Homicide

Question 1

What are the elements of murder under the common law? (Q) (Russo)

Answer 1

The elements of murder under the common law are:

(1) the unlawful killing of,
(2) a living person,
(3) with malice aforethought,
(4) in the absence of provocation legally sufficient to mitigate murder to manslaughter, and
(5) without justification or excuse (i.e., unlawfully).

Question 2

Under the common law, is an unlawful killing committed with malice aforethought if it is committed with intent to cause serious bodily injury? (Q) (S)

Answer 2

Yes. Under the common law, an unlawful killing is committed with malice aforethought if it is committed with intent to cause serious bodily injury.

Question 3

Under the common law, what is the meaning of malice aforethought? (Q) (Russo)

Answer 3

Under the common law, malice aforethought is used to describe a number of different mental states including:

an intent to kill;
an intent to cause serious bodily injury;
a reckless indifference to the value of human life (i.e., with a depraved and malignant heart); and imputed mens rea, if a death results from the commission of a particular felony (i.e., felony murder).

Question 4

What is the difference between intent to kill and premeditation? (Q) (Russo)

Answer 4

Intent to kill means simply that the offender formed the objective to cause another’s death.

A murder is committed with premeditation when, after forming the intent to kill, the killer pauses to consider or reflect upon that intent and then decides to proceed with the killing after reflecting.

Question 5

With respect to intentional homicide, does the law specify any particular length of time of reflection that must occur for premeditation to exist? (Q) (Russo)

Answer 5

No. The law does not generally specify any particular length of time that a killer must pause to reflect or deliberate on the intent to kill before proceeding with a murder in order for premeditation to exist. Premeditation can occur during even the briefest of intervals, such as the time it takes to pull a trigger to fire a fatal shot.

Question 6

What is depraved-heart murder? (Q) (Russo)

Answer 6

Depraved-heart murder is murder involving conduct so reckless that it demonstrates an extreme indifference to the value of human life. The reckless indifference is sufficient to constitute malice aforethought, the mens rea or culpability for common-law murder.

Question 7

What is first-degree statutory murder? (Q) (Russo)

Answer 7

First-degree statutory murder is an intentional (willful) killing committed with deliberation and premeditation (period of reflection).

Question 8

What is second-degree statutory murder? (Q) (Russo)

Answer 8

Intentional killings committed without deliberation and premeditation, killing “upon a sudden quarrel.”

Question 9

With respect to intentional homicides, what differentiates first-degree murder from second-degree murder? (Q) (Russo)

Answer 9

The required mens rea, or culpability, differentiates first-degree murder from second-degree murder. First-degree murder requires premeditation or deliberation. Second-degree murder does not; it requires only malice aforethought.

In some states, first-degree murder may separately or additionally be defined by statute as an intentional killing either carried out by specific means (e.g., poisoning, bombing, or torture) or committed upon a specific class of victim (e.g., a police officer).

Question 10

What is voluntary manslaughter? (Q) (Russo)

Answer 10

Voluntary manslaughter is

(1) the intentional killing of a human being
(2) in the heat of a sudden and intense emotional state, generated by
(3) adequate provocation
(4) before a reasonable cooling-off period has elapsed.

Voluntary manslaughter is sometimes called heat-of-passion manslaughter.

Question 11

Under the common law, what is the difference between intentional murder and voluntary manslaughter? (Q) (Russo)

Answer 11

Under the common law, the difference between intentional murder and voluntary manslaughter is that a homicide that would otherwise be an intentional murder is mitigated to the lesser offense of voluntary manslaughter if it is committed “in response to legally adequate provocation.”

Question 12

Under the common law, how is adequate provocation defined for purposes of voluntary manslaughter? (Q) (Russo)

Answer 12

Under the common law, adequate provocation is that which would goad a reasonable person to kill by evoking a sudden and intense emotional state. A provocation is not adequate if it arises from a defendant’s unusual sensitivities. Courts have routinely held certain provocations to be adequate for voluntary manslaughter, such as severe battery, mutual combat, and discovering a spouse in the act of adultery. Mere words are not provocation for manslaughter. (Girouard v. State - Mere words won’t get you there)

Question 13

Is a person who intentionally kills another human being in response to legally adequate provocation guilty of a crime? (Q) (Russo)

Answer 13

Yes. A person who intentionally kills another person is guilty of a crime, even if the killing is in response to legally adequate provocation.

