Homicide Flashcards
Homicide Definition
Homicide is the killing of a living human being by another, and includes the offenses of murder and manslaughter. At common law, homicide was divided into three categories: (i) homicide justified by law, (ii) criminal homicide, and (iii)excusable homicide. Criminal homicides were divided into three offenses: murder, voluntary manslaughter, and involuntary manslaughter.
Common-law murder is the unlawful killing of another living human being with malice aforethought. Malice can be shown by any one of the following states of mind: (i)intent to kill, (ii) intent to do serious bodily injury, (iii) reckless indifference to human life (depraved-heart murder), and (iv)intent to commit a felony (felony murder). (See § II.B., Types of Homicide, infra.) Manslaughter includes two types: voluntary and involuntary. Voluntary manslaughter involves an intentional killing, and involuntary manslaughter is an unintentional killing.
Killing a Person
For a homicide to occur, a living human being must die. A body need not be found; death can be established by circumstantial evidence.
A person cannot be killed twice. Shooting a corpse is not homicide, but it can be a crime (e.g., abuse of a corpse).
At common law, a fetus is not a living person.
Causation
To prove a homicide, the prosecution must show that the defendant caused the victim’s death. The prosecution must prove both actual and proximate causation.
a. Actual cause
If the victim would not have died but for the defendant’s act, then the defendant’s act is the actual cause (i.e., cause-in-fact) of the death. When the defendant sets in motion forces that led to the death of the victim, the defendant is the actual cause of the victim’s death.
Example: A mechanical device set up by the defendant kills an individual. The defendant is considered to have caused that individual’s death.
1) Substantial factor
Actual causation can be found when there are multiple causes, (i.e., other persons are also responsible for the victim’s death) and the defendant’s act was a substantial factor in causing the death.
Simultaneous acts by different individuals who are acting independently may each be considered the actual cause of a victim’s death, even though the victim would have died in the absence of one of the acts.
Example: Two individuals simultaneously shoot a third individual. Either of the shots would have killed the victim. Each shot is considered the actual cause of the victim’s death.
2) Independent cause
A defendant’s act will not be deemed the cause of death when a victim is killed by an independent cause before the defendant’s act can kill the victim.
Example: A plans to kill B by stabbing him. A approaches B, finding him lying on the bed in a nonresponsive state. A assumes that B is asleep and stabs him multiple times. In reality, however, B had died one hour previously due to a massive heart attack. A’s actions did not cause B’s death; therefore, there is no homicide (A may be guilty of attempted murder).
3) Victim’s preexisting condition
A victim’s preexisting condition that contributes to the victim’s death does not supplant the defendant’s conduct as an actual cause of the victim’s death.
Example: A victim has heart condition. The defendant hits the victim with a club intending to kill the victim, but the blow would not have killed the victim if the victim had not had the heart condition. The defendant’s actions are nevertheless the actual cause of the victim’s death.
4) Mercy killing
Providing a person with the means by which that person can commit suicide generally does not make the provider guilty of murder as an accomplice (because suicide is not homicide) but instead guilty of a lesser crime, such as assisting a suicide. Note, however, that consent is not a defense to homicide, so a “mercy killing” (i.e.,euthanasia) can be a criminal homicide even if the person was willing to die because of a painful terminal illness.
b. Proximate cause
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 the conduct. Even if there is some intervening act, the defendant will still be held responsible unless the intervening act was so out-of-the-ordinary that it would be unjust to hold the defendant criminally responsible for the outcome. Or, as the MPC explains it, when the injury suffered is generally of the type intended by the defendant, proximate causation exists if the injury is “not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his offense.” MPC § 203(2)(b). Actions by a third party (e.g., negligence by the doctor treating the victim), as well as actions by the victim (e.g., suicide to escape the pain that resulted from the injuries inflicted by the defendant), are generally foreseeable. However, actions by third parties will relieve the defendant of liability if they are independent of the defendant’s conduct and unforeseeable, or dependent on the defendant’s conduct and “abnormal” (i.e., not just unforeseeable, but unusual or extraordinary in hindsight). 2 Wayne R. LaFave, Substantive Criminal Law § 14.5(d), at 453 (2d ed. 2003). Actions by a force of nature that are not within the defendant’s control are generally not foreseeable (e.g., a lightning strike that kills a victim the defendant tied to a tree).
