Understanding Attempted Murder: The Story of Jack, Bert, and Pratt

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By Elizabeth Hall
In the case against Jack in the matter of attempted murder; this is what is understood to have happened: Pratt and Bert were sitting in a car, 
when approached by defendant Jack.  He then, upon approaching, aimed a firearm at Bert and fired.  Jack missed his target and killed Pratt instead.  He then, aims the gun again to kill Bert, the intended target.
 Unfortunately for Jack, the gun jams, and he is unable to complete the act of killing Bert.  Besides charges of actually killing Pratt, Jack is also charged with the attempted murder of Bert. On the day that Jack went to court, his lawyer attempted to have the charge of attempted murder dismissed in the case.  He thought he could because it was impossible for Jack to have killed Bert if the gun had malfunctioned.  This motion is upheld by the court system.  This paper will discuss the decision made by the courts, and whether it was correct by the standards of the law concerning attempts.  It appears that the decision was not just by the standards of law because the decision did not take into consideration the elements of the criminal act, the type of attempt it would fall under, or the fact that impossibility is never a valid legal defense against an attempt charge (Lippmann, 2007). 
The Court’s Decision
The courts in this case allowed the defense to file the motion and at the trial decided that they would grant the motion to dismiss the attempted murder charge against Jack.  According to the New York Law Journal (2011) New York Lawyer website, the court was wrong in dismissing the charges because Jack intended to kill Bert when he attempted to fire the gun on both shots. The fact that he missed both times is irrelevant.  Kentucky Revised Statutes, (1994), states that a person is guilty of an attempt, if they intentionally do anything or fails to do anything that is a “substantial step in a course of conduct planned to culminate in his commission of the crime”.  It also holds that ” it is an act or omission which leaves no reasonable doubt as to the defendant's intention to commit the crime which he is charged with attempting (Kentucky Revised Statutes, 1994)”.
English: Memorial for a hanged man, North Badd...English: Memorial for a hanged man, North Baddesley. The memorial stone of a man hanged for attempted murder in 1822 (Photo credit: Wikipedia) 

