In criminal law, an attempt is made up of two elements: a specific intent to commit a particular crime, and a substantial step taken to carry it out. The crime itself doesn’t have to succeed. If a person meant to commit a specific offense and did something real to make it happen, prosecutors can charge attempt even when the plan collapses, the target isn’t there, or police step in first.
The Intent Element
Attempt is a specific-intent crime. The prosecution has to prove the defendant set out, on purpose, to accomplish a particular criminal result.1Legal Information Institute. Intent That is a higher bar than what many completed crimes require. A person can be convicted of assault for recklessly injuring someone, but attempted assault demands proof that the defendant actually intended to cause the injury. Recklessness and negligence, on their own, can’t support an attempt charge. The idea of “attempting” something implies deliberate purpose; you can’t accidentally try to commit a crime.2United States District Court, District of Massachusetts. Pattern Jury Instructions – Attempt
The distinction matters most in serious cases. For attempted murder, prosecutors must show the defendant intended to kill, not just to hurt, frighten, or act recklessly. Someone who fires a gun into a crowd might face a range of completed-crime charges, but attempted murder requires evidence of a specific purpose to cause death.1Legal Information Institute. Intent When the defendant’s conduct is the only evidence of criminal intent, that conduct has to point unambiguously toward a criminal purpose; it needs to be clear the defendant wasn’t on the way to doing something legal.2United States District Court, District of Massachusetts. Pattern Jury Instructions – Attempt
One wrinkle worth knowing: transferred intent does not apply to attempts. In completed crimes, when someone tries to shoot Person A but hits Person B, the intent transfers and the shooter can be convicted of murdering Person B. Attempt doesn’t work that way. A defendant can only be charged with attempting a crime against the specific person they intended to harm.3Legal Information Institute. Transferred Intent
The Act Element
Intent alone isn’t enough. An attempt also requires an overt act, some physical step that moves the plan out of the defendant’s head and into the world.4Legal Information Institute. Overt Act Federal courts require that act to be a “substantial step” toward completing the crime, one that strongly indicates the defendant’s commitment to the criminal plan.5United States Court of Appeals for the Sixth Circuit. Pattern Jury Instructions – Chapter 5 Attempts It must be more than mere preparation, but it does not have to be the final act before completion.2United States District Court, District of Massachusetts. Pattern Jury Instructions – Attempt
Courts have identified several kinds of conduct that can qualify as a substantial step:
- Lying in wait for, searching for, or following the intended victim.
- Scouting or surveilling the place where the crime is planned.
- Unlawfully entering a building, vehicle, or enclosed area where the crime would take place.
- Possessing specialized tools or materials that serve no lawful purpose under the circumstances.
- Luring or enticing the intended victim to go where the crime is planned.
What doesn’t qualify: thinking about a crime, talking a plan through, or gathering general information. Buying a ski mask at a store is preparation. Walking into a bank wearing that mask and handing a teller a demand note is a substantial step. The point of the substantial step requirement is to produce objective evidence that backs up the claimed intent, so the defendant’s purpose is visible and not just suspected.5United States Court of Appeals for the Sixth Circuit. Pattern Jury Instructions – Chapter 5 Attempts
How Courts Separate Preparation From Attempt
The line between preparation and attempt is one of the harder questions in criminal law, and courts don’t all draw it the same way. Three tests show up most often.
The Substantial Step Test
The most widely used framework comes from the Model Penal Code and asks whether the defendant took a substantial step that strongly corroborates criminal intent. It focuses on what the defendant has already done rather than how much work is left. The defendant doesn’t need to be moments away from completing the crime; they just need to have taken meaningful action pointing clearly at a criminal purpose. Most federal courts use some version of this standard.5United States Court of Appeals for the Sixth Circuit. Pattern Jury Instructions – Chapter 5 Attempts
The Dangerous Proximity Test
The older common-law approach looks at the question from the other direction: how close was the defendant to actually completing the crime? Under this standard, someone who has taken several steps toward a robbery but hasn’t yet approached the target may still be in preparation territory. The more serious the intended crime, the earlier courts tend to find that the defendant crossed the line. This test sets a higher bar for prosecutors because it demands the defendant be nearly on the verge of completion.
