Preparation vs. Attempt in Criminal Law

Preparation vs. Attempt in Criminal Law

Criminal law often has to draw a difficult line: when does planning to commit a crime become an actual criminal attempt?

Buying equipment, watching a target, researching a location, or making a plan may all be suspicious. But suspicion alone does not normally make someone guilty of attempted crime. At some point, however, a person’s conduct can move beyond preparation and become sufficiently close to the intended offense that criminal liability for attempt arises.

The distinction between preparation and attempt is therefore one of the most important boundaries in the law of inchoate offenses.

In simple terms:

Preparation gets a person ready to commit a crime. Attempt begins when the person moves from getting ready to actually carrying out the criminal objective.

The difficulty is determining exactly where that line falls.

Cornell Legal Information Institute — Attempt

What Is Preparation?

Preparation consists of acts taken to arrange the circumstances necessary to commit a future crime.

A person may form an intention to commit an offense and take several steps toward accomplishing that intention without yet committing an attempt.

For example, imagine that Daniel decides to rob a bank. He:

• studies the bank’s opening hours;
• researches its security system;
• buys a mask;
• obtains a vehicle;
• writes down the location;
• watches the bank from across the street.

These actions may strongly suggest criminal intentions. But depending on the jurisdiction and the particular facts, they may still constitute preparation rather than attempt.

The important point is that criminal law generally does not punish a person merely because the person has formed a criminal plan.

There must ordinarily be some legally sufficient conduct demonstrating that the person has moved beyond preparation.

What Is Attempt?

An attempt is an incomplete offense in which a person intends to commit a crime and takes sufficiently significant steps toward committing it, but the intended crime is not completed.

Attempt therefore occupies a position between preparation and completion.

The basic progression can be represented as:

Criminal thought → Preparation → Attempt → Completed offense

Not every jurisdiction uses exactly the same terminology or test, but this sequence illustrates the basic concept.

For example:

Daniel decides to rob a bank.

He researches the bank.

Preparation.

He purchases a disguise.

Still potentially preparation.

He enters the bank wearing the disguise, approaches the teller, produces what he intends to use as a weapon, and demands money, but the police intervene before he receives anything.

Likely attempt.

If he obtains the money and escapes, the completed robbery may have occurred.

The legal question is therefore not simply whether Daniel intended to commit robbery. It is whether his conduct crossed the legal threshold separating preparation from attempt.

Why Does Criminal Law Distinguish the Two?

The distinction protects an important principle of criminal justice: people should generally not be punished for thoughts or remote possibilities of future wrongdoing.

A person may change their mind.

Someone may make a foolish plan without carrying it out.

Someone may acquire an object for an innocent purpose even though that object could later be used in a crime.

If every preparatory act were automatically criminal, the law could punish people before their conduct presented a sufficiently concrete criminal danger.

At the same time, waiting until a crime is completed would make the law powerless to intervene against dangerous conduct that has already moved substantially toward criminal execution.

Attempt law exists partly to occupy this middle ground.

It recognizes that:

criminal intent + sufficiently advanced conduct

can justify liability even when the intended crime has not been completed.

The Central Question: How Close Is the Conduct to the Crime?

Courts have developed different approaches to determine whether conduct has crossed the line.

The traditional common-law tests have included ideas such as:

• the last-act test;
• the dangerous-proximity test;
• the physical proximity test;
• the probable desistance test;
• the equivocality test.

Modern statutes and the Model Penal Code often use a substantial-step approach.

Cornell Legal Information Institute — Model Penal Code

The precise test therefore depends heavily on the jurisdiction.

The Last-Act Approach

Under the strictest traditional approach, a person did not commit an attempt until the person had performed the last act necessary to complete the crime.

Suppose someone intends to poison another person.

Under a very strict last-act theory, placing poison into the victim’s drink might be considered the final act necessary before the victim drinks it.

The difficulty with this approach is obvious: it can require the law to wait until the defendant has gone extremely far toward completing the offense.

Modern criminal law generally does not require the defendant to reach the literal last possible act.

The Dangerous-Proximity Approach

Another traditional approach asks whether the defendant’s conduct has come sufficiently close to the completed offense.

The closer the conduct is to completion, the stronger the argument that an attempt has occurred.

