Homicide

Question 1

Describe the independent felony requirement for felony murder.

Answer 1

To be guilty of felony murder, a felony independent of the death must have occured.

For example, a battery that causes the victim to die might be a felony, however it is not independent of the victim’s death, therefore, in a majority of states a felony murder charge would be inappropriate.

Question 2

What is voluntary manslaughter?

Answer 2

Homicide committed with malice aforethought, but also with mitigating circumstances (e.g., “heat of passion” or imperfect defense).

Question 3

What if a defendant who is adequately provoked kills someone other than the provoker due to a reasonable mistake of fact?

Answer 3

If a defendant who has been adequately provoked accidentally kills the wrong person, the defendant will be guilty of voluntary manslaughter if that would have been the defendant’s crime had the defendant killed the provoker.

If the defendant intentionally kills an innocent bystander, then the defendant will be guilty of murder.

Question 4

What is the usual definition of first-degree murder?

Answer 4

First-degree murder is a statutory offense, and is generally defined as

(i) a deliberate and premeditated murder, OR
(ii) felony murder.

Question 5

What is involuntary manslaughter?

Answer 5

Unintentional homicide committed:

(i) With criminal negligence (or recklessness under the MPC); OR
(ii) During an unlawful act

Question 6

What kind of “adequate provocation” may reduce a murder charge to voluntary manslaughter?

Answer 6

A situation that could inflame the passion of a reasonable person to the extent that it could cause that person to momentarily act out of passion rather than reason.

Examples: the following constitutes adequate provocation:

A serious battery,

a threat of deadly force, or

discovery of adultery by a spouse

Usually mere words, such as taunts, do not.

Question 7

Is the defendant liable for felony murder when a co-felon is killed during the commission of a felony?

Answer 7

No. A defendant is not guilty of felony murder when the defendant’s co-felon is justifiably killed by a victim or police officer.

Question 8

What is the year-and-a-day rule with regard to homicide causation?

Answer 8

If a victim survived a battery or assault for more than a year and one day, it was presumed that the cause of death was NOT that of the defendant.

• The “year-and-a-day rule” is a common law rule that is no longer followed by the majority of jurisdictions.

Question 9

What are the five most common inherently dangerous felonies associated with felony murder?

Answer 9

1. Burglary
2. Arson
3. Rape
4. Robbery
5. Kidnapping

Question 10

In what two circumstances can a killing give rise to a charge of involuntary manslaughter?

Answer 10

(i) A killing committed in the commission of a malum in se (wrong in itself) misdemeanor; OR
(ii) A killing committed in the commission of a felony that is not statutorily treated as first-degree felony murder or second-degree murder.

Question 11

When, on the MBE, should you consider degrees of murder?

Answer 11

When the fact pattern supplies a statute.

Note:

• Degrees of murder do not exist at the common law.
• Under modern statutory rules, murder is generally divided into two degrees: first-degree and second-degree murder.

Question 12

Define common-law murder.

Answer 12

The unlawful killing of another human being with malice aforethought.

Note: Remember that common-law murder is a malice crime, not a specific-intent crime.

Question 13

What type(s) of causation must be established to prove a homicide? Define each.

Answer 13

1. Actual causation: The victim would not have died but for the defendant’s act.
2. Proximate causation: The death caused by the defendant’s conduct is foreseeable as the natural and probable result of the conduct.

Question 14

1. What is the difference between the agency theory and the proximate cause theory when a bystander is killed during the commission of a felony murder?

Answer 14

Agency theory (majority rule):

• the felon will not be liable for the death of a bystander caused by a felony victim or police officer, because neither is the felon’s agent.

Proximate cause theory:

• liability for a bystander’s death may attach to the felon because the death is a direct consequence of the felony.

Note: On the MBE, apply the agency theory unless instructed otherwise.

Question 15

Why is “heat of passion” important when considering a defendant’s culpability for murder?

Answer 15

If the defendant presents sufficient evidence that the killing was committed in the heat of passion, then the defendant is guilty of voluntary manslaughter rather than murder.

• This is important because manslaughter generally receives a lesser sentence than murder.

Note: Voluntary manslaughter is a separate crime from murder, rather than a lesser degree.

Murder is reduced to manslaughter in the event of heat of passion as an element needed for murder (malice) has been disproven.

Question 16

What is depraved-heart murder?

Answer 16

Depraved-heart murder is a killing that results from reckless indifference to an unjustifiably high risk to human life.

The majority rule requires the defendant to be aware of the danger involved.

Question 17

Common law murder is the unlawful killing of another with malice aforethought.

Malice aforethought can be established by any of the following mental states:

Answer 17

1. intent to kill

• Conscious desire to cause death or substantial certainty that death will result

2. intent to cause serious bodily injury

• Conscious desire to cause serious physcial injury OR substantial certainty that such injury will result
  3. reckless indifference to human life (depraved-heart murder)
• Reckless disregard for high risk of death OR serious bodily harm (i.e., abandoned & malignant heart murder)

4. intent to commit a felony (felony murder)

• Killing during an inherently dangerous felony (i.e., BARRK–burglary, arson, rape, robbery, kidnapping)

***Consent is never a defense to this crime***

Question 18

Doctrine of transferred intent

Answer 18

Under the doctrine of transferred intent, when a defendant acts with the intent to kill or harm one person and that act directly results in harm to another, the defendant’s intent is transferred to the unintentionally harmed person.

