Attempt is an “incomplete crime.” To constitute attempt, the defendant’s mens rea must have intended the actual conduct AND the actual result (or ultimate harm). In other words, attempt is a specific intent crime even if the attempted crime only requires general intent.

Common Law Attempt

The Common Law had four tests to determine whether the defendant attempted a crime:

1. Equivocality

Looked at the factual circumstances the defendant committed to show that it was unambiguous that the defendant intended the completed offense

2. Proximity

Under this analysis, the court balances the following tests:

(a) “Nearness” test. This test looks to see how close the defendant came to actually committing the offense.

(i) How many steps did the defendant take?

(ii) How many steps where left?

(b) Harm test. Looks at the ultimate result of the actual harm.

(i) How serious would the harm have been if the defendant committed the act?
The less serious the harm, the closer we need in “nearness;” the more serious the harm, we don’t need to get as close in “nearness”

(ii) What would it take to prevent the harm? The more police involvement required (government intrusion), the further we can be away from the nearness

3. Desistance

  1. Looked at the events as a causation; (another type of proximity test);
  2. From our causation link, is there a point in time when a reasonable person would/could have stepped in and stopped him?
  3. The goal of the desistance test is to determine the point in time when a reasonable person could have stepped in and stopped the offense (reasonable person analysis)
  • Reasonable person – someone of common intelligence who wants to avoid serious bodily injury to himself
    • If they could step in, they would.
    • Analyze seriousness of the harm to determine if the reasonable person would step in
    • The last point in time that a reasonable person would have stepped in is the point of desistance

4. Last Act

The last act before a defendant can change is mind before completing the offense of attempt.

MPC Attempt

The MPC Section 5.01 only has one test: “substantial step.” However, 5.01(2) specifically lists conduct which may be held as a substantial step. The MPC does require that a defendant’s conduct be strongly corroborative of his criminal purpose in order to constitute a substantial step. Examples, from section 5.01(2), of what may constitute a substantial step include:

  • lying in wait, searching for or following the contemplated victim of the crime
  • possession of materials to be employed in the commission of the crime, which are specifically designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances
  • soliciting an innocent agent to engage in conduct constituting an element of the crime

For Defenses to Attempt see Impossibility

More Helpful Information: List of Specific Intent Crimes


Murder under Common Law was the “the killing of another with malice aforethought.” Malice means the defendant had a malignant heart with the intent to kill; a heart devoid of social duty and fatally bent on mischief. A defendant could be charged with implied malice murder (which is not a separate crime; still murder) if he acted with a malignant heart and the defendant knew there was a high risk of death or grievous bodily injury.

Under modern law, many states have subdivided murder into degrees. For example, first-degree murder is the premeditated killing of another. In second-degree murder, the defendant still has malice but no premeditation. Premeditated has been interpreted to mean planned, deliberate, and willful. How much time is required for premeditation? Courts have differed. (Compare Commonwealth v. Carroll holding that no time is too short for the necessary premeditation to occur; the space of time between the premeditation and the fatal act is immaterial if the killing was in fact intentional, willful, and deliberate; against State v. Guthrie stating that “to allow the State to prove premeditation…by only showing that the intention came into existence for the first time at the time of such killing completely eliminates the distinction between the two degrees of murder;” there must be some appreciable amount of time.)

Some things courts will weigh (although these are not usually given the same weight):

  1. Person of ordinary judgment would know it is reasonably certain to cause serious bodily injury
  2. Done from some ill will/hatred
  3. Indicates indifference/depraved indifference to life

The MPC Section 210.2 states that “criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.”

In section (a), the MPC ask was the murder purposeful or did the defendant do it knowingly? If yes, the defendant is guilty of murder.

In section (b), the MPC asks whether the defendant exhibited extreme indifference to the value of human life. For the defendant to manifest extreme indifference, he must have some conscience awareness.

Section (b) also notes that “recklessness and indifference are presumed if the actor is engaged or is an accomplice to” a felony (whether in the commission of, while attempting to commit, or in flight after committing/attempting). This is essentially the common law felony-murder rule.

General Intent vs. Specific Intent

Intent crime

The difference between general intent and specific intent:

  • General intent – the defendant intended the conduct
  • Specific intent – the defendant intended the conduct and the result

For a specific intent crime, the mens rea will typically be written into the statute. Intentional and knowledge based crimes are considered specific intent crimes. Here is a (not exhaustive) list of specific intent crimes:

  1. Murder
  2. Attempt
  3. Conspiracy
  4. Solicitation (under modern statutes)
  5. Larceny
  6. False Imprisonment

Note: A specific intent crime cannot merge.

