Week 9- Textbook Chapter 11 Attempt and Chapter 12 Solicitation

Week 9, Textbook review, Crim Law I Summer. This episode does a deep dive on Chapters 11 (Attempt) and 12 (Solicitation)  from the textbook Criminal Law: Concepts and Practice by Ellen Podgor, Peter J. Henning, Cynthia E. Jones, and Alfredo Garcia. 

Transcript

SPEAKER_00 0:00

Imagine two people, right? They're standing side by side in an open field, and they have like the exact same level of malice in their hearts.

SPEAKER_01 0:09

Okay, setting the scene.

SPEAKER_00 0:10

Yeah. So they're holding identical firearms. They both raise their weapons, aim at their respective targets, and they both pull the trigger with the exact same intention.

SPEAKER_01 0:19

Which is to commit a cold-blooded murder.

SPEAKER_00 0:21

Exactly. Now one of them has a remarkably steady hand. The bullet strikes true and a life is taken. That person is a murderer. They're looking at life in prison, maybe even the death penalty. Right. But the other person. Maybe a sudden gust of wind catches the bullet, you know. Or maybe they just have terrible aim and flinch at the last second.

SPEAKER_01 0:40

Aaron Powell So the bullet just misses entirely.

SPEAKER_00 0:42

Yeah, it misses the target entirely and buries itself harmlessly in a tree. No one is physically hurt. I mean, the victim might not even realize how close they came to dying.

SPEAKER_01 0:50

Wow, yeah.

SPEAKER_00 0:51

So the intent was identical. The social harm they intended to inflict was identical, but the results differ purely because of dumb luck. So the question is should that second shooter be punished exactly the same as the first?

SPEAKER_01 1:03

It's a huge question. I mean, it feels like they should be held accountable, certainly.

SPEAKER_00 1:07

Aaron Powell Right. But prosecuting someone for a crime that didn't actually happen, that turns out to be one of the messiest, most profound paradoxes in our entire legal system.

SPEAKER_01 1:16

Aaron Powell It really is. It's like the ultimate legal paradox because it strikes right at the core tension of criminal law. Normally, you know, we punish actual harm resulting from voluntary acts.

SPEAKER_00 1:27

Trevor Burrus, Jr. Like a broken window or a stolen wallet.

SPEAKER_01 1:30

Exactly. A person is injured, a wallet is taken, the law steps in to address the damage that has actually manifested in the real world. But with your second shooter, we are entering the realm of what we call incoate offenses. Yeah, incomplete or just begun. Attempt, solicitation, conspiracy, they all fall into this category. They punish conduct where the actor utterly fails to achieve their criminal goal.

SPEAKER_00 1:56

Aaron Powell Which is wild when you think about it. We are stepping into a territory where we are penalizing the potential for harm rather than the harm itself. Well, welcome to this deep dive. Today we are taking you, the listener, into the fascinating, frustrating, and honestly incredibly high-stakes world of criminal attempt. We're going to explore the precise anatomy of an attempt charge.

SPEAKER_01 2:20

And it's a vital topic because as a society, we have this bedrock principle, right? We do not punish mere bad thoughts.

SPEAKER_00 2:28

Right. You can sit in your living room and intensely wish harm upon someone. And as long as it stays inside your head, the state has no business interfering.

SPEAKER_01 2:36

No business at all. But on the flip side, society has a massive interest in protecting itself from dangerous individuals who are actively trying to cause harm.

SPEAKER_00 2:45

But who fail just because of bad luck or poor planning or some outside intervention.

SPEAKER_01 2:49

Exactly. And finding that barren is incredibly difficult. I mean, if someone tries to detonate a bomb in a crowded square and the fuse happens to be defective, we do not want to simply hand them their bomb back and say, well, better luck next time.

SPEAKER_00 3:01

Yeah, no, we need a legal mechanism to incapacitate dangerous people before they get that next chance.

SPEAKER_01 3:06

Right. Establishing exactly what constitutes an attempt has been a centuries-long project for the courts. If we look back to the historical baseline, um, the Wisconsin Supreme Court sum it up perfectly in an older case called Barry versus State.

SPEAKER_00 3:21

Okay. What do they say?

SPEAKER_01 3:22

I'll quote exactly from the decision here. The court wrote, quote, at common law, two elements were required for conduct to be deemed a criminal attempt.

SPEAKER_00 3:30

Just two.

SPEAKER_01 3:31

Just two. Number one, intent to commit the crime alleged attempted. And number two, some acts in furtherance of that intent.

SPEAKER_00 3:40

Wow. Some acts. That sounds deceptively simple on paper. Right. But I imagine the phrase some acts has to be one of the most heavily litigated two-word phrases in criminal law. Like how many acts? Which acts?

SPEAKER_01 3:55

Oh, absolutely. Because the failure to complete the crime usually means the defendant is punished a bit less severely than if they had succeeded, which, you know, intuitively makes sense to most people.

SPEAKER_00 4:04

Yeah, a failure shouldn't necessarily carry the exact same weight as a completed tragedy.

SPEAKER_01 4:08

And statutes typically reflect that intuition. Jurisdictions recognize that failing to cause the ultimate harm should alter the punishment. But there are significant exceptions for the most heinous intent.

SPEAKER_00 4:20

Like what?

SPEAKER_01 4:21

Well, California provides a very clear example of how modern penal codes structure this. I'll quote exactly from California statute annotated section 664, subsection A.

SPEAKER_00 4:32

Let's hear it.

SPEAKER_01 4:33

Quote: If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one half the term of imprisonment prescribed upon a conviction of the offense attempted. End quote.

SPEAKER_00 4:49

Okay, so generally speaking, if you fail, you get half the sentence you would have received if you succeeded.

SPEAKER_01 4:54

In many jurisdictions, yes, that's the baseline. However, that same California statute contains a really vital carve out.

SPEAKER_00 5:01

What's the exception?

SPEAKER_01 5:02

It goes on to specify that 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.

SPEAKER_00 5:14

Wow. So the state essentially draws a line in the sand there. They do. For the absolute worst crimes like premeditated murder, don't care that you missed. The sheer dangerousness of your intent totally overrides the fact that you failed. You're getting life.

SPEAKER_01 5:28

Exactly. But to even get that conviction, a prosecutor has to prove an attempt actually happened. And there are two distinct ways a person can fail, legally speaking.

SPEAKER_00 5:39

Right. What the law calls a complete attempt and an incomplete attempt. Let's break down the mechanics of the complete attempt first.

SPEAKER_01 5:46

Sure. So a complete attempt aligns perfectly with that scenario you introduced at the very beginning with our second shooter.

SPEAKER_00 5:53

The one who pulled the trigger but missed.

SPEAKER_01 5:55

Right. The defendant does absolutely everything possible and everything they believe is necessary to effectuate the crime. They aim the weapon, they fire, the bullet leaves the chamber. From their perspective, the sequence of actions is totally finished.

SPEAKER_00 6:09

But the result just fails to occur.

SPEAKER_01 6:11

Exactly. The bullet misses, the bomb fails to detonate, the poison isn't strong enough, the attempt is complete from the actor's end. The universe simply didn't cooperate with their malice.

SPEAKER_00 6:39

Or maybe they're standing over someone with a knife, but they suddenly hear sirens and run away before actually striking.

SPEAKER_01 6:45

Right. They were firmly on the path, but the sequence of actions was physically or psychologically interrupted.

SPEAKER_00 6:51

Got it. So how does the law treat the difference between those two?

SPEAKER_01 6:54

Well, the law generally treats both completed and incomplete attempts identically when it comes to proving the core elements of the crime and imposing punishment.

SPEAKER_00 7:03

Oh, really?

SPEAKER_01 7:04

Yeah. But that distinction matters immensely when it comes to the specific defenses the accused might try to raise in court later, which we'll explore fully later on. The real challenge for the justice system is figuring out when the state is actually allowed to intervene.

SPEAKER_00 7:20

Let's visualize that challenge. I want you, the listener, to imagine a timeline stretching out in front of you. On the far left side of the timeline, a thought enters your head. I am gonna rob that bank downtown.

SPEAKER_01 7:34

A purely internal thought.

SPEAKER_00 7:36

Right. And on the far right side of the timeline, you are walking out of the bank with a duffel bag full of cash.

SPEAKER_01 7:42

The completed crime.

SPEAKER_00 7:44

Exactly. Somewhere along that timeline, your thoughts turned into plans. You bought a ski mask, you studied the bank's layout, your plans turned into preparation, and your preparation turned into an actual crime. Where exactly is that line?

SPEAKER_01 7:57

It's the million-dollar question.

SPEAKER_00 7:59

Right, because if we're gonna throw people in prison for incomplete crimes, we need to know exactly when an action crosses the legal boundary from just planning to actually doing.

