Concept
The Modern Rule for Attempt
Merger of Attempt into the Completed Offense
The Modern Rule for Attempt
American law has largely discarded the common-law doctrine that absorbed a misdemeanor attempt into the felony it aimed at, yet it kept a narrower form of the same result. A defendant who completes a crime after attempting it may not be convicted of both the attempt and the completed offense.1 Criminal-law usage preserves that result in its definition of merger: the absorption of a lesser included offense into a more serious one when a person is charged with both, so that the person is not subject to double jeopardy.2 The standard illustration is that a defendant cannot be convicted of both attempt (or solicitation) and the completed crime, although merger does not apply to conspiracy and the completed crime.3 The rest of this section states the surviving bar, explains why it survived, and sets up the three points that the subsections below take in turn.
The reason for the bar lies in how attempt is defined. Attempt always takes its content from a target offense: the prosecution must prove that the defendant intended to complete that crime and took steps toward it.4 The completed offense contains that same intent and those same steps and adds the result, so a second conviction for the attempt would count one course of conduct twice. The bar also removes a temptation. If dual convictions were allowed, a prosecutor could attach an attempt count to every completed crime and enlarge the defendant's record and potential sentence without describing any wrong that the completed-offense conviction does not already condemn. Most jurisdictions punish attempt less severely than the completed crime, in part because the person who only attempts has caused less harm, and a defendant convicted of the completed crime has already answered for the full harm.5 The lesser count therefore has nothing left to add.
This reasoning does not depend on the grade of the offenses, which explains why the bar outlived the common-law grade rule. Grading statutes show the point. The Model Penal Code grades an attempt at the same grade and degree as the most serious offense attempted, except that an attempt to commit a capital crime or a first-degree felony is a felony of the second degree.6 Where attempt and the completed crime share a grade, no misdemeanor remains to fold into a felony, yet the overlap between attempt and completion is unchanged, and the bar follows the overlap. Even in jurisdictions that allow convictions of both conspiracy and the completed crime, the same is not true of attempting and completing a crime, and statutes to that effect are not uncommon.7 The Fifth Circuit's decision in United States v. York is the case usually cited for the proposition.8
The evidence in that scenario did establish an attempt along the way. The bar forbids entering judgment on it once the completed offense is established, because the robbery conviction already carries the intent and the acts and adds the taking. The attempt was a stage on the road to the completed crime, and the law records that stage separately only when the road ends short.
Between the two scenarios only completion changed, and it decided the outcome. Where the target crime is never completed, nothing absorbs the attempt, and it remains punishable.9 The attempt count is therefore the prosecution's route to a conviction whenever completion is not established, and it yields to the completed offense only when completion is.
Three connected points make up the modern rule, and each has its own subsection. The first is the operative bar, which prevents judgment on both the attempt and the completed offense. The second is the logic behind the bar, which treats attempt as a lesser included offense of the completed crime. The third is the counterpart of the bar: the prosecution need not prove that the attempt failed, so evidence that the crime was completed does not defeat an attempt charge that is otherwise proved.
A common slip is to read the bar as a rule about what the prosecution may charge or prove. It governs the judgment: once the evidence is in, the court asks whether the completed offense is established, and only then does the bar require a choice between the two convictions. The same exam stem can also tempt a student to extend the bar to conspiracy, but merger does not apply to conspiracy and the completed crime, a contrast taken up later in this chapter.10
No Dual Conviction
A defendant who completes the target crime cannot be convicted of both the attempt and the completed offense.12 General statements of attempt law reach the same result by treating the attempt as absorbed into the completed crime, so that punishment for both is unavailable.13 The bar holds even in jurisdictions that permit convictions for both conspiracy and the completed crime, and statutes in some states say so expressly rather than leaving the point to case law.14 The reason follows from what an attempt is made of. A conviction for the completed offense already condemns the intent and the acts that make up the attempt and adds the result, so a second judgment for the attempt would punish one course of conduct twice without describing any wrong that the first judgment leaves unaddressed.
The bar does its work at judgment, after the evidence is in. A prosecutor who is unsure that the jury will find completion may charge the attempt alongside the completed offense, and the jury may be asked to decide both counts. What the bar prevents is entering judgment on both. If the completed offense is proved, it controls, because it is the fuller description of what the defendant did and the attempt has nothing left to add to it. If the completed offense is not proved, the attempt becomes the fallback, because nothing remains to absorb it.15
Remove completion and the answer reverses, which shows that completion is the fact doing the work.
