To win a conviction for attempted murder, a prosecutor must prove two elements beyond a reasonable doubt: that the defendant specifically intended to kill another person, and that the defendant took a concrete action, a substantial step, toward carrying out that killing. These are the elements of attempted murder, and both have to be proven. Fail on either one and the charge collapses, which is why contested cases usually turn on what the defendant was thinking and how far they actually got.
Attempt is a narrower charge than completed murder on the mental side. For a finished homicide, extreme recklessness or an intent to cause only serious injury can be enough. For an attempt, nothing short of a conscious goal to kill will do.
Specific Intent to Kill
Attempted murder demands the highest mental state recognized in criminal law. The defendant must have consciously wanted the victim to die. Acting with extreme recklessness, or intending only to injure, does not satisfy the element even if the victim nearly died as a result.
The Model Penal Code frames this by requiring that the defendant act “purposely” with respect to causing the victim’s death. A person acts purposely when “it is his conscious object to engage in conduct of that nature or to cause such a result.”1Tanaka Criminal Law Casebook. Model Penal Code (MPC) 2.02 General Requirements of Culpability In plain terms, the defendant must have been trying to kill. Hoping the victim might survive, or being indifferent to whether they lived, does not clear the bar.
Two examples make the line concrete. A defendant who fires a gun recklessly into a crowd without targeting anyone has not formed the specific intent needed for attempted murder, even if someone was gravely wounded. A defendant who punches another person intending to hurt but not kill them has not either, even if the punch nearly proved fatal.
How Prosecutors Prove Intent
People rarely announce an intent to kill, so prosecutors almost always build the case on circumstantial evidence. Juries are permitted to infer specific intent from the defendant’s actions, the surrounding circumstances, and common sense. Several patterns come up again and again.
The weapon matters. The location of wounds matters more. Shooting someone at close range in the head or chest is powerful evidence of intent to kill, because death is the expected result of such an act. Multiple stab wounds or repeated blows to the head point in the same direction. A single punch during an argument, by contrast, makes the intent element hard to prove even when the injury is severe.
Words also carry weight. Threats made beforehand (“I’m going to kill you”) and admissions afterward are routinely used to show what the defendant had in mind. Planning adds another layer: researching the victim’s schedule, buying a weapon shortly before the attack, or showing up prepared with items that have no innocent explanation.
This is where contested attempted murder cases are usually won or lost. The physical evidence may clearly show a dangerous act, but if the defense can raise reasonable doubt that the defendant actually wanted the victim dead, as opposed to wanting to hurt or scare them, the jury may convict only on a lesser charge.
The Substantial Step
Intent alone is not enough. The defendant must also have taken a real action toward the killing, something beyond thinking, talking, or early planning. Under the modern standard applied in most jurisdictions, that action must be a “substantial step” toward committing the crime and must be “strongly corroborative of the actor’s criminal purpose.”2Tanaka Criminal Law Casebook. Model Penal Code (MPC) 5.01 Criminal Attempt The act itself must point toward the crime. Buying groceries is not a substantial step toward anything criminal, even if murder was on the defendant’s mind at the time.
The Model Penal Code lists specific categories of conduct that qualify as a substantial step when they fit the defendant’s criminal purpose:
- Lying in wait, searching for, or following the intended victim.
- Enticing or seeking to entice the victim to go to the place planned for the killing.
- Scouting the place contemplated for the crime.
- Unlawfully entering a structure, vehicle, or enclosure where the crime is to occur.
- Possessing materials specifically designed for the crime, or materials that serve no lawful purpose under the circumstances, such as a disguise or poison.
- Collecting or fabricating tools or weapons at or near the planned scene when that gathering has no lawful use.
- Soliciting an innocent person to engage in conduct that would be part of the crime.
The list comes from MPC Section 5.01(2) and is not exhaustive. Other conduct can qualify if it strongly supports the defendant’s intent.
Preparation Versus a Substantial Step
The line between preparation and a substantial step is the most litigated boundary in attempt law. Thinking about killing someone is not a crime. Talking about it generally is not either, unless it crosses into solicitation or conspiracy. Buying a commonly available item like a kitchen knife does not, on its own, corroborate an intent to kill.
Combinations change the picture. Purchasing that same knife along with duct tape and rope, renting a vehicle the victim would not recognize, and driving to the victim’s neighborhood starts to look very different. Courts evaluate the totality of the defendant’s conduct, not each act in isolation.
The substantial step standard replaced older common law tests that set a much higher bar. Under the “dangerous proximity” test, the defendant essentially had to be on the verge of completing the crime before attempt liability could attach. The MPC approach deliberately reaches further back into the sequence of events, letting prosecutors charge attempt earlier. A handful of jurisdictions still apply some version of the older proximity rule.