SPEAKER_01 8:08

And that transition, that invisible boundary line, is perhaps the most fiercely debated topic in criminal jurisprudence. It brings us squarely to the actus reus of attempt.

SPEAKER_00 8:20

The actus reus. The physical act itself.

SPEAKER_01 8:24

Exactly. The law must define the exact moment when preparation morphs into perpetration.

SPEAKER_00 8:29

You know, I find it helpful to think about this using a football analogy.

SPEAKER_01 8:33

Oh, I like that. Let's hear it.

SPEAKER_00 8:34

Imagine a criminal attempt is like a football field. The defendant starts at their own one-yard line, they wake up, they have an evil thought. Okay, they move to the 10-yard line, they start looking up floor plans of the bank online, they move to the 20-yard line, they go to the hardware store and buy a ski mask at a crowbar, they're moving down the field.

SPEAKER_01 8:53

Right, they're making progress.

SPEAKER_00 8:54

So at what yard line does the law blow the whistle and throw the flag for an attempt? Do they have to make it to the 50-yard line, the 99-yard line? If they're just standing outside the bank putting the mask on, is that enough to put them in handcuffs?

SPEAKER_01 9:07

That's a great analogy. And historically, courts struggled profoundly to figure out where to throw that flag. To solve the problem, they developed several different doctrinal tests over the years.

SPEAKER_00 9:18

Okay, let's go through them.

SPEAKER_01 9:19

Well, some of these tests focus intensely on the end zone. They look at what remains to be done to complete the crime. Other tests focus on the line of scrimmage, looking at what the actor has already accomplished.

SPEAKER_00 9:31

Those end zone tests seem incredibly dangerous for public safety. Take the physical proximity approach, for example.

SPEAKER_01 9:38

Right, that's one of the oldest.

SPEAKER_00 9:39

If I understand it correctly, this test asks how close in physical distance the act is to the intended crime. So if someone is plotting to burn down a barn, buying the matches isn't enough. Driving toward the barn might not be enough. Correct. They might literally have to be standing next to the dry wood with the match in their hand. It requires them to be right up near that 99-yard line. We're basically asking police to wait until the arsonist is literally striking the match before they can intervene.

SPEAKER_01 10:08

And that is the exact criticism that led to its evolution. I mean, it protected civil liberties fiercely by ensuring nobody was arrested for mere thoughts or early preparation, but it absolutely paralyzed law enforcement.

SPEAKER_00 10:22

Yeah, you'd constantly be too late.

SPEAKER_01 10:24

Exactly. So Justice Oliver Wendell Holmes recognized this dangerous flaw and helped develop a modified version called the dangerous proximity approach.

SPEAKER_00 10:33

Sometimes it's called the Holmes approach, right?

SPEAKER_01 10:35

Right. He argued that we cannot merely look at physical distance in a vacuum. The law must look at the nearness of the danger, the substantiality of the harm, and the public apprehension felt.

SPEAKER_00 10:45

So it operates on more of a sliding scale. Like if the intended harm is severe, like murder or detonating an explosive, the law might throw the flag earlier on the field, maybe at the 70-yard line.

SPEAKER_01 10:57

Exactly.

SPEAKER_00 10:57

But if the intended harm is relatively minor, like petty theft of a candy bar, the law might wait until the 99-yard line. The bigger the threat, the wider the net the police are allowed to cast.

SPEAKER_01 11:08

That captures the home's rationale perfectly. Now another historical method was the indispensable element approach.

SPEAKER_00 11:14

Okay, how does that one work?

SPEAKER_01 11:15

This one shifts the focus to whether there is an indispensable element still missing to complete the crime. Imagine a person who meticulously plans to poison their wealthy relative to collect an inheritance.

SPEAKER_00 11:28

Okay. Sounds like a movie plot.

SPEAKER_01 11:30

Right. They write out the plan, they buy a syringe, they book a train ticket to the relative's town, but they haven't actually acquired the deadly poison yet.

SPEAKER_00 11:39

Oh, I see.

SPEAKER_01 11:40

Under this approach, they have not committed an attempt. The poison is indispensable. Until they possess it, everything else is just preparation.

SPEAKER_00 11:48

That's interesting. But the most extreme version of these end zone tests has to be the last act approach. This one just boggles my mind.

SPEAKER_01 11:55

Oh, the last act approach is notoriously strict.

SPEAKER_00 11:57

Yeah. Under this test, the accused has to have performed the absolute last proximate act necessary to bring about the intended result. Going back to the football analogy, this is throwing the flag only when the ball is literally an inch from the goal line.

SPEAKER_01 12:13

You basically have to shoot and miss.

SPEAKER_00 12:15

Right. If a hit man is sitting outside a target's window, looking through the scope, with his finger on the trigger under the last act approach, if he hasn't clicked the safety off and pulled the trigger yet, it's just preparation.

SPEAKER_01 12:27

And the absurdity of the last act approach and real-world application is precisely why modern law began shifting its entire philosophy. Thank goodness. Yeah. Instead of looking at what remains to be done, courts began looking at what had already occurred. They needed a test that allowed earlier intervention. One attempt at this was the probable desistence approach.

SPEAKER_00 12:48

Probable desistance, meaning when are they likely to stop?

SPEAKER_01 12:51

Exactly. This test asks a very different question. Has the defendant's conduct passed the point where a normal, reasonable person would think better of it and stop? Have they gone so far down the criminal path that it is highly improbable they will turn back on their own?

SPEAKER_00 13:06

Honestly, that feels incredibly subjective. You're asking a jury to play amateur psychologist and guess the point of no return for human nature.

SPEAKER_01 13:14

It's very tricky.

SPEAKER_00 13:16

How can twelve jurors agree on the exact moment an arsonist passes the point of probable desistence? It seems like an impossible standard to apply consistently.

SPEAKER_01 13:25

You hit the nail on the head. The subjectivity was a massive problem. To fix it, another test emerged called the equivocality approach, which is also known as the res ipsa loquiter test.

SPEAKER_00 13:36

Res ipsa loquitor, that's Latin, right?

SPEAKER_01 13:38

Yeah, it means the thing speaks for itself. This test demands that the defendant's actions have absolutely no other purpose than committing the specific crime. If a behavior is equivocal, meaning it could reasonably have an innocent explanation. It is not an attempt.

SPEAKER_00 13:54

Let's test that. If I walk into a bank wearing a heavy winter coat and a ski mask, well, maybe it is a blizzard outside.

SPEAKER_01 14:01

Right. Your actions are equivocal.

SPEAKER_00 14:03

I could be a bank robber, or I could just be someone trying to stay warm while depositing a check. But if I walk up to the teller, pull out a loaded handgun, and slide over a note that says empty the register, my actions now speak for themselves.

SPEAKER_01 14:14

Exactly. There is absolutely no innocent explanation for sliding a threatening note and a gun to a bank teller.

SPEAKER_00 14:20

So the equivocality approach is conceptually elegant. But as you can imagine, waiting for an action to become entirely unequivocal still forces law enforcement to wait uncomfortably long.

SPEAKER_01 14:31

Yes, it does.

SPEAKER_00 14:32

The ski mask might be equivocal, but society probably wants the police to intervene before the gun is pointed at the teller's head. And this profound struggle brings us to where the vast majority of modern criminal law sits today. The Model Penal Code, commonly referred to as the MPC.

SPEAKER_01 14:51

The MPC changed everything. It deliberately shifted the entire landscape from what remains to be done to what the actor has already done.

SPEAKER_00 14:57

Right. So what's the standard now?

SPEAKER_01 14:59

The Model Penal Code introduced a standard that is now the bedrock of most jurisdictions. It uses a test called the substantial step.

SPEAKER_00 15:06

The substantial step test?

SPEAKER_01 15:07

Yes. I'll quote exactly from MPC section 5.01 subsection one subsection C to show how they phrase this critical shift.

SPEAKER_00 15:14

Please do.

SPEAKER_01 15:15

A person is guilty of an attempt if they act with the required culpability and quote, purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. End quote.

SPEAKER_00 15:34

A substantial step? That is the magic phrase. But to be completely honest, substantial step sounds incredibly vague.

SPEAKER_01 15:42

It does.

SPEAKER_00 15:42

It sounds like a lawyer's dream, because you could argue it means anything. How does a judge or jury know what a substantial step actually is in practice?

SPEAKER_01 15:50

The drafters of the MPC were fully aware of that vagueness. So to anchor the concept, they provided a very specific list of examples in section 5.01 subsection two.

SPEAKER_00 16:00

Oh, so they gave a cheat sheet.

SPEAKER_01 16:02

Basically. They stated that certain types of conduct, if they strongly corroborate the actor's criminal purpose, should not be dismissed as mere preparation. They wanted to give courts a menu of actions that cross the line.

