the payroll for a company.

SPEAKER_00 30:57

Okay, a payroll robbery.

SPEAKER_01 30:58

The four men, armed with guns, drove around New York City in a car, looking for Rao at various banks and building sites. They never found him. The police, who had been tailing them based on a tip, arrested them when they entered a building where they thought Rao might be.

SPEAKER_00 31:13

They are driving around the city with loaded guns, specifically hunting for this guy to rob him. That sounds like a textbook attempt to me.

SPEAKER_01 31:21

You would think so, and the trial court agreed. But the New York High Court overturned their conviction for attempted robbery.

SPEAKER_00 31:28

Why? How is that not an attempt?

SPEAKER_01 31:30

Because of the dangerous proximity test. The court reasoned that since they had never actually located the victim, they were not in dangerous proximity to success. Rao wasn't even in the building where they were arrested. The court ruled the defendants were still in the preparatory stage. They were just looking for the opportunity to commit the crime. The danger was not imminent enough.

SPEAKER_00 31:50

So, under Justice Holmes and the Rizzo precedent, if we look at our assassin timeline. Well, Monday, Tuesday, Wednesday are definitely out. Even Thursday, driving to the hotel with a rifle in the trunk. If the politician isn't there yet, or if the assassin hasn't taken the gun out of the trunk under Rizzo, he might still just be in preparation. He's not in dangerous proximity until he's setting up the rifle.

SPEAKER_01 32:12

Correct. The dangerous proximity test requires you to be right on the edge of the cliff. It is highly protective of the defendant's right to change their mind at the last second.

SPEAKER_00 32:22

Which brings us to test two, the last act test. This sounds even stricter.

SPEAKER_01 32:26

It is the absolute strictest approach.

SPEAKER_00 32:28

Yeah.

SPEAKER_01 32:29

Under the last act test, the defendant must have done absolutely everything they believe necessary to bring about the intended result. They have to have pulled the trigger or handed over the forged check.

SPEAKER_00 32:38

Wow, okay.

SPEAKER_01 32:39

To quote the Connecticut statute, Connectment General Stats, Section 53, Day 49A, which keeps this as one alternative definition. Quote, a person is guilty of the intentionally engaging conduct that would constitute the crime if attendant circumstances were as he believes them to be. End quote. Under this test, driving to the hotel on Thursday is nowhere near an attempt. He hasn't aimed the gun, he hasn't pulled the trigger.

SPEAKER_00 33:04

Wow. So law enforcement basically has to wait until the bullet is flying or the poison is in the drink to arrest you. That seems incredibly risky for society. You're forcing cops to wait until the last possible microsecond.

SPEAKER_01 33:16

It is incredibly risky, which is why almost no jurisdiction uses it as the exclusive test anymore. It heavily favors the defendant and handcuffs law enforcement interventions.

SPEAKER_00 33:25

So if the last act test requires waiting until the bullet is flying, and dangerous proximity requires being right on top of the victim, there has to be a middle ground. What about control over the situation? What's test three?

SPEAKER_01 33:35

That leads us to the indispensable element test. This formula looks at whether there is an indispensable aspect of the crime over which the defendant does not yet have control. For example, if X and Y plan a crime and X does his part but is waiting on Y to bring the explosives, X has not committed an attempt as long as Y hasn't acted, because the explosives are an indispensable element entirely out of X's control.

SPEAKER_00 33:59

Okay, so if our assassin on Thursday is parked at the hotel but he's waiting for an accomplice inside to text him the room number, it's not an attempt yet because the room number is an indispensable element he lacks. Got it. Test four, the probable desistence test. This sounds more psychological.

SPEAKER_01 34:16

It is an objective test, but it focuses heavily on human nature. It asks whether the defendant's conduct passed the point where an ordinary, reasonable person would think better of their actions and voluntarily desist. Have they passed the psychological point of no return?

SPEAKER_00 34:30

Can you give me an example from a statute?

SPEAKER_01 34:32

To quote the Wisconsin statute, with stat N section 639.42, it requires that the actor form the intent and would commit the crime, quote, except for the intervention of another person or some other extraneous factor. End quote.

