assignment 8

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HOW FAR YOU’LL GO Jessie Brown AC2108460 Ashworth College Criminal Law Assignment 8 December 7, 2023

Criminal law often wrestles with defining the point at which preparatory actions become criminal attempts. Various legal tests have been developed to address this challenge and determine when an individual's conduct crosses the threshold into criminal liability. This essay will explore several of these tests, including the "Last Act" test, the "Physical Proximity" test, the "Dangerous Proximity" test, the "Indispensable Element" test, the "Probable Desistance" test, the "Unequivocality" test, and The Model Penal Code's "Substantial Step" test. The Last Act test is a legal term utilized in the world of criminal law. This focuses on the final act before the completion of a crime. It gauges whether the individual had in fact attempted to commit the crime in question ( Last-Proximate-Act Test Definition · LSData , n.d.). For example, in a case of attempted burglary, if an individual has already broken into a building and is in the process of picking a lock when apprehended, this act may be considered the last act before the completion of the burglary. The Physical Proximity test assesses how physically close an individual is to a complete criminal act. In other words, this technique measures the individuals progress in a crime. The actions of the defendant will be examined to see how far into the illegal action the person has come to carrying out their plan (Publisher, 2015). In a case of attempted robbery, if a person is found armed and masked, standing just outside a bank, ready to enter, their physical proximity to the completion of the crime may be a determining factor. Similar to the Physical Proximity test, the Dangerous Proximity test evaluates how close an individual is to the harmful result of a crime and emphasizes the danger posed by their actions. To use the Dangerous Proximity test, it is required that an individual with specific intent to commit an illegal act, pursue actions that go beyond the first steps of preparation. The perpetrator must almost completely carry out their crime ( Dangerous Proximity Test , n.d.). In a case of attempted arson, if an individual is caught 1

pouring gasoline around a building with a lit match in hand, the dangerous proximity of their actions may be a crucial factor in the determination. The Indispensable Element test considers whether an essential element required for the commission of a crime is already in place, indicating a substantial step towards completing the offense. This test examines whether the person has acquired control over something crucial to carry out a crime ( Indispensable-Element Test Definition · LSData , n.d.). In a case of attempted drug trafficking, for example, if an individual is caught with a large quantity of narcotics packaged for distribution, the presence of this indispensable element may be indicative of a substantial step toward the commission of the crime. The Probable Desistance test is used to determine whether the individual has reached a point of no return, making it probable that they will complete the criminal act rather than abandon it. This test helps to decide if the defendant has taken a big enough stride towards committing a crime to be found guilty of attempting it in a court of law. To be clear, attempting to commit a crime simply means trying to carry it out, but failing to do so for whatever reason ( Probable-Desistance Test Definition · LSData , n.d.). In a case of attempted fraud, if a person has already created counterfeit documents and is on the way to use them, the probable desistance may be low, suggesting a significant progression toward the completion of the crime. The Unequivocality test looks at whether the defendant's conduct unambiguously demonstrates a criminal intent, leaving no room for alternative interpretations. This test is also known as the Res Ipsa Test, or the Equivocality test ( Unequivocality Test , n.d.). For instance, in a case of attempted assault, if an individual is found carrying a concealed weapon and makes explicit threats towards another person, the unequivocality of their actions may be a key factor in determining the verdict of this crime. 2

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The Model Penal Code introduces the concept of a "substantial step" towards the commission of a crime. This is another way to determine if an individual is in fact guilty of committing a criminal offense. The Model Penal Code’s Substantial Step Test looks at the amount of preparation the person made towards committing the crime as well as their intent, and any statements the person may have made leading up to the incident. The Model Penal Code states that attempting a crime includes doing something that would be considered as a big step towards the completion of an unlawful infringement. It distinguishes the difference between preparation and attempt ( Substantial-Step Test Definition · LSData , n.d.). In a case of attempted computer hacking, if an individual has already gained unauthorized access to a secure system and is in the process of extracting sensitive information, this substantial step may indicate a strong criminal intent and progression toward the completion of the offense. In summary, the determination of when preparatory acts become criminal attempts is a complex legal issue. Different jurisdictions employ various tests to address this challenge, considering factors such as the last act, physical proximity, dangerous proximity, indispensable elements, probable desistance, unequivocality, and substantial steps. Understanding these tests is crucial for a nuanced analysis of criminal attempts and their prosecution. In the realm of criminal law, the determination of when an individual's actions constitute an attempt to commit a crime has long been a subject of legal scrutiny. Various tests have been devised to assess the proximity of an individual's conduct to the commission of a crime, such as the Last Act Test, Physical Proximity Test, Dangerous Proximity Test, Indispensable Element Test, Probable Desistance Test, Unequivocality Test, and the Model Penal Code's Substantial Step Test. 3

