3. Crimes Against the Person: Homicide

Question 1

Common Law Murder

Answer 1

1. Causing the death
2. of another person
3. with malice aforethought

Question 2

The common law requirement of “malice aforethought” is satisfied if the defendant has any of the following four mental states:

Answer 2

1. The intent to kill
2. The intent to inflict serious bodily harm
3. Extreme recklessness, meaning reckless indifference to human life
4. The intentional commission of an inherently dangerous felony (“felony murder”)

Question 3

Common Law Deadly Weapon Rule

Answer 3

The intentional use of a deadly weapon creates an inference of an intent to kill.

Question 4

Transferred Intent

Answer 4

If a defendant intends to harm one victim, but accidentally harms a different victim instead, the defendant’s intent will transfer from the intended victim to the actual victim.

Question 5

Does transferred intent apply to attempt crimes?

Answer 5

Transferred intent does not apply to attempts, only to crimes with “completed harms.”

Question 6

Common Law Felony Murder

Answer 6

Any killing caused during the commission of or attempt to commit a felony.

Question 7

Two limitations on felony murder:

Answer 7

1. D must have committed the underlying felony. (If you have a defense to the felony, you have a defense to felony murder.)
2. The felony must be inherently dangerous.

Question 8

NY Felony Murder Felonies:

Answer 8

1. Battery
2. Robbery

3, Arson

4. Kidnapping
5. Escape
6. Sexual Assault

Question 9

The “merger” rule for felony murder

Answer 9

The felony must be independent of the killing.

Therefore, for example, aggravated assault or battery cannot be the underlying crime.

Question 10

“Res gestae” principles for felony murder:

Answer 10

The killing must take place during the felony or during during immediate flight from the felony. Once the felon(s) reach a place of temporary safety, the felony ends.

Question 11

Does felony murder apply if a co-felon dies?

Answer 11

No

Question 12

“Proximate Cause” theory of Vicarious Liability

Answer 12

In some states, including NEW YORK, if one of the co-felons proximately causes the victim’s death, all of the other co-felons will be guilty of felony murder, even if the actual killing is committed by a third party (e.g., a police officer).

Question 13

“Agency” theory of Vicarious Liability:

Answer 13

In some states, the felony murder doctrine applies only if the killing is committed by one of the co-felons.

Question 14

The NY “Non-Slayer” Defense:

Answer 14

NY provides a limited affirmative defense to felony murder if the defendant can prove each of the following four things:

1. The defendant did not kill the victim;
2. The defendant did not have a deadly weapon;
3. The defendant had no reason to believe that his co-felons had deadly weapons; and
4. The defendant had no reason to believe that his co-felons intended to do anything that was likely to result in death.

Question 15

Common Law First Degree Murder

Answer 15

Any intentional killing committed with

1. Premeditation, and (D thought about it ahead of time)
2. Deliberation. (D was cool, calm, and collected).

Question 16

Common Law Second Degree Murder

Answer 16

All other intentional murders, as well as depraved heart murder and, where it still exists as a separate category of homicide, intent-to-inflict-serious-bodily-harm murder.

Question 17

First degree murder in NEW YORK:

Answer 17

1. An intent to kill; and
2. The defendant is more than 18 years old; and
3. At least one aggravating factor

Question 18

Aggravating factors for felony murder in New York:

Answer 18

1. The victim is a law enforcement officer , engaged in official duties at the time of the killing;
2. The defendant committed a murder for hire;
3. Felony murder, where the victim was intentionally killed;
4. killing for the purpose of witness intimidation; or
5. There was more than one victim intentionally killed in the same criminal transaction.

Question 19

Second degree murder in NEW YORK:

Answer 19

1. Intentional killing that does not qualify for first degree
   (Note: “Premeditation and deliberation” are irrelevant in NY.)
2. Highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates a “grave risk” of death, generally to more than one victim.
3. Felony murder, where the victim is not a co-felon and is killed unintentionally.

Question 20

Common Law Voluntary Manslaughter

Answer 20

(1) A killing committed intentionally
(2) in the heat of passion
(3) upon adequate provocation .

Question 21

To qualify for voluntary manslaughter, an intentional homicide must satisfy four requirements:

Answer 21

1. The provocation must be objectively adequate, which means it would arouse a sudden and intense passion in the mind of a reasonable person.
2. The defendant was actually provoked.
3. The defendant did not have time to cool off.
4. The defendant did not actually cool off between the provocation and the killing.

Question 22

NY Extreme Emotional Disturbance (“EED”) Manslaughter

Answer 22

An intentional killing committed under the influence of a reasonable extreme emotional disturbance.

Question 23

Burden of proof for an Extreme Emotional Disturbance

Answer 23

EED acts as an affirmative defense to second degree murder, which means the defendant must prove EED by a preponderance of the evidence.

Question 24

Common Law Involuntary Manslaughter

Answer 24

(1) A killing committed during the commission of a crime to which the felony murder doctrine does not apply.
(This is sometimes called “unlawful act manslaughter” or “misdemeanor manslaughter”.)

OR

2. An unintentional killing committed:
   (a) Common Law: with criminal negligence;
   (i. e., a gross deviation from a reasonable standard of care)
   (b) MPC/Modern trend: recklessly.

Question 25

NY First Degree Manslaughter

Answer 25

1. EED manslaughter; or

2. An intent to cause serious physical injury.

Question 26

Mental state required for NY Second Degree Manslaughter

Answer 26

Recklessness

Question 27

NY Second Degree Manslaughter

Answer 27

The defendant is aware of and consciously disregards a substantial and unjustifiable risk of death.

Question 28

NY Second degree vehicular manslaughter:

Answer 28

Causing the death of another person as a result of driving while intoxicated.

Question 29

NY First degree vehicular manslaughter:

Answer 29

Second degree vehicular manslaughter, plus an additional aggravating factor, such as:

1. A blood-alcohol level of .18 or higher; or
2. The death of more than one victim.

Question 30

Mental state required for NY Criminally negligent homicide

Answer 30

Criminal negligence

Question 31

NY Criminally negligent homicide definition

Answer 31

The defendant should have been aware of a substantial and unjustifiable risk of death.

Question 32

NY Aggravated Homicide:

Answer 32

When the victim of the homicide is a police officer killed in the line of duty (i.e., Aggravated Murder, Aggravated Man-1, Aggravated Man-2, Aggravated Criminally Negligent Homicide).

Question 33

NY Aggravated Murder

Answer 33

When the defendant, over the age of 18, causes the death of a child under the age of 14 in an especially cruel and wanton manner.

Question 34

NY Aggravated Vehicular Homicide:

Answer 34

When the defendant commits first degree vehicular manslaughter and engages in reckless driving.