Homicide Flashcards
what do we not do
presume intent from acts –
no rebuttable presumptions that shift burden of proof of mens rea to ∆
what does the prosecution have to prove for first degree murder
government must prove beyond a reasonable doubt that ∆ acted with premeditation and deliberation
what are the premeditation factors
- time
- reflection
- resumption
- method
- cold blooded
- relationship between ∆ and victim
- prep
what are some factors against premeditation
- diminished capacity
- provocation
- instantaneous
- sloppy
- self-defense
- emotions/fear/anger
What kind of murder is felony murder?
first degree baby
what is second degree murder
specific intent (purposely or knowingly) without premeditation
what are the elements for common law felony murder
- inherently dangerous felony
- causation
- some relationship between felony and homicide
- liability for the acts of others
- intent - strict scrutiny
why is felony murder controversial
seems like strict liability, retribution/culpability should require that government shows premeditation, holding ∆ liable for what co-∆ does is kinda unfair
how do you assess liability for homicides by third parties in felony murder
Agency rule
Proximate cause rule
what is the agency rule in felony murder
limits ∆’s liability to homicides committed by co-felons, not other third parties – except for if ∆ provoked a gun battle, in which case he will be liable for killings by third parties
followed by most states with FM statutes
what is the proximate cause rule in felony murder
minority
holds ∆ liable for third party killings that are proximately caused by the felony
~~ foreseeability analysis~~
what’s the minority rule about homicides committed by third parties in felony murder?
Absent ∆ can’t be liable for felony murder unless he had actual malice
what are the temporal limits for felony murder
- simultaneous
- during prep
- during escape
what are the factors for assessing temporal limits for felony murder
- same location
- interval of time in between the felony and homicide
- whether cops are in hot pursuit
- whether felon still has possession of fruits of the crime
- whether felon has reached a place of temporary safety
What is the merger rule for felony murder
the predicate crime CANNOT be assault or manslaughter
how do you assess proximate cause for felony murder
was the killing done to further the felony? is there a logical connection between the felony and death?
what is the rule for accomplice liability in felony murder
you are liable for the foreseeable homicide committed by your co-felons
what is the minority rule for accomplice liability for felony murder
you are liable for the foreseeable homicide committed by your co felons, but not if the victim was a cofelon
what are the elements of MPC murder
purpose or knowledge OR
extreme recklessness/ indifference to human life
does MPC have felony murder?
no, just murder – but by committing a felony you show an extreme indifference to human life, HENCEFORTH you committed murder
but it’s a rebuttable presumption
what are the kinds of common law manslaughter
voluntary
involuntary
what are the elements of voluntary manslaughter
- adequate provocation
- no cooling off
what is the test for provocation for voluntary manslaughter
two part test
objective: would a reasonable person have been provoked?
subjective: was ∆ provoked?
what facts show provocation?
manner of commission (words, means of killing was excessive)
prior incident inflamed passion
- especially if it involved physical harm or threat of harm to ∆ or loved ones
- words alone are less likely to count (unless something like “I have your kid”)
- indignity could count if it meets objective reasonable person standard
what else might be voluntary manslaughter?
imperfect self defense
what is involuntary manslaughter
reckless killing, unreasonable failure to discover a risk that most people would have known about
how do you tell the difference between voluntary and involuntary manslaughter?
did ∆ try to kill victim?
if yes –> voluntary
if no –> involuntary
what else could work for involuntary manslaughter
imperfect self defense if ∆ didn’t actually try to kill (like firing gun into the air in a show of force)
how does the MPC handle manslaughter
route 1: ordinary recklessness
route 2: EMED
what is recklessness under the MPC manslaughter
conscious disregard of known risks, gross deviation from reasonable person standard
how do you assess EMED for MPC manslaughter
subjective test: what would a reasonable person do if they had the point of view of the ∆ in their situation
what’s the downside of EMED
favors abusers - they are riled up but for bad reasons
