MPC § 5.01: Criminal Attempt
What does Criminal Attempt (Model Penal Code) provide?
Section 5.01 defines criminal attempt under the MPC. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, they purposely engage in conduct that would constitute the crime if the attendant circumstances were as they believe them to be, or when causing a particular result is an element of the crime, they do or omit to do anything with the purpose of causing such result or with the belief that it will occur without further conduct on their part, or they purposely do or omit to do anything that, under the circumstances as they believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in commission of the crime.
Source: Model Penal Code § 5.01
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Summary
Section 5.01 defines criminal attempt under the MPC. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, they purposely engage in conduct that would constitute the crime if the attendant circumstances were as they believe them to be, or when causing a particular result is an element of the crime, they do or omit to do anything with the purpose of causing such result or with the belief that it will occur without further conduct on their part, or they purposely do or omit to do anything that, under the circumstances as they believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in commission of the crime.
The "substantial step" test is the MPC's key innovation for attempt liability. Unlike the common law's various tests (last act, dangerous proximity, physical proximity, unequivocality), the MPC focuses on what the defendant has already done rather than what remains to be done. Section 5.01(2) provides that a substantial step must be "strongly corroborative of the actor's criminal purpose." The section also provides a non-exhaustive list of conduct that, if strongly corroborative, shall not be held insufficient as a matter of law: lying in wait, enticing or seeking to entice the victim, reconnoitering the place contemplated for the crime, unlawful entry, possession of materials to be used in the crime with no lawful purpose, and soliciting an innocent agent.
Section 5.01(4) addresses impossibility: a person who engages in conduct designed to aid another in committing a crime that would establish their complicity is guilty of attempt even if the crime is not committed or attempted. The MPC effectively abolishes the factual/legal impossibility distinction, focusing instead on the defendant's intent and conduct.
Key Provisions
5 essential provisions of § 5.01
Attempt requires purpose to engage in criminal conduct or cause the criminal result, plus a substantial step in a course of conduct planned to culminate in the crime
Substantial step must be strongly corroborative of the actor's criminal purpose
Examples of substantial steps: lying in wait, enticing the victim, reconnoitering, unlawful entry, possessing crime-specific materials, soliciting an innocent agent
The MPC abolishes the factual vs. legal impossibility distinction — focus is on defendant's intent and conduct
Attempt is graded the same as the completed offense except for first-degree felonies, which are reduced to second-degree
MPC vs. Common Law
How the MPC approach to criminal attempt differs from common law
The common law used multiple tests for the actus reus of attempt, most of which focused on how close the defendant was to completing the crime: the last act test (only liable once defendant performed the final act needed), the dangerous proximity test (Oliver Wendell Holmes — how close was the defendant to success and how serious the threatened harm), the physical proximity test (focus on what remains to be done), and the unequivocality/res ipsa loquitur test (conduct must unambiguously manifest criminal intent). The MPC's substantial step test is deliberately broader, capturing preparatory conduct earlier in the criminal timeline. This reflects a policy choice to allow law enforcement to intervene before a crime reaches the dangerous final stages. On impossibility, the common law distinguished between factual impossibility (not a defense) and legal impossibility (a defense), though the line between them was notoriously unclear. The MPC resolves this confusion by eliminating the distinction entirely.
Exam Relevance
How § 5.01 appears on criminal law exams
Attempt is one of the most frequently tested inchoate crimes. Key exam issues: (1) Whether the defendant took a "substantial step" — this is the most common battleground, requiring analysis of whether the conduct is strongly corroborative of criminal purpose; (2) Impossibility — fact patterns where the defendant tries to commit a crime that turns out to be impossible (e.g., picking an empty pocket, buying fake drugs thinking they are real) — under the MPC, this is generally still attempt; (3) Comparing the MPC substantial step test with common law proximity tests — students should be able to reach different results under different tests on the same facts; (4) Abandonment — Section 5.01(4) recognizes a renunciation defense if the defendant abandoned the effort under circumstances manifesting a complete and voluntary renunciation of criminal purpose.
Related Sections
Sections frequently studied alongside § 5.01
More from Article 5 — Inchoate Crimes
Other sections in Article 5