"The Crime That Never Was"



Drawing on the reading and your own considered opinion and good judgment, make a case for or against upholding or overturning the convictions of John, Victor, Kathy and Peggy in the following cases, think of several strong objections to your case, and respond to them. In making your case, offer what you believe are the most principled arguments you can make.

In thinking of objections to your opinion, think of the best possible objections that someone on the other side might be able to come up with, i. e., give yourself a hard time. If you can respond to the other side at its strongest rather than at its weakest point, that can only help to strengthen your own opinion and make it that much more persuasive. .

The paper should be about five (5) to six (6) pages in length. Please hand in two copies, marked "COPY ONE" and "COPY TWO." The paper is due on Tuesday, March 2nd, in class.


The Law of Attempts

- The Foundations of the Criminal Law-

You may recall (How could you forget!) three puzzlers from the opening days of the Philosophy of Law class each devoted to the general topic of criminal attempts. In each instance you may have checked either "Yes" or "No" and you may wish to go back and take a look at what you thought then, off the top of your head. Here are the three puzzlers to which I am referring:

John (Finally) Tries to Do Something Nice for Alice
John travels to Paris to purchase some fine French lace. On his return to the United States he tries to smuggle the lace past a customs inspector. The inspector discovers it, and John, embarrassed, confesses his "crime," admitting that he knew that such fine lace was subject to an import duty. But upon closer examination it turns out it was John who had been cheated, not the customs authorities: the lace was not French, but a cheap imitation and not subject to duty. Surely John cannot be convicted for smuggling, but is he guilty of a smuggling attempt?


The Attempted Murder of a Corpse
At 4:00 p.m. John goes to his study for his afternoon nap, as is his wont, lies down, and dies in his sleep at 4:10 p.m. At precisely 4:30 p.m. Alice sneaks into John's study, thinks he is asleep on the couch and stabs him thirteen times in the chest. Clearly, Alice hasn't murdered John since he was already dead. But is she guilty of attempted murder?


Hot Property
Suppose Alice takes away an umbrella from an umbrella stand in a restaurant with the intent to steal it, believing it belongs to someone else, but it turns out to be her own. Surely Alice cannot be convicted of stealing, but can Alice be convicted of attempting to steal.


As no doubt you may not be surprised to learn "knowledgeable legal theorists have long recognized that the law of attempts provides a bumpy route by which the deepest and most central issues in criminal law can be approached." Less than two centuries ago the common law of England made it a criminal offense to attempt to commit a crime. As with most crimes, attempts have both a bad act (actus reus) and a guilty mind (mens rea) component. The mens rea requirement is fairly straightforward, or so it often seems: one must have intended to commit the crime that one is charged with attempting. In attempt cases the actus reus requirement seems to be more complex. One difficulty is how to decide how much a defendant has to do, how far does he or she have to go in order to have "made the attempt." At what point does the agent's acts move beyond "mere preparation?"

And there is yet another curiosity about attempts: should persons be punished less severely for a criminal attempt than for a completed crime and if so, why? Say two "hit" men are out to kill you. One misses you by inches (say, you duck) and the other shoots and kills you. Both were really determined to kill you and both acted with equal malice aforethought, i.e., with equally evil intent. To the extent that we are eager to puinish the wicked and deter the dangerous, both "hit" men would seem to deserve the same punishment.

But the stickiest problem in the law of attempts by far is posed by the following question: "If what you are trying to do would constitute a crime, if completed, should you be convicted of attempt if the crime was impossible to commit?" And if so, should it matter why the crime could not be committed?

One obvious sort of reason for the "impossibility" involved here is that the facts might not be as the defendant took them to be. Another reason might be that there is no law against what the defendant attempted to do and so it was "legally" impossible, as it were, for him or her to have committed a crime, even if he or she had completed what he or she were doing.

Imagine that you have risen through the ranks of the law and you are a Judge on an Appellate Court in each of the following four cases.

Peggy is Found Guilty of Attempting to Murder Henry
Henry, longtime friend of John and Alice, is married to Peggy. Peggy has grounds for believng that Henry has been having a series of affairs. Alice, her best friend, has all but confirmed three of these affairs. Peggy and Henry take turns making the other breakfast every morning before work. Peggy takes her coffee "black,"but Henry likes his coffee with "half and half" and a heaping teaspoon of sugar. Peggy purchases a lethal dose of arsenic and one morning puts what she thinks is a heaping teaspoon of arsenic into Henry's coffee. Henry sits down at the table, has his usual bowl of Honey Bunches of Oats, drinks his entire cup of coffee, kisses Peggy "goodbye" and heads off to the office. Later that morning he calls her to tell her that he loves her. Peggy realizes that she has put suger, not arsenic, in Henry's coffee, has a fit of remorse, decides to "repent," and rushes off to the local police station where she confesses that she intended to poison Henry and would surely have succeeded if she had not confused suger with arsenic. She is placed under arrest, charged with attempted murder, and subsequently tried and convicted. Her case has come before you on appeal.

