Also known as: proximity test · proximity
Written by attorneys · grounded in primary & secondary sources — see below
A doctrinal test used to determine whether a defendant's conduct has progressed far enough to support liability for attempt. The test requires that the defendant's overt act come dangerously close to completing the target offense, going beyond mere preparation and approaching the point of consummation.
Paul Peterson bought ammunition and drove to the home of his intended victim. Once there, he loaded the gun, approached the victim, pointed the weapon directly at the victim's chest, and pulled the trigger. The gun misfired. Peterson's conduct satisfied the proximity requirement because the act stood so near to completion that the crime would have occurred but for the mechanical failure.
Patrick Phan maintained an unmarked open pit on his land. He knew trespassers frequently crossed the property near the pit. When a trespasser fell in and was injured, Phan faced liability because he had reason to know of the trespasser's presence in dangerous proximity to the artificial condition yet failed to warn or protect against the risk.
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Preston Pratt drove to the neighborhood of the intended robbery and parked a block away while checking the target store's hours. He had not yet entered the store or displayed a weapon when officers intervened. The conduct remained only preparatory and did not meet the dangerous-proximity threshold because substantial steps toward completion were still undone.
Phoebe Park operated heavy machinery on her property and knew trespassers were standing close to the operating area. She failed to stop the machine or give any warning. The trespassers were injured when the machine swung toward them. Park was subject to liability because she maintained immediate control of the force while aware of the trespassers' dangerous proximity to it.
Peter Park was stopped without reasonable suspicion. Officers discovered an outstanding arrest warrant during the encounter and found drugs on him after the lawful arrest. The discovery of the preexisting warrant was an intervening circumstance that attenuated any taint from the initial stop despite the close temporal proximity between the illegality and the evidence.
Patricia Patel contacted a supplier and urged it to breach its contract with Paragon Construction by offering a higher price for immediate delivery. The supplier was already wavering on performance. Patel's direct solicitation occurred in close proximity to the actual breach and supported a finding that her conduct was a substantial factor in causing the interference.
The proximity test requires the defendant's overt act to come dangerously close to completing the target offense. Conduct such as purchasing bullets or traveling to the crime scene remains preparatory. Only when the act stands so near to consummation that the crime would have occurred but for an interruption does attempt liability attach.
The proximity test focuses on what remains to be done and demands that the act approach consummation. The substantial-step test instead examines what the actor has already done and asks whether those steps strongly corroborate criminal purpose. The proximity approach narrows attempt liability while the substantial-step approach broadens it.
A possessor is liable when an artificial condition or force poses a risk of death or serious harm and the possessor knows or has reason to know trespassers are in dangerous proximity to it. Liability arises from the failure to exercise reasonable care to warn or control the hazard.
No. Courts weigh temporal proximity together with intervening circumstances and the purpose and flagrancy of the misconduct. Discovery of a valid preexisting arrest warrant can constitute an intervening circumstance that attenuates the taint even when the evidence is found soon after an unlawful stop.
…of the States. Milliken v. Bradley , 418 U. S. 717, 741-742 (1974); Epperson v. Arkansas , 393 U. S. 97, 104 (1968). The proximity to schools, including of course schools owned and operated by the States or their subdivisions, is the very premise for making the conduct criminal. In these circumstances, we have a…