Homicide

Question 1

What is homicide?

Answer 1

Homicide is the unlawful killing of a human being.

Question 2

Define the 3 elements of homicide

Answer 2

1. Unlawful: Means there is not a legal justification for the killing
2. Human being: varies across jurisdictions, but the majority count unconscious person as valid. Fetus varies.
3. Manner and cause of death: usually proven by expert tetimony, usually a medical examiner

Question 3

At common law, how were homicides initially divided? Give a brief description of them.

Answer 3

Into two groups: murder (killing done with malice aforethought) and manslaughter (killing done without malice aforethought)

Question 4

At common law, how is homicide divided now? (5) What mental state does each require?

Answer 4

1. First degree: willful, deliberate & premeditated OR felony murder
2. Second degree: Willful without premeditation and deliberation OR depraved heart (recklessness+)
3. Voluntary manslaughter: heat of passion
4. Involuntary manslaughter: recklessness
5. Negligent homicide: negligent

Question 5

Under MPC, how is homicide divided? (3) What mental states are required for each?

Answer 5

1. Murder (first and second degree): purposely/knowingly OR extreme indifference (recklessness+)
2. Manslaughter: extreme emotional disturbance OR recklessness
3. Negligent homicide: negligent

Question 6

How does MPC treat felony murder?

Answer 6

MPC does not like felony murder and does not have a provision for it but presumes the extreme indifference required to make the recklessness go up to recklessness+ if it is done during a felony

Question 7

How are willful, deliberate, and premeditated defined?

Answer 7

1. Willful is the intent to kill.
2. Deliberate is the process of determining the terms of the action.
3. Premeditation is a design to kill, a determination to kill that is distinctly formed in the defendant’s mind at the time of the killing.

Question 8

What is first degree murder?

Answer 8

First degree murder is when a person acts either intending or knowing that the conduct will cause death. The person causes the death with premeditation.

Question 9

Define premeditation

Answer 9

Premeditation means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by any length of time to permit reflection.

Question 10

In the context of premeditation,

Is proof of actual reflection required?

Answer 10

Proof of actual reflection is not required, but an act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

Question 11

In the context of premeditation,

How long must the actor have the intent to kill?

Answer 11

The fully formed conscious purpose to kill that constitutes premeditation must exist for a sufficient length of time to permit reflection as to the nature of the acgt to be committed and the probable result of the act.

Question 12

In the context of premeditation,

How do courts often instruct juries as to the time required for reflection?

Answer 12

Courts often instruct juries that actual reflection could occur as fast as successive thoughts of the mind.

Question 13

In the context of premeditation,

What kind of evidence is used to prove premeditation?

Answer 13

Direct evidence, outside of written statements or statements to others, is hard to come by in establishing premeditation. Premeditation is often established with circumstantial evidence.

Question 14

In the context of proving premeditation,

Can passage of time be used to prove premeditation?

Answer 14

Passage of time is circumstantial evidence of premeditation but cannot be the only proof because it can be formed in instantaneous successive thoughts.

Question 15

In the context of proving premeditation,

Who decides if evidence shows premeditation?

Answer 15

Whether evidence shows premeditation is a question of fact for the jury.

Question 16

In the context of proving premeditation,

What must the State’s proof do?

Answer 16

The State’s proof must exclude any other reasonable hypothesis that the homicide occurred other than the premeditated design.

Question 17

How do federal courts weigh direct and circumstantial evidence?

Answer 17

They are given the same weight.

Question 18

What are the 9 factors generally used to prove premeditation?

Answer 18

1. Evidence of “planning” activity (obtaining a weapon, etc.);
2. The defendant’s conduct and statements before and after the killing;
3. The defendant’s motive for the killing;
4. How the killing was committed (brutality, committed after victim rendered helpless, etc.);
5. The type of **weapon ** used;
6. The nature and number of ** wounds** inflicted on the victim;
7. The **relationship ** between the victim and the defendant (threats, escalating pattern of violence, ill-will between the victim and defendant);
8. Lack of provocation by the defendant; and
9. Passage of time

Question 19

What is second degree murder?

Answer 19

Second degree murder is the killing of a human being committed intentionally (voluntary manslaughter) or uninentionally but recklessly under circumstances manifesting extreme indifference to the value of human life (also known as “depraved heart” murder at common law).

Question 20

What is depraved heart murder?

Answer 20

Depraved heart requires recklessness, that the killing be done under circumstances showing a realizatoin of the imminence of danger and a conscious disregard of that danger, AND that the killing occur under circumstacnes manifesting extreme indifference to the value of human life.

Question 21

In the context of depraved heart murder,

What degree of recklessness is required?

Answer 21

The recklessness is so extreme that it might as well be purposely or knowingly.

