Criminal Homicide Flashcards
Criminal Homicide
Homicide committed without justification or excuse
(a number of states have modified the definition of “human being” to include a viable unborn fetus)
Majority of jurisdictions have incorporated “brain death” into their definitions
Manslaughter
the unlawful killing without malice aforethought
Malice aforethought
Intent to kill
Intent to cause SBI
Reckless indifference to the value of human life (Depraved Heart)
Imputed mens rea (Felony Murder)
Premeditation
The process of thinking about an action beforehand
Quantity of thought beforehand
Intent to Kill
Common law intent rules
Generally 2nd degree
Subjective element
prosecutor must show that the defendant actually possessed intent to kill
not enough that a reasonable person would have known that death would result from the defendant’s conduct
Deliberation
Calm and rational calculation and weighing of options
Deliberation with a cool head (“cold-blooded”)
Quality of thought beforehand
1st Degree Murder
Premeditated or deliberated killing.
Violent Felony
Killing by enumerated means; torture; chemical weapons; bomb.
2nd Degree Murder
Any killing with malice aforethought, but not first degree.
Felony Murder
An unintended killing that occurs during the commission or attempted commission of an inherently dangerous felony.
The felonies considered inherently dangerous are:
Burglary, Arson, Rape, Robbery, Kidnapping (BARKK)
Can be 1st or 2nd degree
BARRK usually 1st degree
Limitations to FMR
Inherently dangerous limitation
Res Gestae
Merger Doctrine
Agency Rule
Res Gestae
In order for the FMR to apply, the homicide must occur “within the res gestae” of the underlying felony.
Temporal and Geographic Proximity
To apply FMR, there must be relatively close proximity in time and distance between the felony and the homicide.
Res Gestae starts once attempt is made
Ends when felon reaches place of temporary safety.
The merger doctrine
The predicate felony must not be one involving personal injury but have a purpose other than inflicting harm
Nearly all states that have felony murder have adopted the merger doctrine
In practice, this means in most states, b/c assault is purely physical violence → Can’t use assault as the underlying felony for felony murder
Merger rule generally not appropriate where predicate felonies for the felony murder rule are specifically enumerated by statute.
The agency rule
Majority rule (Agency theory)
A person is responsible only for his own actions or those who are acting with him in the felony and who are, therefore, his agents.
Agency theory is the majority position and should be used unless exam specifically asks for proximate cause
Agency Theory (majority)
Felon is liable under the FMR for deaths caused by others acting in concert with them (agents or accomplishes)
If the homicide was committed by one of the felons, and if it was done in furtherance of the felony, then all co-felons are deemed responsible because each is considered to be the agent of the other.
Co-felon can both be charged with felony murder, even if only one of them committed the killing, even if one was unaware of the other’s actions.
Note: Felon will not be liable for the death of a bystander caused by cop or victim b/c neither is the felon’s agent
Proximate cause (minority)
Liability for the bystander’s death may attach to the felon b/c the death is a direct consequence of the felony.
Proximate cause (minority)
Liability for the bystander’s death may attach to the felon b/c the death is a direct consequence of the felony.
Defenses to FMR
A valid defense to the underlying felony
Death occurred after the commission of the felony and the ensuing flight from the scene of the crime.
Death was not caused by an act made in furtherance of the felony
The felony was not distinct from or independent of the killing itself (merger rule).
Involuntary Manslaughter
Unintentional homicide committed with criminal negligence or during an unlawful act.
Crim negligence=Grossly negligent action, or inaction where there is a duty to act that puts another person at significant risk of serious bodily injury or death
Jurisdictions take different approaches
Recklessness (D needs to consciously disregard the risk)
Gross negligence (D create unreasonable and high risk of SBI or death)
Criminal negligence same as civil negligence
Unlawful act=malum in se or malum prohibitum