The Unequivocality Test
A third approach asks whether the defendant’s conduct, on its face, makes the criminal intent obvious. At the moment the defendant stopped moving toward the crime, would a reasonable observer conclude they had no purpose other than committing that specific offense? Rather than measuring distance from completion, the test treats the defendant’s own conduct as the proof of intent.
In practice, these tests overlap more than they diverge. Whatever the label, courts care about two things: how far the defendant got, and how clearly the actions show criminal purpose. The point where preparation becomes a substantial step is always fact-specific, and the same action can qualify as an attempt in one case and mere preparation in another depending on the severity of the intended crime and the surrounding circumstances.6Congress.gov. Attempt: An Overview of Federal Criminal Law
When the Crime Could Never Have Succeeded
A common misconception is that you can’t be convicted of attempting something that was never going to work. In most situations, that’s wrong. Courts split impossibility into two categories and treat them very differently.
Factual Impossibility
Factual impossibility is almost never a valid defense. It applies when some unknown circumstance made the crime physically impossible to complete. A pickpocket who reaches into an empty pocket has still committed attempted theft. Someone who fires a gun at an empty bed intending to kill its occupant has committed attempted murder. The focus is on what the defendant believed and intended, not on whether success was realistic. If the defendant did everything they thought was needed to commit the crime, the fact that hidden circumstances made completion impossible does not get them off the hook.
Legal Impossibility
Legal impossibility is different and can work as a defense. It applies when the defendant believes they are committing a crime but the intended act is actually legal. The classic example: someone who buys property they believe is stolen, but which was actually obtained legitimately, hasn’t attempted to receive stolen goods, because receiving legitimately obtained property isn’t a crime. Without an underlying criminal act, there is nothing to attempt.7Legal Information Institute. Impossibility Courts in several jurisdictions have questioned whether the factual-versus-legal distinction really holds up, and the line between the two can be hard to draw in close cases.
Voluntarily Abandoning the Plan
Many jurisdictions recognize a defense for defendants who voluntarily abandon a criminal plan before completing it. The Model Penal Code treats it as an affirmative defense requiring a “complete and voluntary renunciation” of criminal purpose, and most states that recognize the defense use a similar structure.
The key word is voluntary. A genuine change of heart can qualify. Walking away because the defendant spotted a security camera, heard sirens, or realized the job was harder than expected does not. Any abandonment driven by a higher risk of getting caught or greater difficulty in pulling off the crime counts as involuntary and will not support the defense.
The renunciation also has to be complete. Deciding to postpone the crime until a better opportunity, or to switch to a different victim, doesn’t count. That is not abandoning criminal purpose; it is redirecting it. The defendant has to show a true and independent change of mind, not a tactical retreat. Where the defense exists, the burden of proof falls on the defendant to establish that the abandonment was both voluntary and complete.
Penalties for Attempt
Attempt generally carries penalties close to or identical to those for the completed crime. Under federal law, the penalties are “almost always the same” as the underlying offense.6Congress.gov. Attempt: An Overview of Federal Criminal Law For federal fraud offenses, a person who attempts the crime faces the same maximum sentence as someone who succeeds.8Office of the Law Revision Counsel. 18 U.S. Code 1349 – Attempt and Conspiracy
Some federal statutes set their own specific attempt penalties. Attempted murder within federal jurisdiction carries up to 20 years in prison, and attempted manslaughter carries up to seven years.9Office of the Law Revision Counsel. 18 U.S. Code 1113 – Attempt to Commit Murder or Manslaughter Federal sentencing guidelines may reduce the recommended sentence by a few offense levels when the defendant had not yet completed all the steps necessary for the crime, but that reduction does not apply when the defendant was interrupted just short of completion, or in cases involving terrorism, drug trafficking, or certain violent offenses.6Congress.gov. Attempt: An Overview of Federal Criminal Law
Under the Model Penal Code approach followed by many states, attempt is graded at the same level as the completed crime, with one exception: attempts to commit first-degree felonies or capital offenses drop by one grade. The practical effect is that attempted murder is still treated as an extremely serious offense even though the victim survived.
If the crime is actually completed, the attempt merges into the finished offense. A defendant will not be convicted of both attempted murder and murder for the same act. The attempt is absorbed into the completed crime, and the prosecution proceeds on the more serious charge.