Whether the actus reus of an attempt has occurred is a question of fact for the jury to decide after having heard the judge's instructions regarding the law.
The common law precedent is used to distinguish between acts that were merely preparatory and those sufficiently proximate or connected to the crime.
Examples are watching the intended victim over a period of time to establish the routines and traveling to a store to buy necessary tools and equipment.
Since the potential wrongdoer could change their mind at any point before the crime is committed, the state should wait until the last possible minute to ensure that the intention is going to be realized.
[5] So the defendant has reached that part of the series of acts, which if not interrupted, frustrated, or abandoned, would inevitably result in the commission of the intended offence.
Subsequent ratio decidendi have abandoned the more formal common law last step test, leaving it to the jury to decide.
Major criticism was attracted after the judgement in R v Geddes, where the court acquitted the defendant who was trying to kidnap a young boy, stating that he had not gone far enough, and his acts were 'merely preparatory'.
[4] The legal rules for establishing the actus reus of an attempt offense in the United States are varied and nonuniform.
[8] In New York law, the element of actus reus is that the person engages in conduct that "tends to effect the commission of such crime".
[11] Holmes as a U.S. Supreme Court justice later articulated the test as "dangerous proximity to success" of the crime in a dissent in Hyde v. United States (1912).
Nevertheless, undercover police officers do sell real or fake contraband such as illegal drugs or guns, as a means of exposing criminal activity.
Some consider the use of fake material as a slightly safer way to catch criminals, rather than risk the real contraband falling into the wrong hands.
This reverses the House of Lords' decision in Haughton v Smith, which had held it to be a good defence if the intended crime was factually or legally incapable of fulfillment.
This change in the law avoids any problem in an early arrest because, once in police custody, it is extraordinarily difficult to commit the full offence.
To be liable for attempted rape a defendant need not actually intend to have non-consensual intercourse, mere recklessness towards the lack of consent is enough (R v Khan).
stated that in the rare cases where an expanded direction is required to include foresight, courts should use virtual certainty as the test, rather than high probability (see also R v Woollin [1998] 3 WLR 382 (HL)).
Generally, the rule in the United States for the mens rea of an attempt offense is divided into two parts: (1) the actor must intend to commit the act that constitutes the actus reus of an attempt; and (2) the actor must perform that act with the specific intention of committing the target crime.
Further, the overwhelming rule in the United States is that no one can be convicted of attempted involuntary manslaughter because that offense is based on the mens rea of criminal negligence or recklessness.
Abandonment can also be a defense to either element (mens rea or actus reus) of attempt, if the defendant "walks away" from the crime.