The bar is also tied to the target offense. An attempt merges only into the completed version of the very crime it was aimed at, so an attempt directed at a different victim or a different transaction is not absorbed by a completion elsewhere. The overlap that justifies the bar exists only when the completed crime is the one the attempt was trying to accomplish, since only then does the completed crime contain the attempt's intent and acts.
The same discipline applies when the second count is a different inchoate offense. A two-person drug-selling operation that sells narcotics to a customer may be convicted of conspiracy to distribute and of distribution, but not of attempt to distribute and distribution, because the attempt merges into the completed sale and the conspiracy does not.16 The reason conspiracy stands apart is taken up in its own section below.
Two opposite mistakes cluster around this rule. A student who remembers that attempt merges may strike every attempt count on a stem, including one aimed at a victim who survived. A student who remembers that the common-law grade rule has been abandoned may enter both convictions on a stem where the completed offense is plainly proved. The way through is to match the attempt to its own target offense and then ask whether that offense was proved: if it was, judgment enters on the completed crime alone, and if it was not, the attempt stands.
Attempt as Lesser Included Offense
The bar on convicting a defendant of both the attempt and the completed crime rests on a rule broader than attempt itself. A lesser included offense is one that consists entirely of some, but not all, of the elements of a greater offense, and when a defendant is charged with both, the lesser is absorbed into the greater so that the defendant is not subject to double jeopardy.18 That absorption is what criminal law calls merger. In this setting merger and double jeopardy are two labels for one rule: merger names what happens to the lesser count at judgment, and double jeopardy names the protection that the absorption serves. The test applied today looks to the elements of the two offenses and ignores the old comparison of grades between a misdemeanor attempt and its felony target, which this chapter has already shown to have eroded.
The comparison controls because of what a second conviction would add. If the greater offense already requires proof of everything in the lesser, then proving the greater necessarily proves the lesser, and a judgment on the lesser records no wrong that the first judgment has not already recorded. The rule also removes a temptation from the prosecution's side. Without it, the government could split one course of conduct into a preliminary count and a completed count and collect two convictions. It could also try the lesser offense first and, if dissatisfied with the result, try the greater offense afterward with the benefit of having previewed the defense. Comparing elements, rather than the facts of the incident, keeps the inquiry stable, since the same incident can support offenses that merge and offenses that do not.
The merging pattern appears in the Brown v. Ohio illustration. A defendant is convicted of operating a vehicle without the owner's consent and is then charged with theft of the same vehicle based on the same incident. Theft requires everything the first offense requires plus an intent to steal, so the first offense is a lesser included offense of theft, and the later prosecution is barred. The first conviction left the greater offense with only one thing left to prove, and the law treats the two as a single offense for jeopardy purposes.
A second pair of offenses comes out the other way. A defendant charged with possession of narcotics for sale and with possession of narcotics in an improperly stamped container faces two offenses that each require proof of something the other does not. The first requires an intent to sell, and the second requires the improper container. Neither offense consists entirely of some of the elements of the other, so neither is a lesser included offense of the other, and both convictions may stand. What moved the answer between the two pairs is the shape of the elements: in the vehicle pair, the lesser offense had no element outside the greater, while in the possession pair each offense had one.
Attempt follows the vehicle pattern. An attempt requires the intent to commit the target crime and some act in furtherance of that intent, and the completed offense requires that same intent and those same acts together with the result. The attempt therefore has no element that the completed crime lacks, while the completed crime has at least one, the result, that the attempt lacks. Courts accordingly treat attempt as a lesser included offense of the completed crime.19 The treatment extends to appellate practice, because when a conviction for the completed offense is reversed on grounds affecting only that offense, the appellate court may be able to direct entry of judgment on the lesser included offense of attempting that crime.20 The comparison also explains why the attempt must be aimed at the very crime that was completed. An attempt to kill one person contains an element, the intent to kill that person, that a completed killing of someone else does not contain, so the completed killing cannot absorb it.
Lesser included status also works in the prosecution's favor. At common law a defendant indicted for a felony could not be convicted of a misdemeanor, so an indictment for burglary could not support a conviction for the misdemeanor of attempted burglary. That exception rested on early English procedure, in which a felony defendant had fewer rights than a misdemeanor defendant, and it has no force in the United States.21 Courts generally agree that an attempt conviction may be had on a charge of the completed crime.22 The judge instructs on the attempt alternative only if the evidence would support that verdict. A defendant tried for burglary who offers an alibi, or who admits being inside the dwelling but claims an innocent intent, leaves the jury with only two choices, guilty of burglary or not guilty. A defendant who says the entry had not yet occurred when the arrest came makes attempted burglary a third possible verdict, and the attempt alternative may go to the jury even over the defendant's objection.23 When completion is not proved, the attempt is therefore the fallback, because nothing remains to absorb it.24
The relationship does not run in reverse. A defendant tried only for attempted burglary cannot be convicted of the greater uncharged offense of burglary, even if the evidence shows an entry.25 Attempt is often defined as if failure were an essential element, an assumption that may be derived from the old merger rule.26 The elements comparison shows why the assumption matters here: if failure were an element, attempt would contain something the completed crime lacks, and the lesser-included relationship would break down. The next subsection takes up that question and shows that modern courts do not require proof of failure.