An act that accelerates death is a legal cause of that death.
EXAM NOTE: Proximate cause is commonly tested in the context of the felony-murder rule. A frequently applied standard is that the homicide must be a natural and probable consequence of the defendant’s actions.
c. Year-and-a-day rule At common law, the defendant’s act was conclusively presumed not to be the proximate cause of the killing if the victim died more than one year and one day after the act was performed. Most states either have abolished this rule or have extended the time period of responsibility.
Types of Homicide
- Murder
Common-law murder is the:
i) Unlawful (i.e., without a legal excuse);
ii) Killing;
iii) Of another human being;
iv) Committed with malice aforethought.
“Malice aforethought” includes the following mental states: intent to kill, intent to inflict serious bodily injury, reckless indifference to an unjustifiably high risk to human life (depraved heart), or intent to commit certain felonies (felony murder).
a. Intent to kill
Conduct accompanied by the intent to kill that is the legal cause of the death of a living person constitutes intent-to-kill murder unless the legal circumstances surrounding the homicide are such that the crime is reduced to voluntary manslaughter. An inference of intent to kill may be made if a deadly weapon was used intentionally in the commission of the crime.
Example: A intends to kill B and, by his conduct of shooting B, kills him.
b. Intent to inflict serious bodily harm
A person who intends to do serious bodily injury or “grievous bodily harm” but actually succeeds in killing is guilty of murder despite the lack of intention to kill.
Example: A intentionally hits B over the head with a baseball bat, intending to hurt B but not kill him, and B later dies from a skull fracture.
Intent to inflict serious bodily harm is an unintentional killing that results in death.
Intent to inflict serious bodily harm can be inferred from the use of a deadly weapon to inflict the bodily injury.
c. Depraved heart
A killing that results from reckless indifference to an unjustifiably high risk to human life is a depraved-heart murder.
Example: A stands on top of a highway overpass and as a joke drops a bowling ball into oncoming traffic, resulting in the death of B, a passing motorist.
Depraved-heart murder is an unintentional killing that results in death. There is a split among jurisdictions as to whether the requisite depravity exists when a defendant is actually unaware of the risk involved in the conduct, but the majority of states and the MPC impose liability only when the defendant actually realizes the danger. (The minority objective standard imposes guilt if a reasonable person would have recognized the danger.) Note that even those states that ordinarily follow a subjective standard allow a conviction if the reason the defendant failed to appreciate the risk was due to voluntary intoxication.
Generally, reckless driving alone will not lead to a charge of depraved-heart murder. Such a charge would be appropriate only if the reckless driving was extreme, such as if it were combined with intoxication or other aggravating factors. See, e.g., Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 2004) (an intoxicated defendant driving at an excessive speed); State v. Woodall, 744 P.2d 732 (Ariz. Ct. App. 1987) (intoxicated defendant drove almost 70 mph on a 40-mph double curve).
d. Felony murder
Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. The felonies traditionally considered inherently dangerous are: Burglary, Arson, Rape, Robbery, and Kidnapping. [Mnemonic: BARRK]. (Common-law felonies also include murder, manslaughter, mayhem, and sodomy, but the BARRK crimes are most commonly tested in the context of felony murder; neither murder nor manslaughter can be the basis for a felony-murder charge.) To convict a defendant of felony murder, the prosecution must establish the underlying felony and that the defendant committed that felony. In addition, in most states, any aggravated felony committed with the use of a dangerous weapon is subject to the felony-murder rule. However, such an aggravated felony must be independent of the killing itself to qualify as an underlying felony for felony murder (e.g., aggravated battery cannot be the basis for a felony-murder charge).
Example: X accidentally shoots the owner of a home while committing a burglary. X can be charged with felony murder.