For example:

Buying a gun may be preparation.

Driving to the victim’s home may still be preparation.

Entering the victim’s home armed may move significantly closer to the intended offense.

Pointing the gun at the intended victim and pulling the trigger may constitute an attempt even if the weapon unexpectedly fails.

The doctrine therefore looks at the degree of proximity between the defendant’s conduct and the intended crime.

The Equivocality Approach

Another traditional idea asks whether the defendant’s conduct clearly demonstrates the criminal purpose.

This is sometimes called the equivocality or res ipsa loquitur approach.

The basic idea is that conduct should become criminally significant when it speaks sufficiently clearly of the person’s criminal intent.

For example, merely purchasing a knife is ambiguous.

A person could purchase a knife for cooking, work, camping, or many other legitimate purposes.

But purchasing a knife, traveling to a particular person’s home, waiting outside that person’s bedroom, and attempting to enter with the knife may provide much stronger evidence of a specific criminal purpose.

The more unequivocal the conduct becomes, the easier it is to identify an attempt.

The Substantial-Step Approach

The Model Penal Code takes a more flexible approach.

Under the Model Penal Code, criminal attempt can exist when a person acts with the required purpose and engages in conduct constituting a substantial step toward commission of the crime, provided that the conduct strongly corroborates the person’s criminal purpose.

This approach does not require the prosecution to prove that the defendant reached the final stages of the offense.

Certain conduct can qualify as a substantial step when viewed together with the defendant’s criminal purpose.

Examples may include:

• lying in wait for the intended victim;
• enticing the victim to a particular location;
• reconnoitering the place contemplated for the commission of the crime;
• unlawful possession of specially designed materials intended for the crime;
• possession of materials near the planned location under circumstances strongly corroborating the criminal purpose.

The important concept is corroboration.

The law is not simply asking:

“Did the defendant have a criminal thought?”

It is asking:

“Did the defendant’s conduct provide sufficiently strong evidence that the criminal plan had progressed into execution?”

Preparation Can Become Attempt Through Additional Conduct

The same act can sometimes be preparation in one situation and part of an attempt in another.

Consider the purchase of a firearm.

Standing alone, purchasing a firearm does not ordinarily establish attempted murder.

But suppose a defendant:

1. identifies a particular victim;
2. purchases a firearm;
3. researches the victim’s schedule;
4. travels to the victim’s workplace;
5. waits outside with the firearm;
6. approaches the victim intending to shoot.

The later conduct may transform what began as preparation into an attempt.

This illustrates an important principle:

Attempt is often determined by the defendant’s conduct as a whole rather than by examining one isolated act.

Mere Possession Is Usually Not Enough

Possessing an object that could be used in a crime does not automatically constitute an attempt.

A person can lawfully possess many objects that could later become instruments of crime.

A knife can be used to commit murder.

A computer can be used to commit cybercrime.

A vehicle can be used in a robbery.

A bottle can be used to poison someone.

The object itself does not establish an attempt.

The question is what the defendant intended to do with it and how far the defendant had progressed toward doing it.

This is why possession may sometimes be evidence of preparation, while possession combined with additional conduct can contribute to proof of attempt.

Preparation Through Planning and Surveillance

Planning can be highly relevant evidence without necessarily being an attempt.

Suppose someone plans to burglarize a house and:

• studies its floor plan;
• observes when the occupants leave;
• purchases gloves;
• acquires burglary tools.

These acts may demonstrate a serious criminal plan.

But planning and preparation generally do not become an attempt merely because the plan is detailed.

The defendant must ordinarily take some further step that brings the intended offense sufficiently close to execution.

Now imagine that the same person enters the property at night, approaches the locked door with burglary tools, and begins attempting to force it open.

The legal analysis changes considerably.

The conduct is no longer merely about preparing for a possible future crime. The defendant is beginning to execute the criminal plan.

Preparation and Attempt in Result Crimes

The distinction becomes particularly important in crimes requiring a particular result.

Consider attempted murder.

A defendant may:

• decide to kill someone;
• purchase a weapon;
• research the victim’s location;
• write a plan;
• travel to the victim’s home.

These acts may establish powerful evidence of intent but may not necessarily constitute attempted murder.

Suppose instead that the defendant finds the victim, points the weapon at the victim, and pulls the trigger.