Question 22

How do most MPC jurisdictions treat depraved heart murder by automobile?

Answer 22

Most MPC jurisdictions have held that depraved heart can be committed by automobile.

Question 23

In the context of depraved heart murder by automobile,

How does a court determine is a driver’s brahvior demonstrates an extreme indifference to the value of human life? What factors will a court consider? (8)

Answer 23

There is no set defintion of list of circumstances but factors a court will consider include:
1. Intoxication;
2. Speeding;
3. Near or nonfatal collisions shortly before the fatal aaccident;
4. Driving on the wrong side of the road;
5. Failure to aid the victim;
6. Failure to heed traffic signs;
7. Failure to heed warnings about reckless driving; and
8. Prior record of driving offenses.

Question 24

What are affirmative defenses?

Answer 24

Affirmative defenses are legally recognized justifications or excuses that excuse criminal culpability despite all of the elemtns of the crime being met. If an element of a crime has not been proven, then the charged criminal conduct has not occurred.

Question 25

Is consent a defense to homicide?

Answer 25

Consent cannot be a defense to homicide. Consent can be relevant to a jury’s finding of wehther a defendant consciously disregarded an extreme risk to human life or simply created an extreme risk of which they should have been aware.

Question 26

At common law, what is voluntary manslaughter?

Answer 26

At common law, voluntary manslaughter is the intentional killing of another (1) committed under the influence of passion or in the heat of blood, (2) produced by an adequate or reasonable provocation, and (3) before a reasonable time has elapsed forthe blood to cool and reason to resume its habitual control, and (4) is the reuslt of the temporary exchitement, by which the control of reason was disturbed.

Question 27

What are the three primary things to consider in voluntary manslaughter?

Answer 27

1. The defendant must kill in the heat of passion
2. The passion must be caused by an adequate provocation
3. There cannot be a lapse of time during which a reasonable person could control their passion

Question 28

In the context of heat of passion,

What is required for a provocation to be adequate?

Answer 28

Provocation is adequate if it would cause a reasonable person to lose control. This is an objective standard, although some courts will consider what a reasonable person placed in the defendant’s situation would do.

Question 29

In the context of heat of passion,

What must the provocsation cause to justify voluntary manslaughter?

Answer 29

The provocation must cause the defendant to act out of passion rather than reason and must cause emotions so intense that they distory the defendant’s practical reasoning.

Question 30

In the context of heat of passion,

What are examples of adequate provocation in English common law? (5)

Answer 30

1. An aggravated assault or battery
2. Mutual combat
3. Commission of a serious crime against a close relative
4. Illegal arrest
5. Observation of spousal adultery

Question 31

In the context of heat of passion,

Can mere words be an adequate provocation?

Answer 31

Generally, mere words cannot serve as adequate provocation. However, some courts have held that informational words can be, such as telling a spouse about an affair.

Question 32

How often does provocation mitigate murder to manslaughter?

Answer 32

Provocation mitigates murder to manslaughter in only the most exceptional cases. The victim’s provocation must commit an offense that was so grave, and so heinous, that society partially excuses or justifies the defendant’s response because people provoked so strongly cannot be expected to behave any differently.

Question 33

In the context of provocation and voluntary manslaughter,

What is the general rule regarding lapse of time? What about physical separation?

Answer 33

Generally, the longer the time that passes between the provocation and the killing, the more likely a reasonable person would have cooled off.

In addition to time, physical separation (a “safe harbor”) can make it more likely that a reasonable person would have cooled off.

Question 34

In the context of manslaughter,

Under MPC, what is extreme emotional disturbance?

Answer 34

Extreme emotional disturbance replaces “heat of passion” in the definition of manslaughter.

Question 35

In the context of manslaughter,

What is the relationship between MPC “extreme emotional disturbance” and common law “heat of passion”?

Answer 35

The two are not interchangeable. EED covers a broader range of actions than heat of passion/adequate provocation.

Question 36

In the context of manslaughter under the MPC,

How is the reasonableness of the defendant’s acts under extreme emotional distress determined? Is it objective, subjective, both?

Answer 36

The reasonableness of the defendant’s acts under EED is determined from the viewpoint of a person in the defendant’s circumstances as the defendant believed them to be. The test for EED is objective only in the reasonableness of the defendant’s excuse and subjective as to the defendant’s belief.

