When is Intent a Criminal Act?

In a scene Friday that echoed a plot line from the film Minority Report, CPCS defense attorney Ethan Yankowicz moved that a charge against his client should be dismissed on grounds the state would essentially be criminalizing a state of mind.

Both sides in the case agree the defendant, charged with attempt to commit a crime, seems to have prepared to rob a bank in Weymouth, acknowledging a witness and police report that describe a man sitting in the bank’s parking lot with a mask, wig, knife, rags obscuring his license plate, and a note for the teller.

Yankowicz argued the man would have had to have gone into the bank and passed said note in order to establish the probable cause necessary for the state to make that charge — that even if you have a note, a mask, and other accoutrements for robbing a bank, that his defendant should not be charged on the basis that he might have only been close to “doing something stupid.”

Assistant District Attorney Adam Lally, on behalf of The Commonwealth, countered that the man’s reason for abandoning his plan and driving away (before being eventually pulled over) was not “an act of volition” but because as he was preparing to enter the building, an officer parked a marked police cruiser across the street.

Where is the line? When does intent become a criminal act?

Jeff Hermes, Director of the Citizen Media Law Project at Harvard’s Berkman Center and a member of OpenCourt’s Advisory Board, wrote-in his thoughts:

You can’t be arrested for merely thinking about committing a crime. To be found guilty for an attempted crime, Massachusetts law requires that the defendant have committed an overt act in furtherance of the crime and that the defendant was reasonably close to following through. However, mere planning or even preliminary acts where the defendant could still change his mind are not sufficient. After all, we want people to feel free to change their minds about committing crimes.

Generally, the overt act is the “falling domino” — an act that would lead a reasonable person to believe the defendant, barring unforeseen events, was actually going to follow through with the crime. For example, stepping through the door of the bank with a drawn gun would qualify; even if the defendant might still change his mind and walk right back out, a reasonable person would believe that the defendant was going to rob the bank.

Would the hypothetical “reasonable person” decide that merely sitting in a car with the necessary accoutrements was sufficient indication that the defendant was going to follow through? It’s difficult to say; I’ve never met the “reasonable person” myself, and there are so many details that would make a difference. Was the defendant muttering to himself excitedly, trying to psych himself up for the crime? Was he sitting in the car crying at his own desperation before simply driving away, with the nearby cop as a mere coincidence?

Each side will try to paint its picture of events, and the jury will be left to use inevitably incomplete and biased information.

Click the video above to view the ruling.

One response to “When is Intent a Criminal Act?”

  1. Elina says:

    But in MA, for the overt “act” to constitute attempt, the act must move beyond preparatory and get “dangerously close” to “succeeding,” reaching the goal of the criminal act, in this case the robbery. I’m not a crim law expert, but it seems to me that sitting in a car outside the bank with mask on and weapons drawn is pretty close to execution of the crime, I would argue he moved beyond preparation and into execution… but then again i recall a barbri outline saying something about an attempted murdered hiding in the bushes stalking his victim doesn’t constitute attempt until he actually pulls out the gun and points it at the victim, so maybe this guy will get off :)