Adequate provocation mitigates an intentional killing that would otherwise be murder to voluntary manslaughter (a lesser offense), but it does not altogether relieve the defendant of criminal responsibility.

Question 14

Under what circumstances is provocation deemed legally adequate to mitigate a killing that would otherwise constitute murder to voluntary manslaughter? (Q) (Russo)

Answer 14

Provocation is legally adequate to mitigate a murder to voluntary manslaughter if it:

actually provokes the particular defendant and involves facts sufficient to put a reasonable person in a sudden and intense emotional state, causing that reasonable person to act rashly and in the heat of passion, rather than in the exercise of sound judgment.

Question 15

At common law, what actions taken by the deceased are traditionally deemed adequate provocation, sufficient to mitigate murder to voluntary manslaughter? (Q) (Russo)

Answer 15

At common law, actions that are traditionally deemed adequate provocation, sufficient to mitigate murder to voluntary manslaughter, are that the deceased:

committed adultery with the defendant’s spouse;
illegally arrested the defendant;
was engaged in mutual combat with the defendant;
seriously injured or abused the defendant’s close relative; or
seriously assaulted the defendant under circumstances not otherwise giving rise to a right of self-defense, which exculpates a homicide completely.

Question 16

Are words sufficient to satisfy the adequate provocation requirement of voluntary manslaughter? (Q) (Russo)

Answer 16

No. Mere words are generally insufficient to satisfy the adequate provocation requirement of voluntary manslaughter. Some courts recognize an exception if the words inform the defendant of some fact that would, if encountered, constitute adequate provocation.

(Girouard v. State - Mere words won’t get you there)

Question 17

Under the common law of voluntary manslaughter, what is a cooling-off period? (Q) (Russo)

Answer 17

Under the common law of voluntary manslaughter, a cooling-off period describes a period of time in which a person’s intense emotion has had time to subside. Voluntary manslaughter does not apply if the defendant acts either after (1) a reasonable person would have cooled off or (2) the defendant has actually cooled off. The length of the appropriate cooling-off period is usually a question of fact for the factfinder.

Question 18

Under the common law, if a cooling-off period has elapsed between an otherwise-adequate provocation and an intentional killing, will the killing be mitigated from murder to manslaughter? (Q) (Russo)

Answer 18

No. At common law, if a cooling-off period (i.e., a period of time in which a person’s intense emotion has had time to subside) has elapsed between an otherwise-adequate provocation and an intentional killing, then the killing is not mitigated from murder to manslaughter. The cooling-off period effectively renders the otherwise-adequate provocation inadequate.

Question 19

Under the common law, can voluntary manslaughter apply to killings that result from self-defense? (Q) (Russo)

Answer 19

Yes. Under the common law, voluntary manslaughter can be an alternative to a murder charge if the defendant killed another in an honest, but mistaken, belief that the use of deadly force was justified, or so called imperfect self-defense.

Question 20

Under the common law, what is criminal negligence (involuntary) manslaughter? (Q) (Russo)

Answer 20

Under the common law, criminal negligence manslaughter occurs when a defendant creates an unreasonable and high risk of death or serious bodily injury that results in a death. In some jurisdictions, the defendant must also know of the risk and consciously disregard it. Still other jurisdictions provide for two different crimes determined by the defendant’s state of mind.

Question 21

Under the common law, in most states, what is the required mens rea, or level of culpability, for involuntary manslaughter? (Q) (Russo)

Answer 21

Under the common law, the required mens rea, or level of culpability, for involuntary manslaughter in most states is criminal negligence.

Question 22

Under the common law, what is unlawful-act manslaughter? (Q) (Russo)

Answer 22

Under the common law, unlawful-act manslaughter is death that results from the defendant’s unlawful act. Depending on the jurisdiction, the unlawful act that gives rise to liability may be:

a misdemeanor;
a felony that is not sufficiently serious to trigger the felony murder rule; or
a civil wrong, such as a tort or ordinance violation.
Much like felony murder, unlawful-act manslaughter only applies if the death was a reasonably foreseeable consequence of the unlawful act. Keep in mind that the Model Penal Code does not recognize misdemeanor manslaughter, which is a growing trend among states.

(State v. Biechele - Pyrotechnics gone wrong)

Question 23

Under the Model Penal Code (MPC), what are the four mental states applicable to homicide? (Q) (Russo)

Answer 23

Under the MPC, the four mental states applicable to homicide are:

purposely,
knowingly,
recklessly, or
criminally negligently.