There is no charge of attempted felony murder if the unintended victim does not die. Generally, co-felons (including accessories) are vicariously liable for the death if the death is a foreseeable consequence of the underlying inherently dangerous felony.
If one of two co-felons kills the other during the commission or attempted commission of a dangerous felony, then this act will also constitute felony murder. If the co-felon is killed by a victim or a police officer, though, then the defendant is generally not guilty of felony murder.
Note:The underlying felony will generally “merge” into the crime of felony murder for the purposes of Double Jeopardy. That is, the predicate felony is generally deemed a lesser-included offense of the felony murder. For example, in the majority of jurisdictions, a defendant who kills the proprietor of a store while committing a robbery can be punished only for felony murder; the robbery conviction would “merge” into the felony-murder conviction. A minority of jurisdictions have enacted statutes explicitly allowing cumulative punishment for both the felony murder and the underlying felony; while these statutes have been held to pass constitutional muster, for purposes of the bar exam, you should assume that cumulative punishment violates Double Jeopardy.
1) Defenses to felony murder
One of the following circumstances can constitute a defense to a felony-murder charge:
i) A valid defense to the underlying felony;
ii) The felony was not distinct from or independent of the killing itself (e.g., aggravated battery);
iii) Death was not a foreseeable result or a natural and probable consequence of the felony (i.e., there was no proximate causation); or
iv) Death occurred after the commission of the felony and the ensuing flight from the scene of the crime.
2) Killing by a felony victim or the police a) Death of a bystander
When someone other than a co-felon is killed by a police officer or dies as a result of resistance by the victim of the felony, the felon’s liability for that death will depend on whether an agency theory or proximate-cause theory is applied. Under an agency theory, the felon will not be liable for the death of a bystander caused by a felony victim or police officer because neither person is the felon’s agent. Under the proximate-cause theory, liability for the bystander’s death may attach to the felon because the death is a direct consequence of the felony.
The same analysis is applicable when a victim of the underlying felony or a police officer is killed by someone who is not one of the felons.
EXAM NOTE: Agency theory is the majority position and should be applied on the MBE unless the question specifically indicates that the jurisdiction is a proximate-cause theory jurisdiction.
b) Death of a co-felon
Under the Redline doctrine, a defendant is generally not guilty of felony murder when a victim or a police officer, acting in self-defense or trying to prevent the escape of the defendant or his co-felon, kills the co-felon. Instead, the killing by the victim or the police officer is considered justifiable homicide. Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958).
Statutory Crimes of Murder
At common law, there were no degrees of murder. Under modern statutory rules, murder is generally divided into two degrees: first-degree and second-degree murder.
EXAM NOTE: Because degrees of murder do not exist at common law, the fact pattern on the MBE must supply a statute if you are to consider degrees of murder.
a. First-degree murder
First-degree murder is generally defined as a deliberate and premeditated murder. First-degree murder, defined in this manner, is a specific-intent crime, which means that specific-intent defenses are available for a defendant (see I.B.1. Specific Intent Crimes, supra). In addition, felony murder is frequently classified as first-degree murder.
1) Created by statute
Because the specific criteria for first-degree murder are established only by statute, a homicide cannot be first-degree murder without a corresponding statute.
2) Premeditation
The distinguishing element of first-degree murder is premeditation, meaning the defendant reflected on the idea of killing or planned the killing. The amount of time needed for premeditation may be brief, as long as, after forming the intent to kill, the defendant had sufficient time to become fully conscious of the intent and to consider the killing (i.e., had time for reflection). This requirement does not apply to felony murder.
3) During the commission of an inherently dangerous felony
If a murder is committed during the perpetration of an enumerated felony, then it may be first-degree murder. The most commonly enumerated felonies are Burglary, Arson, Rape, Robbery, and Kidnapping. [Mnemonic: BARRK].
NOTE: A homicide committed during the commission of an inherently dangerous felony may be treated as first or second-degree murder depending upon the jurisdiction.