General intent crimes typically include crimes that are based on the defendant being reckless or negligence. Here is a (non exhaustive) list of general intent crimes:

  1. Manslaughter
  2. Negligent Homicide
  3. Solicitation (however, it is treated like a specific intent crime and modern statutes define it as a specific intent crime)
  4. Arson
  5. Rape


Mens Rea

A defendant must have a “guilty mind” or mens rea in order to be found guilty of a crime. Under the Common Law, the mens rea or the “guilty mind” was divided into four categories and the defendant’s mens rea must fall into one of these categories or else he cannot be guilty of an offense:

1.   Intentional – the defendant must have intended the conduct and the result of his conduct

  • Note: Transferred intent – if the defendant intended to kill A, and B jumps in front of him, the defendant’s intent to kill A transfers in his trial for the murder of B

2.   Knowledge – the defendant knew that the result was reasonably likely (focusing on the effect/result)

3.   Reckless –  willful and wanton (based on a reasonable person)

4.   Negligence – defendant did not exercise a standard of care that a reasonable person would have exercised in similar circumstances

The four categories above can be divided amongst specific intent crimes and general intent crimes:

  • Specific intent usually includes intentional and knowledge based crimes. For a specific intent crime, the mens rea will typically be written into the statute (i.e. intentionally)
  • General intent usually includes reckless and negligence based crimes. All that is required is that the defendant intended the conduct as opposed to the conduct and result.

The Modern Penal Code (MPC ) Section 2.02 tried to distinguish between the gray areas between the four categories by further defining Purposely in 2.02(2)(a), Knowingly in 2.02(2)(b), Recklessly in 2.02(2)(c), and Negligently in 2.02(2)(d). Here is the result of the changes:

1.   Purposely – essentially grouped conduct and result; looked at conduct and result as an either/or instead of and

2.   Knowingly – “high probability;” the focus is now on the conduct as well as the result;

3.   Reckless – “substantial and unjustifiable risk;” a conscious disregard that the result will occur (defendant does not know about the result); looks at the offense from the defendant’s (subjective) and reasonable person point of view

4.   Negligence – “should be aware;” objective standard that looks for justifiability


More Helpful Notes: Specific Intent Crimes List

Mens rea, Actus reus, and Attendant Circumstances

Common law defined criminal conduct by first looking at the mens rea or the offender’s “guilty mind.” Second, the common law looked at the actus reus or the offender’s “guilty act.” Finally, the common law weighed in the attendant circumstances. An important skill for a law school student is to be able to locate the mens rea, actus reus, and attendant circumstances in a definition of a crime.

For example, common law battery was defined as:

“The offense of battery occurs when a person actually and intentionally touches or strikes another against his or her will.”

  1. To determine the mens rea look for what describes the offender’s state of mind. Here, it is “intentionally.”
  2. To determine the actus reus look for what describes the offender’s action(s) that makes him guilty. Here, it is “actually…touchers or strikes another.”
  3. To determine the attendant circumstances look for the factors stem from the point of view of someone other than the defendant and that aggravate or mitigate the amount of culpability. Here, it is “against his or her will.”

Here is the common law definition of battery with the mens rea, actus reus, and attendant circumstances highlighted:

“The offense of battery occurs when a person actually and intentionally touches or strikes another against his or her will.”

A quick note on attendant circumstances: When determining what are attendant circumstances, it does not matter if the actor knows or intends to touch against the victim’s will. The actor’s guilty mind is not a factor in determining the attendant circumstances. In fact, attendant circumstances is actually from the point of view of someone other than the defendant (typically the victim). Also, it may be helpful if you think of attendant circumstances as those factors that would be helpful in determining a sentence, factors than can aggravate or mitigate the crime such as the amount of culpability.

Law school students should also know that under common law, the mens rea only modified the actus, not the attendant circumstances. Under our modern view, the mens rea modifies everything in the definition.

People v. Evans, 85 Misc. 2d 1088 (1975)

Case Name: People v. Evans
Citation: 85 Misc. 2d 1088 (1975)

Facts: Evans used psychological techniques on a vulnerable college girl. The testimony showed that Evans was a predator and that the girl was naïve and gullible. When Evans had the girl alone in his apartment he said “I could kill you. I could rape you. I could hurt you physically.” The girl was frightened but the sexual intercourse was seemingly consensual and there was no showing of force.

Issue: Whether we should view the controlling state of mind from the point of view of the person who hears the words and interprets them as a threat or the state of mind of the person who utters such words.

