Brooklyn Law Review


Recent years have seen a dramatic expansion in the transferred-intent doctrine via rulings involving attempt liability. In its basic form, transferred intent allows an intentional actor with bad aim who kills an unintended victim (instead of the intended target) to be punished for murder. Today, some courts allow conviction in such situations not only of transferred intent murder as to the actual victim, but of attempted murder of the intended victim as well. Critics of this expansion (as well as other similar variations) have argued that it distorts the meaning of transferred intent and imposes liability disproportionate to culpability. Little attention has been paid, however, to another flaw in uses of attempt liability in the transferred intent context: the fact that such liability often violates the merger doctrine. Under the merger rule, an individual cannot be convicted of both committing a completed crime against an intended target and attempting to commit that same crime against that same person, where both charges stem from the same conduct by the actor. The attempt simply merges into the completed offense. This article considers whether, similarly, the merger rule prohibits double convictions in the transferred intent context—such as punishing an actor both for killing an unintended victim and for attempting to kill the original target. It concludes that several important policy justifications underlying the merger doctrine mediate against subjecting a defendant to the significant increase in punishment that results when an attempt is not merged into the completed (transferred intent) offense.

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