SPEAKER_00 34:46

Oh, that changes things significantly. Let's look at Rizzo again. Under the probable desistence test, those four guys driving around with guns, they didn't stop because they had a change of heart. They start because the cops grabbed them. That's an extraneous factor.

SPEAKER_01 34:59

Precisely. Under the probable desistence test, a court would almost certainly find the Rizzo defendants guilty. The factfinder would determine they were firmly committed to the robbery and wouldn't have desisted on their own, applying it to our Thursday assassin driving to the hotel. If he has the gun in the trunk, the hotel mapped out, and is highly motivated, a jury might say he's past the point of normal desistence. He is on a glide path to murder unless stopped.

SPEAKER_00 35:25

Okay. Test five. The unequivocality test, also known as res ipso loquiter. The thing speaks for itself. I love this one because it's so visual. Okay, my analogy here. It's like watching a silent movie. If you mute the dialogue and you have no idea what the characters are thinking, do the actors' physical movements definitively, unequivocally show they are committing a robbery?

SPEAKER_01 35:48

That is a perfect way to conceptualize it. The unequivocality test transforms preparation into perpetration when the physical act can have no other purpose than the commission of the target offense. You don't need to read their mind, their actions speak for themselves. If a person enters the bank wearing a ski mask and brandishing a shotgun at the teller, the silent movie is crystal clear. It's a robbery.

SPEAKER_00 36:10

But what if our assassin on Wednesday is just walking around the hotel lobby looking at exits? In a silent movie, he just looks like a confused tourist looking for the bathroom. It's equivocal. It has multiple innocent explanations. Right. So under Test 5, Wednesday is definitely not an attempt. Even Thursday driving with a gun in the trunk. In a silent movie, you could just be a guy going to a shooting range.

SPEAKER_01 36:29

Exactly. The unequivocality test demands that the innocent explanations vanish. As long as there is a plausible, lawful explanation for the physical conduct, it is not an attempt under this strict test.

SPEAKER_00 36:42

Which finally brings us to test six, the modern heavyweight, the test that most of the country actually uses today. The substantial step test authored by the Model Penal Code.

SPEAKER_01 36:51

Yes, MPC, Section 5.01C, which is the majority rule in the United States today. The drafters of the MPC recognized that the older tests were too restrictive. They explicitly wanted to lower the bar for law enforcement, allowing them to intervene much earlier without waiting for the last act or dangerous proximity.

SPEAKER_00 37:09

And what does it say?

SPEAKER_01 37:10

To quote the MPC directly, it allows conviction if a person, quote, purposely does or omits to do anything, constituting a substantial step in a course of conduct plan to culminate in his commission of the crime. End quote.

SPEAKER_00 37:23

But what makes a step substantial? Walking to my car on Thursday is a step. Putting on my shoes is a step.

SPEAKER_01 37:28

Are those substantial The MPC provides a crucial qualifier? The step must be strongly corroborative of the actor's criminal purpose. It has to confirm what the prosecutor claims is in your head. And to help courts, the MPC actually lists specific examples of conduct that satisfy this requirement.

SPEAKER_00 37:46

What kind of examples?

SPEAKER_01 37:47

It includes things like lying in wait, enticing a victim to go to the place where the crime will occur, reconnoitering or scouting the place for the crime, unlawful entry into the targeted structure, or possession of materials that serve no lawful purpose in that context.

SPEAKER_00 38:01

Oh. Reconnoitering. So under the substantial step test, our assassin on Wednesday, scouting the hotel lobby, checking the exits, finding the sniper angle, that specifically fits the MPC definition.

SPEAKER_01 38:14

It absolutely does.

SPEAKER_00 38:15

The moment he starts reconnoitering with the specific intent to kill, he has committed attempted murder. Law enforcement can arrest him on Wednesday.

SPEAKER_01 38:22

Absolutely. The substantial step test pushes liability much further back on the timeline. It focuses on what the defendant has already done rather than what remains to be done. And under this test, the Rizzo defendants who are driving around looking for their victim, they are definitively guilty of attempted robbery. Their searching was a substantial step, strongly corroborative of their purpose.

SPEAKER_00 38:43

That's a massive shift in how the law operates. It gives police so much more leeway to stop violence before it happens. And while we're talking about the MPC expanding things, let's briefly touch on accomplice to attempt. Because the MPC does something wild here, too, with people who try to help, even if the main guy backs out.