If the weapon fails, the defendant may nevertheless have committed attempted murder because the conduct has progressed far beyond mere preparation.

The intended result did not occur, but the defendant’s conduct may satisfy the requirements of attempt.

Preparation, Attempt, and Impossibility

The line becomes particularly interesting when completion is impossible.

Suppose someone intends to kill another person by poisoning their drink but mistakenly uses a harmless substance.

The intended crime cannot actually be completed in the way the defendant imagined.

Nevertheless, the defendant may still be guilty of attempt if the jurisdiction recognizes liability under the applicable doctrine of factual impossibility.

The fact that the plan could not succeed does not necessarily mean that the defendant’s conduct remained mere preparation.

What matters is often the defendant’s intent and the degree to which the defendant acted toward accomplishing the criminal objective.

Preparation and Abandonment

Another important distinction concerns abandonment.

A person may prepare to commit a crime and then voluntarily abandon the plan.

Depending on the jurisdiction, abandonment may prevent attempt liability if it occurs before the defendant has crossed the legal threshold for attempt.

Once an attempt has already been completed as a criminal offense, however, simply changing one’s mind does not necessarily erase liability.

For example:

Daniel buys tools intending to burglarize a house but decides not to proceed.

That may remain preparation.

Daniel goes to the house, breaks a window, and begins entering with the intent to steal, but then voluntarily leaves.

Whether abandonment is a defense may depend on the jurisdiction and the applicable attempt doctrine.

The timing of abandonment therefore matters.

Preparation vs. Attempt: A Practical Comparison

Preparation	Attempt
Usually occurs before execution begins	Moves into execution
Criminal purpose may still be remote	Criminal purpose is reflected in sufficiently advanced conduct
Conduct may have innocent explanations	Conduct increasingly points toward the intended crime
Generally not enough for attempt liability	Can create criminal liability
Person may still be organizing the crime	Person is beginning to carry it out
Usually farther from completion	Usually substantially closer to completion

The boundary is not always perfectly clear.

That is precisely why courts have developed different tests.

The Importance of Criminal Intent

Conduct cannot be evaluated independently from the defendant’s required mental state.

Attempt generally requires a sufficiently culpable intent or purpose toward the target offense.

Cornell Legal Information Institute — Specific Intent

For example, accidentally walking onto someone’s property is not ordinarily an attempted burglary simply because the person happens to be carrying tools.

The prosecution must establish the necessary criminal intent.

This produces two related questions:

1. What did the defendant intend?
2. How far did the defendant act toward accomplishing that intention?

Both are important.

Why Preparation Alone Is Not Enough

There are several reasons for limiting attempt liability.

1. Freedom of thought

Criminal law generally does not punish people simply for having criminal thoughts.

2. Freedom to change one’s mind

A person may abandon an idea before taking sufficiently dangerous action.

3. Fair notice

People should be able to understand what conduct exposes them to criminal liability.

4. Limiting government power

A broad preparation doctrine could permit the state to intervene far too early.

5. Evidentiary reliability

Intent can be difficult to prove. Preparatory conduct may be ambiguous.

6. Proportionality

The law may reasonably distinguish between someone contemplating a crime and someone who has begun executing it.

These considerations explain why the preparation-attempt boundary is not merely technical.

It reflects a fundamental judgment about when criminal responsibility should begin.

The Problem of the “Point of No Return”

People sometimes describe attempt as beginning when the defendant reaches a “point of no return.”

This is useful as an intuition, but it is not a universal legal test.

A person may commit an attempt even though completion remains avoidable.

For example, a person may fire a gun and miss. The victim may escape. Police may intervene. The weapon may malfunction.

The defendant does not necessarily need to reach a literal point at which completion is inevitable.

The legal question is whether the defendant’s conduct has crossed the applicable threshold for attempt.

Preparation Can Be Criminal for Other Reasons

It is also important to understand that conduct can be preparatory to one offense while independently constituting another crime.

For example, a person may possess an illegal weapon while preparing to commit a robbery.

Even if the preparation does not constitute attempted robbery, the unlawful possession may itself be a completed offense.

Similarly, a person may commit trespass while preparing for a later burglary.

Therefore:

Failure to establish attempt does not necessarily mean that no crime occurred.