SPEAKER_00 16:13

What exactly is on that menu? What actions cross the line from preparation to a substantial step?

SPEAKER_01 16:18

The MPC lists several distinct behaviors. Lying in wait, searching for or following the contemplated victim. Okay. Enticing or seeking to entice the victim to go to the place contemplated for the crimes commission. Reconnoitering, which means scouting out or casing the place where the crime will happen.

SPEAKER_00 16:36

Like casing a joint.

SPEAKER_01 16:38

Exactly. Unlawful entry of a structure, vehicle, or enclosure in which it is contemplated that the crime will be committed. And crucially, possessing materials to be employed in the commission of the crime, which are specifically designed for such unlawful use or which serve no lawful purpose under the circumstances.

SPEAKER_00 16:55

Aaron Powell Let's supply that menu. If I buy a crowbar, a black ski mask, and a set of lock picks, and I am caught at 3 a.m. pacing around the dark perimeter of a closed jewelry store.

SPEAKER_01 17:07

Okay, painting a picture.

SPEAKER_00 17:08

Under the old tests, like the last act or physical proximity, I'm not walk-free because I haven't touched the glass or tried to pick the lock yet. But under the MPC, pacing around the perimeter is reconnoitering. The crowbar and lock picks are possession of materials serving no lawful purpose for a person standing outside a closed store at 3 a.m. Combined, those actions are strongly corroborative of my criminal purpose. The flag is thrown. I've taken a substantial step.

SPEAKER_01 17:36

Exactly. You've passed the threshold. To see how courts wrestle with this in reality, we can look at a defining case from the Georgia Court of Appeals in 1995, Evans versus State.

SPEAKER_00 17:46

I love this case because the facts are so mundane, which is what makes it a great test case.

SPEAKER_01 17:50

They really are. Do you want to lay out the facts?

SPEAKER_00 17:52

Sure. We have three guys, Evans, Tinch, and Corbett. They are sitting around and start discussing a plan to steal car stereos. They gather a bunch of tools, screwdrivers, pliers, some modified car keys. Tinch drives them to a mall parking lot.

SPEAKER_01 18:06

Okay.

SPEAKER_00 18:06

They slowly cruise through the mall lot, and then they drive to two other shopping center lots. They do this for about 45 minutes, slowly driving up and down the aisles, actively looking for a car to break into.

SPEAKER_01 18:17

Just hunting.

SPEAKER_00 18:18

Right. But they never actually break into a car. They never touch a door handle. Why? Because they realize an undercover police pickup truck is tailing them. So they get spooked and leave. The police pull them over, arrest them, and they're charged with criminal attempt to enter an automobile.

SPEAKER_01 18:35

And the defense attorney's argument in this case basically writes itself.

SPEAKER_00 18:39

What did they argue?

SPEAKER_01 18:40

They argued that these men did absolutely nothing illegal. Driving around a public mall parking lot is not a crime. Having common household tools like screwdrivers in your car is not a crime.

SPEAKER_00 18:52

It's really not.

SPEAKER_01 18:53

They never picked out a specific target vehicle. They never exited their own car. The defense claimed this was the very definition of mere preparation. They hadn't crossed the 50-yard line. They were barely out of the locker room.

SPEAKER_00 19:04

It's a really compelling argument. If they hadn't even picked a car yet, how could they be attempting to break into one?

SPEAKER_01 19:10

Right.

SPEAKER_00 19:11

But the appellate court did not buy that argument, did they?

SPEAKER_01 19:14

Not at all. The court firmly rejected the defense's position. The court found that this conduct absolutely constituted a substantial step.

SPEAKER_00 19:21

How do they justify that?

SPEAKER_01 19:23

They carefully parsed the timeline. The court conceded that just sitting around talking about the theft and even gathering the screwdrivers and pliers at home were remote preparatory acts. Like if the police had kicked down their front door while they were holding the screwdrivers in their living room, there would be no attempt charge.

SPEAKER_00 19:40

Because they're just holding tools in their own house.

SPEAKER_01 19:42

Exactly. However, the act of driving to specific shopping center lots and actively cruising for 45 minutes in search of a target elevated their conduct. The court emphasized that the MPC's substantial step language deliberately shifts the focus. We stop asking, what do they still have to do? And start asking, what have they already done?

SPEAKER_00 20:06

Which changes everything.

SPEAKER_01 20:07

Right. Their actions, taken as a whole, firmly corroborated their criminal purpose.

SPEAKER_00 20:12

It's a powerful shift. The court is essentially saying you formed the plan, you gathered the tools, you traveled to the hunting ground, and you started hunting. The fact that the cops stopped the play before the snap doesn't mean you weren't in the game.

SPEAKER_01 20:25

Exactly right.

SPEAKER_00 20:26

But as clear as the substantial step test tries to be, there are some incredibly weird doctrinal nuances where the act itself gets conceptually twisted. For example, the concept of attempted assault.

SPEAKER_01 20:38

Oh, attempted assault is a fascinating legal riddle.

SPEAKER_00 20:41

How so?

SPEAKER_01 20:42

Well, in many jurisdictions, a standard assault is legally defined as an attempted battery.

SPEAKER_00 20:47

Okay, let's define those terms for a second.

SPEAKER_01 20:49

Sure. Battery is the actual physical contact, the hitting, the striking. Assault is the swing and a miss or the imminent threat of a hit.

SPEAKER_00 20:58

So if an assault is already, by definition, an attempt to commit a battery, can you be charged with attempted assault? Because that sounds like a logical absurdity. If you're charging someone with an attempt to attempt, it feels like a legal fiction that folds in on itself.

SPEAKER_01 21:12

And many jurisdictions agree with you. They outright reject the charge of attempted assault. They view it as a logical impossibility. Those states treat the conduct as a simple assault and require the government to prove the defendant had the present ability to commit the battery.

SPEAKER_00 21:25

What does presentability mean?

SPEAKER_01 21:27

If a person throws a punch from 20 feet away, they don't have the present ability to hit the victim. Therefore, they haven't even reached the threshold of an assault. You cannot have an attempt of an attempt.

SPEAKER_00 21:39

But the law gets even stranger when we look at attempted threats. If I try to threaten you, but my threat fails to actually scare you, is that a crime?

SPEAKER_01 21:48

Surprisingly, in some jurisdictions, yes. Let's examine a case out of California called people versus Toledo.

SPEAKER_00 21:55

Okay, what happened in Toledo?

SPEAKER_01 21:57

In California, it is a completed crime. To make a criminal threat that places someone in sustained fear for their safety. In Toledo, a husband got into a horrific argument with his wife. He threatened to kill her, grabbed a pair of scissors, and lunged at her.

SPEAKER_00 22:12

Yikes, that sounds like an open and shut case of making a criminal threat.

SPEAKER_01 22:16

You'd think so. But at trial, the wife took the stand and testified that she actually wasn't afraid of him that night. She wasn't terrified, she was just angry.

SPEAKER_00 22:24

Wow. So the defense attorney tounces on that, right? The completed crime of criminal threat requires the state to prove the victim experienced sustained fear. If the victim herself testifies she wasn't afraid, the crime wasn't completed. The prosecution failed to meet an indispensable element of the charge.

SPEAKER_01 22:42

Exactly, the defense strategy. So the jury, instructed on the law, found him guilty of attempted criminal threat. And the California Supreme Court upheld that conviction.

SPEAKER_00 22:52

They upheld it.

SPEAKER_01 22:53

Yes. They reasoned that an attempted threat occurs if the defendant takes all the steps necessary to perpetrate the threat, but it fails to cause the intended result due to a fortuity and unexpected chance event.

SPEAKER_00 23:04

So the fortuity here is that his wife happened to be incredibly brave.

SPEAKER_01 23:08

Yes, exactly. The court provided other examples to explain their logic. Like if you write a terrifying threat in a letter and mail it, but the post office intercepts it or loses it before the victim ever reads it, that is an attempted threat. You took the substantial step.

SPEAKER_00 23:22

That makes sense.

SPEAKER_01 23:23

Or if you scream a threat at someone on the street, but they happen to be deaf or don't speak your language and therefore don't understand you, that is an attempted threat. In Toledo, the defendant made a terrifying threat with a weapon, but the victim just happened to have the psychological fortitude not to be scared. The California Supreme Court ruled that a dangerous defendant should not escape liability just because of the unintended fortuity of a brave victim.

SPEAKER_00 23:48

That is wild to think about. The completion of the crime is entirely dependent on the internal psychological reaction of the victim, but the attempt is based purely on the physical action and intent of the defendant. It isolates the defendant's blameworthiness.

SPEAKER_01 24:02

It really does.

SPEAKER_00 24:03

Let's test this substantial step doctrine with a hypothetical scenario drawn directly from the legal text, problem 33. I want you, the listener, to actively evaluate this one in your head and decide how you would vote if you were on this jury.