SPEAKER_01 39:01

It does. It closes a major loophole to quote NPC Section 5.01233. It establishes liability if a person, quote, engages in conduct designed to aid another to commit a crime that would establish his complicity if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person, end quote.

SPEAKER_00 39:23

Let me translate that into a real-world scenario to make sure I'm getting this. Let's say I draw up a highly detailed map of a bank's security cameras. I give the map to my friend Paul, because Paul wants to rob the bank. I want a cut of the money. So I am trying to be an accomplice to his robbery.

SPEAKER_01 39:38

Okay, you've supplied materials.

SPEAKER_00 39:40

But Paul gets scared. Paul throws the map away and never even goes near the bank. He takes zero steps. Under the old common law, if there's no robbery and no attempted robbery by Paul, I can't be an accomplice to nothing, right?

SPEAKER_01 39:53

Under the common law, you would be absolutely correct. The rule was that accomplice liability was derivative. There is no principal crimes, there is no accomplice liability, you would walk free. But the NPC's subjective approach changes the game entirely.

SPEAKER_00 40:07

How so?

SPEAKER_01 40:08

Under the MPC, because your purpose was to aid a robbery and you took a substantial step by drawing and delivering the map, you were liable for attempted robbery, even though the principal actor, Paul, never lifted a finger. The NPC judges you purely on your own dangerous intent and your own actions.

SPEAKER_00 40:25

That is just wow. It's like a minority report thought crime, but grounded in a single physical act of handing over a piece of paper. You are being punished for your own willingness to break the law, regardless of what anyone else does.

SPEAKER_01 40:39

It is a profound shift toward punishing the subjective dangerousness of the individual actor. It isolates your culpability.

SPEAKER_00 40:46

So what does all this mean? We've talked about intent, we've talked about steps, we've mapped the timeline. This brings us to the final major piece of the puzzle: doctrinal defenses. Impossibility and abandonment.

SPEAKER_01 40:58

Yes, the defenses.

SPEAKER_00 41:00

Because what if you take a substantial step, your mind is totally criminal, but success was actually, scientifically or legally, impossible all along? Or what if you just genuinely change your mind? Let's start with impossibility. There are four categories here. Let's start with factual impossibility.

SPEAKER_01 41:15

Factual impossibility occurs when the defendant is mistaken about the physical facts surrounding the crime, making it physically impossible to accomplish. And let's be clear up front, factual impossibility is almost universally not a defense to attempt.

SPEAKER_00 41:30

Give me the classic example.

SPEAKER_01 41:31

The quintessential example in every law textbook is the pickpocket. A thief slips his hand into a victim's pocket on the subway, fully intending to steal a wallet. But the pocket is completely empty. It is factually impossible to commit larceny if there is nothing to steal.

SPEAKER_00 41:46

But the thief is still guilty of attempted larceny.

SPEAKER_01 41:49

Yes. Because if the facts had been, as the defendant believed them to be, if the wallet had been there, the crime would have been committed. Society still needs to punish the thief because he is clearly a danger.

SPEAKER_00 42:02

Right.

SPEAKER_01 42:02

To quote the Georgia statute, Jordal Code and Section 16 VR44, which exemplifies the modern view, eliminating this defense. A person is guilty, quote, if such crime could have been committed had the attended circumstances been as the accused believed them to be, end quote. Another example.

SPEAKER_00 42:25

Okay, that makes total sense. You shouldn't get a pass just because you had bad intel. Now, what about legal impossibility? The outline divides this into hybrid and true legal impossibility. Let's tackle hybrid first.

SPEAKER_01 42:37

Hybrid legal impossibility involves a situation where the defendant's goal is illegal, but they are mistaken about the legal status of a relevant factor. The most common scenario involves stolen goods. Let's say you buy a Rolex watch from a guy in a dark alley. You fully believe the watch is stolen property? You want to buy stolen property because it's cheap.

SPEAKER_00 42:58

Naturally.

SPEAKER_01 42:59

But it turns out the watch wasn't stolen at all. It was just a cheap knockoff the guy owned legally.

SPEAKER_00 43:05

So historically, could you be charged with attempting to receive stolen property, even though the property wasn't actually legally stolen?