The prosecution may still charge an independently completed offense if its elements are satisfied.

Preparation and Conspiracy Are Different

Preparation should also be distinguished from conspiracy.

Conspiracy generally concerns an agreement between two or more people to commit a crime, together with whatever additional requirement the jurisdiction imposes.

Attempt focuses on the defendant’s movement toward committing the target offense.

A person can therefore potentially:

• prepare alone;
• enter into a conspiracy;
• attempt the crime;
• or commit several of these offenses during the same course of conduct.

The doctrines overlap, but they address different forms of criminal responsibility.

The Prosecutor’s Perspective

When attempting to prove an attempt, prosecutors may rely on the entire sequence of conduct.

Evidence can include:

• statements by the defendant;
• communications;
• surveillance footage;
• purchases;
• travel records;
• possession of specialized equipment;
• location data;
• witness testimony;
• the defendant’s actions immediately before intervention.

The closer the conduct comes to the intended offense, the stronger the argument that the defendant crossed from preparation into attempt.

But the prosecution must still establish every element required by the applicable jurisdiction.

The Defense Perspective

A defendant may argue that the conduct never crossed the preparation-attempt boundary.

Common arguments include:

• the conduct was too remote;
• the defendant had not begun execution;
• the conduct had an innocent explanation;
• the prosecution cannot prove the required intent;
• the defendant voluntarily abandoned the plan;
• the statutory attempt requirement was not satisfied;
• the alleged conduct constitutes preparation only.

The defense may therefore focus not merely on what the defendant intended, but on what the defendant actually did.

A Useful Legal Framework

When analyzing preparation versus attempt, ask these questions in order:

Question 1: What crime was allegedly intended?

Attempt is ordinarily connected to a specific target offense.

Question 2: What mental state does that offense require?

Determine whether the defendant possessed the required intent or purpose.

Question 3: What did the defendant actually do?

Do not confuse thoughts with conduct.

Question 4: Was the conduct merely preparatory?

Consider whether the defendant was still arranging the circumstances for a future offense.

Question 5: Had execution begun?

Look for conduct directly connected to carrying out the criminal objective.

Question 6: Which legal test applies?

The jurisdiction may use a proximity, unequivocality, substantial-step, or other approach.

Question 7: Did the conduct strongly corroborate the criminal purpose?

This is particularly important under substantial-step approaches.

Question 8: Was the intended crime completed?

If so, attempt may merge into or be treated differently from the completed offense depending on the jurisdiction.

Question 9: Was there abandonment?

If the defendant stopped voluntarily, determine whether the applicable jurisdiction recognizes abandonment and whether the legal threshold for attempt had already been crossed.

Examples

Example 1: Buying a Weapon

Maria decides to kill a rival and buys a handgun.

Likely analysis: preparation, assuming no additional conduct demonstrates execution of the plan.

Example 2: Traveling to the Victim

Maria buys the gun, travels to the rival’s home, and waits outside with the weapon.

Analysis: substantially stronger evidence of an attempt, but the precise result depends on the jurisdiction and circumstances.

Example 3: Pulling the Trigger

Maria points the gun at the rival and pulls the trigger, but the gun does not fire.

Analysis: this is much closer to the completed execution of the intended offense and will ordinarily provide a strong basis for attempted murder if the required intent is established.

Example 4: Abandoning Early

Maria buys the gun but later decides that killing the rival is wrong and never goes to the victim’s home.

Analysis: ordinarily preparation rather than attempt.

Example 5: Police Intervention

Maria arrives at the victim’s home intending to shoot the victim, but police arrest her before she can enter.

Analysis: the question becomes whether her conduct had crossed the applicable attempt threshold. The answer depends on the jurisdiction and the exact circumstances.

The Philosophical Dimension

The preparation-attempt distinction reflects a deeper question:

When should the law treat a person as having become a criminal rather than merely having contemplated becoming one?

One possible answer is based on harm.

Under this approach, criminal liability should begin when conduct creates a sufficiently serious danger.

Another approach emphasizes culpability.

If a person has firmly decided to commit a crime and deliberately begins carrying it out, the person’s blameworthiness may justify intervention even before the intended harm occurs.

A third approach emphasizes social protection.