Question 24

Under the Model Penal Code (MPC), how is murder defined? (Q) (Russo)

Answer 24

Under the MPC, murder is defined as a homicide committed:

purposely,
knowingly, or
recklessly and under circumstances manifesting an extreme indifference to the value of human life.

Question 25

Under the Model Penal Code (MPC), when is an unlawful killing committed without purpose or knowledge a murder? (Q) (Russo)

Answer 25

Under the MPC, an unlawful killing committed without purpose or knowledge constitutes murder if it was committed recklessly, under circumstances that manifest extreme indifference to the value of human life.

A reckless killing does not ordinarily rise to the level of murder. However, if the killer acts not only recklessly, but also with extreme indifference to whether anyone might die as a result of his or her conduct, then the reckless killing is elevated to murder.

Question 26

Under the Model Penal Code (MPC), what is manslaughter? (Q) (Russo)

Answer 26

Under the MPC, manslaughter is a criminal homicide committed:

recklessly and without circumstances manifesting extreme indifference to the value of human life or
under the influence of extreme mental or emotional disturbance (EED), provided there is a reasonable explanation for the disturbance.

Unlike the common-law majority view of voluntary manslaughter, the MPC evaluates the reasonableness of the disturbance from the defendant’s subjective point of view.

Question 27

Under the Model Penal Code (MPC), when is an intentional killing that would otherwise constitute murder mitigated to manslaughter?

Answer 27

Under the MPC, an intentional killing that would otherwise constitute murder is mitigated to manslaughter when it is committed under the influence of extreme mental or emotional disturbance. There must be a reasonable explanation for the disturbance. (EED)

In contrast to the common-law approach, the MPC does not require that the disturbance be caused by provocation.

Question 28

Under the common law, what is the felony-murder rule? (Q) (Russo)

Answer 28

Under the common law, the felony-murder rule is a form of strict liability for murder. Generally, under the felony-murder rule, if a defendant causes another person’s death in the course of committing or attempting to commit an inherently dangerous felony, the defendant is guilty of murder. The rule applies even if the death was an unforeseeable accident—that is, even if the risk associated with the defendant’s conduct would not have risen to the level of criminal negligence, recklessness, or other culpability sufficient to support a murder conviction.

Question 29

For purposes of felony murder, what is an inherently dangerous felony? (Q) (Russo)

Answer 29

An inherently dangerous felony is one that, by its very nature, entails a high risk of injury or death.

Examples of inherently dangerous felonies include burglary, arson, robbery, rape, and kidnapping. Some jurisdictions apply the felony-murder rule to (1) any underlying felony or (2) a felony that is not inherently dangerous but is committed in a dangerous manner.

Question 30

Does the felony-murder rule only apply if the victim’s death occurred during the commission of the underlying felony? (Q) (Russo)

Answer 30

No. The felony-murder rule does not only apply if the victim’s death occurred during the commission of the underlying felony. Most jurisdictions also apply the felony-murder rule if the death occurred:

in furtherance of the felony or
while the felon was fleeing the scene after completing the felony.

The felony-murder rule does not apply if the death occurred after a fleeing felon reached a place of temporary safety.

Question 31

In felony murder, do most jurisdictions require that the victim’s death be a foreseeable consequence of the underlying felony? (Q) (Russo)

Answer 31

Yes. In felony murder, most jurisdictions require that the death be a foreseeable consequence of the felony.

Question 32

Can a defendant and a co-felon both be charged with felony murder, even if only one of them committed the killing? (Q) (Russo)

Answer 32

Yes. A defendant and a co-felon can both be charged with felony murder, even if only one of them committed the killing. This is true even if one was unaware of the other’s actions. However, in most jurisdictions, a defendant is not liable for felony murder if a co-felon is killed by someone who is not a co-felon, such as a victim, bystander, or police officer.

(State v. Sophophone - Kid surrendered and another accomplice was killed by a cop)

Question 33

Regarding the felony-murder rule, what is the agency theory? (Q) (Russo)

Answer 33

The agency theory holds that a felon is liable under the felony-murder rule only for deaths caused by either the felon or someone acting in concert with the felon as the felon’s agent, or accomplice. If the homicide was committed by one of the felons, and if it was done in furtherance of the felony, then all co-felons are deemed responsible because each is considered to be the agent of the other.