Degrees of Attempted Murder
Many states divide attempted murder into degrees, mirroring the way they classify completed murder. First-degree attempted murder typically requires premeditation and deliberation on top of the specific intent to kill. The defendant must have thought about the killing beforehand and made a conscious decision to go through with it, rather than acting in the heat of the moment. Planning the attack days in advance, buying a weapon for the purpose, and traveling to the victim’s location are the kinds of facts that support a first-degree charge.
Second-degree attempted murder still requires specific intent to kill but not premeditation. A spontaneous decision to kill during a sudden confrontation can qualify. The distinction matters at sentencing, where first-degree charges carry significantly longer prison terms.
Attempted Murder Versus Aggravated Assault
The line between attempted murder and aggravated assault confuses defendants, victims, and sometimes lawyers, because the physical conduct can look identical. Both can involve shooting, stabbing, or beating someone severely. The difference is entirely about intent. Attempted murder requires proof that the defendant intended to kill. Aggravated assault requires only proof that the defendant intended to cause serious bodily injury or acted with extreme recklessness.
That distinction gives prosecutors meaningful charging discretion. If a defendant stabs someone in the torso, the prosecutor can charge attempted murder if the evidence supports an intent to kill, or aggravated assault if the evidence better fits an intent to seriously injure. Defense attorneys regularly push for the lesser charge by arguing that the defendant’s actions, while violent, were not aimed at causing death. A single stab wound to the arm tells a different story than repeated thrusts to the chest and neck.
Defenses That Attack the Elements
Impossibility
When an attempt fails because the crime turned out to be impossible to complete, the reason for the impossibility decides whether a conviction can still stand.
Factual impossibility is not a defense. If the defendant did everything they meant to do with the purpose of killing someone, and only some unknown fact prevented the death, the attempt charge holds. Shooting into a bed intending to kill the person who normally sleeps there, only to find the bed empty, is still attempted murder. The intent was present and the substantial step was taken; a lucky break for the victim does not erase either element. The Model Penal Code reinforces this by defining attempt based on “the circumstances as [the defendant] believes them to be,” so a mistaken belief about the facts does not help the defendant.3Tanaka Criminal Law Casebook. MPC 5.01 Criminal Attempt
Legal impossibility works differently and is a recognized defense. It applies when the defendant’s intended actions, even if completed exactly as planned, would not actually be a crime. As one court described it, “legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime.”4OpenCasebook. Criminal Law Casebook – Notes and Questions-Impossibility This almost never arises in attempted murder, because killing another person is always illegal, but it matters in attempt law more broadly.
Voluntary Abandonment
A defendant who formed the intent and took a substantial step can still raise the defense of voluntary abandonment, sometimes called renunciation. Under the MPC it is an affirmative defense, which means the defendant carries the burden of proving it. The defendant must show they abandoned the criminal effort or prevented the crime from being completed, and that the abandonment reflected a genuine and complete change of heart.
Two words carry the weight: “complete” and “voluntary.” Abandonment is not voluntary if it was triggered by something that changed the defendant’s risk calculation rather than their moral outlook. Spotting a security camera, hearing sirens, discovering the victim had a bodyguard, or realizing the weapon had jammed does not count. The defendant stopped because the crime got harder, not because they reconsidered. Abandonment is also not complete if the defendant merely decided to postpone, wait for a better opportunity, or switch targets. “Not today, but next week” is not abandonment.
Successful abandonment defenses are rare in practice. Most defendants are caught mid-act, and those who did stop on their own usually have trouble proving their motive was conscience rather than external pressure.
Penalties
Attempted murder is one of the most heavily punished crimes short of a completed homicide. Under federal law, attempted murder within federal jurisdiction carries a maximum of twenty years in prison, a fine, or both.5Office of the Law Revision Counsel. 18 USC 1113 – Attempt to Commit Murder or Manslaughter State penalties vary widely but frequently reach 15 to 30 years or more for first-degree attempted murder, with life sentences possible when aggravating factors are present.
The Model Penal Code generally grades an attempt the same as the completed crime, on the theory that the defendant demonstrated the same dangerousness whether the victim lived or died. The one exception is that an attempt to commit a first-degree felony is graded as a second-degree felony.6UNODC. Model Penal Code Section 5.05 – Grading of Criminal Attempt, Solicitation and Conspiracy Many states do not follow this approach and impose lighter sentences for attempts than for completed offenses.
A conviction typically results in a permanent felony record, loss of firearm rights, and lasting difficulty with employment and housing. Courts may also order restitution for the victim’s medical expenses, rehabilitation costs, and lost income. In federal cases, restitution for crimes causing physical injury is often mandatory.7U.S. Department of Justice. The Restitution Process for Victims of Federal Crimes