27 Jul 2022


The Law of Inchoate Crimes: Attempted Murder

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Inchoate crimes, also known as incomplete crimes, are actions involving the disposition to commit or be indirectly involved in a criminal offense. Incomplete crimes are found within the “Commit a Crime” Process which has six sequential steps/stages (Alexander & Kessler, 1997);the first step is whereby the perpetrator conceives the idea of committing a crime, evaluates the idea, considers all the dynamics and weighs the pros and cons of the situation. The perpetrator resolves to commit the crime and then makes the necessary preparations for the execution of the crime and obtains the required equipment if any. In this process, the perpetrator also initiates execution of the criminal activity and then commits the crime to completion. Culprits cannot be tried for the first, second and third steps as it is not legal to arrive at a decision. The fourth and fifth steps are punishable as incomplete or inchoate crimes while the sixth step carries the gravest punishment. In the past, these types of crimes were classified as misdemeanors, but the penal code has since graded them as felony offenses as times and the magnitude and weight of criminal activities have changed. This paper will focus on attempted murder and explore the elements and legal issues circumventing inchoate crimes as a whole.

According to the Criminal Code, inchoate crimes include an attempt to commit the crime, conspiracy to commit the crime and solicitation to commit the crime (Robinson & Grall, 1983). The general rules and regulations regarding inchoate crimes indicate that a person cannot be accused of committing an inchoate crime and committing the actual crime concurrently. For instance, one cannot be accused of robbery and attempted robbery at the same time. However, this rule does not apply to cases of conspiracy whereby a criminal can be charged with murder and conspiracy to commit murder concurrently. Inchoate crimes indicate that, for a felony to be classified as inchoate, the culprit must have taken the initiative and done something that can be termed as a significant step towards commission of the said crime. Inchoate rules and regulations have also provided the guidelines for the “Mensrea”- the intention or know-how of wrongful conduct that forms part of a crime, which is contrary to the actions or conduct of the culprit. For the prosecution to secure a conviction in an inchoate crime case, they must establish Mens rea on the part of the accused beyond reasonable doubt.

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The scope and elements of criminal attempt 

Attempt to commit an illegal activity involves trying to commit the activity but failing to complete the intended actions. The perpetrator does something that can be considered as a substantial step towards the execution of the criminal activity but does not go through with committing the intended felony entirely (Husak, 1997). Therefore, the two primary elements of criminal attempt include intent to engage in a crime and conduct that can be determined as an important stride towards commission of the crime

When an attempt to commit a crime is punishable by the law, it is considered as different from the crime that was attempted. To be characterized as a significant step towards committing a crime, something more than just preparing for it has to be done. To establish that the perpetrator attempted to commit the crime in question, his or her supposed conduct must support the criminal intention to commit the crime. The accused must have enlisted in some activity that is considered a significant of the crime. Attempt falls slightly short below complete execution of the said crime. The intent is the most crucial element when seeking to establish whether an attempt to commit the crime has happened. A person cannot be convicted of criminal attempt if clear intent by the accused to commit the crime in question is not established beyond reasonable doubt. Illegal activity that happens as a result of negligence or recklessness cannot be classified as criminal attempt under the law. Under title 4 and chapter 15 of the Criminal Code, a criminal attempt activity that is a state jail felony is considered a class a misdemeanor (Dubber, 2015).

The scope and elements of criminal conspiracy 

A criminal conspiracy exists when two or more people agree to commit a crime or to accomplish an agenda via illegal means and channels after which they take action towards completion of the agreed cause. Conspiracy is punishable under the law regardless of whether the intended crime is committed or not. As many people can conspire to commit outlawed activities and it is not necessary that they take any action to further their objectives of committing the crime for them to be charged with conspiracy. The minute the co-conspirators decide to commit the crime, they become criminals, and at some point, they will all be charged with conspiracy, either collectively or individually (Manacorda & Meloni, 2011). Conspiracy law does not call for proof of particular intent, but rather requires that the perpetrators agree to involve themselves in outlawed activity. Attempts to conceal evidence also make one culpable of conspiracy. The elements of a conspiracy include;

An agreement between two or more people. The accord must be voluntary and coupled with the will and purpose to participate in furthering a common illegal cause.

The purpose of the agreement or the ways in which it is achieved must be illegal.

Commission of an overt act that follows the specifics of the accord between the conspirators and is performed with the intention to carry out the functions of the conspiracy (Manacorda & Meloni, 2011).

