It Should Be Hard for the Prosecution to Convict Someone of Attempted Murder

In State v. King, our Supreme Court rejected prosecutors’ contention that attempted murder is a general intent, rather than a specific intent crime.  This holding, predictably, resulted from our Court’s review of its precedent and the legislative history of the Sentencing Reform Act of 2010.

Prosecutors attempted to equate attempted murder to the common law offense of assault and battery with intent to kill, which was a general intent crime.  The Sentencing Reform Act of 2010, however, repealed the common law assault and battery offenses, including assault and battery with intent to kill, and created an entirely new statutory scheme of assault and battery offenses.  Accordingly, it was erroneous to think attempted murder equated to assault and battery with intent to kill.

King recognized, ‘The highest possible mental state for criminal attempt, specific intent, is necessary because criminal attempt focuses on the dangerousness of the actor, not the act.”  Attempted murder, therefore, “requires the specific intent to kill.”  Our Supreme Court went on to explain that attempted murder requires “express malice,” which means “the deliberate intention unlawfully to kill” another person.  Prosecutors, therefore, cannot obtain an attempted murder conviction based on a person’s general disregard for the safety of others.  Disregard for the safety of others, however, would support convictions for the lesser-included assault and battery offenses, provided the elects of those crimes are proven beyond a reasonable doubt.

Because it is a specific intent crime, attempted murder convictions should be rare.  The most serious offenses should  be reserved for the most serious situations.  Someone charged with attempted murder should consult an experienced criminal defense lawyer.

Prior to King, some prosecutors successfully convinced judges to instruct jurors that attempted murder is a general intent crime.  Any resulting conviction is subject to attack in through a post-conviction relief (PCR) action.

Please click this link to read State v. King.