Homicide Flashcards
What is common law murder?
Murder is the unlawful killing of a human being with malice aforethought.
What is malice aforethought?
Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (i.e., giving rise to a defense), AND
It was committed with one of the follow states of mind:
(1) intent to kill (first degree)
(2) intent to inflict great bodily injury (second degree)
(3) Reckless indifference to an unjustifiably high risk to human life (second degree); or
(4) Intent to commit a felony (first degree)
Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.
A murder will be second degree UNLESS it comes under the following circumstances: (i.e., only these are first degree murder) (2+1)
(1) Deliberate and premeditated first degree murder
(2) First degree felony murder (some states)
(3) Specific circumstances which make the killing worse (e.g., torture, certain kinds of victims)
Explain deliberate and premeditated first degree murder.
If D made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only briefly, it is first degree murder.
The defendant must have acted with intent or knowledge that their conduct would cause death.
Explain first degree felony murder.
In many states, a killing committed during the commission of an enumerated felony is felony murder (called first degree murder).
Felonies most commonly listed include burglary, arson, rape, robbery, and kidnapping.
What is felony murder? How does it satisfy the malice requirement?
Any death (even an accidental death) caused in the commission of, or in an attempt to commit, a felony is murder.
Malice is implied from the intent to commit the underlying felony.
At common law, which felonies would be sufficient for a felony murder charge? (5 - BARRK)
(1) burglary
(2) arson
(3) rape
(4) robbery
(5) kidnapping
What are the limitations on the felony murder rule? (5)
(1) The defendant must have committed or attempted to commit the underlying felony; a defense that negates an element of the underlying offense will also be a defense to felony murder.
(2) The felony must be distinct from the killing itself (e.g., commission of aggravated battery that causes death doesn’t qualify as an underlying felony for felony murder)
(3) Death must have been a foreseeable result of the felony
(4) The death must have been caused before the defendant’s “immediate flight” from the felony ended; once the felon has reached a place of “temporary safety,” subsequent deaths are not felony murder.
(5) In most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police.
Explain the “proximate cause” and “agency” theories of liability for felony murder.
“Proximate cause” theory: felons are liable for the deaths of innocent victims caused by someone other than a co-felon.
“Agency” theory: (majority view) the killing must be committed by a felon or their “agent” (i.e., accomplice), with limited exceptions. (victim being used as a shield or forced by the felon to occupy a dangerous place)
What is voluntary manslaughter?
Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation.
Provocation is sufficient for a voluntary manslaughter charge only if: (4)
(1) It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing them to lose self-control (e.g., exposure to a threat of deadly force, finding your spouse in bed with another, or being a victim of a serious battery)
Passion must be reasonable under the circumstances; D cannot have been set off by something that would not bother most people.
(2) The defendant was in fact provoked
Even if a reasonable person would have been provoked, if D was not, there is no reduction to manslaughter.
(3) There was not sufficient time between provocation and the killing for passions of a reasonable person to cool; AND
(4) The defendant in fact did not cool off between the provocation and the killing
Generally, the more time has passed, the more likely it is that a reasonable person would have cooled off.
Some states recognize an “imperfect self-defense” doctrine under which:
Murder may be reduced to manslaughter even though:
(1) the defendant was at fault in starting the altercation; OR
(2) the defendant unreasonably but honestly believed in the necessity of responding with deadly force (i.e., the defendant’s actions do not qualify for self-defense)
A killing is involuntary manslaughter if it was committed: (2+1)
(1) with criminal negligence (or by “recklessness” under the MPC), OR
(2) (in some states) during the commission of an unlawful act (misdemeanor of felony not included with felony murder rule).
(3) Foreseeability of death may also be a requirement.
[Causation] The defendant’s conduct must be both the _______ and the _______ of the victim’s death.
cause-in-fact
proximate cause
A defendant’s conduct is the cause-in-fact of the result if:
the result would not have occurred “but for” the defendant’s conduct