The agency theory limits the felons’ liability to deaths that they themselves cause. Under this approach, a felon is not liable for a death caused by a third party reacting to the felony.

Question 34

In the majority of jurisdictions, does the felony-murder rule apply to impose liability on a felon if death results from the actions of someone other than the felon or the felon’s accomplice? (Q) (Russo)

Answer 34

No. Under the agency theory of the felony-murder rule, followed by a majority of jurisdictions, a felon is liable only for deaths caused by the felon or by someone acting as the felon’s agent, such as an accomplice. Thus, a felon is not liable for deaths caused by third parties in the course of a felony.

However, under the minority proximate cause theory of the felony-murder rule, a felon is liable for any death, regardless of who caused it, if the events leading to the death were set in motion by the felony. Under this theory, a felon can be liable for deaths caused by third parties.

Question 35

For a felony to trigger the felony-murder rule, what connection must it have to the victim’s death?

Answer 35

For a felony to trigger the felony-murder rule, the defendant’s felonious conduct must be both the cause in fact and the proximate cause of the victim’s death.

For the felony to be the cause in fact, the death must not have occurred except for the felonious conduct. Proximate cause requires that the death be a foreseeable consequence of the felonious conduct. The proximate-cause requirement is usually satisfied if the death (1) was in furtherance of the underlying felony or (2) occurred while the defendant was committing or attempting the underlying felony or fleeing the scene of its commission.

Question 36

In the context of the felony-murder rule, what is the merger doctrine?

Answer 36

In the context of the felony-murder rule, the merger doctrine is the principle that the felony supporting liability for felony murder must be distinct from the killing itself.

Thus, under the merger doctrine, a felonious assault will not trigger the felony-murder rule, even if the victim dies as a result. That is because an assault is purely physical violence, the very act constituting the homicide itself. A robbery, by contrast, will trigger the felony-murder rule. Robbery is not necessarily a crime involving physical violence. Rather, it criminalizes taking the victim’s property. So, a robbery resulting in death does not merge with the homicide and can trigger the felony-murder rule.

Question 37

What is express malice murder (common law)?

Answer 37

An intentional killing, unlawful killing in which the actor desired the death of the victim.

Question 38

What is implied malice murder (common law)?

Answer 38

A reckless killing that demonstrates a depraved indifference to human life. (Knoller + Snyder)

Question 39

When does a homicide constitute involuntary manslaughter?

Answer 39

A homicide constitutes involuntary manslaughter when a defendant recklessly disregards a substantial and unjustifiable risk that her actions are likely to cause another’s death, and such death results. (Kozlow)

Question 40

When is a person guilty of misdemeanor manslaughter?

Answer 40

A person is guilty of misdemeanor manslaughter only if his underlying illegal conduct is a proximate cause of death. (Biechele)

Question 41

What rule did People v. Sarun Chun (2009) add?

Answer 41

When underlying felony is assaultive the felony merges with the homicide and cannot be the basis of a felony murder instruction.

Question 42

Does malice aforethought require true malice or hatred?

Answer 42

Malice aforethought requires neither true malice or hatred, nor premeditation. Even if the defendant did not intend to kill the victim, malice aforethought exists if the defendant intended to cause serious bodily harm to the victim.

Question 43

What is the mens rea for common-law murder? (Q) (Russo)

Answer 43

Under the common-law definition of murder, the requisite mens rea, or culpability, is malice aforethought.

Question 44

What is the mens rea for statutory first-degree murder? (Q) (Russo)

Answer 44

First-degree statutory murder requires premeditation or deliberation.

Question 45

What is the mens rea for statutory second-degree murder? (Q) (Russo)

Answer 45

Second-degree statutory murder requires only malice aforethought.

Question 46

What is the difference at common law between involuntary manslaughter and negligent homicide? (Q) (Russo)

Answer 46

If the defendant was unaware of the risk of death or injury, the crime is negligent homicide; whereas if the defendant knew of the risk and consciously disregarded it, the crime is involuntary manslaughter.

Question 47

What does premeditation mean? (Russo)

Answer 47

A murder planned in advance, perhaps w/careful or elaborate design.

Question 48

What does deliberation mean? (Russo)

Answer 48

Defendant considered whether to commit the crime.

Question 49

What is the difference between first degree and second-degree felony murder? (Russo)

Answer 49

Inherently dangerous felonies carry first degree felony murder while non-inherently dangerous felonies do not.