Homicide Flashcards
What is common-law murder? (6.9%)
Common-law murder is the unlawful (i.e., without a legal excuse) 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,
–can be inferred if a deadly weapon was used intentionally
(ii) intent to do serious bodily injury,
–can be inferred if a deadly weapon was used intentionally
(iii) reckless indifference to (an unjustifiably high risk to) human life, and
–a.k.a. depraved-heart murder
(iv) intent to commit a felony (felony 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.
Is killing a fetus homicide?
At common law, no, because at common law a fetus is not a living person.
To prove a homicide, the prosecution must show that the defendant caused the victim’s death. What proof is required? (6.9%)
Actual causation: But-for test (would not have died but for the defendant’s act) and substantial factor test (multiple causes, including multiple sufficient causes) are acceptable.
Proximate causation: Defendant’s act is a foreseeable cause of the victim’s death (death is the natural and probable result of the conduct). Even if there is some intervening act or event, the defendant will still be held responsible unless the intervening act or event was so out-of-the-ordinary that it would be unjust to hold the defendant criminally responsible for the outcome.
Is “mercy killing” (i.e.,euthanasia) a criminal homicide?
It can be. 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. But some jurisdictions permit assisted suicide.
Which of the following are foreseeable for purposes of establishing proximate causation? (6.9%)
• Actions by a third party in response to the crime (e.g., negligence by the doctor treating the victim)
• Actions by the victim in response to the crime (e.g., refusal of treatment for religious reasons; suicide to escape the pain that resulted from the injuries inflicted by the defendant)
• Actions by a force of nature that are not within the defendant’s control (e.g., a lightning strike that kills a victim the defendant tied to a tree)
- Third party: Generally foreseeable, unless 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)
- Victim: Same as above
- Force of nature: Generally unforeseeable
What is the “year-and-a-day rule”? (6.9%)
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.
What is a “depraved-heart murder”? Is a subjective or objective standard used? (6.9%)
A “depraved-heart murder” is a killing that results from reckless indifference to an unjustifiably high risk to human life.
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.
Majority/MPC: defendant must actually realize that there is a danger (subjective)
–However, even these states allow a conviction if the reason the defendant failed to appreciate the risk was due to voluntary intoxication.
Minority: a reasonable person would have recognized the danger (objective)
Felony murder (6.9%)
What is a felony murder? What must the prosecution establish?
To which felonies does the rule apply? To which deaths?
Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. To convict, the prosecution must establish that the defendant committed the underlying felony.
The felony must be:
(a) Inherently dangerous. The felonies traditionally considered inherently dangerous are: Burglary, Arson, Rape, Robbery, and Kidnapping. [Mnemonic: BARRK].
Note: In addition, in most states, any aggravated felony committed with the use of a dangerous weapon is subject to the felony-murder rule.
(b) Independent of the killing itself. E.g., aggravated assault that resulted in a death is not felony murder; it is a different type of common law murder.
The death must be:
(a) Foreseeable as a result of the felony.
(b) Caused before the before the defendant’s “immediate flight” from when the felony ended (i.e., once the felon has reached a place of “temporary safety” – deaths caused by subsequent events are not felony murder).
Felony murder:
• Is it attempted felony murder if the unintended victim does not die?
• Are co-felons vicariously liable for the death?
• Is it felony murder if one of two co-felons kills the other during the felony?
- No, there is no such charge
- Yes, if the death is a foreseeable consequence
- Yes
In felony murder cases, how is double jeopardy avoided?
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.
Name four defenses to felony murder.
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.
Is a felon liable for felony murder when someone other than a co-felon (i.e., a bystander) is killed by a police officer or dies as a result of resistance by the victim of the felony?
Depends on theory applied:
• Under an agency theory (MINORITY), no, because neither the victim nor the police officer is the felon’s agent.
• Under the proximate-cause theory (MAJORITY), liability for the bystander’s death may attach to the felon because the death is a direct consequence of the felony.
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.
Is a co-felon guilty of felony murder if another co-felon is killed by a victim or a police officer?
No, this is considered justifiable homicide.
What is first-degree murder? What type of intent is required? How does it relate to felony murder? (6.9%)
In some jurisdictions, murder is divided into degrees by statute. Generally, a murder is 2nd degree murder UNLESS it falls under any of the following statutory aggravating circumstances, which make it 1st degree murder:
(1) Premeditation. The murder was deliberate and premeditated. The amount of time needed for premeditation may be brief, even a few seconds, 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.
–First-degree murder, defined in this manner, is a specific-intent crime, which means that specific-intent defenses are available for a defendant.
(2) Felony Murder. The murder falls under a 1st degree felony murder statute. In many states, a killing committed during the commission of an enumerated felony (most commonly BARRK, though other felonies that are inherently dangerous to human life are often included as well) is felony murder and called 1st degree murder (or may be treated as second-degree murder depending upon the jurisdiction).
(3) Heinous Murder. A “heinous” murder resulting from an egregious act, such as ambush (i.e., lying in wait), torture, mutilation, bombing, terrorism, or poisoning, is classified as first-degree murder in some states.
What is second-degree murder? What type of intent is required? How does it relate to felony murder? (6.9%)
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 other words, a MALICE crime). Generally, a murder is 2nd degree murder UNLESS it falls under particular statutory aggravating circumstances, which make it 1st degree murder.
A murder that occurs during the commission of a felony other than the felonies that trigger first-degree murder (non-BARRK) may statutorily be treated as second-degree murder.