4) Heinous murder
A murder resulting from an egregious act, such as ambush (i.e., lying in wait), torture, bombing, terrorism, or poisoning, may be classified as first-degree murder.
b. Second-degree murder
Second-degree murder is a homicide committed with the necessary malicious intent: the intent to kill, the intent to do great bodily injury, or a depraved-heart murder. In addition, a murder that occurs during the commission of a felony other than the felonies that trigger first-degree murder may statutorily be treated as second-degree murder.
EXAM NOTE: Be sure to differentiate between second-degree murder and first-degree murder when answering exam questions. First-degree murder is a specific-intent crime, whereas second-degree murder, like common-law murder, is a malice crime.
Voluntary Manslaughter
Voluntary manslaughter is homicide committed with malice aforethought, but also with mitigating circumstances.
a. “Heat of passion”
Murder committed in response to adequate provocation (i.e., in the “heat of passion”) is voluntary manslaughter. The “heat of passion” means that the defendant was provoked by 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. The defendant cannot have been set off by something that would not bother most people.
EXAM NOTE: Remember that “heat of passion” is NOT a defense; it merely reduces murder to voluntary manslaughter.
1) Adequate provocation
A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes adequate provocation. Usually mere words, such as taunts, do not.
While an intentional killing committed when resisting arrest is generally murder, the intentional killing can be manslaughter if the arrest is unlawful and the defendant acts in the “heat of passion.”
2) “Cooling off”
If there was sufficient time between the provocation and the killing for a reasonable person to cool off, then murder is not mitigated to manslaughter. If there was sufficient time to cool off for a reasonable person even though the defendant himself did not regain self-control, the murder is not mitigated to manslaughter.
Second provocation: Even when the defendant has “cooled off,” a second encounter with the victim may give rise to another situation in which the defendant acts in the “heat of passion.”
3) Causation
There must be a causal connection between provocation, passion, and the fatal act. There will be no mitigation if the intent to kill was formed prior to the provocation.
4) Transferred provocation
When, because of a reasonable mistake of fact, the defendant is in error in identifying her provoker, or accidentally kills the wrong person, she will be guilty of voluntary manslaughter if that would have been her crime had she killed the provoker. If, however, the defendant, in her passion, intentionally kills another person known to her to be an innocent bystander, then there will be no mitigation, and murder, rather than voluntary manslaughter, will apply.
b. Imperfect defense
In many states, murder may be reduced to voluntary manslaughter when the defendant contends that his use of deadly force was necessary in defense of himself or others, but (i) the defendant started the altercation or (ii) the defendant unreasonably (if truly) believed in the necessity of using deadly force.
For a more detailed discussion of imperfect self-defense and self-defense for an initial aggressor, see § V.B.1, Self-Defense, infra.
Involuntary Manslaughter
Involuntary manslaughter is an unintentional homicide committed with criminal negligence (recklessness under the MPC) or while engaged in an unlawful act.
a. Criminal negligence
Criminal negligence is grossly negligent conduct that puts another person at a significant risk of serious bodily injury or death. It requires more than ordinary negligence for tort liability and something less than the extremely reckless conduct required for depraved-heart murder. For example, the failure of a parent, under a duty of care, to provide medical care to a sick minor child constitutes criminal negligence.
Under the Model Penal Code rule, the defendant must have acted recklessly, which is a “gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” MPC § 2.02(2)(c). The defendant must have been actually aware of the risk his conduct posed.
b. Unlawful act
The unlawful act may occur in one of two ways:
i) Under the misdemeanor-manslaughter rule, which is 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.
The term malum in se means “wrong in itself,” or “inherently evil,” and includes crimes such as assault and battery. Malum prohibitum refers to wrongs that are merely prohibited (i.e., not inherently immoral or hurtful, but wrong because of a statute), such as a parking violation, smuggling, or failure to obtain a license. A homicide resulting from a wrong that is malum prohibitum will constitute involuntary manslaughter only if the unlawful act was willful or constituted criminal negligence.
c. Causation There must be a causal connection between the unlawful act and the death for involuntary manslaughter to apply.