SPEAKER_01 24:16

Oh, this is a tough one.

SPEAKER_00 24:18

Here is the scenario. We have an individual named Armani. Armani gets heavily intoxicated and repeatedly tells a neighbor, I plan to kill my estranged spouse tonight, and then I'm going to kill myself.

SPEAKER_01 24:29

Very clear intent.

SPEAKER_00 24:30

Right. The neighbor is terrified, watches Armani drive off into the night, and immediately calls the police. The police dispatch units and eventually locate Armani's car. It's parked on a dark street near the estranged spouse's workplace. Okay. But when the officers approach the vehicle with their weapons drawn, they find Armani fast asleep in the driver's seat. The engine is off, the keys are out of the ignition.

SPEAKER_01 24:53

He's just out cold.

SPEAKER_00 24:55

Exactly. They wake Armani up, place him under arrest, and search the car. Inside the vehicle, sitting in the passenger seat, they find an ice pick, a box cutter, and a pair of binoculars. Armani is charged with attempted murder.

SPEAKER_01 25:08

The elements are all there.

SPEAKER_00 25:09

So applying the model penal codes substantial step test, is Armani guilty of attempted murder? Or does the fact that he turned the car off and fell asleep indicate that he hadn't crossed the line? Or perhaps that he changed his mind?

SPEAKER_01 25:23

This is a classic, agonizing law school exam question because a skilled attorney can argue it beautifully from either side.

SPEAKER_00 25:30

Let's hear both sides. Play the prosecutor first.

SPEAKER_01 25:32

Okay. If I am the state, my argument is incredibly strong. I am holding up the MPC section 5.01 subsection two list for the jury to see.

SPEAKER_00 25:42

The menu we talked about.

SPEAKER_01 25:44

Right. I am saying, ladies and gentlemen, look at the legal definition of a substantial step. Armani drove to the spouse's workplace. That is reconnoitering the place contemplated for the commission of the crime. Armani possessed an ice pick, a box cutter, and binoculars. That is possession of materials specifically designed for the unlawful use, serving no lawful purpose for a person parked on a dark street. Combine those physical acts with his explicit, verbalized intent to the neighbor just an hour earlier. These actions are absolutely strongly corroborative of a criminal purpose. He took a substantial step. The crime of attempt was complete the moment he arrived at that location with those weapons.

SPEAKER_00 26:24

That's a devastating argument.

SPEAKER_01 26:25

It is.

SPEAKER_00 26:26

But if I am the defense attorney, I am hammering entirely on the fact that my client was unconscious. I'm standing before the jury saying, You cannot commit a murder while you are asleep. Sleeping is the literal opposite of taking action. The prosecution wants you to believe he was an imminent threat. But he turned the engine off. He didn't walk toward the building.

SPEAKER_01 26:44

Right, he stopped.

SPEAKER_00 26:45

By going to sleep, Armani demonstrated a lack of immediate execution. He paused. He never crossed the line into perpetration. He merely engaged in drunken preparation, got tired, and stopped before any actual danger materialized.

SPEAKER_01 27:00

And in a real courtroom, who wins? It almost always goes to the jury to decide as a question of fact whether those acts, taken together in context, were strongly corroborative of his purpose.

SPEAKER_00 27:11

And what would the prosecutor say to the sleeping defense?

SPEAKER_01 27:13

The prosecutor would forcefully argue that falling asleep was just an involuntary delay caused by the alcohol consumption, not a legal or moral desistance from the plan. The substantial step had already been taken. The line had been crossed.

SPEAKER_00 27:27

It really shows how razor thin the margins are. While the physical act, the actus reus, is a crucial boundary line, crossing the 50-yard line isn't enough on its own to throw someone in a prison cell.

SPEAKER_01 27:39

No, the law demands more than just a suspicious action.

SPEAKER_00 27:43

It requires a very specific state of mind to accompany that act. Even if you march right down to the goal line, a jury must know exactly what you intended to do when you got there.

SPEAKER_01 27:52

Right, which leads us to the mental state.

SPEAKER_00 27:55

The mens rea. Here is where we encounter what I call the specific intent paradox. I want to introduce a completely different analogy to unpack this paradox. Think about standing in your kitchen and dropping a glass on the hard tile floor.

SPEAKER_01 28:08

Okay.

SPEAKER_00 28:09

You can intentionally smash that glass in a fit of rage. You raise your arm, you throw it down. That is a purposeful act. Your specific intent was to destroy the glass. Right. Or you could be careless. You're swinging your arms around wildly while holding a wet, soapy glass and it slips out of your hand and shatters. That is negligence or recklessness. You didn't want to break it, but your behavior was so careless that it broke anyway.

SPEAKER_01 28:32

Makes sense.

SPEAKER_00 28:32

But here's the paradox. You cannot purposely try to accidentally drop a glass. It defies basic human logic. If you are actively trying to drop it, then it is not an accident. If it's an accident, you weren't trying to do it.

SPEAKER_01 28:47

That analogy perfectly captures the absolute core rule of attempt law. An attempt charge requires the government to prove that the defendant acted with the specific intent to commit the target offense.

SPEAKER_00 28:59

Specific intent.

SPEAKER_01 29:00

This is a massive, often insurmountable hurdle for prosecutors. Even if the completed crime only requires a mental state of recklessness or negligence like manslaughter or reckless endangerment, an attempt charge requires purpose. It demands specific intent.

SPEAKER_00 29:15

So to put it bluntly, attempted negligence is a legal impossibility.

SPEAKER_01 29:18

Precisely.

SPEAKER_00 29:30

What do they say?

SPEAKER_01 29:30

The court wrote, quote, one, by its very nature, a criminal attempt presupposes a desired or intended consequence. Two, recklessness and desire or intention are mutually exclusive. End quote.

SPEAKER_00 29:48

Recklessness is a disregard of risk. Desire is a targeting of an outcome.

SPEAKER_01 29:53

The Colorado Court of Appeals drove the point home even harder in a case called Hernandez. Their language leaves no room for debate. Quoting exactly, quote, the words attempt and negligence are at war with one another. They are internally inconsistent and cannot sensibly coexist. End quote.

SPEAKER_00 30:09

At war with one another. I love when appellate judges use that kind of evocative language. It means the state must prove beyond a reasonable doubt exactly what was inside the defendant's head at the very millisecond they acted.

SPEAKER_01 30:22

And that is incredibly hard to do.

SPEAKER_00 30:24

Right, because when the crime wasn't actually finished, you don't have a dead body or a burned building to point to as proof of the ultimate goal.

SPEAKER_01 30:30

Exactly. We have a perfect case to illustrate how difficult this is. Baldwin versus Commonwealth out of Virginia in 2007. This case shows how a genuinely terrifying, dangerous act does not automatically equal the required specific intent.

SPEAKER_00 30:46

Let's look at the facts of Baldwin because the scene is chaotic. Officer Bowen is running radar and stops Baldwin for speeding 25 miles over the limit in a residential neighborhood.

SPEAKER_01 30:56

Okay.

SPEAKER_00 30:57

Baldwin is driving a car with a suspended license, and he has an outstanding warrant for his arrest. So Baldwin is highly motivated not to go to jail today.

SPEAKER_01 31:06

Understandably.

SPEAKER_00 31:06

The officer parks his cruiser behind Baldwin's car, walks up, and positions himself slightly behind the driver's side door, as police are trained to do for safety. Baldwin is sitting in the driver's seat talking on a cell phone. Officer Bowen taps on the glass.

SPEAKER_01 31:20

And Baldwin panics.

SPEAKER_00 31:22

He drops the phone, puts both hands on the steering wheel, turns the wheel sharply to the left to get around the car parked in front of him, accelerates rapidly over two lanes of traffic, and speeds off down the road.

SPEAKER_01 31:32

But the physics of that turn.

SPEAKER_00 31:33

Right. The physics of the turning car means the back end of his vehicle swings out toward the officer. Officer Bowen literally has to throw his hands out and push off the back quarter panel of the accelerating car just so his feet don't get crushed under the rear tires.

SPEAKER_01 31:49

Just incredibly dangerous.

SPEAKER_00 31:51

The police eventually track Baldwin down and arrest him. Because he nearly ran over a police officer, they charge him with, among other things, attempted murder.

SPEAKER_01 32:00

And remarkably, he is convicted at a bench trial. The trial judge looked at the facts and thought, you swung a two-ton vehicle toward a police officer at high speed. A car is a deadly weapon. That is attempted murder. But the Virginia Supreme Court reviewed the case and reversed the attempted murder conviction entirely.

SPEAKER_00 32:18

I have to admit, that feels wrong at first glance. A car is a deadly weapon. He almost killed a cop. Why overturn it?

