Criminal Law

Fact pattern

A and B work together in a large office building. They are also practical jokesters, whose once-amiable feud has turned outright hostile. Accordingly, each begins to stage elaborate pranks against the other; each prank is more dangerous than the last. 

One day, A decides to prank B by blocking the exit to B’s office and flooding the office with tear gas. Having done some research on the effects of tear gas, A knows that tear gas can cause severe eye, respiratory, and skin irritation, as well as pain, vomiting, blindness, and (in very rare cases) death. A also knows that the tear gas released in B’s office may seep through the walls and affect other co-workers in nearby offices. A is aware of these risks, but he does not want anyone to die because of his prank. He does, however, believe that using tear gas in this way is illegal.

Alternative Scenario 1:

The plan goes off without a hitch, except that, instead of filling with tear gas, B’s office fills with the sweet aroma of lavender and cherry blossoms. As it turns out, B out-pranked A by switching out the tear-gas canister for another canister full of pressurized perfume. In this scenario, assume that tear gas is classified as a chemical weapon. Unlawfully possessing and using it, as A has done here, is subject to criminal sanctions. 

Alternative Scenario 2:

The plan goes off without a hitch: B’s office fills with tear gas, which seeps into several other surrounding offices. As people nearby begin suffering the effects of the tear gas, panic ensues, and several people are injured while fleeing the building. Mercifully, though, none die. A is arrested, but it turns out that the state has recently legalized “prank-related tear gassing, and all resulting consequences,” because the governor is a huge fan of extreme pranking.

In both scenarios, A is arrested and charged with multiple counts of attempted murder. Murder is defined as the “unlawful killing of a human being.” Assume the prosecution can prove the above facts at A’s trial.

Questions

1. Under the Model Penal Code, does A have the necessary mens rea for attempted murder under either scenario? Explain, but do not analyze actus reus, do not apply the common law, and do not analyze A’s liability for any other crime.
2. Under scenario 1, does A have a common-law impossibility defense against attempt liability? Explain, applying only the common law.
3. Under scenario 2, does A have a common-law impossibility defense against attempt liability? Explain, applying only the common law.