Running head: CRIMINAL ATTEMPT 1

Criminal Attempt

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Abstract

The essay explores the criminal elements of inchoate crimes with a specific focus on

criminal attempt. Criminal attempt is defined by two major elements that is the intention to

commit the crime as well as the undertaking of substantial steps toward the completion of the

crime. Analysis of historical common law identified that criminal attempt was not a crime and

when it was considered a crime it was evaluated based on criminal intent as its only defining

element. Nebraska state statute 28-201 identifies that criminal attempt must meet two

requirements that are the intention as well as the corroborative actions that make a substantial

step toward completion of the crime. The changes from the historical common law to the current

state statute is based on the need to effectively clarify the crime of criminal attempt to ensure that

sufficient burden of proof was provided before sentencing an individual for criminal attempt.

The reason for these changes includes the need to enhance the burden of proof as well as judicial

demands for greater tests in determining criminal attempt. Possible improvements to the statute

include the need to integrate more tests aimed at evaluating the element of a substantial step in

judging these crimes.

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Criminal Attempt

Criminal attempt is an example of inchoate crime. Inchoate crimes are crimes that are

incomplete, in which the individual is preparing to commit another crime. The essay will explore

the inchoate crime of criminal attempt. The essay will explore the elements of criminal attempt

as it relates to English common law and the selection of the state of Nebraska as the focus of this

criminal law essay. The essay will explore the statues for a criminal attempt in the state of

Nebraska in addition to explaining the elements of this crime. A comparison of the state statutes

and historical English common law as well as the underlying reasons for the change will be

explored in addition to discussing the possible reasons for these changes. The essay will

conclude by defining new changes in the statutes based on the current needs of the society today.

Elements of criminal attempt under historical common law

Criminal attempt is defined as the intention to commit a crime. Early English common law

did not have any definition of criminal attempt, and it was therefore not a crime as noted by

Doyle (2013). Doyle (2013) argued that the law evolved and the defendant who committed the

criminal attempt that resulted in severe harm was punished for committing a minor crime which

may be considered a misdemeanor. It was not until 1784 in the case of Rex versus Scofield that

the concept of criminal attempt was defined (Doyle, 2013). In this case, the servant had placed a

lit candle near flammable materials with the intention of causing a fire, but this did not

materialize and was instead charged with a misdemeanor for the attempt to burn down his

master’s house. Additionally, the case of Rex versus Higgins further developed the concept of the

crime of attempt within English jurisprudence (Doyle, 2013). At the time the intention to commit

the crime was the only element that was used to determine criminal intent.
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Elements of criminal attempt under Nebraska state statutes

Nebraska state statute on criminal attempt evolved from the Model Penal Code which

developed the “substantial steps” clause in defining criminal attempt (Doyle, 2013). The

Nebraska state statute argues that an individual commits the offense of criminal attempt when

they willfully seek to commit the specific crime as well as performing any acts that may

constitute a substantial step aimed at completing the crime. Nebraska revised statute 28-201

identifies that an individual is guilty of a criminal attempt if they intentionally engage in acts that

would constitute the crime in the case that the attendant circumstances were as the individual

believed (Nebraskalegislature.gov, 2018).

Under this statute, there must be intent to commit the crime. Lippman (2009) noted that

criminal intent which is often termed as mens rea is the state of mind at the time the crime was to

be committed. This element identifies that those who are trying to commit the crime are aware

of what they are doing and the consequences of their actions. The purposeful desire to commit

the crime is, therefore, the criminal intent that must be evidenced as the first element of criminal

attempt (Lippman, 2009). Additionally, the statute argues that an individual is guilty of the

attempt to commit a crime if they intentionally engage in activities that constitute a substantial

step aimed at committing the crime.

Furthermore, the statute argues that the conduct of the individual shall not be considered as

a substantial step unless the conduct is strongly corroborative of the criminal intent of the

defendant. Criminal attempt is sentenced differently in the state of Nebraska. For instance

criminal attempt is viewed as a Class II felony which attracts a sentence of 1 to 50 years in

prison for felonies such as first degree murder, arson, kidnapping, manslaughter, aggravated

assault, sexual assault, burglary, robbery, use of a deadly weapon to commit a crime as well as
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the possession of certain illegal substances (Nebraskalegislature.gov, 2018). Criminal attempt

has viewed as a misdemeanor when it involves class IV felonies such as suicide and forgery.