SPEAKER_01 32:23

It comes back entirely to the men's requirement. The Virginia Supreme Court looked at the evidence and concluded the state completely failed to prove Baldwin had the specific intent to kill Officer Bowen. The court made a crucial distinction about the law of murder versus the law of attempt.

SPEAKER_00 32:39

What was the distinction?

SPEAKER_01 32:40

I will quote exactly from the court's decision. Quote, while a person may be guilty of murder though there was no actual intent to kill, he cannot be guilty of an attempt to commit murder unless he has a specific intent to kill. End quote.

SPEAKER_00 32:54

Wait, slow down there. That is a heavy concept. A person may be guilty of murder though there was no actual intent to kill. How can you be guilty of murder if you didn't intend to kill anyone?

SPEAKER_01 33:06

It goes to the different degrees of murder. For example, if you act with such extreme recklessness, what the law calls a depraved heart, and someone dies as a result, that can be charged as murder even if you didn't specifically want them dead.

SPEAKER_00 33:20

Give me an example.

SPEAKER_01 33:21

Sure. If you throw a center block off a highway overpass just for a thrill and it crushes a driver, you didn't specifically target that driver, but your extreme recklessness resulted in death. That is murder.

SPEAKER_00 33:32

Okay, followed that.

SPEAKER_01 33:34

But and this is the key. If the center block misses the car, you cannot be charged with attempted murder because attempt requires specific intent. You didn't specifically intend to kill anyone, you were just being horrifically reckless. The Virginia court contrasted Baldwin's speeding escape with an earlier case called Coles versus Commonwealth. In Coles, the defendant aimed his vehicle directly toward an officer who was standing directly in front of the car. There was plenty of room for the driver to go right and escape, but the driver deliberately swerved left to aim the grille of the car right at the cop.

SPEAKER_00 34:08

That deliberate swerve showed a specific intent to use the car as a weapon to kill.

SPEAKER_01 34:13

Exactly. But in Baldwin, the geometry of the situation was different. The officer was standing slightly behind the door. Baldwin turned the wheel to flee into traffic. He didn't put the car in reverse to run the cop over. He didn't swerve toward him. The fact that the back wheel swung out and almost caught the officer's feet was a terrifying byproduct of the escape, not the goal of the action. The court ruled Baldwin's actions only supported an intent to flee or escape custody, not a specific intent to kill.

SPEAKER_00 34:41

Think about how crazy that is. If you are driving a car and swerve to escape, whether you serve 20 years in a penitentiary for attempted murder, or just get a few years for evading police, depends entirely on the geometric angle of your steering wheel and a split second of panic. It is an incredibly terrifying razor's edge.

SPEAKER_01 35:01

It really is.

SPEAKER_00 35:02

And this razor's edge brings up a massive doctrinal debate that splits the country. If attempt absolutely requires specific intent to kill, can a jurisdiction ever charge someone with attempted second degree murder?

SPEAKER_01 35:14

This is where state Supreme Courts are deeply fundamentally split. Because second degree murder in many states does not require a specific intent to kill. It requires a depraved mind or extreme recklessness.

SPEAKER_00 35:26

So logically, based on the Hawaiian Colorado quotes we just read about negligence being at war with attempt, attempted second-degree murder should be an absolute impossibility, right? Right. It goes back to the dropping the glass analogy. You cannot purposely try to act with a depraved mind. You either have a specific target or you were just being wildly dangerous.

SPEAKER_01 35:44

Well, the state of Florida looked at that logic and disagreed. In a case called State versus Brady, Florida decided to legally recognize and allow charges of attempted second-degree murder.

SPEAKER_00 35:55

How did they justify that?

SPEAKER_01 35:56

In that case, the defendant fired a handgun in a crowded nightclub. He was trying to hit one specific guy, but his aim was terrible and he missed, hitting an innocent bystander in the hand. The Florida Supreme Court reasoned that if the completed crime of second-degree murder doesn't require specific intent to kill the actual victim, then the attempt to commit it shouldn't either. Oh, intuitive. They argued that firing the gun was a voluntary, intentional act, and the surrounding circumstances shooting indiscriminately in a dark, crowded club, demonstrated a depraved mind. So in Florida, you can be convicted of attempted second-degree murder.

SPEAKER_00 36:33

Hold on. You just said attempt requires specific purpose. A depraved mind is reckless. How did the Florida Supreme Court logically justify combining those? It feels like they're just redefining the word attempt to make sure dangerous people who shoot up nightclubs don't slip through the cracks of the penal code.

SPEAKER_01 36:50

Other states look at Florida's reasoning and say exactly what you just said. Florida, you are twisting the law.

SPEAKER_00 36:55

Like who?

SPEAKER_01 36:56

Indiana, for example. In Richeson versus state, the Indiana Supreme Court flatly and loudly rejected the Florida approach. They looked at the exact same kind of scenario, urban drive-by shootings, where a bullet misses the intended target or hits someone else entirely.

SPEAKER_00 37:12

And what did they say?

SPEAKER_01 37:13

The Indiana court said these cases create massive intent ambiguity. Did the shooter specifically want to murder someone? Did they just want to scare a rival gang? Were they just recklessly shooting into the dark to show off? Indiana decided that to prevent juries from confusing reckless, dangerous behavior with intentional murder, the state must demand proof that the defendant specifically intended death for any attempted murder charge. No exceptions for a depraved mind.

SPEAKER_00 37:40

It's fascinating how geography changes the fundamental logic of the law. You cross a state line, and the mental requirements for going to prison completely change. And this split gets even weirder and harder to justify when we talk about attempted manslaughter.

SPEAKER_01 37:54

It really does. Manslaughter, generally speaking, is a reckless or heat of passion killing. So can you attempt a reckless killing? Arkansas says absolutely not. Right. In Allen versus State, an Arkansas appeals court threw out attempted reckless manslaughter as inherently contradictory. They stated that it is illogical to ask a jury to find that a defendant purposely engaged in conduct that was intended to culminate in acting recklessly. You can't plan to lose control.

SPEAKER_00 38:23

The war of words again. But let me guess. Okay. Some state out there allows it.

SPEAKER_01 38:28

Colorado.

SPEAKER_00 38:29

Of course.

SPEAKER_01 38:29

In a famous, highly debated case, People versus Thomas, Colorado recognized attempted reckless manslaughter. They performed incredible legal gymnastics to get there. They reasoned that the specific intent required for the attempt isn't the intent to cause the death. Rather, it is the intent to complete the risk-producing act, even if the resulting death is not intended.

SPEAKER_00 38:49

Wait, why?

SPEAKER_01 38:49

So, you intended to shoot the gun wildly into the air. That is the purposeful intent. The fact that someone almost died from the falling bullet makes it attempted manslaughter.

SPEAKER_00 38:58

Again, just feels like courts stretching the fabric of the law to punish dangerousness. Which is a perfect segue to problem 34 in our text. This is a tough, deeply disturbing hypothetical, but it perfectly tests this exact boundary between intent and horrific negligence.

SPEAKER_01 39:15

It's a very heavy hypothetical.

SPEAKER_00 39:17

Listeners, I want you to put yourself in the shoes of a defense attorney. Imagine paramedics are called to a rundown trailer park. They walk inside a specific trailer and find conditions of indescribable filth. There is garbage piled knee-high, rotting food on the counters, animal and human feces on the floor.

SPEAKER_01 39:36

Just awful.

SPEAKER_00 39:37

In the living room, they find an infant lying in a pile of trash and two other young children sleeping under a roach-infested blanket. The police are called and the parents are immediately arrested. Right. Miraculously, after thorough medical exams at the hospital, doctors determine the children are physically healthy. They are malnourished, perhaps, but they haven't suffered any severe physical ailments or lasting bodily harm yet.

SPEAKER_01 39:59

Which creates a legal problem.

SPEAKER_00 40:00

Because the children aren't physically harmed, the state cannot charge the parents with completed child neglect. In this jurisdiction, child neglect is defined as treating a child in a manner that adversely affects their health or welfare. Because health wasn't adversely affected yet, the completed crime didn't happen. So the prosecutor charges the parents with attempted child neglect.

SPEAKER_01 40:21

And this jurisdiction uses the model penal code attempt statute.

SPEAKER_00 40:26

Exactly. So if you are the defense attorney assigned to this case, how on earth do you get these parents out of an attempted child neglect charge?

SPEAKER_01 40:34

If I'm the defense attorney, I cannot argue the facts because the facts are abhorrent. I must lean entirely on the mens rea, the specific intent paradox we've been discussing. I will stand before the judge and say, Your Honor, the conditions in that trailer are deplorable. My clients are deeply flawed, failing parents, but the crime of child neglect is essentially a crime of gross negligence or recklessness. Under the model penal code, an attempt requires the defendant to act purposely. The government must prove, beyond a reasonable doubt, that my clients affirmatively desired and specifically intended to adversely affect their children's health.

