Criminal Law Practice Question 1 | Make This Your Last Time

Criminal Law: Inchoate Crimes

A man and his brother-in-law root for opposing sports teams that are part of a heated rivalry. While watching the teams play each other for the last spot in the playoffs that season, the men began to argue about which team was better. The man argued that his team was better because it has won more championships in total. The brother-in-law argued that his team was currently better because it has won more championships in recent years. The men continued to argue through the majority of the game. When the man’s team was in the lead with only a few minutes remaining, he began to gloat. However, with only a few seconds left, the brother-in-law’s team scored to clinch the game and the seat in the playoffs. Infuriated, the man grabbed a gun from under the sofa cushion, aimed it at his brother-in-law, and pulled the trigger. However, the man was unaware that his wife had replaced the regular bullets with blanks. The brother-in-law was unharmed.

If charged with attempted murder, can the man be convicted?

A: Yes, because he took a substantial step.

B: Yes, because he acted recklessly.

C: No, because the defense of factual impossibility applies.

D: No, because he acted under adequate provocation.

Answer and Explanation

A is correct. Attempt consists of the specific intent to commit the crime and an overt act in furtherance of the intent beyond mere preparation. Here the man took a substantial step toward killing his brother-in-law when he aimed the gun at him and pulled the trigger. Attempt also requires a specific intent. Attempted murder requires the specific intent to kill another person, even if the mens rea for murder itself does not necessarily require a specific intent to kill.

B is incorrect. Attempt requires a specific intent to commit the crime. In this case, attempted murder requires a specific intent to kill. Therefore, mere recklessness would not be enough to convict the man.

C is incorrect. The defense of factual impossibility does not apply. It is no defense that the substantive crime is incapable of completion due to some physical or factual condition unknown to the defendant. In this case, it is not a defense that the gun was loaded with blanks, making it impossible for the man to actually kill his brother-in-law. When the man pulled the trigger, he did not know it was loaded with blanks and still possessed the intent to kill his brother-in-law.

D is incorrect. A killing may be reduced from murder to voluntary manslaughter by the existence of adequate provocation, also known as a heat of passion killing. For provocation to be adequate, it must be a sudden and intense passion so as to cause an ordinary person to lose control without sufficient time for the person to cool off. Adequate provocation is most frequently recognized in cases of serious battery, threats of deadly force, and discovering a cheating spouse. In this case, a sports team losing an important game would not qualify as adequate provocation.

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