Elements of the Criminal Act
In order to classify a crime of attempt, there must be three elements present. These elements must be defined and clear.  The first element is that the criminal must have the intent to commit the crime. Legally this is called Mens Rea, or guilty mind.  The next, requirement holds that, there must be present a substantial act or omission that moves the criminal solidly towards the commission of a crime. This element of a criminal act is called Actus Reus, or guilty act.  This act must be more than mere preparation to commit a crime and must stand up to the standard tests the legal system uses to classify this. (Lippmann, 2007)
These tests consider two different approaches to the classification (Lippmann, 2007).  These are the objective approach and the subjective approach.  The objective approach requires that the criminal commit an act that comes close to the commission of the crime, while the subjective approach considers the intent instead of the act itself and the danger posed to society by the attempt. The tests are; the physical proximity test which holds that the criminal must be in the physical proximity of the commission of the crime, and the unequivocality test, which states that an individual would unequivocally come to the conclusion that the perpetrator intended to commit a crime based on actions he has already done.  The last test is the Model Penal Code substantial step test and requires that an act represent an unmistakable intention to commit a crime.  The third and final requirement for a classification of attempt is that they must have failed to commit the actual crime notes Lippmann, (2007).
In Jack’s case, all of these elements were clearly present.  When he approached and fired the weapon and mistakenly killed Pratt, the intent was to kill Bert.  When Jack fired the gun a second time at Bert, he clearly had the intent to kill him.  The act of firing the weapon, not just once, but twice was clearly a substantial act towards committing the crime of murder.  The last requirement is that he fails to kill Bert due to the gun jamming. The fact that the attempt was an impossible attempt is irrelevant because if the gun had not jammed, which was an extraneous interference, does not change the fact that Jack’s intent was to murder Bert with the gun, because he did not voluntarily back out of the commission of the crime.  One could easily classify this attempt with the physical proximity test, as Jack was in close firing range to the vehicle.
Type of Attempt
There are only three types of attempts notes Lippmann (2007), with the first type being classified as a complete (but imperfect) attempt.  An attempt is termed complete when the criminal completes every step involved in committing the crime but fails to complete the job anyway.  The second type of attempt is an incomplete attempt.  This happens when an attempt is made, but interrupted or failed, due to reasons out of the perpetrator’s control.  An example of this would be Jack’s case, as he only failed to commit the crime due to the gun jamming.  This brings us to the third loose classif
ication, which is impossibility.  The attempt is incomplete because the gun jamming represents a factual impossibility, which is never considered a viable defense against an attempt charge according to Lippmann (2007). 
Impossibility, Should it Matter in Legal Defense?
There is more than one type of impossibility notes Lippmann (2007). In consideration of Jack’s case, the courts should not have granted the motion to dismiss charges, because a factual impossibility such as the gun jamming was an extraneous factor that was completely out of his control.  As far as he was concerned, if the gun had fired, he was going to kill Bert, thus legally we must consider that he did intend on murdering Bert.  He should legally have to face attempt charges, because the attempt was clearly defined and performed.  Had the gun fired there would have been three possible outcomes.  Jack could have killed Bert, and been charged with first-degree murder, because he searched Bert out, with a gun, and fired upon him, causing his death.  He could have missed Bert with the second shot as well, but still be facing attempt charges, and he could have then had the choice as to whether he would fire again. At the very least, he would have qualified his crime as an attempt to commit murder charge easily. 
English: Types of prisoners. Sentenced to 13 y...English: Types of prisoners. Sentenced to 13 years of hard labor for attempted murder Русский: Арестантские типы. Осуждённый на 13 лет каторжных работ за покушение на убийство (Photo credit: Wikipedia)There are, however, other cases where impossibility is not factual, and fall into the classifications of legal impossibilities and inherent possibilities, both of which are considered valid defenses (Lippmann, 2007).  Legal impossibilities are those, which are mistaken by the law itself, not the facts, where there are really no laws broken.  Inherent impossibilities are those considered when the criminal could not have reasonably committed the crime as charged.  A good example of this, considering Jack, would be if the only act he had taken were to stick pins in a voodoo doll, or prayed to a statue that Bert would die and then been accused of attempted murder.  
Is it Ethical to Dismiss Charges on Impossibility?
Whether it is ethical to dismiss charges on impossibility would depend on which type of possibility the defense was claiming for the motion to dismiss.  In the case of legal impossibility there would have been no actual crime or attempt committed.  In the case of inherent impossibility, the charges would have been impossible to be completed.  Factual impossibility does not excuse the accused of responsibility of criminality, and the consequences of the actions, because the inability to complete the action had nothing to do with the intent of the perpetrator of the act. The courts were wrong to dismiss Jack’s case due to factual impossibility, but ethically, there are reasons to dismiss some charges based on impossibility outside of this particular case.  (Lippmann, 2007)

In the end, it would appear that the decision was not just by the standards of law.  The motion to dismiss the attempted murder charges should have been dismissed, instead of granted.  A factual impossibility is never grounds to dismiss charges of attempt (Lippman, 2007).  Legal and inherent impossibilities however, can be valid reasons for dismissal of charges.  The court’s decision did not seem to take into consideration the elements of the criminal act, or the type of attempt it would classify as before making this decision.  (Lippmann, 2007). 

Lippmann, M., (2007).  Contemporary Criminal Law: Concepts, Cases, and Controversies.
          Thousand Oaks.  Sage Publications, Inc.
Kentucky Revised Statutes (1994) 506.010.  Criminal Attempt.  Retrieved From: http://www.lrc.ky.gov/krs/506-00/010.PDF
New York Law Journal, (2011).  New York Lawyer: Passing the Bar Exam, February 2000 NY Bar Exam Questions and Sample Answers. Retrieved From: http://www.nylawyer.com/display.php/file=/exam/qa/200barqa2

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