SPEAKER_00 41:09

And obviously they didn't.

SPEAKER_01 41:10

Right. I'd argue the evidence does not show a malicious, purposeful plot to ruin these kids' health. It merely shows parents who are overwhelmed, profoundly impoverished, mentally ill, or utterly inept. The filth is a tragic byproduct of their disastrous lifestyle, not a purposeful weapon aimed at the children. Because they did not possess the specific intent to cause harm, they cannot logically be guilty of attempting to neglect them.

SPEAKER_00 41:37

It is a brilliant, airtight, legal argument. You have horrible facts but perfectly sound logic. You cannot purposely try to be neglectful. You just are neglectful. And because no actual measurable harm occurred, you can't charge the completed crime. So these parents, despite creating a house of horrors, fall into this bizarre legal gray zone where they might walk free from criminal charges.

SPEAKER_01 41:59

It's one of the most frustrating outcomes for people to accept.

SPEAKER_00 42:02

So we have seen that to convict someone of an attempt, you need a substantial act and you need specific intent. But what happens if a defendant has the perfect act, they have the most malicious specific intent imaginable. But the universe intervenes and makes the crime literally physically impossible to commit.

SPEAKER_01 42:21

This is where criminal law leaves the physical world and starts bordering on metaphysics. Welcome to the doctrine of impossibility.

SPEAKER_00 42:27

Let's explore this with a classic law school scenario. The empty pocket. Imagine I am walking behind you on a crowded city street. I have this specific intent to steal your wallet. I take a massive substantial step by unzipping your coat and reaching my hand deep into your pocket.

SPEAKER_01 42:44

Okay.

SPEAKER_00 42:45

But your pocket is completely empty. You forgot your wallet on your nightstand that morning. I couldn't possibly have stolen your wallet because it simply wasn't there. Should I go free? Should I escape an attempted theft charge? Just because you forgot your wallet at home.

SPEAKER_01 42:58

Historically, the courts wrestled with this exact kind of scenario. To try and figure out what to do with a pickpocket, who picks an empty pocket, they divided the concept of impossibility into three distinct categories.

SPEAKER_00 43:10

What's the first category?

SPEAKER_01 43:11

The first category is exactly your scenario: factual impossibility. This occurs when the defendant is mistaken about a physical fact, but if the facts were exactly as the defendant believed them to be, the crime would be completed. The empty pocket is the prime example.

SPEAKER_00 43:26

Are there others?

SPEAKER_01 43:27

Another classic example is an assassin sneaking into a bedroom and shooting a lifelike dummy in a bed, genuinely thinking it's his enemy. It is a factual impossibility to murder a dummy.

SPEAKER_00 43:39

Right. So does the assassin get off.

SPEAKER_01 43:41

However, under the law, factual impossibility is never a valid defense. We punish the pickpocket and the assassin anyway. Why? Because your specific intent and your physical actions demonstrated to society that you are a dangerous threat. The fact that it was a dummy didn't save you, it just saved the victim. You are fully guilty of attempt.

SPEAKER_00 44:00

Total sense. The pickpocket goes to jail because he tried to steal and would have stolen if the wallet was there. What is the second category?

SPEAKER_01 44:07

The second category is legal impossibility. This happens when what the actor intends to accomplish is not actually a crime, even though they subjectively think it is a crime. Jaffa was a fence. He accepted goods that he genuinely believed were stolen property. His specific intent was to buy stolen goods. He thought he was breaking the law.

SPEAKER_00 44:34

Okay, so he's trying to commit a crime.

SPEAKER_01 44:36

But unbeknownst to him, the police had already arrested the original thieves, recovered the goods, and were running a sting operation by returning the goods to the stream of commerce to cash Jaffa. Oh. So legally, at the exact moment Jaffa bought them, the goods had lost their stolen status. They were lawful property under police control. Because it is not a crime to buy non-stolen goods, the New York court rule it was legally impossible for him to commit the crime of attempting to receive stolen goods. Historically, legal impossibility was a valid defense. The court said you can't attempt a crime that legally isn't happening. Jaffee walked free.

SPEAKER_00 45:14

Wait, so if factual impossibility means I go to jail even if the pocket is empty, how on earth could anyone argue that legal impossibility shouldn't also result in jail time? Jaffin had the intent. He took the step. Aren't they basically the same thing? He was just mistaken about the status of the goods, just like I was mistaken about the status of the pocket.

SPEAKER_01 45:33

You have just hit upon the exact criticism that destroyed the legal impossibility defense over the last century. But before we get to its destruction, we have to mention the third category: true legal impossibility.

SPEAKER_00 45:45

True legal impossibility. What is that?

SPEAKER_01 45:47

This is when a person accomplishes exactly what they set out to do. Their objective is fully realized, but the objective itself simply isn't a violation of the law.

SPEAKER_00 45:56

I need an example for that one too.

SPEAKER_01 45:58

Say you mistakenly think it is a felony to chew gum on a Sunday in your state. So you hide in your closet on Sunday morning and chew a stick of juicy fruit with malicious intent, thinking you are a master criminal. You completed your goal, but there is no law against chewing gum. The state cannot prosecute you for attempting a crime that does not exist in the penal code, regardless of your guilty conscience.

SPEAKER_00 46:21

Okay, true legal impossibility makes perfect sense. You can't invent crimes. But going back to your point about Jaffe in my empty pocket, that line between factual impossibility and legal impossibility seems incredibly blurry.

SPEAKER_01 46:36

It is worse than blurry. It is practically invisible. In fact, modern jurisdictions have essentially thrown up their hands and rejected the distinction altogether. The modern approach, championed by the Model Penal Code, states that distinguishing between factual and legal impossibility lacks any rigorous logic and relies purely on semantic games played by clever defense attorneys.

SPEAKER_00 46:57

So how do they handle it now?

SPEAKER_01 46:58

Let's go back to the dummy in the bed. If I shoot a pile of pillows in the dark, genuinely thinking it's my enemy, is that a factual error because I was mistaken about the physical fact of where my victim was sleeping? Or is it a legal error because shooting a pile of pillows isn't legally defined as homicide?

SPEAKER_00 47:13

Oh, I see.

SPEAKER_01 47:13

Good lawyers could argue it either way, depending on how they frame the sentence, which made the law wildly inconsistent. So today, most states have completely abolished the defense of legal impossibility. If your goal was to commit an act that the law defines as a crime and you tried to do it, you are guilty, regardless of whether the impossibility preventing success was factual or legal.

SPEAKER_00 47:34

And this modern approach is put to the ultimate test in cases involving the internet and undercover stings. These cases are where the old categories completely break down. Let's look at Chen versus State, a case from the Texas Court of Criminal Appeals in 2001.

SPEAKER_01 47:49

The facts of Chen are a chilling reflection of how a temp law operates in the digital age. We have a 47-year-old undercover Dallas police officer. He poses online on a Yahoo message board as a 13-year-old girl using the screen name Julie. Chen, an adult man, responds to the ad. Over weeks of explicit emails, Chen and Julie arrange to meet at a specific best western motel for sexual purposes. Chen arrives at the motel in a champagne-colored minivan. He parks, waits outside, goes into the lobby, comes back out, and at that point the police descend and arrest him.

SPEAKER_00 48:23

And they find stuff in his car, right?

SPEAKER_01 48:24

Yes. On the console of his minivan, they find condoms and K.Y. Jelly. In his police interview, he confesses he was there to show a young girl how to have sex. He is charged with attempted sexual performance by a child.

SPEAKER_00 48:38

But Chen's lawyers raise the impossibility defense.

SPEAKER_01 48:41

Yes, and they try to resurrect the ghost of that old Joffy stolen goods case. They argue that Julie is a 47-year-old man with the police badge. Julie does not exist and never existed. Right, to sting. Therefore, they argue it is a legal impossibility to commit the crime of attempted sexual performance by a child because a child never existed in this scenario. They argue he was attempting to do something that wasn't actually happening.

SPEAKER_00 49:04

Let's look at the actual statute the court had to interpret to decide this. I will quote exactly from the Texas Penal Code, section 43.25 subsection B. Quote, a person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance, end quote.

SPEAKER_01 49:28

The Texas court reviewed that statute and firmly upheld Chen's conviction. They explicitly rejected his legal impossibility defense. The court reasoned that because Chen's ultimate goal inducing sexual performance by a child is an actual crime defined by the Texas Penal Code, it wasn't a case of legal impossibility.

SPEAKER_00 49:46

His ultimate goal was undeniably illegal.