Additionally, criminal attempt is viewed as a misdemeanor when the crimes committed are

themselves misdemeanor (Nebraskalegislature.gov, 2018). The state statute identifies that

abandonment of the crime are not a defense to the commit of the intended crime and this results

in the criminal attempt.

Changes in the element of the crime

Changes in the definition of the crime of attempt have changed from historical common

law to current state statute as laws have changed to address current criminal issues. One of the

most fundamental changes in the elements of criminal attempt is the addition of the concept of a

substantial step in defining wheat criminal attempt is (Hall, 2005). This is a fundamental change

from the historical common law view of criminal attempt. This additional element was essential

in ensuring that there was a sufficient burden of proof for convicting an individual for criminal

attempt. The substantial step element was essential in determining whether the intent was

corroborated with actions that aimed to complete the crime (Hall, 2005). As intention or thoughts

alone are not sufficient grounds for judging an individual for a crime the addition of the

substantial step element was essential in advancing the definition of this crime helping

prosecutors to determine which essential elements must be available to ensure the burden of

proof was provided in the criminal attempt case. Hall (2005) argued that that the mere intent to

commit a crime cannot be punishable and therefore must be accompanied by significant conduct.

Hall (2005) noted that the substantial step was an overt act which qualified to be an act toward

completing the underlying offense. The substantial step is viewed as more than just mere

preparations as it must be an action that unequivocally corroborates the intention of the

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individual to commit the crime and that is the action is uninterrupted it would result in the

completion of the crime. This is the fundamental difference between the historical common law

on the criminal attempt and the Nebraska statue on this type of crime.

Possible reasons for the changes

One of the reasons as to which elements of criminal attempt have changed from the

historical common law is that the concept of criminal attempt had not been reviewed to a great

extent in the past and thus the courts lacked the jurisprudence to address this issue. The fact that

law officials in the past did not consider an attempt to be an issue worth presenting to the courts

meant that few cases of attempt were heard limiting any judicial precedent on the crime. The

evolution of the elements of the criminal attempt was due to the need to define a way of judging

and sentencing this crime for the purpose of achieving prevention of such crimes as well as

deterrence to future criminal behavior. If the defendant was not be apprehended until the crime

was finished meant that law enforcement officers would not be capable of interviewing or

averting injury to victims or damage to property.

Additionally, the defendant who was not capable of completing the crime and not punished

would try again until they succeeded as they were free from any criminal consequences. These

issues, therefore, developed the need to redefine the crime of attempt to provide a way of holding

defendants of incomplete crimes unaccountable. The evolution of the law on criminal attempt

was aimed at providing justification as well as the legal basis for which future acts of attempt

would be judged which led to the development of substantial steps. Furthermore, the change in

sentencing from a misdemeanor to felony charges for crimes of attempt is due to the societal

need to classify different types of attempt as they are not all viewed as equal by some state

statues. The state of Nebraska identified that there are different levels of attempt based on the
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intended crime and thus developed differences in sentencing based on the nature of the crime or

felony the individual aimed to commit. The reason for these differences is because of the

underlying need to differentiate the intent of various criminals. As different crimes have different

sentencing approaches it is possible to understand why the elements of criminal attempt have

evolved as well. For instance, the criminal intent to murder the Nebraska statute 28-201 is

viewed as a serious crime as compared to attempt to commit a misdemeanor.

Suggested new changes in the statutes

The statute, for instance, needs to define further the elements used to evaluate the

corroborative actions of the defendant in determining the achievement of the substantial step.

The statute does not effectively and exhaustively define what specific elements must be

evidenced to determine a substantial step has been achieved. There is a need to develop a list of

tests that may be effective in evaluating beyond doubt that the defendant had not only the intent

but achieved the substantial step needed to definitively define that one had committed the crime

of criminal attempt. There is a need to define further the consequences of criminal attempt within

each class of crime the defendant tries to commit.

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References

Doyle, C. (2013). Attempt: an overview of federal criminal law. Journal of Current Issues in

Crime, Law & Law Enforcement, 6(3).

Hall, J. (2005). General principles of criminal law. The Lawbook Exchange, Ltd..

Lippman, M. (2009). Contemporary criminal law: concepts, cases, and controversies. Sage.

Nebraskalegislature.gov. (2018). Nebraska Revised Statute 28-201. Retrieved from

https://nebraskalegislature.gov/laws/statutes.php?statute=28-201