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Spring 2000


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11. 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 smuggliing, but is he guilty of a smuggling attempt?



Commentary. 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 both have a "guilty mind" (mens rea) and performed a "bad act" (actus reus). The mens rea requirement is fairly straightforward: one must have intended to commit the crime that one is charged with attempting. But the actus reus requirement is more complex, one difficulty being how to decide how much a defendant has to do, how far he has to go in order to have "made the attempt."

But the stickiest problem in the law of attempts 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? 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 for him to have committed a crime, even if he had completed what he was doing. The grounds for these distinctions, however, are not all that clear.

The eleventh puzzler is adapted from a famous hypothetical case invented by a Dr. Wharton and published in 1932 called "The Case of Lady Eldon's French Lace":

Lady Eldon, when traveling with her husband on the Continent, bought what she supposed to be a quantity of French lace, which she hid, concealing it from Lord Eldon in one of the pockets of the coach. The package was brought to light by a customs officer at Dover. The lace turned out to be an English manufactured article, of little value, and, of course, not subject to a duty. Lady Eldon had bought it at a price vastly above its value, believing it to be genuine, intending to smuggle it into England.

Dr. Wharton thought that she ought to be found guilty of an attempt since she intended to smuggle dutiable lace into England. If we follow Dr. Wharton's lead, John should be convicted of a criminal attempt since he tried to smuggle what he believed to be a dutiable item into the country, even though what he brought into the country was not, in fact, subject to a duty. Do you agree? Is this also your decision?

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