SPEAKER_01 49:49

Exactly. The only thing that stopped him from completing the crime was a physical condition unknown to him, the fact that Julie was a digital fiction created by the Dallas Police Department. Therefore, the court ruled it was merely factual impossibility. And as we established with the empty pocket, factual impossibility is never a defense. Completion of the crime was apparently possible from Chen's subjective perspective. He had the specific intent, he took the substantial step by arriving at the motel with supplies, and he failed only because of a hidden fact.

SPEAKER_00 50:19

It is a perfect encapsulation of exactly why we punish attempts in modern society. Chen demonstrated beyond a shadow of a doubt that he was a profound danger to society. He was willing and ready to victimize a child. The fact that the police caught him via a phantom digital profile shouldn't absolve him.

SPEAKER_01 50:37

I should note briefly, there is one fascinating carve out in modern law regarding impossibility, and it has to do with crimes of omission.

SPEAKER_00 50:43

Meaning crimes where you failed to do something you were legally required to do.

SPEAKER_01 50:47

Right. In a Michigan case, People versus Lycan, the court held that impossibility can be a valid defense if the crime is an omission. Lycan was charged with failing to pay court-ordered child support. He argued it was literally impossible for him to pay because he genuinely had no money, had lost his job, and was impoverished through no fault of his own.

SPEAKER_00 51:20

That feels like basic common sense. You can't squeeze blood from a stone. But let's apply the standard impossibility rules to another hypothetical drawn from the text, problem 35.

SPEAKER_01 51:30

Okay, let's hear problem 35.

SPEAKER_00 51:32

Morgan is absolutely furious that a co-worker, Jamie, got a promotion that Morgan felt they deserved. Morgan decides to exact revenge. Morgan follows Jamie home, waits for Jamie to go inside the house, and then sneaks up to Jamie's brand new car parked in the driveway.

SPEAKER_01 51:47

Okay, a little vandalism.

SPEAKER_00 51:48

Morgan pours a quart of motor oil all over the roof and hood of the car, pulls out a book of matches, and tries to light a rag to burn the car down.

SPEAKER_01 51:56

Wow, stepping it up to arson.

SPEAKER_00 51:58

Exactly. But it is an incredibly windy night. Every time Morgan strikes a match, the wind immediately blows it out. While Morgan is struggling with the matches, a neighbor looks out the window, sees what's happening, and calls the cops. Morgan gives up, gets in their own car, and is arrested driving away.

SPEAKER_01 52:15

Busted.

SPEAKER_00 52:16

Morgan is charged with attempted arson. The defense attorney files a motion to dismiss the charges based on impossibility, citing two specific things. First, the heavy wind made it physically impossible to light the match.

SPEAKER_01 52:28

Okay.

SPEAKER_00 52:28

Second, and more importantly, they produce an affidavit from a fire science expert stating that motor oil cannot be ignited by a single match in that manner anyway. It is chemically impossible to set the car on fire that way without a much hotter accelerant.

SPEAKER_01 52:42

Oh, that's an interesting twist.

SPEAKER_00 52:43

So does Morgan walk free.

SPEAKER_01 52:45

Not a chance. This is classic textbook factual impossibility. We have to walk through the elements. Did Morgan have the requisite specific intent?

SPEAKER_00 52:53

Yes. Morgan specifically intended to commit arson and destroy the car.

SPEAKER_01 52:58

Right. Did Morgan take a substantial step? Absolutely. Pouring the oil and striking the matches is firmly corroborative of the criminal purpose.

SPEAKER_00 53:06

Even though the science didn't work.

SPEAKER_01 53:07

Exactly. The fact that Morgan was thwarted by a natural force, the wind, and thwarted by Morgan's own profound ignorance of chemistry does not negate the attempt. The failure was due to factual conditions unknown to the actor at the time. To Morgan it seemed possible. Morgan is guilty of attempted arson.

SPEAKER_00 53:25

Which brings us to a really deep reflection prompt for you, the listener. Think about Shen and the digital sting. Think about Morgan and the motor oil. Think about the pickpocket and the empty pocket. When we strip away the defense of impossibility, when we say it doesn't matter that you couldn't have succeeded, are we still punishing people for what they did? Or are we simply punishing them for who they are? Because none of them actually accomplished anything. No cars burned, no children were harmed, no wallets were stolen. We are locking them in cages because they have proven themselves to be dangerous entities. It is almost a preventative strike by the justice system.

SPEAKER_01 54:01

It is a profound philosophical point. We are punishing the manifestation of their dangerousness. We are saying that their intent, coupled with a step toward execution, marks them as a threat that society must neutralize, regardless of their competence.

SPEAKER_00 54:15

But that bridges us to our final major topic. But what if the intervention comes from inside? What if you simply change your mind?

SPEAKER_01 54:29

Ah, abandonment.

SPEAKER_00 54:30

Let's explore. Abandonment, renunciation, and preparatory offenses. And I want to push back on this idea right out of the gate. Go for it. We've spent this entire time establishing that if I cross that 50-yard line, if I take a substantial step, the law says the crime of attempt is now fully complete. The elements are met. I am guilty. So why on earth should I get a get out of jail free card just because I start feeling guilty at the 10-yard line? If I successfully steal a TV and then feel bad the next day and return it, I am still guilty of theft. Repentance doesn't erase the crime. Why is attempt different?

SPEAKER_01 55:05

The common law absolutely agreed with your pushback. Historically, the common law recognized no abandonment defense once the line of perpetration was crossed. You ring the bell, you cannot unring it.

SPEAKER_00 55:15

Like in which case. Which, I mean, makes a little sense.

SPEAKER_01 55:31

It does. But the court firmly stated that if the legislature wanted an abandonment defense, they would have explicitly written it into the statute. The court refused to judicially invent a defense that would let a perpetrator off the hook once the attempt was complete.

SPEAKER_00 55:46

So, under common law, no backseas. You cross the line, you're guilty, even if you stop.

SPEAKER_01 55:52

Right. But then came the model penal code. Remember, the MPC radically expanded liability by creating the substantial step test. It threw the flag way earlier on the football field than the old physical proximity tests.

SPEAKER_00 56:06

Because you could get arrested for just casing a joint now.

SPEAKER_01 56:09

Exactly. The drafters of the MPC realized that if you are going to label someone a criminal much earlier in the timeline, you run a massive moral hazard. If a person takes a substantial step, say, they buy the ski mask and walk up to the bank door and they realize they are already legally guilty of attempt and facing 10 years in prison, they might think, Well, I'm already guilty of attempt. I might as well kick the door in, finish the robbery, and get the cash. I have nothing left to lose.

SPEAKER_00 56:34

Uh-huh. I see. Because we moved the tripwire earlier, we have to create an escape hatch to incentivize them to stop before the actual real-world harm occurs. It's a public policy trade-off.

SPEAKER_01 56:44

Exactly. The MPC allows an affirmative defense of renunciation to encourage people to desist. I'll quote exactly from MPC section 5.01 subsection four to show how narrow this escape hatch is.

SPEAKER_00 56:58

What does it say?

SPEAKER_01 56:59

Quote, it is an affirmative defense to a charge of criminal attempt that the person, after committing the criminal attempt, prevented the successful commission of the offense attempted under circumstances manifesting a complete and voluntary renunciation of the person's criminal purpose. End quote.

SPEAKER_00 57:15

Complete and voluntary. That sounds like there are major strings attached.

SPEAKER_01 57:19

Huge strings attached. Because criminals often abandon crimes, but rarely for noble reasons. They usually stop because it gets too hard or they are about to get caught.

SPEAKER_00 57:27

Right. They see a cop car and run.

SPEAKER_01 57:29

The MPC clarifies this explicitly. Crucially, I will quote the caveat the MPC provides. Quote, renunciation of criminal purpose is not voluntary if it is motivated by circumstances, not present or apparent at the inception of the actor's course of conduct that increase the probability of detection or apprehension. End quote.

SPEAKER_00 57:50

Meaning you do not get to claim the renunciation defense if you only quit because you heard police sirens in the distance.

SPEAKER_01 57:57

Precisely. Let's look at Patterson versus State, an Indiana case from 2000 that highlights this limitation perfectly.

SPEAKER_00 58:04

Okay. Lay out the facts for Patterson.

SPEAKER_01 58:06

Patterson decides to burglarize a house. At 4 a.m., he sneaks up to a residence and breaks a sunroom window to gain entry. What he doesn't know is that the homeowner is an 82-year-old woman named Julia. Oh no. Julia hears the glass break. She gets out of bed, grabs a flashlight, and starts turning on lights as she walks through the house to investigate the noise. Patterson, standing outside the broken window, sees the interior lights flick on. He realizes someone is awake and moving around, so he panics and flees.

SPEAKER_00 58:32

But he gets caught.

