Difficult MBE Merger Question Forum

[buckilaw]

Had a simulated Kaplan question which asked, "of the four following fact patterns which is least likely to result in liability for attempt."

Narrowed it down to:

1. One night a defendant decided to set fire to his own home, intending to collect the insurance proceeds. He put together an explosive device and lit the fuse that was supposed to detonate after a ten-minute interval. After lighting the fuse, the defendant left the dwelling and drove to a local bar. Unknown to the defendant, the fuse became disjointed and did not trigger the explosive device. In fact, none of the structure was burned or damaged. When the defendant carried out his plan, he believed that setting fire to one's home constituted arson. The defendant is charged with attempted arson.

AND

2. A defendant walks into a liquor store with a loaded gun hidden in his coat pocket. He approaches the proprietor who is standing behind the cashier's counter. The defendant pulls out the gun, points it at the proprietor, and demands the money from the cash register. The proprietor hands over the money to the defendant. After fleeing the store, the defendant is arrested in the parking lot as he is trying to make his getaway. The defendant is charged with attempted robbery.

***

For #1 I ran through the elements of arson and realized that at common law you need to burn the dwelling "of another." But, that in the majority of jurisdictions that element had been removed to cover exactly this type of situation. For #2 I decided that the crime had been completed and the attempt would automatically merge into the completed crime.

So I select #2.

Correct answer was #1 due to legal impossibility; the question had maintained the "dwelling of another" element for arson. Explanation stated that merger would apply at charging, which would allow the prosecutor to charge attempted robbery or robbery, but not both. I had thought merger worked this way with say, homicide, but that attempt ALWAYS merged into the completed crime with no discretion exercised from the prosecutor.

Also posting this to the ask the expert thing, but, haven't been on the forums in a bit and was curious what others think of the problem.

[jd20132013]

what in the world. never heard of this merger would apply at charging thing.

i would have picked 2 as well.

that said now that i realize we were in the common law jx for arson it makes sense. I'm not so sure i buy the reason 2 is right, but there's 0 chance you could be convicted for having the specific intent to do an act that's not proscribed and taking a substantial step towards that legal action, so...

[buckilaw]

what in the world. never heard of this merger would apply at charging thing.

Ya, I did derp in regards to the arson thing. But, I've never heard of merger applying at charging either.

[LeDique]

It's less about when merger happens (tho I got this Q wrong too), and more about the fact that the arson D didn't even attempt something that was illegal

[thsmthcrmnl]

[Dumb comment]

[Pokemon]

Had a simulated Kaplan question which asked, "of the four following fact patterns which is least likely to result in liability for attempt."

Narrowed it down to:

1. One night a defendant decided to set fire to his own home, intending to collect the insurance proceeds. He put together an explosive device and lit the fuse that was supposed to detonate after a ten-minute interval. After lighting the fuse, the defendant left the dwelling and drove to a local bar. Unknown to the defendant, the fuse became disjointed and did not trigger the explosive device. In fact, none of the structure was burned or damaged. When the defendant carried out his plan, he believed that setting fire to one's home constituted arson. The defendant is charged with attempted arson.

AND

2. A defendant walks into a liquor store with a loaded gun hidden in his coat pocket. He approaches the proprietor who is standing behind the cashier's counter. The defendant pulls out the gun, points it at the proprietor, and demands the money from the cash register. The proprietor hands over the money to the defendant. After fleeing the store, the defendant is arrested in the parking lot as he is trying to make his getaway. The defendant is charged with attempted robbery.

***

For #1 I ran through the elements of arson and realized that at common law you need to burn the dwelling "of another." But, that in the majority of jurisdictions that element had been removed to cover exactly this type of situation. For #2 I decided that the crime had been completed and the attempt would automatically merge into the completed crime.

So I select #2.

Correct answer was #1 due to legal impossibility; the question had maintained the "dwelling of another" element for arson. Explanation stated that merger would apply at charging, which would allow the prosecutor to charge attempted robbery or robbery, but not both. I had thought merger worked this way with say, homicide, but that attempt ALWAYS merged into the completed crime with no discretion exercised from the prosecutor.

Also posting this to the ask the expert thing, but, haven't been on the forums in a bit and was curious what others think of the problem.

Lol at the Kaplan hint.

[Duchovnysfan]

Inchoate Crimes are the death of me :/ I would have chosen #2 as well.

The explanation for #1 re: legal impossibility makes sense because at common law it has to be the dwelling of another, not your own dwelling. So you can never attempt to commit arson b/c the element "of another" just did not happen in that fact pattern. I know modern jurisdiction eliminates that part but unless it specifies otherwise, always apply common law rules for crimes for the MBE. That has been drilled into my head b/c I always screwed up with property crimes b/c I would remember the modern trend for burglary.

While #2 is very possible, #1 is still the better answer b/c of the legal impossibility for arson.

however, the whole thing about merger applying at charging makes no sense. Attempt is merged once the crime is completed. Maybe they are confusing the terms of complete and charging? Although would be a bit of a stretch.

[sidhesadie]

Inchoate Crimes are the death of me :/ I would have chosen #2 as well.

The explanation for #1 re: legal impossibility makes sense because at common law it has to be the dwelling of another, not your own dwelling. So you can never attempt to commit arson b/c the element "of another" just did not happen in that fact pattern. I know modern jurisdiction eliminates that part but unless it specifies otherwise, always apply common law rules for crimes for the MBE. That has been drilled into my head b/c I always screwed up with property crimes b/c I would remember the modern trend for burglary.

While #2 is very possible, #1 is still the better answer b/c of the legal impossibility for arson.

however, the whole thing about merger applying at charging makes no sense. Attempt is merged once the crime is completed. Maybe they are confusing the terms of complete and charging? Although would be a bit of a stretch.

I don't know, I think their point is that the prosecutor has discretion to charge either one. If I don't think I can prove robbery for some reason but I think I can prove attempted robbery, I can charge attempted robbery instead. I just can't charge them with BOTH because the attempt would merge with the completed crime. But that doesn't mean I have to charge the completed crime, if the elements of attempt are there I can charge it. (Similarly, sometimes an crime will be plea bargained down to an attempt, so I'll let you plead guilty to attempted possession of a controlled substance, even though you actually completed the act and were originally charged with possession. I think that's what they mean by applies at charging. At charging, a decision has to be made which you are charging, because you can't charge both.