The scope and elements of criminal solicitation 

Criminal solicitation occurs when a person knowingly and intentionally requests, commands or invites another person to engage in criminal activity. The minute a person makes the request, gives the order or coerces someone else into committing a crime, he or she becomes culpable of solicitation and is liable for prosecution, whether the individual being solicited agrees to or declines the proposition (Holroyd, 2001). For prosecutors to get the guilty sentence for suspects charged with solicitation, they must prove beyond reasonable doubt that the defendant requested, petitioned or pressured to commit or engage in the execution of a crime. They must also provide proof that the defendant purposed and was determined to commit the crime. In addition, they must prove that the other person received communication containing the proposition to participate in crime from the defendant

The criminal solicitation must be demonstrated in a court of law by at least one or two witnesses and a substantial amount of corroborating evidence. Corroborating evidence connects the accused with the perpetration of the offense and is not attached or associated with evidence and facts provided by witnesses in the case. Corroborating evidence should be augmented enough to each step of the alleged solicitation process the accused applied when committing the offense. The evidence should include, the defendant’s acts, behaviors, assertions and any other condition that connects him/her to the crime. When a defendant is found guilty of solicitation, it is important to determine how many crimes he or she solicited. The following factors should be considered when arriving at this decision;

Were the crimes solicited part of a plot with a single aim or did each crime solicited have its specific aim or objective?

Were the offenses solicited to be carried out concurrently?

Were the crimes solicited to be committed at the same place?

Were the crimes solicited to be committed in similar or different fashions?

If there was defrayal involved in the solicitation, was it done collectively for the entire solicitation or was different amounts offered for each solicitation (Holroyd, 2001).

When the accused party is defending him or herself, they can assert that they did not commit the act or that they did not have criminal intentions if they went through with it. In some instances, a person cannot be charged with solicitation if they change their mind about following through with the intention to commit the crime. When they recant their intentions and communicate to the other party that the request, demand or proposal no longer exists, they can get themselves off the hook just in time before the whole situation metamorphoses into a prosecutable offense (Holroyd, 2001). If the criminal behavior the person was soliciting is weighty regarding the legal issues surrounding it and the penalties it carries, he/she might be required the police or any other necessary law enforcement agency to prevent concomitant criminal conduct from spreading out. Solicitation charges are dependent on the degree of the crime that was supposedly solicited. For instance, solicitation of murder carries a much bigger penalty than solicitation of prostitution.

Attempted murder 

Attempted murder is the situation where an individual with a solid intent to kill another individual takes a significant step towards execution of the act. Attempted murder is one of the most serious crimes in the legal society and is punishable whether or not the culprit succeeds in actually killing the target victim. Despite that some elements of attempted murder are straightforward; some issues relating to this crime may result in a dismissal or lesser penalty. This section will discuss the crime of attempted murder in terms of its elements, its prosecution, its defending and how the elements of inchoate crimes apply in it.

Elements of Attempted Murder 

To secure a conviction in an attempted murder case, prosecutors must prove to the courts that the perpetrator knowingly intended and purposed to kill another person (Lewandowski et al. 2004). They must also prove that the perpetrator made the necessary arrangements and took a direct but ineffectual step towards achieving his or her aim. Also, they must prove that the perpetrator conducted themselves in an intentionally reckless manner that exhibited blatant disregards for human life

In taking a direct step, a person who attempts to commit murder does more than just planning and preparing to execute the crime and demonstrates that he/she has set the plan in motion. A direct step points to an explicit intent to follow through with committing the crime. At this point, the only thing that prevents the culprit from actually killing the target victim is an interruption from an external condition. After taking this step, the person becomes culpable of attempted murder, even if their plans to kill another person are thwarted. However, if out of their free will, the person decides to abandon the plans before taking this direct step, then he/she cannot be prosecuted on attempted murder charges.