Question 37

In the context of manslaughter under the MPC,

What **is not required **for extreme emotional disturbance? (3)

Answer 37

1. A provoking or triggering event;
2. That the killing happen immediately after the cause of the extreme emotional disturbance; or
3. That the defendant lost all ability to reason

Question 38

In the context of manslaughter under the MPC,

What** is required **for extreme emotional disturbance? (3)

Answer 38

1. An emotional disturbance that does not rise to the level of the insanity defense;
2. That the disturbance was extremely unusual and overwhelming as opposed to mere annoyance or unhappiness; and
3. The defendant’s reasoning was overborne by extreme or intense feelings, such as passion, anger, distress, fried, excessive agitation, or other similar emotions that caused a loss of self control

Question 39

At common law, what was required for involuntary manslaughter?

Answer 39

At common law, involuntary manslaughter required gross negligence.

Question 40

How do some state statutes treat involuntary manslaughter?

Answer 40

Some state statutes require only ordinary negligence.

Question 41

What is ordinary negligence?

Answer 41

Ordinary negligence occurs when the conduct of a defendant, regardless of their ignorance, good intentions and good faith, fails to measure up to the conduct required of a person of reasonable prudence under the same or similar circumstances.

Question 42

What is gross negligence? (4)

Answer 42

Gross negligence:
1. Is a gross departure from the conduct of an ordinarily careful and prudent person.
2. Is a disregard or indifference to the rights of others.
3. Involves a weighing of the inherent dangerousness of the act and environmental risk factors to determine whether the act is likely to bring harm to another.
4. Requires a high degree of risk to human life: somewhere between ordinary negligence’s unreasonable risk and depraved heart murder’s very high degree of risk.

Question 43

What is involuntary manslaughter? (3)

Answer 43

Involuntary manslaughter is an unintentional killing committed:
1. In the commission of an unlawful act not amounting to a felony (misdemeanor manslaughter);
2. In the commission of a lawful act that might produce death in an unlawful manner; or
3. In the commission of a lawful act that might produce death without due caution and circumspection.

Question 44

What are lesser included offenses? (3)

Answer 44

It varies by jurisdiction, by lesser included offenses are generally:
1. Offenses where the greater offense includes all of the elements of the lesser offense;
2. Offenses that differ from the greater offense only with respect to a less serious injury OR a lesser kind of culpability; or
3. An attempt, solicitation, or facilitation of the greater offense

Question 45

How do courts in various jurisdictions instruct on lesser included offenses?

Answer 45

Generally, in all jurisdictions, there has to be sufficient evidence to support a conviction for the lesser included offense.

In some jurisdictions, the trial court is required to instruct on lesser included offenses. In others, they are required if the defense requests the instruction. In others, it is required that the evidence provide a rational basis for acquitting the defendant of the charged offense.

Question 46

What is felony murder?

Answer 46

The felony murder rule is unique to the United States. In general, it holds a defendant culpable for a death that occurs during the course, attempt, or flight from a felony. Whether the killing is first degree or second degree will depend on the jurisdiction. Felony murder is sometimes labeled a strict liability crime becuase it does not require a mental state for the killing, just for the underlying felony; thus, unintended and accidental killings can be prosecuted as murder if they occurred during the course or in furtherance of a felony.

Question 47

Do any states apply limtiations on the type of felonies that may lead to felony murder?

Answer 47

In some state, the only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous. A felony is inherently dangerous to human life when it is either dangerous per se or by its circumstances creates a foreseeable risk of death.

Question 48

What are the two different methods that courts use to decide if a felony is inherently dangerous? What are the policy reasons behind each?

Answer 48

1. Viewing the statute in the abstract, looking at the text of the statute: yields more uniform results
2. Looking to the facts and circumstances of the underlying felony: Helps deter dangerous conduct because it punishes a defendant who conducts himself in a wayt that death is foreseeable

Question 49

What is a third option states may employ in determining inherently dangerous felonies?

Answer 49

A third option is to avoid the question altogether and statutorily list the predicate felonies for felony murder.

Question 50

What is the merger (ireland) rule?

Answer 50

The merger (ireland) rule applies to a certain subset of inherently dangerous felonies. Lesser included offenses merger into their greater offenses, so felonies that are an integral part of the homicide are merged into the homicide. The merger rule provides that an assault cannot be a requisite felony for murder because pretty much every homicide involves an assault.

Question 50

In the context of felony murder,

What are two approaches courts have taken in addressing the issue of whether the killing occurred during the commission of the underlying felony?

Answer 50

1. Agency: The agency approach limits felony murder to killings where the felon or their agent have committed the killing.
2. Proximate Cause (MINORITY): The proximate cause approach applies felony murder to any killing that occurs during the commission of the felony, regardless of whether the victim is a co-felon killed by one resisting the crime.

Question 50

In the context of felony murder,

What are factors to consider in whether the killing occurred during the commission of the underlying felony?

Answer 50

Time, distance, and the causal relationship between the underlying felony and the killing.

For felony murder, the intervening cause and proximate cause do not apply.