Attempted Murder

An explanation of how Attempted Murder Charges work, police arrest and booking procedures, Defense Options for being charged with attempted murder, and how a Lawyer can help.

By , J.D.

Of all the crimes punished by society, none are more serious than the crime of murder, the intentional and unlawful taking of a human life. Apart from the federal crimes of espionage and treason, murder is the only crime for which the death penalty is a potential punishment, though only in some states.

The crime of attempted murder can be charged when a person intends to commit murder and tries to carry out the killing but, for whatever reason, is unable to accomplish it. Like murder itself, attempted murder is a serious crime and one that comes with some of the most severe penalties in the criminal justice system.

What Is Attempted Murder?

Attempted murder is the failed or aborted attempt to murder another person. Just like other crimes, attempted murder consists of both an action and an intention. In attempted murder, a person must take a direct step towards the killing and must have the specific intent to kill that person.

The Action

In order to be convicted of attempted murder, a prosecutor must show that the accused took a "direct step" towards killing the targeted victim. Courts have explained the requirement for a direct step by stating that a person must go beyond merely preparing to commit the crime, and instead cross over into actually perpetrating it. Preparation is thinking about committing the crime, talking about it, or otherwise planning to do it, while perpetration is taking an action that puts the plan in motion and that would result in the intended killing. The kinds of actions that are enough to be a direct step differs from case to case, though there are a range of actions that can qualify, such as:

  • Stalking, tracking, or ambushing. This includes hiding out in waiting, tracking the victim down, or following the victim, hoping for an opportunity to commit the murder.
  • Luring. Includes trying to convince the victim to come to a specific place or take specific actions that will make it possible for the victim to be murdered.
  • Breaking-in. For example, unlawfully sneaking into a home, property, or other place where the victim is or thought to be.
  • Constructing. This might include collecting all the materials necessary for the murder, such as the parts of a bomb, and starting to put them together.
  • Soliciting. For instance, paying or convincing someone else to commit the murder, or even convincing an unknowing person to carry out a key part of the crime, such as unknowingly planting a bomb.

The Intention

You cannot accidentally commit attempted murder. To be convicted of attempted murder, a prosecutor must show that the accused specifically intended to commit the crime. The prosecutor must not only show that the accused intended to kill, but that the intent was to kill the specific victim.

  • Intent to act. You must have the intent to take the required actions. In other words, you have to intend to carry out the direct step. For example, if you are thinking about killing someone with a homemade bomb and, coincidentally, end up buying the pieces you need to make the bomb before you ever know how to make it, you don't have the intent to commit the direct step. If, on the other hand, you research bomb making and then buy the material and put the bomb together, you have committed a direct step.
  • Intent to kill. To be convicted of attempted murder, the accused must intend to cause a specific harm, namely to kill the targeted victim. You cannot, for example, commit attempted murder if you intended to only maim, frighten, or disfigure someone. It can be difficult for the prosecutor to prove this point, but often, the circumstances of the crime lead naturally to this conclusion. For example, if you hit someone in the head with a lead pipe, that alone may be enough to show that you intended to kill the person. On the other hand, hitting someone in the legs is less lethal, and may not amount to attempted murder.

Defenses to Attempted Murder Charges

Some prosecutions fail because the state's attorney cannot prove that the accused committed a direct step, or that the accused had the specific intent to murder. But sometimes, the jury may not convict due to a particular defense offered by the defendant. Because an attempted murder does not result in the intended harm, specific defenses are available that are not always relevant in other cases.

  • Impossibility. An impossibility defense is one where the accused doesn't deny having committed the acts, but instead claims that even if everything went to plan, there couldn't have been a murder anyway. For example, the accused might claim that the gun used in the attempt was a non-functioning replica, so the murder could never have happened. However, some states have passed laws that abolish the impossibility defense, and in these states, it is not an accepted defense for any attempted crimes, including attempted murder.
  • Renunciation or withdrawal. Some states allow for a "renunciation" defense, sometimes known as withdrawal. This defense provides that even though the accused committed at least one direct step, the accused later decided not to commit the murder. Unlike showing that the prosecution failed to adequately prove one of the elements, the accused must prove that the crime was abandoned because the defendant intentionally stopped any and all efforts to continue it or took steps to prevent the murder from occurring.

Punishments for Attempted Murder

Because murder is the most serious crime and has the most serious penalties associated with it, attempted murder is also punished very harshly. However, while some states allow for the death penalty in murder cases, that punishment is not possible in attempted murder cases. Attempted murder is always a felony offense, and states typically impose a prison sentence equal to about half the sentence associated with a murder conviction.

  • Degrees. Like murder, attempted murder is charged as either a first-degree or second-degree offense. First-degree attempted murder means the person intentionally, and with premeditation, tried to kill someone else; while second-degree attempted murder means the accused acted without premeditation or acted in a fit of passion. Second-degree murder also includes deaths that occur while the accused is engaged in committing another felony, such as arson or burglary. (However, states can vary as to how they categorize first- and second-degree murder.)
  • Sentence. A conviction for first-degree attempted murder brings a lengthier prison sentence than a conviction for second-degree attempted murder. First-degree attempted murder is often punished with a life sentence, though the convicted does have the possibility to receive parole. Second-degree attempted murder usually comes with a lengthy prison sentence, often ranging from between 5 to 15 years in prison.

Talk to a Lawyer

For anyone who faces a potential attempted murder charge, the need to speak to an experienced attorney is grave. Attempted murder is one of the most serious charges anyone can face, with the potential to ruin your life regardless of whether you are convicted. Only a qualified criminal defense attorney with years of courtroom experience and deep understanding of the law, local courtroom procedures, and criminal investigations can give you adequate legal advice. It is always in your best interest to speak to an attorney as soon as possible if you are facing any kind of criminal charges.

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