How the Elements of Inchoate Crimes Apply In Attempted Murder 

This crime falls under the criminal attempt category of inchoate crimes in the sense that the culprit purposes to kill a person and sets the wheels in motion and only falls short of committing the actual killing. The criminal conspiracy element of inchoate crimes also applies in attempted murder cases when the perpetrator conspires with other people to kill another person or other people. Conspiracy to commit murder is a rigorously indictable offense and often requires adjudication up to the Supreme Court level. The association of the accused with the conspiracy is the most significant element in any such cases. The criminal solicitation element of inchoate crimes applies in attempted murder cases when the culprit solicits, encourages, persuades or approaches a person with a proposition for them to kill another person. In this situation, the criminal charge is soliciting to murder, which is an indictable only offense and which a carries a maximum sentence of life imprisonment. Indictable – only offenses can only be adjudicated through trial in a court of law and not by settlement or any other form of resolution. Attempted murder is situated at the fourth and fifth stages of the “Commit a Crime” process (Alexander & Kessler, 1997). Due to the incomplete nature of attempt offenses, the prosecutors must establish intent that the accused person had the mentality of finishing the purported crime, in their efforts to secure convictions.

The Necessity of Attempted Murder Laws in the Criminal Code 

Attempted murder laws and statutes are an important fragment of the criminal code as they offer guidelines to stakeholders and policy makers in the criminal justice system on how to deal with cases in this area of criminal activity (Robinson & Grall, 1983). Apart from assisting the judiciary, legal experts, the legislature, the executive and law enforcement agencies in handling attempted murder and manslaughter case situations, the information on the criminal code also serves to educate the public, including would-be perpetrators on what kind of legal sanctions they would be facing if they decided to get involved in these atrocious crimes. The American criminal code directs that a person charged and convicted of an attempt to commit murder shall be imprisoned for not more than twenty years and shall be liable to a fine (Dubber, 2015). A person charged and convicted of an attempt to commit manslaughter shall serve a prison sentence of not more than seven years and shall be liable to a fine.

Degrees of Attempted Murder 

Attempted murder is categorized in two degrees; first - degree attempted murder and second - degree murder (Kelter, 2003). For a defendant to be charged with attempted murder in the first degree, they must have premeditated committing the act and willingly took the direct step towards executing the crime. A defendant who is convicted of first – degree murder faces the following penalties: life imprisonment with possible parole, victim restitution (the defendant has to pay money to the victim as redress for any harm inflicted on them), up to US$10000 in fines and amercements, revocation of the right to acquire, own, possess or carry a firearm. The criminal must also face a “Strike” in states that enforce the three strike laws (Dubber, 2015).

Attempted murder in the second degree is not as serious as the first degree. It appertains to cases that are not self – willed, intentional and premeditated. A criminal charged with or convicted for second - degree attempted murder faces the following penalties: Either five, seven or nine years in a state prison, victim restitution, up to US$10000 fine, revocation of the right to acquire, own, possess or carry a firearm and a “Strike” that enforces the three strikes law (Dubber, 2015).

Prosecuting Attempted Murder 

As it has been mentioned in this write-up, for prosecutors to secure a conviction in an attempted murder case, they must prove that the defendant intended to kill the target victim and that he/she took at least one direct step towards achieving that intention (Gillespie, 1989). These direct actions include;

Stalking, trailing and ambuscading the victim

Luring – the culprit entices the victim to go to a place that would be convenient for them to commit the crime

Constructing – this includes gathering the materials and equipment that the culprit deems necessary for the commission of the crime. For instance, the perpetrator collects and starts to assemble parts of an explosive device.

Soliciting – this involves the perpetrator persuading, commanding or even paying another person to commit murder on their behalf.

Breaking – in – the perpetrator illegally gains access to a place in search of the victim (Gillespie, 1989).

An instance of the intent to act is when the perpetrator conducts research on bomb making methodologies, procures the required materials and equipment and commences the bomb making process. An instance of the intent to kill is when the perpetrator fires a gun directly at the victim or hits the victim on a vital part of the body such as the head, using crude weapons such as clubs and baseball bats.

Case Example 

The People of the State of California vs Jarmaal Laronde Smith 

The defendant, Jarmaal Smith threatened to commit violent acts on a friend named Karen. A few months later, Jarmaal ran into Karen who was in the company of her boyfriend Renell and their three-month old son. An altercation ensued between Jarmaal and Renell, after which Jarmaal flashed out a gun. Renell got into the car and he, Karen and their son drove off. Jarmaal fired a single bullet which shattered the car’s rear window and lodged in the driver’s door, nearly missing the child and Karen, who was driving the vehicle.

