What is a Substantial Step?
by: Ryan • April 4, 2011 • no comments
There is remarkably little case law on what constitutes a "substantial step" as opposed to a mere step towards the commission of a crime. One thing I've noticed about criminal law is that the fewer opinions that already exist on a particular subject, the less likely trial attorneys, appellate attorneys or judges want to fill the vacuum. Take "as applied" challenges. The appellate courts often point out that the defendant failed to make an "as applied" argument, and they note this failure far more often than they actually decide constitutional questions on an as-applied basis.
There is one really nice opinion on "substantial steps," and I'm quoting a small part here, but the whole opinion is worth reading. It's not from Oregon, which you can probably tell because it's fun to read. (I kid, I kid. Sort of. Despite my willingness to be critical of the Oregon appellate courts in regard to certain opinions, I do think very highly of them. But let's face it, their opinions are a bit devoid of personality.) This opinion can be used in all sorts of ways, in crafting a special jury instruction, in an MJOA, etc.
The "substantial step" toward completion is the demonstration of dangerousness, and has been usefully described as "some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime." United States v. Manley, 632 F.2d 978, 988 (2d Cir. 1980); see, e.g., United States v. Vigil, 523 F.3d 1258, 1267- 68 (10th Cir. 2008). You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn't lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake-for example, the person you thought you were shooting was actually a clothier's manikin-you would have completed the crime. That something marks you as genuinely dangerous-a doer and not just one of the "hollow men" of T. S. Eliot's poem, incapacitated from action because
Between the conceptionAnd the creation Between the emotion And the response
Falls the Shadow.
US v. Gladish (2008)
I like the use of the word "interrupted." We all know that there are some plans - not necessarily criminal ones - which never occur because they've run out of steam and not because they were interrupted. How's that diet going?
So we should ask ourselves, and the jurors, and the court, is it really clear it would have taken an interruption to keep this crime from occurring? Or would lack of enthusiasm have been sufficient?