The Substantial Step Test from the Model Penal Code stands out as a comprehensive and flexible approach to assessing criminal attempts ( Model Penal Code and Commentaries (Official Draft and Revised Comments) Part Two - Definition of Specific Crimes - v 2 - Offenses against Property | Office of Justice Programs , 1980). Unlike more rigid tests, such as the Last Act Test or the Unequivocality Test, the Substantial Step Test allows for a nuanced analysis of a defendant's conduct. This test evaluates whether the defendant's actions objectively constitute a substantial step toward the commission of the intended crime ( Substantial-Step Test Definition · LSData , n.d.). The flexibility inherent in this standard enables courts to consider the unique circumstances of each case. In the case of United States v. Buffington (1992), the court's interpretation of the Substantial Step Test exemplifies its adaptability. The court held that a substantial step must leave no reasonable doubt about the defendant's intention to commit the crime ( U.S. V. Buffington, 815 F.2d 1292 | Casetext Search + Citator , n.d.). This underscores the importance of considering the totality of circumstances and the defendant's intent, rather than relying on a checklist of rigid criteria By emphasizing the need for an unequivocal demonstration of criminal intent, the Substantial Step Test strikes a balance between flexibility and precision (General Counsel, 2023) However, legal scholars may hold diverse opinions on which test is the most effective. Some may argue for a stricter approach, contending that only clear and unequivocal evidence of criminal intent should suffice. Others may advocate for a more flexible standard, recognizing that the context of each case is crucial in determining criminal liability (Pizzi, n.d.). Furthermore, the dynamic nature of legal interpretations and precedents implies that the efficacy of these tests 4

may evolve over time. New cases and societal changes may challenge existing standards, prompting courts to reevaluate and refine legal tests (Pizzi, n.d.). In conclusion, the Model Penal Code's Substantial Step Test emerges as a compelling and adaptable approach to evaluating criminal attempts. Its emphasis on considering the totality of circumstances and the defendant's intent provides a nuanced framework for assessing culpability. The case of United States v. Buffington (1992) illustrates the court's endorsement of this test and its application in practice. Nevertheless, the choice of the most effective test remains subjective, and legal scholars may express diverse opinions based on their interpretation of justice and legal philosophy. As legal interpretations and precedents continue to evolve, the efficacy of these tests may be subject to reconsideration. Therefore, a comprehensive analysis of the latest case law is crucial to understanding the current landscape of criminal attempt law and to ensure that legal standards align with contemporary societal values and legal developments. 5

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References Dangerous Proximity Test . (n.d.). Www.quimbee.com. https://www.quimbee.com/keyterms/dangerous- proximity-test#:~:text=One%20prevailing%20test%20in%20the,successful%20completion %20of%20the%20crime. General Counsel, O. of. (2023). Robbery Offenses . https://www.ussc.gov/sites/default/files/pdf/training/primers/2023_Primer_Robbery.pdf indispensable-element test definition · LSData . (n.d.). Www.lsd.law. Retrieved December 7, 2023, from https://www.lsd.law/define/indispensable-element-test last-proximate-act test definition · LSData . (n.d.). Www.lsd.law. Retrieved December 7, 2023, from https://www.lsd.law/define/last-proximate-act-test#:~:text=The%20last%2Dproximate%2Dact %20test%20is%20a%20legal%20term%20used Model Penal Code and Commentaries (Official Draft and Revised Comments) Part Two - Definition of Specific Crimes - V 2 - Offenses Against Property | Office of Justice Programs . (1980). Www.ojp.gov. https://www.ojp.gov/ncjrs/virtual-library/abstracts/model-penal-code-and- commentaries-official-draft-and-revised-0 Pizzi, W. (n.d.). Rethinking Attempt Under the Model Penal Code . Retrieved December 7, 2023, from https://legislature.vermont.gov/Documents/2018/WorkGroups/House%20Judiciary/Bills/S.267/ S.267~Matthew%20Valerio~Rethinking%20Attept%20Under%20the%20Model%20Penal %20Code~4-18-2018.pdf probable-desistance test definition · LSData . (n.d.). Www.lsd.law. Retrieved December 7, 2023, from https://www.lsd.law/define/probable-desistance-test 6

Publisher, A. removed at request of original. (2015). 8.1 Attempt. Open.lib.umn.edu . https://open.lib.umn.edu/criminallaw/chapter/8-1-attempt/#:~:text=The%20proximity%20test %20measures%20the Substantial-step test definition · LSData . (n.d.). Www.lsd.law. https://www.lsd.law/define/substantial- step-test U.S. v. Buffington, 815 F.2d 1292 | Casetext Search + Citator . (n.d.). Casetext.com. Retrieved December 7, 2023, from https://casetext.com/case/us-v-buffington-4 Unequivocality Test . (n.d.). https://www.quimbee.com/keyterms/unequivocality-test 7

assignment 8

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