Jarmaal was tried and a jury in the Sacramento County Superior Court found him guilty of several offenses, among them, the attempted murder of Karen, the attempted murder of Karen and Rannell’s son and malicious damage. For the two attempted murders, Jarmaal was sentenced to two state prison terms of 27 years each. He launched an appeal at the California Court of Appeal but the convictions were upheld. Jarmaal petitioned the California Supreme Court to review the adequacy of the evidence that backed his conviction for attempted murder of the baby. He argues that there was no ample proof that he intended to kill the baby. The attorney general agrees with both convictions because Jarmaal created what is known as a “kill zone” when he fired the bullet, with full knowledge that there was more than one person in the vehicle (The People of the State of California vs Jarmaal Laronde Smith, 2017).

Defending Attempted Murder 

For a defendant to secure an acquittal in an attempted murder case, he or she must use the services of a highly skilled lawyer. There are several defense strategies in place for exploration by defense teams. They include;

Self-defense or defense of others – the strategy argues that a person can use reasonable force to protect themselves or other people from situation where they ascertain their safety and security to be at risk

The castle doctrine –when someone intrudes or trespasses into on your home in a manner that is surprising and suggestive of the fact that they mean you harm, you are entitled to use deadly force against them

Abandonment – if the defendant abandons the plan to commit murder before he or she takes the first direct action/ step, they are not liable for prosecution on attempted murder charges

Insanity defense – to be legally insane means the defendant did not comprehend the full scale of his /her criminal act or they did not realize that their actions were morally wrong. If the defense lawyers can prove this to be the case, then the defendant cannot be convicted (Gillespie, 1989).

If the defense attorneys cannot completely get the defendant of the hook for attempted murder, they can seek to have the charges reduced to voluntary manslaughter, which is described in legal circles as the unlawful killing of a person without malice. The attorneys can argue that the defendant was led to acting due to the following reasons;

Provocational defense – the defendant was provoked to act either in a sudden quarrel or altercation or the heat of passion

Imperfect self – defense – the defendant believed that they were in imminent danger and as a result, they used excessive force. The belief must be proven to be objectively plausible (Gillespie, 1989).


Attempted murder is one the most serious offenses that can be inflicted on a human being. It is also one of the gravest and most weighty felonies a person can be charged with. Attempted murder has the ability to ruin lives for both the plaintiff and the defendant. For justice to prevail in attempted murder cases, everyone involved in the cases must execute their duties in the most competent and professional manner possible. The police involved in collecting evidence, carrying out forensic tests and conducting arrests must ensure that every single detail of the purported crime is captured and documented. The arrest and booking procedures should be by the book. For both the plaintiff and the defendant to get the desired results from attempted murder cases, they must acquire the services of adept defense and prosecution lawyers respectively. These lawyers must possess a deep comprehension of the law and must have significant courtroom experience.


Alexander, L., & Kessler, K. D. (1997). Mens rea and inchoate crimes. The Journal of Criminal Law and Criminology (1973- ), 87(4), 1138-1193.

Dubber, M. D. (2015). An introduction to the Model Penal Code .

Gillespie, C. K. (1989). Justifiable homicide: Battered women, self-defense, and the law (p. 129). Columbus: Ohio State University Press.

Heide, K. M., Spencer, E., Thompson, A., & Solomon, E. P. (2001). Who's in, who's out, and who's back: follow ‐ up data on 59 juveniles incarcerated in adult prison for murder or attempted murder in the early 1980s. Behavioral sciences & the law, 19 (1), 97-108.

Holroyd, J. (2001). Incitement—A Tale of Three Agents. The Journal of Criminal Law, 65 (6),

Husak, D. (1997, June). Attempts and the philosophical foundations of criminal liability. In Criminal Law Forum (Vol. 8, No. 2, pp. 293-310). Springer Netherlands.515-520.

Lewandowski, L. A., McFarlane, J., Campbell, J. C., Gary, F., & Barenski, C. (2004). “He killed my mommy!” Murder or attempted murder of a child's mother. Journal of Family Violence, 19 (4), 211-220.

Manacorda, S., & Meloni, C. (2011). Indirect Perpetration versus Joint Criminal Enterprise Concurring Approaches in the Practice of International Criminal Law. Journal of International Criminal Justice, 9 (1), 159-178.

Robinson, P. H., & Grall, J. A. (1983). Element analysis in defining criminal liability: the model penal code and beyond . Stanford Law Review, 681-762.

The People of the State of California vs Jarmaal Laronde Smith. (2017). Retrieved from http://www.courts.ca.gov/documents/s123074sum.pdf

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