Kathy is Found Guilty of Attempting to Receive Stolen Property
Kathy, a student at NYU, is walking down 14th Street in New York City and stumbles upon a table filled with several computers and computer accessories. She has been looking for a laptop, but never felt she could afford one. The man at the table points to a Sony Vaio Notebook with an Intel Pentium 4 Processor 280GHz and says "I'll sell it to you for $250 dollars." She has just seen the same computer on sale at J & R Computer World for $1599.99. Kathy is convinced that the Sony Notebook must be stolen property, but gives the man the money anyway. With her new computer "notebook" under her arm she heads down Fifth Avenue towards Washington Square and tells another man, coming in the other direction that "there's this guy 'round the corner selling 'hot' property for rock-bottom prices. I just got this brand new computer notebook' for less than $300." Unbeknowst to Kathy this man is an undercover police officer. She is arrested for receiving stolen property. The man who sold her the computer "notebook," however, was selling computers and computer accessories from his own small marketing company that had just gone ou of business. He had "rented" the table legitimately as part of a Saturday morning "flea market" sponsored by the City. The charge against Kathy is changed to "attempting to receive stolen property." She is tried and convicted and her case has come before you on appeal.

Victor is Found Guilty of Attempting to Murder Esmerelda
Victor is unhappily married to Esmerelda. Indeed, Victor so dislikes Esmerelda that he has on more than one occasion thought of killing her. Victor was raised on a small Caribbean Island and, as a young boy, was initiated into the black-magic cults of the native peoples. Victor still believes in the power of voodoo. One day, when he feels he can stand his wife no longer, he retires to his basement workshop, where he has, over the years, collected the accoutrements of the black arts. Carefully he prepares a tiny doll-like replica of Esmerelda. When the doll is finished, Victor takes a deep breath and, with shaking hands and a look of hatred and determination, viciously and repeatedly stabs the doll with a set of "magic" needles. Exhausted by his work, Victor collapses. When he wakes up, he is overcome with remorse. He is disgusted by what he has done. He leaves his workshop and rushes to the local police station, where he turns himself in, believing with all sincerity that he has murdered his wife. The police send someone to the house where Esmerelda is discovered in bed eating Godiva chocolates and watching the "Grammys." The police arrest Victor for attempted murder. He is tried and convicted and his case has come before you on appeal.

John is Found Guilty of Attempting to Hunt for Moose "Out of Season"
John and Alice move to Maine near the Canadian border, retiring from their Wall Street jobs and eager to "get back to nature." They believe that Americans like themselves who live in remote regions of the country should be allowed to live off the land so long as the land belongs to them or is public. They plant and eat all their own vegetables. They also love meat, especially moose meat. Their property borders on a state forest that contains plenty of moose and they both would eat moose year round but for the fact that the Maine Department of Inland Fisheries and Wildlife has established a "moose season," roughly a two-week "window" when it is legal to hunt for moose, from October 16th through October 31st. John and Alice decide to protest the law as it currently stands in Maine, a law that prohibits them from hunting legally for moose "year round." They decide to hunt for moose "out of season" as an act of civil disobedience and to declare, after they are arrested, that it is their God-givin right to hunt for moose whenever they "darn well please," or words to that effect. They plan their "act" of legal defiance during the summer, but John is unexpectedly called away to Beijing for much of October. Alice, who mistakenly believes the hunting season is from October 1st through October 15th hunts for moose on her own and kills one on the 18th of October, but the forest ranger she trudges by with her moose in tow does not arrest her. She bags another on October 25th and passes by the same ranger, only this time she says, as she passes, "got me some moose," adding in an even louder voice," the hunting season ended on the 15th - hint, hint." But to no avail. She is not arrested or charged with anything. She frantically e-mails John who is still in China and urges him to "come home soon," since she does not seem to be able to get arrested, writing that their protest is falling on "death ears." She suspects it's because she's a woman, but she is not sure. Anyway, he should come home and try. John flies back on the evening of the 30th, thinking it is the 31st, having become confused about the date because on his return he had to cross the international date line. The following day he goes out and "bags" a moose, finds a forest ranger, who just so happens to be the same ranger that witnessed Alice with a moose on two earlier ocassions, and confesses that "here it is November 1st, one day after the end of the 'moose season'," that he [John] has "deliberaterly and intentionally killed a moose ' and he is "darn proud of it, too." The forest ranger immediately arrests John. He is tried and convicted of attempting to hunt out of season and his case has now come before you on appeal.

