Editing Attempt (section)

==The ''mens rea'' of attempted crime==
[[intent (law)|Intent]] is the essence of attempt.  Only a direct and specific intent will support a conviction.

[[Recklessness (law)|Recklessness]] is not a sufficient ''mens rea''. That means that the defendant must have decided to bring about, so far as lay within their powers, the commission of the full offense.  However, [[transferred intent]] applies so that if Alice intends to murder Bob with a gun, but the shot accidentally misses and kills Carol, then Alice is guilty of the murder of Carol and the attempted murder of Bob. Alternatively, if Alice intends merely to frighten Bob, and that same shot intentionally misses Bob but accidentally kills Carol, Alice may be guilty of assaulting Bob (among other things), but not attempted murder, unless Alice intended that such fright would kill Bob. Whether Alice would be guilty of murdering Carol would depend on the specific circumstances and what Alice foresaw. The punishment for an attempt is often tied to that of the intended offense (e.g., half the fine, or half the prison time).

Recklessness will sometimes suffice for 'circumstances' of the crime. To be liable for attempted rape a defendant need not actually intend to have non-consensual intercourse, mere recklessness towards the lack of consent is enough (R v Khan). Likewise with attempted aggravated arson, recklessness towards loss of life will suffice (A-G's Reference #3 1992).

=== England ===
Under English law, ''R v Walker and Hayles'' (1990) 90 Cr. App. R. 226 deals with the issue of the power of a court to [[imputation (law)|impute]] intention based on foresight. The defendants threw their victim from a third floor balcony and were charged with attempted murder. The judge directed the jury that they could infer intention if there was a high degree of probability that the victim would be killed and if the defendants knew "quite well that in doing that there was a high degree of probability" that the victim would be killed. The Court of Appeal did not accept that the reference to "very high degree of probability" was a misdirection, but Lloyd LJ. stated that in the rare cases where an expanded direction is required to include foresight, courts should use ''virtual certainty'' as the test, rather than ''high probability'' (see also ''R v Woollin'' [1998] 3 WLR 382 (HL)).

=== United States ===
Generally, the rule in the United States for the ''mens rea'' of an attempt offense is divided into two parts: (1) the actor must intend to commit the act that constitutes the ''actus reus'' of an attempt; and (2) the actor must perform that act with the specific intention of committing the target crime.<ref name=":0" />

In many states in the United States, it is impossible, as a matter of law, to attempt to commit a crime whose underlying ''mens rea'' is only recklessness.<ref name=":0" /> For example, in ''[[State v. Lyerla]]'', the defendant Lyerla randomly shot into a truck 3 times after being goaded by the driver of the truck.<ref name="Materials 2012">Criminal Law - Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John Kaplan, Robert Weisberg, Guyora Binder, {{ISBN|978-1-4548-0698-1}}</ref> One shot killed the driver and the others did not hit the driver or either of 2 passengers.<ref name="Materials 2012" /> The [[South Dakota Supreme Court]] found that although Lyerla was guilty of reckless [[murder#Degrees of murder|second degree murder]] of the driver, he could not be guilty of recklessly attempting to murder the passengers, because attempt requires a higher level of intent than recklessness. Further, the overwhelming rule in the United States is that no one can be convicted of attempted [[involuntary manslaughter]] because that offense is based on the ''mens rea'' of [[criminal negligence]] or recklessness.<ref name=":0" />

====Model Penal Code====
[[Model Penal Code]] Section 5.01 defines criminal attempt to commit a crime as occurring when a defendant acts with the culpability required to commit that crime, and either 
:(1) purposely engages in conduct that would be a commission of the crime if the attendant circumstances were as defendant believed them to be, or 
:(2) purposely acts (or omits to act) with purpose of causing (or belief that the act will cause) a result that is an element of the crime and that no further act by defendant is needed, or 
:(3) purposely acts (or omits to act) when that act (or omission) constitutes a substantial step in a planned course of conduct that ends in her commission of the crime, if attendant circumstances were as she believed them to be.

The "purpose" (as in situation 1) or "belief" (as in situation 2) required for an attempt do not necessarily encompass the attendant circumstances of the crime. Instead, the defendant must possess as to the attendant circumstances the degree of culpability required to commit the target offense, as specified in the elements of that offense.

=====Grading=====
Model Penal Code §5.05 on [[Grade (crime)|grading]] criminal attempt says, "Except as otherwise provided, attempt... [is a crime] of the same grade and degree as the most serious offense that is attempted... An attempt... to commit a [capital crime or a] [[felony of the first degree]] is a [[felony of the second degree]].