BAR FLASHCARDS - Crim L 5 - Homicide

Question 1

Murder

Answer 1

1st degree
2nd degree murder
Manslaughter

Question 2

Common law murder

Answer 2

Unlawful killing of a human being with malice aforethought.
Malice aforethought - no facts that would reduce the killing to voluntary manslaughter or excusing it.

Question 3

COMMON LAW MURDER

Answer 3

Murder is the unlawful killing of a human being with malice aforethought.
Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (that is, giving rise to a defense) AND
it was committed with one of the following states of mind:
• Intent to kill
• Intent to inflict great bodily injury (i wanna beat them up really bad)
• Reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart” or “depraved heart”); or
• Intent to commit a felony (felony murder)

Question 4

Malice aforethought exists if….

Answer 4

Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (that is, giving rise to a defense) AND
it was committed with one of the following states of mind:
• Intent to kill
• Intent to inflict great bodily injury (i wanna beat them up really bad)
• Reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart” or “depraved heart”); or
• Intent to commit a felony (felony murder)

Question 5

Intentional use of a deadly weapon….

Answer 5

Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.

Question 6

mercy killing case

Answer 6

Still murder!
If a defendant intends to kill, even as an act of love, they are guilty of murder.

Question 7

STATUTORY MODIFICATION OF COMMON LAW CLASSIFICATION:

What makes it not second degree murder?

Answer 7

In some jurisdictions, murder is divided into degrees by statute.

First Degree Murder: A murder will be second degree murder (similar to common law murder) unless it comes under the following circumstances, which would make it first degree murder:
a. Deliberate and premeditated first degree murder: If the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder. The defendant must have acted with intent or knowledge that their conduct would cause death.

b. First Degree Felony Murder: In many states, a killing committed during the commission of an enumerated felony is felony murder and called first degree murder.
The felonies most commonly listed are burglary, arson, rape, robbery, and kidnapping, but other felonies that are inherently dangerous to human life are often specifically added. Another statute (or case) may provide that a killing during any felony is felony murder, but the killing will typically be classified as second degree felony murder. Some other states do not list the felonies that may be used for felony murder at all, and the first degree murder classification is most
often attached. Some states require that the felony be inherently dangerous to human life or the felony be dangerous to human life as committed.

c. Others: Some statutes make killings performed in certain ways (for example, by torture) or with certain victims first degree murder. Many states make the homicide of a police officer first degree murder. The defen- dant must know the victim is a law enforcement officer, and the victim must be acting in the line of duty.

Question 8

First Degree Murder - Deliberate and premediated first degree murder:

D did what?

Intent?

Answer 8

a. Deliberate and premeditated first degree murder:
If the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder.

The defendant must have acted with intent or knowledge that their conduct would cause death.

Intoxication:
First degree murder based on premeditation requires a specific intent, which may be negated by the defense of voluntary intoxication.
If the defendant was so intoxicated that they were unable to premeditate, they can be convicted only of second degree or common law murder, which requires only reckless indifference to human life (and for which voluntary intoxica- tion is not a defense).

Question 9

First Degree Murder - First Degree Felony Murder

What are the felonies?

Answer 9

b. First Degree Felony Murder:
In many states, a killing committed during the commission of an enumerated felony is felony murder and called first degree murder.
The felonies most commonly listed are burglary, arson, rape, robbery, and kidnapping, but other felonies that are inherently dangerous to human life are often specifically added.

Another statute (or case) may provide that a killing during any felony is felony murder, but the killing will typically be classified as second degree felony murder.

Some other states do not list the felonies that may be used for felony murder at all, and the first degree murder classification is most often attached.

COMMON LAW RULE: Some states require that the felony be inherently dangerous to human life or the felony be dangerous to human life as committed.

Question 10

First Degree Murder - Others

Answer 10

c. Others: Some statutes make killings performed in certain ways (for example, by torture) or with certain victims first degree murder. Many states make the homicide of a police officer first degree murder. The defen- dant must know the victim is a law enforcement officer, and the victim must be acting in the line of duty.

Question 11

Killing of a police offer (majority rule)

Answer 11

Many states make the homicide of a police officer first degree murder.
The D must know the V is a law enforcement officer, and the victim must be acting in the line of duty.

Question 12

Second Degree Murder

Answer 12

If the jurisdiction divides murder into degrees, second degree murder is usually classified as a depraved heart killing (a killing done with a reckless indifference to an unjustifiably high risk to human life) or any murder that is not classified as a first degree murder.

Question 13

FELONY MURDER: Rule

Answer 13

Any death—even an accidental death—caused in the commission of, or in an attempt to commit, a felony is murder.
Malice is implied from the intent to commit the underlying felony.

Question 14

FELONY MURDER: Felonies included

Answer 14

Felonies Included:
At common law, there are only a handful of felonies (such as burglary, arson, rape, etc.).
BARRK - Burglary, Arson, Rape, Robbery, Kidnapping.
Statutes today have created many more felonies.

Question 15

BARRK -

Answer 15

Felonies included at common law for felony murder:
BARRK - Burglary, Arson, Rape, Robbery, Kidnapping.

Question 16

FELONY MURDER: Limitations on liability

Answer 16

There are several limitations on this rule:

(1) The defendant must have committed or attempted to commit the underlying felony; a defense that negates an element of the underlying offense will also be a defense to felony murder. (look for defense to specific intent crime like intoxication)

(2) The felony must be distinct from the killing itself (for example, commission of aggravated battery that causes a victim’s death does not qualify as an underlying felony for felony murder liability).

(3) Death must have been a foreseeable result of the felony (a minority of courts require only that the felony be malum in se).

