Homicide

Question 1

what do we not do

Answer 1

presume intent from acts –

no rebuttable presumptions that shift burden of proof of mens rea to ∆

Question 2

what does the prosecution have to prove for first degree murder

Answer 2

government must prove beyond a reasonable doubt that ∆ acted with premeditation and deliberation

Question 3

what are the premeditation factors

Answer 3

• time
• reflection
• resumption
• method
• cold blooded
• relationship between ∆ and victim
• prep

Question 4

what are some factors against premeditation

Answer 4

• diminished capacity
• provocation
• instantaneous
• sloppy
• self-defense
• emotions/fear/anger

Question 5

What kind of murder is felony murder?

Answer 5

first degree baby

Question 6

what is second degree murder

Answer 6

specific intent (purposely or knowingly) without premeditation

Question 7

what are the elements for common law felony murder

Answer 7

1. inherently dangerous felony
2. causation
3. some relationship between felony and homicide
4. liability for the acts of others
5. intent - strict scrutiny

Question 8

why is felony murder controversial

Answer 8

seems like strict liability, retribution/culpability should require that government shows premeditation, holding ∆ liable for what co-∆ does is kinda unfair

Question 9

how do you assess liability for homicides by third parties in felony murder

Answer 9

Agency rule

Proximate cause rule

Question 10

what is the agency rule in felony murder

Answer 10

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

Question 11

what is the proximate cause rule in felony murder

Answer 11

minority

holds ∆ liable for third party killings that are proximately caused by the felony

~~ foreseeability analysis~~

Question 12

what’s the minority rule about homicides committed by third parties in felony murder?

Answer 12

Absent ∆ can’t be liable for felony murder unless he had actual malice

Question 13

what are the temporal limits for felony murder

Answer 13

• simultaneous
• during prep
• during escape

Question 14

what are the factors for assessing temporal limits for felony murder

Answer 14

• 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

Question 15

What is the merger rule for felony murder

Answer 15

the predicate crime CANNOT be assault or manslaughter

Question 16

how do you assess proximate cause for felony murder

Answer 16

was the killing done to further the felony? is there a logical connection between the felony and death?

Question 17

what is the rule for accomplice liability in felony murder

Answer 17

you are liable for the foreseeable homicide committed by your co-felons

Question 18

what is the minority rule for accomplice liability for felony murder

Answer 18

you are liable for the foreseeable homicide committed by your co felons, but not if the victim was a cofelon

Question 19

what are the elements of MPC murder

Answer 19

purpose or knowledge OR

extreme recklessness/ indifference to human life

Question 20

does MPC have felony murder?

Answer 20

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

Question 21

what are the kinds of common law manslaughter

Answer 21

voluntary

involuntary

Question 22

what are the elements of voluntary manslaughter

Answer 22

• adequate provocation

- no cooling off

Question 23

what is the test for provocation for voluntary manslaughter

Answer 23

two part test

objective: would a reasonable person have been provoked?
subjective: was ∆ provoked?

Question 24

what facts show provocation?

Answer 24

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

Question 25

what else might be voluntary manslaughter?

Answer 25

imperfect self defense

Question 26

what is involuntary manslaughter

Answer 26

reckless killing, unreasonable failure to discover a risk that most people would have known about

Question 27

how do you tell the difference between voluntary and involuntary manslaughter?

Answer 27

did ∆ try to kill victim?

if yes –> voluntary

if no –> involuntary

Question 28

what else could work for involuntary manslaughter

Answer 28

imperfect self defense if ∆ didn’t actually try to kill (like firing gun into the air in a show of force)

Question 29

how does the MPC handle manslaughter

Answer 29

route 1: ordinary recklessness

route 2: EMED

Question 30

what is recklessness under the MPC manslaughter

Answer 30

conscious disregard of known risks, gross deviation from reasonable person standard

Question 31

how do you assess EMED for MPC manslaughter

Answer 31

subjective test: what would a reasonable person do if they had the point of view of the ∆ in their situation

Question 32

what’s the downside of EMED

Answer 32

favors abusers - they are riled up but for bad reasons