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Attempt to commit a crime

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.

In order to convict a defendant of attempting to commit a crime, the Commonwealth must prove beyond a reasonable doubt that:

  1. The defendant specifically intended to commit the underlying criminal offense; and
  2. The defendant performed an overt act toward the commission of the crime which came reasonably close to committing the crime.

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 attempt to commit a crime without performing an overt act toward the commission of the crime.

  • An overt act can reasonably be expected to trigger a sequence of events that will cause the crime to be committed.
  • However, an overt act does not have to make the crime inevitable. A defendant can be convicted of attempted murder for shooting a gun at someone, even if he had bad aim and missed the intended victim. A defendant can be convicted of attempted breaking and entering if he unsuccessfully tried to break a window to gain access to another person’s home. A thief can be convicted of attempted larceny for putting his hand in a woman’s purse with the intent to steal its contents, even if the purse turned out to be empty.
  • An overt act that is part of the initial planning stage of committing a crime is typically insufficient to support a conviction. If additional overt acts are necessary to complete the criminal act, the would-be criminal might change his mind and abandon his efforts to violate the law.
  • 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.

Avenues of Defense

Lack of Intent

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.

Lack of an Overt Act

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.

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, Attorney Spring has the necessary experience to aggressively defend your case.