(4) The death must have been caused BEFORE the defendant’s “immediate flight” from the felony ended; once the felon has reached a place of “temporary safety,” subsequent deaths are not felony murder.

(5) In most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police.

Under the “proximate cause” theory, felons are liable for the deaths of innocent victims caused by someone other than a co-felon.
Under the alternative “agency” theory of felony murder, the killing must be committed by a felon or their “agent” (that is, an accomplice) with limited exceptions in cases in which the victim was used as a shield or otherwise forced by the felon to occupy a dangerous place.

Question 17

Felony murder: Proximate cause theory vs Agency theoy

Answer 17

MINORITY - Proximate Cause theory: Felon liable for deaths of innocent victims caused by someone other than the co-felon. Under the “proximate cause” theory, felons are liable for the deaths of innocent victims caused by someone other than a co-felon.

MAJORITY - Agency theory: Felon liable only if killing committed by felon or agent. Under the alternative “agency” theory of felony murder, the killing must be committed by a felon or their “agent” (that is, an accomplice) with limited exceptions in cases in which the victim was used as a shield or otherwise forced by the felon to occupy a dangerous place.

If a bystander is accidentally killed by a police officer during a shootout at the crime scene…

The felons will be guilty of felony murder under the proximate cause theory, because they put into operation a series of events that caused the death of the innocent party.

However, there would be no felony murder liability under the agency theory because a police officer caused the bystander’s death.

Question 18

Voluntary intoxication

Answer 18

Defense to specific intent crimes.
S
C
A
F
L
E
F
R
B
E
F

Question 19

VOLUNTARY MANSLAUGHTER

Answer 19

Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation.
Provocation is adequate ONLY if:
• It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing them to lose self-control (for example, exposure to a threat of deadly force, finding your spouse in bed with another, or being a victim of a serious battery)
• The defendant was in fact provoked
• There was not sufficient time between provocation (or provocations) and the killing for passions of a reasonable person to cool; and
• The defendant in fact did not cool off between the provocation and the killing

Question 20

Voluntary Manslaughter: Adequacy of Provocation, consider:

Answer 20

Provocation is adequate ONLY if:
• It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing them to lose self-control (for example, exposure to a threat of deadly force, finding your spouse in bed with another, or being a victim of a serious battery)
••• Sudden and intense passion that would cause a reasonable person to lose control—passion must be reasonable under the circumstances; defendant cannot have been set off by something that would not bother most others.
• The defendant was in fact provoked
••• Defendant lost control—even if a reasonable person would have been provoked, if defendant was not, there is no reduction to manslaughter.
• There was not sufficient time between provocation (or provocations) and the killing for passions of a reasonable person to cool; and
••• Not enough time for reasonable person to cool off—this is tricky because it is hard to say how much time is needed to cool off; a lot depends on the situation, but the more time that has passed, the more likely it is that a reasonable person would have cooled off.
• The defendant in fact did not cool off between the provocation and the killing
••• Defendant did not cool off—this is a little easier to judge; if the facts show that defendant calmed down, there is no reduction to manslaughter.

Question 21

“heat of passion

Answer 21

“heat of passion” is not a defense to a killing, although it may reduce the killing from murder to manslaughter. Often a question will set up facts showing
sufficient provocation and then ask about defendant’s criminal liability. Don’t be fooled by a choice such as “Not guilty because defendant acted in the heat of passion.” The correct choice will be something like “Guilty of manslaughter, but not murder, because defendant acted in the heat of passion.”

Question 22

Voluntary Manslaughter - Imperfect Self-Defense

Answer 22

Some states recognize an “imperfect self-defense” doctrine under which murder may be reduced to manslaughter even though
(1) the defendant was at fault in starting the altercation; or
(2) the defendant unreasonably but honestly believed in the necessity of responding with deadly force (meaning the defendant’s actions do not qualify for self-defense).

Question 23

INVOLUNTARY MANSLAUGHTER

Answer 23

A killing is involuntary manslaughter if it was committed:
• With criminal negligence (or by “recklessness” under the M.P.C.) or
• In some states, during the commission of an unlawful act (killing someone while committing misdemeanor or felony not included within felony murder rule).
Foreseeability of death also may be a requirement.

Question 24

Involuntary manslaughter: Distinguished from “Abandoned and Malignant Heart” Murder

Answer 24

Abandoned and malignant heart murder at common law involves a high risk of death,
while involuntary manslaughter based on recklessness requires only a substantial risk.

Question 25

CAUSATION

Answer 25

The defendant’s conduct must be both the cause-in-fact and the proximate cause of the victim’s death.
CAUSE-IN-FACT
PROXIMATE CAUSE

Question 26

Cause-in-Fact

Answer 26

A defendant’s conduct is the cause-in-fact of the result if the result would not have occurred “but for” the defendant’s conduct.

Question 27

Proximate Causation

Answer 27

A defendant’s conduct is the proximate cause of the result if the result is a natural and probable consequence of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.

Question 28

Rules of Causation

act that hastens…?

Simultaneous acts of 2 or more persons….?

Pre-existing weakness?

Answer 28

An act that hastens an inevitable result is still the legal cause of that result.

Also, simultaneous acts of two or more persons may be independently sufficient causes of a single result.

A victim’s preexisting weakness or fragility, even if unforeseeable, does not break the chain of causation.

Question 29

Limitations - Year and a Day Rule

Answer 29

Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound. Most states that have reviewed this rule have abolished it.

Question 30

Limitations - Intervening Acts

Answer 30

Generally, an intervening act shields the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant.
Note that a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both foreseeable risks, so the defendant would be liable.