SPEAKER_01 58:33

Yeah. The cops catch him a few blocks away, bleeding from the broken glass. At his trial for attempted burglary, Patterson's lawyer requests an abandonment jury instruction. The lawyer argues, hey, he broke the glass, but he didn't go inside. He abandoned the burglary.

SPEAKER_00 58:48

Let me guess. The judge did not grant that instruction.

SPEAKER_01 58:51

The judge refused to give the instruction, and the appeals court affirmed the refusal. Why? Because Patterson's abandonment was not voluntary under the law.

SPEAKER_00 59:00

Because he only quit when the lights came on.

SPEAKER_01 59:02

Right. Patterson did not have a sudden moral awakening at the window. He was motivated entirely by an extrinsic factor, the 82-year-old woman waking up and turning on the lights. That new circumstance significantly increased the probability of his detection and apprehension. He quit because the job got too hard, not because his criminal purpose was genuinely renounced.

SPEAKER_00 59:22

Okay, so the law executes this complex dance. We wait for a substantial step, but we give you a narrow, highly scrutinized window to repent. But what if society looks at a certain behavior and says, we don't even want to wait for the substantial step. We don't want to wait for the 50-yard line.

SPEAKER_01 59:39

Right. Sometimes the buildup is bad enough.

SPEAKER_00 59:41

Exactly. The preparatory behavior is so terrifying on its own that we want to criminalize the 10-yard line directly.

SPEAKER_01 59:48

This is a major modern trend where legislatures create entirely new, specific crimes for preparatory conduct. They bypass the complex law of attempt entirely. For example, look at federal statutes like 18 USC section 875 subsection C, which makes it a federal crime simply to transmit a threat in interstate commerce.

SPEAKER_00 1:00:08

So the threat itself is the crime.

SPEAKER_01 1:00:10

Yes. You don't have to attempt a kidnapping. Just sending the email threatening the kidnapping is the completed crime. You don't need to analyze substantial steps.

SPEAKER_00 1:00:18

What about state level stuff?

SPEAKER_01 1:00:20

The most prominent example of this in modern state law is stalking. Stalking statutes criminalize behavior that historically was just considered creepy preparation. Following someone, surveilling them, gathering information about their schedule, society decided we cannot wait for the stalker to take a substantial step toward murder or kidnapping. We have to criminalize the surveillance itself as a completed offense.

SPEAKER_00 1:00:43

But this creates a fascinating legal puzzle, which we see in the Georgia Supreme Court case, state versus rooks. If stalking is just a precursor to an attack, is stalking fundamentally just an assault?

SPEAKER_01 1:00:55

That's the question.

SPEAKER_00 1:00:56

And if it is an assault, we remember from earlier that many states don't recognize attempted assault because it's an attempt to attempt. So does the crime of attempted stalking even exist?

SPEAKER_01 1:01:07

The defendant in Rooks argued exactly that logic. He was charged with attempted aggravated stalking. He said, stalking is basically just an assault. You cannot have attempted assault. Therefore, my charge of attempted aggravated stalking is a legal impossibility. You can't attempt to attempt.

SPEAKER_00 1:01:23

It's a clever argument. Did the Georgia Supreme Court buy it?

SPEAKER_01 1:01:26

They shut that argument down. They clarified that stalking is not merely an assault. Assault requires the threat of an immediate violent injury, and the victim has to fear for themselves in that moment. Stalking, however, lacks that immediacy requirement.

SPEAKER_00 1:01:40

It's more drawn out.

SPEAKER_01 1:01:41

Right. You can stalk someone by slowly eroding their peace of mind over months of letters and hang up calls. And stalking can involve making someone fear for the safety of their family members, not just themselves.

SPEAKER_00 1:01:53

Okay, so it's a completely different category.

SPEAKER_01 1:01:55

Because stalking is a distinct crime with a distinct intent to cause emotional distress by inducing fear. For example, if you attempt to place someone under surveillance by planting a hidden GPS tracker on their car, but you get caught by a mechanic before you ever turn the tracker on.

SPEAKER_00 1:02:17

You haven't successfully stocked them yet.

SPEAKER_01 1:02:18

Right, because they haven't experienced the sustained fear, but you absolutely attempted to stalk them.

SPEAKER_00 1:02:23

Let's test this renunciation and preparation stuff with one final hypothetical to bring it all home. Problem 36 from the text.

SPEAKER_01 1:02:30

I love problem 36. Lay it out.

SPEAKER_00 1:02:33

Chris agrees to buy a kilogram of cocaine from a dealer for $5,000. He meets the dealer in a dark alley. Turns out the dealer is an undercover cop running a sting.

SPEAKER_01 1:02:45

Happens all the time.

SPEAKER_00 1:02:46

The cop hands Chris a plastic bag of white powder. Chris opens it, tastes a little bit of the powder on his finger, spits it on the ground in disgust, and yells, This stuff is crap. What are you trying to sell me, Chomps? Sell that junk somewhere else. I ain't buying it. Chris turns and walks away. The cops immediately jump out and arrest him for attempted possession of cocaine.

SPEAKER_01 1:03:06

A classic sting operation.

SPEAKER_00 1:03:09

At trial, Chris's lawyer begs the judge for a renunciation instruction under the MPC. He says, Chris walked away. He voluntarily renounced the crime before the transaction was completed. He didn't buy it.

SPEAKER_01 1:03:21

Yeah.

SPEAKER_00 1:03:21

If you are the prosecutor, how do you destroy that argument?

SPEAKER_01 1:03:24

As the prosecutor, I am pointing right back to the text of the MPC. I would argue that Chris did not abandon his criminal purpose to buy drugs. His underlying criminal purpose remained perfectly intact. His only issue was with the quality of the product presented to him.

SPEAKER_00 1:03:38

He still wanted to be a drug buyer.

SPEAKER_01 1:03:39

Exactly. By walking away and saying, sell that junk somewhere else, he isn't renouncing the drug trade or having a moral epiphany. He is merely postponing his criminal conduct until a more advantageous time, specifically when he can find a dealer with better cocaine. Under the MPC, a renunciation is not complete and voluntary if it is motivated by a decision to postpone the criminal conduct to a better opportunity. Therefore, no renunciation defense for Chris. He took the substantial step by arriving with the money to buy drugs, and he remains guilty of attempt.

SPEAKER_00 1:04:11

It's all about the purity of the heart when you quit. You have to quit because you genuinely want to abide by the law, not because the drugs are bad or the victim woke up.

SPEAKER_01 1:04:19

That's it exactly.

SPEAKER_00 1:04:20

Well, we have covered a massive amount of jurisprudential ground today. Let's pull it all together into a concise summary of the key takeaways for our listeners. First, we explored the act, the actus reus. We saw how the law shifted from the paralyzing older tests that required the defendant to be on the precipice of completion to the model penal code standard of taking a substantial step, an act that firmly corroborates their criminal purpose.

SPEAKER_01 1:04:43

Right. And second, we looked at the mind, the men's ray. We learned the absolute necessity of specific intent. You cannot accidentally attempt a crime. The words attempt and negligence are at war with one another.

SPEAKER_00 1:04:56

Third, impossibility. We unraveled the confusing history of factual versus legal impossibility landing on the modern reality. If you intend to commit a crime and take a substantial step, being bad at committing the crime or being fooled by a fake online profile is no defense.

SPEAKER_01 1:05:14

And finally, renunciation. We saw the strict limits on changing your mind. Once you cross the 50-yard line, you only get an affirmative defense if your abandonment is completely voluntary and not motivated by fear of getting caught or desire to try again later.

SPEAKER_00 1:05:29

It is a delicate, intricate web of doctrines, all designed to do one thing balance the freedom of thought against the safety of society.

SPEAKER_01 1:05:36

But if we connect this to the bigger picture, it raises a truly provocative question about the future of criminal law.

SPEAKER_00 1:05:42

Oh, how so?

SPEAKER_01 1:05:43

Well, we punish attempt to prevent harm before it happens and to incapacitate dangerous people. But look at the world we live in now. Technology and surveillance are advancing at a terrifying rate. We can monitor online searches, we track digital communications, we use geolocation to track physical movements minute by minute.

SPEAKER_00 1:06:01

It's basically total visibility.

SPEAKER_01 1:06:03

Right. The timeline of when a thought becomes a plan and when a plan becomes a substantial step is being pushed earlier and earlier. If algorithms can predict your behavior based on your metadata, will there come a day when our definition of preparation practically disappears? Are we moving toward a system where we punish the mere intent to offend the digital breadcrumbs of a bad thought before any physical act in the real world is ever taken?

SPEAKER_00 1:06:28

Wow, it's a chilling thought. We started this deep dive looking at two shooters, trying to find the invisible line between a loud noise and a murder. But as our world gets more connected and our data becomes more transparent, that invisible line might just end up being drawn right inside our own heads. Something to mull over. Thank you for joining us on this deep dive.