The law should be able to intervene before a dangerous criminal plan produces irreversible harm.

The modern law of attempt reflects elements of all three ideas.

It attempts to balance individual freedom against society’s interest in preventing serious criminal conduct.

The Preparation-Attempt Continuum

The distinction is easier to understand as a continuum rather than an absolute dividing line:

Thought

↓

Remote planning

↓

Acquiring ordinary materials

↓

Specialized preparation

↓

Surveillance or reconnaissance

↓

Movement toward the target

↓

Execution of the criminal plan

↓

Attempt

↓

Completed crime

The closer conduct moves toward execution, the stronger the case for attempt.

But there is no universally applicable numerical point at which preparation becomes attempt.

The law instead applies the jurisdiction’s legal standard to the facts.

Common Mistakes

Mistake 1: Assuming intent alone is attempt

Wanting to commit a crime is not ordinarily enough.

Mistake 2: Assuming every preparatory act is lawful

Preparation may constitute another independent crime.

Mistake 3: Assuming the defendant must perform the final act

Modern attempt law generally does not require the literal last act.

Mistake 4: Ignoring jurisdiction

Different jurisdictions use different tests.

Mistake 5: Looking at one act in isolation

Courts often consider the defendant’s conduct as a whole.

Mistake 6: Assuming abandonment always defeats attempt

Abandonment rules differ, and abandonment after an attempt has already occurred may not erase liability.

Mistake 7: Confusing preparation with conspiracy

Preparation concerns conduct toward committing the offense; conspiracy concerns agreement and related requirements.

Key Takeaways

• Preparation consists of steps taken toward a future crime before the defendant has crossed the legal threshold for attempt.
• Attempt requires sufficiently advanced conduct toward commission of the intended offense.
• Criminal law generally does not punish criminal thoughts alone.
• The preparation-attempt boundary protects individual freedom while allowing intervention before completed harm.
• Traditional approaches include proximity and unequivocality tests.
• The Model Penal Code uses a substantial-step approach.
• The same act may be preparation in one context and part of an attempt in another.
• The defendant’s mental state and conduct must be analyzed together.
• Abandonment may matter, but its effect depends on the jurisdiction and timing.
• Preparation can independently constitute another completed crime.
• The exact legal test varies by jurisdiction.

Frequently Asked Questions

Is preparation a crime?

Usually, preparation itself is not an attempt. However, a preparatory act may independently constitute another crime.

What is the main difference between preparation and attempt?

Preparation generally involves arranging the circumstances necessary for a future crime. Attempt involves conduct sufficiently close to or strongly corroborative of the actual commission of that crime.

Does buying a weapon constitute attempted murder?

Usually not by itself. Additional conduct and evidence of the required intent would generally be necessary to establish attempted murder.

How does the Model Penal Code distinguish preparation from attempt?

The Model Penal Code focuses on whether the defendant took a substantial step toward committing the crime and whether that conduct strongly corroborates the defendant’s criminal purpose.

Does the defendant have to reach the last step before an attempt exists?

Generally, no. Modern attempt doctrines usually permit liability before the literal final act.

Can a person be guilty of attempt even if the crime was impossible to complete?

Potentially, yes. Impossibility doctrines vary by jurisdiction, but factual impossibility generally does not automatically prevent attempt liability.

Can abandoning a plan eliminate attempt liability?

Sometimes, depending on the jurisdiction and when the abandonment occurred. Abandonment before the legal threshold for attempt is particularly important, while abandoning conduct after an attempt has already been committed may not erase liability.

Conclusion

The distinction between preparation and attempt is one of the central problems of inchoate criminal liability.

Criminal law does not normally punish a person merely because that person has imagined, desired, or even planned a crime. At the same time, the law does not necessarily wait until the intended offense is completed before recognizing criminal responsibility.

The boundary lies in the defendant’s conduct.

Preparation involves getting ready. Attempt involves moving sufficiently far into the execution of the criminal objective that the law treats the conduct as an incomplete crime.

Exactly where that boundary lies depends on the jurisdiction and the applicable legal test. But the underlying principle remains consistent: criminal liability for attempt begins when criminal purpose is translated into sufficiently concrete criminal action.

That boundary allows criminal law to protect society without making every criminal thought—or every remote preparatory act—a crime.