OVERT ACT

OVERT ACT

OVERT ACT

OVERT ACT

An open, manifest act from which criminality may be implied. An outward act done in pursuance and manifestation of an intent or design.
An overt act is essential to establish an attempt to commit a crime. It is also a key element in the crime of TREASON and has become a component of federal and some state criminal
conspiracy laws. It also plays a role in the right of SELF-DEFENSE.
An attempt to commit a crime is an offense
when an accused makes a substantial but unsuc-
cessful effort to commit a crime. The elements
of attempt include an intent to commit a crime,
an apparent ability to complete the crime, and
an overt act. An overt act is an act that is per-
formed to execute the criminal intention and
will naturally achieve that result unless pre-
vented by some external cause. The act must
directly move toward commission of the crime
and must be more than acts of planning or
preparation.

Defining when an act is more than preparatory has proved difficult. Several tests have been used to determine when an overt act has been committed. The “unequivocal” test states that a defendant’s act, standing alone, is unequivocally consistent only with her or his intent to commit the allegedly attempted crime. This test has been
criticized as too lenient on criminals because no
act is truly unequivocal. A person who shoots
someone several times can argue that she was
only trying to injure the victim and that it was
her skilled shooting and not luck that prevented
the victim’s death.

Some jurisdictions favor the “substantial
act” test. They permit an attempt conviction
when a defendant with the requisite criminal
intent performs a substantial act towards the
commission of the crime. Under this test, for
example, a prospective burglar can be convicted
of attempted BURGLARY if apprehended in an
alley with burglary tools, even though he had
not determined which building he was going to
burglarize.
The “probable desistence” test asks whether
the defendant had gone so far down the road of
crime that it is unlikely that she or he would
have voluntarily desisted from completing the
crime. One way of measuring this probability is
to look at the past criminal record of an accused.
Thus, an accused with a previous record may be
convicted under this test, because her past
propensity makes it unlikely that she would have
stopped taking the acts leading to the crime.
The need for an overt act also is required in
federal and some state criminal conspiracy pros-
ecutions. A conspiracy is a voluntary agreement
by two or more persons to commit an unlawful
act or to use unlawful means to accomplish an
act that is not in itself unlawful. Under federal
law the overt act must be an independent act
that comes after the agreement or conspiracy
and is performed to effect the objective of the
conspiracy. The overt act itself need not be a
criminal act, because its sole function is to
demonstrate that the conspiracy is operative. If,
for example, two persons conspire to rob a bank
and rent a getaway car, the rental is an overt act
that in itself is perfectly legal. Some states, how-
ever, still adhere to the common-law rule that an
overt act is not required to prove a conspiracy.
An overt act that justifies the exercise of the
right of self-defense is one that causes a reason-
able person to perceive a present intention to
cause his or her death or great bodily harm.
The federal crime of treason contains an
overt act requirement. Article III, Section 3,
Clause 1, of the U.S. Constitution provides, “No
Person shall be convicted of Treason unless on
the Testimony of two Witnesses to the same
overt Act.” In such a case, an overt act means a
step taken to execute a treasonable purpose, as
distinguished from mere words or a treasonable
sentiment, purpose, or design not resulting in
action. It is an act in furtherance of the crime.
CROSS-REFERENCES

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