The Story of Rizzo: The Shifting Landscape of Attempt Law
People v. Rizzo, 158 N.E. 888 (N.Y. 1927), the case of a bunch of incompetent would-be robbers who never quite found their victim, is one of the great icons of attempt law and of criminal law generally. The prosecutor had plenty of evidence that the defendants were trying to find a payroll agent who was to deliver wages at a construction site, but they spent hours driving around the Bronx in futile pursuit of their prey, and spotted by the police, were arrested just before the intended victim showed up. In reversing the conviction for attempted robbery, the New York Court of Appeals held that the conduct of the defendants fell short of the line that divides preparation from attempt — although it also offered the police perhaps unwelcome congratulations for their vigilance. This chapter in Criminal Law Stories (Donna Coker & Robert Weisberg, eds., 2012), recounts the background of the Rizzo case and narrates the trial itself, which, amid a fair amount of comedy, offers a useful picture of late 1920s law enforcement and trial practice. But the chapter also views the opinion as doctrinally important. In holding that the defendants’ conduct was not “so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference,” the court reflects such defense-friendly tests as the “physical proximity doctrine,“ the “dangerous proximity doctrine,” or the “indispensable element test.” Not long after this decision, American law saw the advent of the MPC’s “substantial step” test, which, by putting much more emphasis on the manifest subjective mental state of the defendant, is much more prosecution-friendly and might have meant a victory for the state in Rizzo. On the other hand, the case also illustrates how substantive crime definitions interact with, and are sometimes contingent upon, rules of criminal procedure. In Rizzo, the strong evidence of the defendant’s intent came from police actions that might now barred by the Warren Court search-and-seizure and confession law, as well as the law addressing cross-admission of confessions in joint trials of accomplices.