The usual error on an exam stem is to merge offenses because they arose from one incident. Common facts do not make one offense included in another, so the answer comes only from listing the elements and asking whether one list sits wholly inside the other. For attempt, that list sits inside the completed crime's list only when the completed crime is the one the attempt was aimed at.
Failure Is Not an Element
The bar on dual conviction removes the attempt count once completion is proved, and that raises a question about how attempt is defined in the first place. Courts often describe an attempt as an act that falls short of the completed crime, and a literal reader could conclude from that wording that the prosecution must prove the shortfall.28 Wisconsin's attempt statute invites exactly that reading, because it requires acts that demonstrate unequivocally that the defendant formed the intent and would have completed the crime "except for the intervention of another person or some other extraneous factor."29 On a literal reading, an attempt would exist only when something outside the defendant stopped the effort. Modern courts reject that reading, and the reasons form a short chain.
The Wisconsin Supreme Court took up that wording in Berry v. State (1979) and began with the elements. Like attempt at common law, the statutory crime has two elements, a criminal intent and some acts in furtherance of that intent.30 Because the elements are only those two, the intervention clause cannot be read to add a third. The court held that the clause does not require the attempt to be thwarted by an outside force and does not make failure an essential element of the crime.31 What the clause does is measure the acts. The conduct must pass the point at which most people holding such an intention would think better of it and desist, so the question is whether, under all the circumstances, it was too late for the defendant to repent and withdraw.32 Acts that are too few or too equivocal leave the existence of the intent in doubt and fall short of that line. Failure keeps a modest role as evidence, because a frustrated effort may weaken the inference that the defendant really held the intent, but it is a piece of evidence on intent and the prosecution carries no burden to establish it.
The failure idea has a traceable source in the common-law merger rule. Attempt was a misdemeanor at common law, and when a single act amounted to both a felony and a misdemeanor, the misdemeanor was absorbed into the felony. A defendant whose conduct completed a felony therefore could not be convicted of the attempt, which made it natural to define attempt as the offense of those who fall short, and some courts went so far as to hold that proof of the completed crime required reversal of an attempt conviction.33 That assumption loses its footing once the merger rule is gone. In United States v. York, the Fifth Circuit declined to carry the merger rule into federal statutory attempt, observing that its rationale is undermined when the attempt and the completed crime are of the same grade and that England had abolished its own merger rule by statute in 1851.34
The practical reason for rejecting the failure element appears when the evidence leaves completion uncertain. If failure were an element, the prosecution would have to prove intent, acts, and failure to complete, each beyond a reasonable doubt. Suppose the jury cannot say whether the crime was completed. The prosecution cannot obtain a conviction for the completed offense, because completion is in doubt. It also cannot obtain an attempt conviction, because failure is the other side of completion, and the same doubt that blocks proof of one blocks proof of the other. The jury would then be required to find the defendant guilty of neither offense even though it is convinced of the intent and the acts that make the defendant dangerous. The Massachusetts high court met this situation in Commonwealth v. LaBrie (2016), where the Commonwealth could prove beyond a reasonable doubt neither that the defendant murdered the victim nor that he failed to murder the victim. The court stopped following earlier decisions that treated nonachievement as an element of attempt, adopting the reasoning of York that such a requirement produces an anomalous result when completion is doubtful.35
Treating attempt as available whenever its own two elements are proved closes that gap, and it fits with the bar discussed above because the two operate at different stages. At the verdict stage, the jury asks whether intent and acts in furtherance are established. At the judgment stage, the court asks whether completion was also found, and if it was, the completed offense controls and the attempt drops out.36 Because the bar acts after the verdict, the prosecution never has to prove that the crime was left unfinished.
Change one fact and the result moves to the completed offense, which shows that the finding of completion is what displaces the attempt.
Students most often go wrong by reading statutory phrases such as "falls short" or "except for the intervention of another person" as an extra element the prosecution must prove. Reasonable doubt about completion does not defeat an attempt charge, because failure is no part of the attempt's own elements. The sound approach on an exam stem is to ask whether intent and acts in furtherance are proved, treat evidence of failure as relevant only to whether the intent can be inferred, and then apply the bar if completion is also established.