As I suggested above, imagine that you are the judge in each of these four cases on appeal. Would you let these convictions stand? Or would you overturn the convictions of each of the four defendants. If so, why? If not, why not?

Write an opinion that captures your considered judgment in these four cases, think of the most powerful objections to your opinion, and respond to them

In each of these four cases, in John's, Victor's, Kathy's and Peggy's, the defendants are subjected to criminal punishment for attempting crimes that were impossible for them to commit. This is also a feature of the three puzzlers. John and Alice attempt to commit crimes that could not possibly result from the actions they undertake. So should any of these folks in any of these cases be punished. Might "impossibility" be a sufficient defense in each and every case of criminal attempt? Should it be? Or do some defenses of impossibility work in some cases but not in others?

You happen to have a number of readings on criminal attempts. Indeed you have always been interested in criminal attempts ever since you read a chapter in Alan Dershowitz' book, THE BEST DEFENSE, called "Whatever Else It May Be, It is Not Murder to Shoot a Dead Body: Man Dies But Once," pp. 85-116. You think you might take a quick look at that.

You realize that dershowitz discusses a case very similar to the puzzler where Alice stabs John, but only after he has already been dead of a heart attack for twenty minutes. You also decide to take a look at the Court of Appeals opinion in People v. Dlugash wherein the Court ruled that Dershowitz's client could be found guilty of attemtped murder, even though the personhe shoots was very likely dead at the time that Dlugash shot him. You wonder if there is anything in Dershowitz or Dlugash that might help you sort out your reasoning in your opinion in the four cases that have come to you on appeal.

How would the New York Appeals Court ruling in Dlugash apply to the cases now before you? As a Judge, presiding in John's, Victor's, Kathy's and Peggy's appeals, you suspect you ought to know. Of course you should, but in any event whatever your present level of understanding, you think that the Court's opinion in People v. Dlugash might give you some ideas (help you with the draft of your opinion in the cases now before you) and so you decide to hole up with it as well.

See People v. Dlugash People v.Dlugash at

You also decide to take another look at a chapter in Leo Katz's BAD ACTS AND GUILTY MINDS, a chapter on criminal attempts, called "The Crime That Never Was," pp. 276-299. You have always been an admirer of Katz and you look forward to re-reading what he has to say about attempts, although sometimes you find, after reading Katz on a particular problem in the law that you end up even more muddled than you were before you got started. Still you think that you cannot be much more muddled than you are at the moment and so you decide to take a second look at Katz, too, before writing your opinion.

You decide to re-read, too, an article you dimly remember from the Philosophy of Law class you took with a Professor Teuber at Brandeis some years ago, an essay by Sanford Kadish and Stephen Schulhofer, called "The Case of Lady Eldon's French Lace." It was in the PHILOSOPHY OF LAW text, edited by Feinberg and Coleman, which you have also held onto all these years on pages 741 through 745, if you remember correctly. "That should be interesting," you say to yourself, since the hypothetical case of Lady Eldon was clearly the model for the puzzler: "John (Finally) Tries To Do Something Nice for Alice."

Over the next twentty-one days you have to write an opinion in these four cases. Should John's, Victor's, Kathy's and Peggy's convictions be overturned or not? Whether you think they should or should not, what are the grounds for thinking as you do? In the course of writing your opinion state clearly and succinctly whether you agree with the reasoning of the Appeals Court in People v. Dlugash ? If so, why? If not, why not? Perhaps you agree with their conclusion but not with their reasoning. And does your own reasoning help to make sense of other attempt cases such as the case of John's attempt to do something nice for Alice and Alice's attempt to stabJohn to death as well as Alice's attempt to steal someone else's umbrella.

Write an omnibus opinion on whether to uphold or overturn John's conviction for attempting to hunt for moose out of season, Victor's attempt to kill Esmerelda, Kathy's attempt to receive stolen property and Peggy's attempt to poison Henry, consider what you believe are the best arguments on the other side, and respond to them. Under what circumstances and conditions ought a person be found guilty of an attempt to commit a crime? In the course of writing your opinion, explain how your ruling is in keeping or not with the Court of Appeals opinion in People v. Dlugash and state briefly how your own opinion in these four cases and the reasoning you deploy might at least help us to understand what you regard as intuitively appealing responses to the three puzzlers introduced here at the very outset.

Prepared: February 12, 2004 - 5:02:29 PM
Edited and Updated, February 13, 2004

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