Defendant’s argument: Evan’s words meant that the girl was foolish but does not show that he would have used force if the girl did not submit. Seduction is not a crime.

State’s argument: Evan’s words were intended for the girl to do what he said or else he would use force.

Holding: Not guilty because the court cannot find forcible compulsion or threat beyond a reasonable doubt.

Reasoning: The controlling state of mind should be from the person who utters them because, this being a criminal trial, the criminal intent of the defendant must be shown beyond a reasonable doubt. If the defendant did not intend a threat, then there is not the necessary criminal intent to establish culpability.


The Restatement (Second) of Torts provides that an actor commits a battery if:

  1. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
  1. A harmful [or offensive] contact with the person of the other directly or indirectly results

It is important to realize that the tortfeasor needs to intend to cause a harmful or offensive contact or an imminent apprehension of such contact. However, the tortfeasor does not need to intend the contact to the one who was actually harmed. If he intended the contact to a third person, yet injured a bystander, the tortfeasor may still be liable for battery.

What is harmful contact? Harmful contact causes pain or bodily damage. What is offensive contact? Offensive contact is said to occur when the contact “offends a reasonable sense of personal dignity.” Restatement (Second) of Torts § 19. The tortfeasor does not need to be aware that the contact is offensive.

Whenever you are analyzing battery make sure that you examine any defenses the tortfeasor might raise (i.e. consent). Upon proof of battery or assault, the plaintiff is entitled to recover nominal damages plus compensatory damages for bodily pain, humiliation, mental anguish and other injuries that occur as a necessary and natural consequence of the tortious conduct. Further, punitive damages should also be considered.



Cullison v. Medley – 570 N.E.2d 27 (Ind. 1991)

Case Name: Cullison v. Medley
Plaintiff/Appellant: Dan R. Cullison
Appellees/Defendant: The Medleys
Citation:  570 N.E.2d 27 (Ind. 1991)

Issue: Whether the defendants committed an assault against the plaintiff when they surrounded him in his trailer, had a holstered gun, and threatened him with bodily harm.

Key Facts: The plaintiff was approached in his living room by the five uninvited defendants. One of the defendants had a revolver in a holster strapped to his thigh. He was berated and was called a “pervert” and “sick.” The defendant never withdrew the gun from the holster but “kept grabbing at it with his hand, like he was going to take it out” and the plaintiff thought he was going to be shot by the defendant. As a result of the incidence, the plaintiff suffered chest pains and feared that he was having a heart attack. Additional instances occurred in which the plaintiff had more reason to believe he was in danger including that he learned one of the defendants had shot a man in the past.

Procedural History: The plaintiff sued for a number of torts, including assault. The trial court granted summary judgment on all claims. The Court of Appeals decided that it was not assault, because the defendant never removed his gun from the holster so his threat only constituted conditional language which did not express any present intent to harm. Plaintiff appealed.

Holding: The facts alleged by the plaintiff could entitle him to recover for an assault against the defendants as a jury could reasonably conclude that the defendants intended to frighten the plaintiff.

Rule of Law: The right to be free from the apprehension of imminent harm or offensive contact is protected by the tort of assault. An assault constitutes “a touching of the mind, if not the body.”

Reasoning: The plaintiff testified that he thought the defendant was going to shot him. Apprehension in the context of assault does not mean fear, but rather an awareness of imminent touching that would be a battery if completed. The plaintiff may have had an awareness of this imminent danger during his various encounters with the defendant.

Judgment: The case was remanded to the lower court to determine whether the plaintiff’s apprehension of being shot or otherwise injured was one which would normally be aroused in the mind of a reasonable person.

White v. Muniz – 999 P.2d 814 (Colo. 2000)

Case Name: White v. Muniz
Citation: 999 P.2d 814 (Colo. 2000)

Key Facts: An elderly woman, Everly, who lives in an assisted living facility hits Muniz, a shift supervisor, while she is attempting to change her adult diaper. Everly was diagnosed with progressive dementia, loss of memory, impulse control and judgment, and Alzheimers. Muniz filed a complaint against Everly and White, Everly’s granddaughter, for assault and battery.

Issue: Whether an intentional tort requires some proof that the tortfeasor not only intended to contact another person, but also intended that the contact be harmful or offensive to the other person.

Holding: Colorado requires dual intent so they rejected the arguments of Muniz and affirmed the trial court. It was proper for the trial court to instruct the jury that Everly “must have appreciated the offensiveness of her conduct”