SPEAKER_01 43:12

Historically, courts agonized over this. Some allowed it as a defense, arguing you can't receive stolen property if it isn't stolen. But today, the vast majority of jurisdictions have completely eliminated hybrid legal impossibility as a defense.

SPEAKER_00 43:26

So it's treated like factual impossibility. Okay, so factual and hybrid legal impossibility are basically dead as defenses. But what about true legal impossibility? The outline says this one is still a valid defense everywhere.

SPEAKER_01 43:54

Yes. True legal impossibility remains a highly viable, universally recognized defense. This occurs when a defendant mistakenly believes their conduct is illegal, when in reality, the law simply does not prohibit it at all.

SPEAKER_00 44:08

Give me an example of that. How can you attempt a crime that doesn't exist?

SPEAKER_01 44:12

Let's say you forge a doctor's prescription because you desperately want to buy a specific highly regulated drug. You go to the pharmacy, hand over the forged script, and try to buy it. You are convinced you're committing the crime of purchasing a controlled narcotic without a prescription.

SPEAKER_00 44:26

Right.

SPEAKER_01 44:26

But unbeknownst to you, three days earlier, the FDA reclassified that exact drug as an over-the-counter medication. It is no longer legally a controlled substance.

SPEAKER_00 44:36

Oh, so anyone can just walk in and buy it off the shelf.

SPEAKER_01 44:39

Precisely. You cannot be convicted of attempted purchase of a controlled narcotic because it is legally impossible to commit that specific crime with an over-the-counter drug. You cannot attempt a crime that does not exist in the penal code, no matter how guilty your conscience feels. Now, you might still be guilty of the separate crime of forgery for faking the doctor's signature, but you are not guilty of attempting to illegally buy a narcotic.

SPEAKER_00 45:03

Because the state can't punish you for breaking a law that isn't actually on the books. You can't just invent crimes because a guy feels guilty. That's fascinating. And then there is the fourth category, which is honestly my personal favorite: inherent impossibility. This is the voodoo doll defense, right?

SPEAKER_01 45:18

It is often affectionately referred to that way in law schools, yes. Inherent impossibility arises when a defendant uses means that make the crime inherently fundamentally impossible to accomplish due to a severe lack of common sense or understanding of physical reality.

SPEAKER_00 45:33

So I want to kill my worst enemy. I make a little cloth voodoo doll of them, I get a lock of their hair, and I start viciously stabbing the doll with pins, chanting that I want them to die. Under the substantial step test, I took a step. I have the specific intent. Have I committed attempted murder?

SPEAKER_01 45:52

No. The law generally recognizes that society does not need to use its heavy, expensive machinery to punish someone for sticking pins in a doll.

SPEAKER_00 46:00

That makes sense.

SPEAKER_01 46:01

To quote the Arkansas Statute, Arc CodN Section 53101, it provides an affirmative defense when the quote conduct charge to constitute the offensive attempt is inherently unlikely to result or to culminate in the commission of a crime, and neither the conduct nor the defendant presents a public danger warranting imposition of criminal liability.

SPEAKER_00 46:21

No public danger. The guy with the voodoo doll is just delusional. He's not actually dangerous to the public at large.

SPEAKER_01 46:27

Exactly. He needs psychiatric help, not a prison cell. And Model Penal Code Section 5.052 handles this by giving the trial court the explicit authority to either dismiss the prosecution entirely or to lower the grade of the crime if the conduct was so inherently unlikely to result in a crime that it poses no real public danger.

SPEAKER_00 46:46

Okay, so that covers impossibility. Now let's move to the final doctrinal defense. Abandonment, which is also known as renunciation. What if you start down the path, you cross the line into attempt, but then you just, well, stop.

SPEAKER_01 46:58

Historically, under the strict common law, abandonment did not exist as a defense. The logic was rigid and unforgiving. Once your conduct crossed that invisible line from preparation into perpetration, the crime of attempt was fully complete. A subsequent change of heart could not erase a crime that had already occurred, just as returning stolen money to a bank the next day doesn't erase a completed bank robbery.

SPEAKER_00 47:20

But that seems incredibly counterproductive. If we want to prevent crimes and keep society safe, shouldn't we give criminals a powerful legal incentive to stop before someone actually gets hurt?