Question 19

Felony Murder (themis)

Answer 19

Felony murder is an unintended killing proximately caused by and that occurs during the commission or attempted commission of an inherently dangerous felony (e.g., robbery).

The underlying felony, as the lesser included offense, typically merges into the felony-murder charge.

Question 20

Common law murder

causation

Answer 20

Common-law murder (default rule) requires proof that the defendant caused the unlawful killing of another while acting with malice aforethought.

Causation must be both:

1) actual – the unlawful result would not have occurred but for the defendant’s conduct and
2) proximate – the unlawful result was a foreseeable consequence of the defendant’s actions.

***Negligent medical treatment is generally foreseeable, so it does not break the chain of proximate causation***

Question 21

Homicide

• Common law murder*
• Modern approach to Murder*
• Voluntary Manslaughter*
• Involuntary Manslaughter*

Answer 21

1. Common law murder

• intent to kill
• intent to cause serious bodily harm
• depraved-heart murder
• felony murder

2. First-degree murder: (modern approach)

murder committed with:

• premeditation & deliberation
• heinous acts (e.g., bombing, torture)
• enumerated felony murder

3. Second-degree murder: (modern approach)
   * any murder that is not first-degree murder.
4. Voluntary Manslaughter:

Intentional killing mitigated by either:

• adequate provocation (i.e., heat of passion)
• other mitigating factors (e.g., imperfect self-defense)

5. Involuntary Manslaughter:

Unintentional killing either:

• caused by criminal negligence (or recklessness under MPC)
• occurs during the commission of a criminal act (e.g., misdemeanor manslaughter)

Question 22

What are the two types of unintentional killings under common law murder?

Answer 22

1) felony murder – an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony (BARRK) AND
2) depraved-heart murder – an unintentional killing that results from reckless indifference to an unjustifiably high risk to human life.

Question 23

Depraved-heart murder

Answer 23

Depraved-heart murder is an unintentional killing that results from a reckless indifference to an unjustifiably high risk to human life.

Question 24

Attempted First Degree Murder

Answer 24

In most jurisdictions, a deliberate and premeditated killing is categorized as first-degree murder.

A defendant is guilty of attempted first-degree murder if he/she:

(1) specifically intended to commit first-degree murder,
(2) committed an overt act in furtherance of the murder, BUT
(3) did not complete it.

Question 25

Agency Theory of felony murder

Answer 25

Under the agency theory of felony murder (majority rule), a defendant is responsible for deaths proximately caused by him/herself or cofelons during the commission or attempted commission of an inherently dangerous felony—but not for deaths caused by others.

Question 26

Common law murder is the…

Answer 26

Common-law murder is the unlawful killing of another with malice aforethought—i.e.:

i) intent to kill
ii) intent to cause serious bodily injury
iii) depraved-heart murder—i.e., reckless indifference to an obvious or high risk to human life OR
iv) felony murder—i.e., intent to commit an inherently dangerous felony (e.g., arson).

Question 27

Involuntary Manslaughter

Answer 27

Involuntary manslaughter is an unintentional killing caused by criminal negligence or the commission of an unlawful act.

• Criminal negligence is grossly negligent conduct that puts another at risk of death or serious bodily injury.

Question 28

Proximate cause theory & agency theory of liability for felony-murder

Answer 28

Under the proximate-cause theory of liability, a felony-murder defendant is responsible for any death that is a natural and probable consequence of the felony.

Conversely, under the agency theory of liability, the defendant is only responsible for deaths caused by the defendant’s agent

Question 29

Unlawful acts for Involuntary manslaughter

Answer 29

Unlawful acts (for involuntary manslaughter)

i) Felony that does not statutorily qualify as first-degree felony murder or second-degree murder
ii) Malum in se (inherently wrong) misdemeanor (ie, misdemeanor-manslaughter rule)
iii) Malum prohibitum (wrong by law) misdemeanor only if act was willful or constituted criminal negligence

Question 30

Involuntary manslaughter rule statement

Answer 30

Involuntary manslaughter is an unintentional homicide committed:

(1) with criminal negligence OR
(2) during the commission of an unlawful act.

Unlawful acts are generally categorized as:

i) felonies that do not constitute a basis for a charge of felony murder
ii) malum in se misdemeanors—i.e., misdemeanors that are inherently wrong or
iii) malum prohibitum misdemeanors—i.e., misdemeanors that are not inherently wrong but are prohibited by statute if they are (1) committed willfully or (2) constitute criminal negligence.

Question 31

Voluntary Manslaughter

Answer 31

Voluntary manslaughter is homicide committed with malice aforethought, but also with mitigating circumstances.

• It includes homicide committed in response to adequate provocation (i.e., in the “heat of passion”).

Question 32

To convict a defendant of felony murder, the prosecution must establish the ___________________.

Answer 32

underlying felony.

Question 33

Felony Murder

When does “proximate cause” exist?

Answer 33

Proximate cause (i.e., legal cause) exists only when the defendant is deemed legally responsible for a homicide.

For the defendant to be legally responsible for a homicide, the death must be foreseeable.

A death caused by the defendant’s conduct is deemed foreseeable if death is the natural and probable result of that conduct.

Question 34

For purposes of felony murder, when is a death caused by the defendant’s conduct deemed foreseeable?

Answer 34

A death caused by the defendant’s conduct is deemed foreseeable if death is the natural and probable result of that conduct.