Definition
An attempt is an inchoate criminal offense consisting of a deliberate effort to commit a crime that goes beyond mere preparation but falls short of completion. The actor must have the specific intent to bring about the completed offense, and must take a substantial step toward that end. Because the crime is never finished, attempt occupies the conceptual space between planning and commission — punishable not for what the defendant did, but for how far along the criminal path the defendant traveled.
Three ideas are always in play: (1) the mental state — the specific intent to commit the target offense; (2) the act — conduct that crosses from preparation into execution; and (3) failure — the completed crime does not occur, whether because of interruption, outside circumstance, or impossibility.
Attempt is a distinct offense, not merely a lesser included offense of the completed crime, though the two frequently appear in the same charge.
Common Language
Modern common usage (Wiktionary): To try; to make an effort to do something, whether or not successful.
Historical common usage (Webster's 1913): To make trial or experiment of; to try; to endeavor to do or perform some action.
The gap matters. In ordinary English, any sincere effort qualifies as an attempt, including one that was never going to succeed. In criminal law, not every try is a legally cognizable attempt. A person who merely thinks about committing a crime, or who takes only preparatory steps, has not committed the offense of attempt regardless of how earnest the effort was. The law demands both a culpable mental state and a qualifying act — sincerity alone is not enough.
Common Confusion
Attempt is frequently confused with preparation, solicitation, and conspiracy.
Preparation vs. attempt: The preparation/attempt line is the central doctrinal problem. Preparation — buying supplies, researching targets, forming a plan — is generally not punishable. The moment conduct crosses into direct movement toward the crime's commission, attempt begins. Where exactly that line falls varies by jurisdiction and test applied (see CORE ELEMENTS below).
Attempt vs. solicitation: Solicitation requires asking another person to commit a crime. Attempt requires the defendant's own conduct moving toward the crime. A defendant who solicits but takes no further action has not committed attempt; a defendant who acts alone has not committed solicitation.
Attempt vs. conspiracy: Conspiracy is an agreement between two or more persons to commit a crime. Attempt is a unilateral offense — a single actor can commit it. Many jurisdictions permit charging both where a group agrees and one member then takes a substantial step.
Core Elements
Because the doctrinal boundary between preparation and attempt is one of the most contested questions in criminal law, the elements warrant structured treatment.
1. SPECIFIC INTENT
The defendant must intend to commit the completed target offense. Attempt is a specific-intent crime even where the underlying offense might be committed recklessly or negligently. A defendant who fires a weapon carelessly does not attempt murder; a defendant who fires intending to kill but misses does.
2. A QUALIFYING ACT
The defendant must take an overt act that crosses from mere preparation into attempt. Courts have applied several tests to locate this line:
— Last act test (historical, now largely abandoned): The defendant must have completed every act necessary for the crime except the final one. Rarely followed today because it permitted intervention only at the last possible moment.
— Dangerous proximity test: The defendant must come dangerously close to completing the crime. Associated with Holmes's formulation in federal common law tradition.
— Substantial step test (Model Penal Code): The defendant must take a substantial step strongly corroborative of criminal purpose. This is the dominant modern standard in American jurisdictions and shifts emphasis from how close to completion toward how clearly the conduct manifests criminal intent.
— Unequivocality / res ipsa loquitur test: The act itself must speak unambiguously to criminal purpose, without reference to the defendant's stated intent. Used in some jurisdictions, criticized for being too restrictive.
3. FAILURE OF COMPLETION
The completed offense must not occur. If the crime is completed, the defendant is guilty of the completed crime, not attempt — though attempt may be charged in the alternative.
Recognized Forms
/SUBTYPES
Impossible attempt: Where completion of the target offense was factually or legally impossible, jurisdictions divide on whether attempt liability attaches.
— Factual impossibility (the means failed: the gun was unloaded, the victim had already died) generally does not excuse attempt liability in most modern jurisdictions.
