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In Massachusetts, attempting to commit a crime constitutes a crime itself. A conviction for attempt carries a potential prison sentence, the length of which is determined by the maximum penalty of the attempted crime. If you have been accused of attempting to commit a crime, contact Spring & Spring at (617) 513-9444 to speak with an attorney. We can discuss your legal rights and how we can help during the investigation process.
An attempted crime is still a crime in Massachusetts. Even if the crime was not carried out or failed (such as a robbery), it is still an offense. A person can be charged with an attempted crime if it is intercepted or prevented from occurring.
In order to convict a defendant of attempting to commit a crime, the Commonwealth must prove beyond a reasonable doubt that:
An overt act is a real, physical action taken by the defendant. An individual who makes plans to commit a crime, or talks about committing a crime, cannot be convicted of an attempt to commit a crime without performing an overt act toward the commission of the crime.
A defendant’s extensive planning, on the other hand, might allow for an attempt conviction to stand. It is a question of degree – how close did the defendant’s preparation come to accomplishing the criminal act? Courts consider a variety of factors on this point, including: the seriousness of the crime; the certainty of the result; and the potential seriousness of harm that would result from the crime.
Simply preparing to commit a crime does not necessarily rise to the level of an attempt to commit it. As Massachusetts’ jury instructions explain, “Preliminary preparations to commit a crime are not enough.” Attempt requires specific intent to commit the underlying crime, coupled with an overt act. This overt act does not necessarily have to accomplish the crime, but it must come “pretty near” to do so, according to the jury instructions.
Massachusetts courts generally describe attempt in two ways. The first is when the defendant performs the last act required to complete a crime, but the efforts are thwarted for some unanticipated reason, such as bad aim or a mistake in judgment. Under this description, an attempt is a partial execution of the crime but a failure to consummate it. For example, a person may try to shoot someone but miss the target. They have done everything possible to complete the crime, but their objective was not achieved.
The second category of attempt occurs when a person is still in preparatory mode but has not committed the last act necessary to achieve the crime. The overt act must lead to the actual commission of the crime after the defendant has made preparations. You can think of this as preparation +.
There are preparations, as well as some additional act that could lead to the crime being achieved. When further acts on the part of the defendant who has completed the first steps to prepare the crime are necessary, the first steps are not considered an attempt. For example, if a person buys a knife to stab someone and then decides to cut tomatoes instead, the preparation of buying the knife is insufficient.
In a typical criminal case, the defendant’s actions may occur in the following sequence:
In some situations, however, preparations can amount to an attempt. For example, obtaining counterfeit machines may be enough to demonstrate an intent to make counterfeit money. The Massachusetts jury instructions explain that it is a question of degree. If the preparation comes very near to accomplishing the act, the intent to complete it renders the crime so probable that the act would be a criminal attempt. Determining whether any particular acts are mere preparations vs. an attempt requires evaluating factors such as:
Attempted crimes are considered inchoate, meaning they are not fully developed but are in the process of formation. Because the defendant still had the intent to commit the crime and would have accomplished the crime but for some intervening event they did not foresee or intend, attempted crimes are still subject to criminal punishment.
Some courts use different tests to distinguish between attempt and mere preparation. One is the proximity rule, which considers the act and the time when it was completed. If the act occurs next to the commission of the crime, it may be considered an attempt. Courts may consider what remains to be done rather than what has already been done.
Another test is the equivocality test. Under this test, certain acts portray a criminal defendant’s intention to undoubtedly carry out a criminal act. The substantial step considers whether a defendant took a substantial step toward committing the crime.
Common types of attempted crimes prosecuted in Massachusetts include:
If you are facing criminal charges for an attempt to commit a crime, speak to an experienced criminal defense lawyer for help today.
According to the law of the Commonwealth, the penalties for an attempted crime include:
As you can see, the penalties you face for an attempted crime are based on the underlying crime.
At sentencing, the court can consider any mitigating or aggravating factors. Mitigating factors reduce the perceived culpability of a defendant and may include:
Aggravating factors indicate greater criminal culpability and risk to the public. Some aggravating factors include:
Experienced criminal defense lawyers will try to highlight the factors that weigh in favor of more leniency so they overshadow any negative factors.
Various criminal offenses may be related to an attempt to commit a crime, such as:
A conspiracy is an agreement between two or more people to commit an illegal act. Like with attempt, it does not matter if the act is actually completed or successful. It does not even matter if any steps were taken to carry out the plan. The plan itself is the crime.
To establish conspiracy, prosecutors must prove the following:
Criminal solicitation of a crime involves urging, advising, commanding, or otherwise inciting another to commit a crime. In plain language, it often involves offering to pay someone else to commit a crime. Solicitation is an inchoate offense that is treated separately from the solicited crime. For example, someone who pays someone else to murder their spouse could be charged with solicitation of murder, while the person who commits the crime could be charged with murder. A person is guilty of solicitation even if the other person did not commit the crime or was not actually communicated to the solicited person, as long as it was designed to be.
Aiding and abetting refers to providing assistance to someone else to commit a crime. To convict someone for aiding and abetting, the prosecution must prove the following:
Like with the other offenses described above, it’s not necessary to prove that the crime was successful, only that the defendant intended on helping to commit the crime.
Another potential crime that a person can be charged with is being an accessory to a crime if the underlying crime is a felony. This means that the person helped with the crime, but they were not the primary perpetrator. A person can be charged as an accessory before the fact if they helped prepare for the crime, or as an accessory after the fact if they helped conceal it.
Experienced criminal defense attorneys will carefully review the circumstances involved in your case to raise potential defenses, such as:
The Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant intended to commit the crime that was allegedly attempted. Proving intent is sometimes difficult, as the prosecutor is required to ask the jury to speculate about what the defendant was thinking during the alleged planning stage of the crime.
Because it is not illegal to talk about committing a crime or even to begin to plan to commit a crime, these cases often turn on whether the prosecutor can prove the defendant committed the overt act required for a conviction. A common defense is that while the defendant contemplated violating the law, he never committed an overt act that would have put into motion the chain of events that would have constituted the crime.
An abandonment defense argues that if a defendant changed their mind about carrying out the offense, they should not be held criminally responsible. An abandonment may require showing that the defendant took steps to prevent the crime from happening.
An impossibility defense argues that the criminal act could have not been committed, based on the circumstances. For example, a defendant could not have committed murder because they knew the bullets they loaded in the gun were fake.
Entrapment occurs when a person’s will is overcome by a law enforcement officer pressuring them to commit a crime that they otherwise would not have committed. For example, a person may be charged with solicitation for prostitution when they agreed to pay an undercover law enforcement officer. The defendant may argue that the agent was coming on to them so strongly that they would never have agreed otherwise.
An experienced criminal lawyer can review your case and evaluate the potential viability of these or other defenses.
Attempted crime charges can be difficult to handle alone. You may not understand why you are being charged with a crime, and you may not have even intended to commit the crime. In these situations, you need an experienced criminal defense attorney on your side.
Chris Spring has handled hundreds of cases alleging attempt to commit a crime, both as a prosecutor in the Middlesex District Attorney’s Office and as a defense attorney. If you are charged with attempting to commit a crime, contact attempted crime defense lawyer Chris Spring. He has the necessary experience to aggressively defend your case.