Transferred Intent (Ehrenreicht)

Nancy Ehrenreicht, Attempt, Murder, and Transferred Intent, 82 Brooklyn Law Review 49 (2016):

The transferred-intent doctrine has been in existence since the sixteenth century. Although there is "no canonical statement" of the rule, it can be generally described as imposing liability on an actor who intends to kill or injure one person, but accidentally kills or injures a different, unintended victim. Thus, in the basic case of the doctrine, the "bad aim" case, A shoots at B, intending to kill him, but misses and kills C, standing next to B. … [T]he doctrine operates to "transfer" A's original intent (to kill B) to C, thereby providing the culpable intent necessary to convict A of murder. Thus, the culpable intent towards B is combined with causing the requisite harm to C to form a completed crime. Widely recognized as a legal fiction, and considered by a number of scholars to be unnecessary, the doctrine nevertheless appears to be universally followed.

The concept of "transferring" intent was originally proposed as a solution to the perception that it would otherwise be impossible to convict A of murder in bad aim situations. … [T]he doctrine does not allow an actor to escape punishment merely because he accidentally harmed a person different from the intended target. To fail to impose murder liability in such a case would be to benefit the defendant merely because he had bad aim, allowing differential treatment of equally culpable individuals based on the "luck" factor of whether each was a good shot. …

Recent years have seen a dramatic expansion in the transferred-intent doctrine…. One central extension of the doctrine involves allowing attempted murder liability as to the intended target to be imposed along with transferred-intent murder as to the unintended (actual) victim. Consider, for example, the following hypothetical:

Hidden Child: A intends to shoot her partner, B, and has acquired a gun for that purpose. Believing their child, C, is at a neighbor's house for a play date, A goes into the living room where Bis reading a newspaper on the couch, aims, and shoots. Unbeknownst to either parent, C has already come home, and is playing behind the living room curtains. A's shot misses B but kills C. A loves C very much and had absolutely no harmful intent towards the child. Through application of the transferred-intent doctrine, A is convicted of the murder of C. She is also convicted of attempted murder of B. The mens rea for both crimes is supplied by A's initial intent to kill B.

Critics have indicted courts for "duplicating'' an actor's initial intent to kill in this way (as well as in other similar variations), concluding that punishing twice for one culpable intent represents an inappropriate expansion of the transferred­intent doctrine. Such expansions, they have argued, impose punishment disproportionate to culpability, punish for purely accidental harm,6 and fail to distinguish between foreseeable and unforeseeable victims.

Prof. Erenreicht's full article is available through Hein Online here.