heart could be reflected in the sentencing. However, there is some uncertainty as to what exactly 'more than merely preparatory' means. It is upon the discretion of the judges and 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'. United States The legal rules for establishing the actus reus of an attempt offense in the United States are varied and nonuniform. Generally, there are two categories which a test can fall under: tests that focus on how much remains to be done before the crime is committed; and those that consider what has already occurred. Further complicating matters, U.S. jurisdictions rarely use only one test. New York State 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". The test this requires either: An action that reveals a criminal intent, that is, res ipsa loquitur, or "the thing speaks for itself", or The person has dangerous proximity, or is "dangerously near and close to the accomplishment of the crime". The dangerous proximity test was formulated by Justice Oliver Wendell Holmes in the trial of Commonwealth [of Massachusetts] v. Peaslee in 1901. U.S. Model Penal Code Under the United States Model Penal Code, for a defendant to be convicted of attempt requires that they perform a "substantial step in a course of conduct planned to culminate in [the defendant's] commission of the crime" (MPC 5.01(1)(c)). The question of impossibility There is a distinction between "factual impossibility" and "legal impossibility". Factual impossibility is rarely a defense. A standard policing strategy is the use of an agent provocateur to offer temptation to suspected criminals. In some countries, evidence resulting from entrapment is inadmissible. 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. But if there is no actual contraband and the actus reus of the full offense is "possession" of prohibited materials, there can be no criminal possession. Can there be an attempt to