SPEAKER_01 47:30

That is exactly the rationale behind the modern trend. Modern jurisdictions, heavily influenced by Model Penal Code Section 5.014, recognize abandonment as an affirmative defense. To quote the MPC, it requires that the actor, quote, abandoned his effort to commit the crime or otherwise prevented its commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, end quote.

SPEAKER_00 47:57

Complete and voluntary.

SPEAKER_01 47:58

Yes. The goal is to encourage people to quit before the ultimate harm occurs. However, the requirements for this defense are incredibly strict. It must be completely voluntary.

SPEAKER_00 48:08

Okay, if you're listening to this on your commute or walking the dog, I want you to picture this prompt. You are standing on a dark porch, you have a crowbar, you pry open the window, you are halfway inside the house to burglarize it. Suddenly you hear police sirens wailing in the distance, getting closer. You panic, drop the crowbar, and run away into the night. Did you abandon the crime? Can you claim the abandonment defense in court?

SPEAKER_01 48:28

The legal answer is absolutely no. The abandonment cannot be motivated in any way by what the law calls extrinsic factors.

SPEAKER_00 48:35

So running from sirens doesn't count.

SPEAKER_01 48:37

If your decision to stop is driven by a fear of discovery, or the sudden appearance of the police, or realizing the safe is too heavy to carry, or the victim fighting back too hard, that is not voluntary renunciation. Your motive was extrinsic. A true abandonment must originate from a genuine internal change of heart, a true moral or personal desistance from the criminal goal itself.

SPEAKER_00 49:01

It has to be an internal realization, an attack of conscience, not an external threat. And what if I don't just act alone? What if I set forces in motion? Like what if I mail a letter bomb to someone, and then two days later I'm sitting on my couch and I feel terrible guilt? Can I just sit in my house and say, I renounce my actions and be cleared?

SPEAKER_01 49:20

Aaron Powell No, simply changing your mind in your living room is completely insufficient if you've already unleashed the danger into the world. If you set forces in motion or if you have accomplices continuing the plan, you have a strict legal duty to actually prevent the commission of the target crime.

SPEAKER_00 49:34

How far do I have to go to prevent it? Do I have to tackle the mailman?

SPEAKER_01 49:38

Statutes vary, but you generally have to take significant affirmative steps. To quote the Arizona statute, Reese Revanstat, section 13105, it requires giving a quote timely warning to law enforcement authorities, or otherwise making a reasonable effort to prevent the conduct or result which is the object of the attempt. End quote.

SPEAKER_00 49:58

So I have to call it in.

SPEAKER_01 50:00

If you mail the bomb, you must do everything in your power to intercept it, warn the victim, or call the bomb squad. If the bomb goes off, your internal change of heart means absolutely nothing legally. You are on the hook.

SPEAKER_00 50:12

Yeah. Okay, we have covered an immense amount of ground today. We've traced the entire lifespan of a crime before it be even happens, from a whisper in a bar to a rifle in a trunk.

SPEAKER_01 50:21

It is a vast area of law, but to concisely summarize our journey, we saw that solicitation requires only a request and a specific intent that the crime be committed. The crime is complete the moment you speak, regardless of the response.

SPEAKER_00 50:33

And attempt.

SPEAKER_01 50:33

Attempt requires that same specific intent, paired with a physical act that moves beyond mere preparation. A line most often judged today by the MPC's substantial step test, which allows much earlier law enforcement intervention. And finally, doctrinal defenses like impossibility and abandonment hinge heavily on the subjective reality inside the defendant's mind versus the objective reality of the world.

SPEAKER_00 50:56

So what does this all mean for us? The law of incoate crimes is ultimately a highly calibrated, incredibly fragile balancing act. It asks society to read minds. If you punish too early, you risk prosecuting thought crimes, throwing people in jail for venting, and punishing completely innocent actions. But if you wait too long until the last act or dangerous proximity, you might be waiting until it's too late to save the victim. So next time you're walking down the street or Googling something weird for a novel, ask yourself at what exact moment do your mundane actions become strongly corroborative of something sinister? Because in the eyes of the law, the moment your intent turns criminal, that murky diagnostic x ray might just be clear enough to send you to prison.