— Legal impossibility (the defendant believed the act was criminal but it was not) has traditionally been a defense, though the Model Penal Code and many modern statutes have narrowed or eliminated it.
Abandoned attempt: Some jurisdictions recognize voluntary and complete abandonment as an affirmative defense. If the defendant renounces criminal purpose and withdraws before the attempt is complete, liability may be avoided. The abandonment must be genuine — not because of unexpected obstacles or fear of detection.
Why It Matters in Research
Researchers navigating attempt doctrine face several consistent traps.
The preparation/attempt line shifts by jurisdiction and test. A case decided under the dangerous proximity test may reach a different result than the same facts under the Model Penal Code substantial step test. When reading historical cases, identify which test the court applied before generalizing the holding. Pre-MPC cases frequently apply tests that are now minority rules.
The MPC's influence is uneven. The Model Penal Code (1962) substantially reshaped American attempt doctrine, but adoption was partial and inconsistent. Some states adopted the substantial step test wholesale; others grafted MPC language onto earlier frameworks without abandoning older doctrine. Assume nothing about which test governs without checking the specific jurisdiction's current statute.
Specific intent requirements create asymmetries. Because attempt is a specific-intent crime, defenses like voluntary intoxication that would fail against general-intent offenses may succeed against attempt charges. This matters when researching defenses in historical sources, which sometimes obscure the intent analysis.
Historical sources often conflate attempt doctrine with conspiracy and solicitation under the umbrella of "inchoate offenses" without clearly distinguishing the elements. Burrill's treatment, for example, addresses the misdemeanor consequences of attempt without engaging the act requirement in depth.
Punishment levels in historical sources are unreliable guides. At common law, attempt was generally a misdemeanor regardless of the target offense. Modern statutes typically grade attempt at one level below the target crime, with serious felony attempts carrying significant prison terms. Research tracking penalty evolution must account for this shift.
The corpus connections run deep: attempt doctrine intersects with impossibility (in defenses research), abandonment (in mitigation and defenses), mens rea (in intent analysis), and conspiracy (in multi-defendant cases). Researchers should not treat attempt as an isolated doctrine.
Historical Dictionary Support
Black's (1st and 2nd editions) define attempt consistently: an effort to accomplish a crime, exceeding mere preparation, which would have resulted in completion but for interruption. The emphasis on what "would have resulted" reflects a proximity-focused view — the historical dictionaries are implicitly applying something close to the dangerous proximity test without naming it.
Burrill's formulation — "carried beyond mere preparation, but falling short of actual commission" — tracks the same structure and adds the early common law consequence: that attempt to commit a felony was itself a misdemeanor, and attempt to commit a misdemeanor was also a misdemeanor. This grading scheme has been almost entirely superseded by statute but appears throughout 19th-century case law.
The Bouvier's entry retrieved for this term is a mismatch — the text concerns maxims of contract law, not attempt doctrine. Bouvier's Law Dictionary does address attempt elsewhere in the corpus, but the retrieved passage is not responsive. Researchers should not rely on that passage.
Anderson's retrieved entry is similarly non-responsive, addressing bills of attainder rather than criminal attempt. Researchers using Anderson's for attempt doctrine should search under criminal law and inchoate offenses rather than the term heading.
A shared limitation across the historical dictionaries: none engages the specific-intent requirement with precision, and none articulates a formal test for locating the preparation/attempt boundary. That analytical work was done primarily in case law and, later, the Model Penal Code commentary.
Jurisdictional Note
American jurisdictions are divided between the substantial step test (Model Penal Code majority) and various proximity-based tests. Federal attempt law is largely governed by statute, but courts continue to apply common law proximity analysis in some contexts. English law has historically applied the "more than merely preparatory" standard under the Criminal Attempts Act 1981, which is closer to a proximity test than the MPC approach.
Encyclopedia Cross-Reference
Inchoate Crimes — Attempt (Elements and Defenses), The Law Mind Criminal Law Encyclopedia