Also known as: proximity tests · test of proximity
Written by attorneys — see sources below.
A common-law doctrine for determining attempt liability that requires the defendant's overt act to come dangerously close to completing the target offense. The test distinguishes mere preparation from perpetration by focusing on physical and causal proximity to the completed crime. Conduct remains insufficient if substantial steps are still undone even when the defendant possesses clear intent and tools.
Pierre Poulin obtained a stolen laptop and login credentials to steal data from a rival firm. He drove to the rival's campus and circled the public parking lot searching for an entrance. Officers arrested him before he left the car or approached any building. Under the proximity test his conduct remained preparatory because he had not yet reached a position from which the theft would likely occur but for the interruption.
Paul Peterson followed his business rival into an underground garage after losing an auction. He removed a crowbar from his trunk, approached the idling vehicle, and raised the crowbar toward the driver's window. Another car entered the garage and interrupted him before he could swing. The proximity test is satisfied because only one downward motion remained between his conduct and completion of the battery.
Phuong Pham prepared a lethal insulin dose in a hospital supply room after losing a promotion. She carried the uncapped syringe down the hallway, entered the patient's room, exposed the patient's arm, and positioned the needle within an inch of the skin. She began lowering the syringe when security intervened. The proximity test treats this conduct as an attempt because it crossed into the final physical act required for the murder.
Roy Mandujano was convicted in the district court of attempted distribution of heroin in violation of 21 U.S.C. § 846 and sentenced to fifteen years imprisonment. On March 29, 1973, San Antonio police officer Alfonso H. Cavalier, assigned to the Office of Drug Abuse Law Enforcement and working undercover, along with a government informer, went to the Tally-Ho Lounge on Guadalupe Street in San Antonio. The informant introduced Cavalier to Roy Mandujano. Mandujano asked if they were looking for 'stuff' and offered to sell good brown Mexican heroin for $650.00 an ounce, but stated that Cavalier would have to wait until later in the afternoon for deliveries. When Cavalier indicated he could not wait, Mandujano made four telephone calls in an effort to locate another source. Mandujano then proposed going to a contact who kept narcotics at home but required the money upfront. Mandujano received $650.00 from Cavalier at about 3:30 P.M., left the bar, and returned approximately one hour later without the heroin, returning the money. Agent Gerald Courtney of the Drug Enforcement Administration observed Mandujano leave the bar around 3:15 or 3:30 P.M. and return at about 4:30 P.M. Cavalier called at 6:00 P.M. and 6:30 P.M. but was told Mandujano was not available. Cavalier did not attempt further contact because he believed it would be unsafe based on information he had received. Mandujano was indicted on a count charging that on or about March 29, 1973, he knowingly and intentionally attempted to distribute one ounce of heroin. At trial, the only government witnesses were Agents Cavalier and Courtney. The jury returned a verdict of guilty, and the district court imposed a fifteen-year sentence. Mandujano appealed the judgment of conviction to the United States Court of Appeals for the Fifth Circuit.
The proximity test demands that conduct come dangerously close to completing the offense so that the crime would likely have occurred but for interruption. The Model Penal Code instead requires only a substantial step that is strongly corroborative of intent, even if major steps remain. Exam questions repeatedly test this distinction by presenting facts that satisfy one standard but not the other.
Supporting sources
Pointing a loaded gun at the victim and pulling the trigger meets the requirement because only the final act remains. Raising a crowbar at a victim's window or positioning a needle within an inch of skin likewise qualifies. In contrast, purchasing materials, driving to the scene, or circling a parking lot leaves essential steps undone and remains insufficient.
Supporting sources
No. The test is satisfied when the conduct is so near completion that the crime would have occurred but for an external interruption. Courts do not demand that every possible final movement occur, only that the remaining steps are minor and the danger of success is immediate.
Supporting sources
No. Traveling to the scene or parking nearby constitutes mere preparation because substantial steps still remain. The overt act must place the defendant in a position where the offense is nearly inevitable absent intervention.
Supporting sources