Homicide Flashcards
What was the original common law definition of murder
Murder is the unlawful killing of another human being with malice aforethought
What are the two ways malice can be shown
Express malice or Implied malice
What is express malice murder (CL)
Express malice murder is an intentional killing of another human being with malice aforethought
How can you prove express malice (CL)
1) Intent to kill– purpose (the conscious objective) or Knowledge of substantial certainty that death would be the outcome
2) Intent to cause grievous bodily harm
WHat is implied malice murder (CL)
unintentional–death is not the desired outcome. Implied malice murder (aka “depraved heart murder) is an unintentional killing that is bumped up from manslaughter by proving a wanton disregard for the value of human life
How do you prove implied malice/wanton disregard
1) High degree of reckless conduct (degree of recklessness is a fact for the jury) i.e. shaken baby
2) OR Recklessness + base antisocial motive
Explain recklessness + base antisocial motive (CL)
There is an inverse relationship between the two– the more of one, the less you need of the other
Base antisocial motive is a risk created by another criminal activity (like using a guard dog to protect the illegal activity of growing marijuana)
What is felony murder (CL)
One is guilty of felony murder if a death results from conduct during the commission or attempted commission of a felony
What is the original “Unrestricted” doctrine for felony murder
Felony (act) + death (result) = felony murder
- no MR element needed as long as you can prove the D was committing a felony.
- All felonies were punishable by death so it did matter
What is the restrained doctrine for felony murder
- Predicate felony + death=felony murder
- Legislature defined predicate felonies, so if death occurs during the commission or attempted commission of a defined predicate felony, then charged with felony murder
- If the felony is not on the defined predicate felony, it is not automatically felony murder
What is the res gestae doctrine as it applies to felony murder
Have to prove the killing concurred with the felony- that the death occurred during the attempt, commission, or immediate flight of the felony
How can res gestae be interuppted
It can be interrupted by a point in which the defendant(s) have achieved a position of safety from law enforcement for the under
What is the inherently dangerous felony rule
Applies when a felony is an undefined felony or not predicate felony. It limits the list of felonies allowed to be claimed under felony murder by getting rid of all felonies that are not inherently dangerous.
What are the two methods to determine whether a felony is inherently dangerous
Abstract and Contextual method
What is the abstract inherently dangerous test
- Pro defendant (majority of courts)
- ## Looks at the law itself and asks: is it possible to imagine a way the statute could be violated without causing a death (if yes, the crime isn’t inherently dangerous)
What is the contextual inherently dangerous test
- Pro plaintiff
- Look at the context of the actual violation and consider the manner in which it was violated
- Look at the context– Defendant broke the law and someone died, therefore it must be inherently dangerous
- In an unrestrained jurisdiction, you must always prove the felony through this doctrine
What is the majority view agency theory for felony murder
- Better for Defendant
- During the transaction of a felony someone gets killed by someone other than the Defendant
- Ask: Was the person who killed acting as an agent (co-felon) of the Defendant. If yes, the killing is attributed to the defendant. if no then the killing is not attributed
What is the minority proximate cause view
- Better for the government
- During the transaction of the felony someone gets killed by a person other than Defendant
- A felon may be responsible under the felony murder for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim’s death
- Ask: Was the killing a proximate cause of the crime. If yes, Defendant is guilty
- As long as the killing was a foreseeable consequence of the crime, then All co-felons are responsible
- Only defense is that killing must be a result of an intervening superseding cause
What are the three things needed to analyze felony murder
1) Right Felony– felony is expressly named by statute (enumerated) or felony is inherently dangerous (not inherentlydangerous if it could be committed without death)
2) Right timing (res gestae doctrine)
3) Right co-felon connection (agency doctrine [narrow] or proximate cause [wide])
WHen a felony is not enumerated and is not inherently dangerous does that mean you can’t charge defendant with murde
No you can charge defendant with depraved heart (implied malice because of high degree of recklessness)
What is first degree murder
Intent to kill + premeditation and delibaration
What is first needed to prove first degree murder
Intent (purpose or knowledge)
What is premeditation
Quantity of thought. Defendant was able to think about it beforehand. A spontaneous reaction defies the notion of quantity and quality of thought and negates the “twinkling of an eye theory”
What is deliberation
Quality of thought– Defendant was able to rationalize and decide on the thought
How can P&D be inferred
by conduct/statements of defendant prior to killing, threats by defendant before/during the act of killing, ill-will b/w parties etc.
Outside of P&D how else can first degree murders happen
anything else the legislature ha set out as a first degree murder (i.e. killing a child, police officer etc)
Is 1st Degree a general or specific intent crime and why
Specific intent. P&D make it so. If you can’t prove the specific intent you are left with the general intent crime of second degree murder
What is second degree murder and what do you have to show
they are all other murders that are not 1st degree. must still show intent to kill– a general intent crime
What is manslaughter (CL)
a “residual bucket” for crimes where there was a “heat of passion” and all other unlawful killings
What are the two types of manslaughter (CL)
voluntary, involuntary
What is voluntary manslaughter (CL)
An intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool
What makes voluntary manslaughter brought down from murder
All elements are satisfied to prove murder, but the circumstances partially nullify the MR
What does proximity have to do with voluntary manslaughter (CL)
Killing must be proximate. If you do not see it happening, hear it happening, or it isn’t proximate , you cannot claim heat of passion. (i.e. a father who finds out 5 years later who rapped and killed his daughter does not have a defense in the CL court b/x it is not proximate)
What is the states burden with voluntary manslaughter (CL)
state has burden to prove malice and to disprove heat of passion
What are the elements needed to downgrade from murder to manslaughter (CL)
- Adequate provocation
- HOT and sudden passion
- Casual connection
- Intentional killing
What is adequate provocation and what are some examples
- words are never enough– courts have list five example kinds of adequate provocation
1) Adultery (in flagrante delicto)
2) mutual combat
3) Assault and battery
4) Injury or death to relative
5) illegal arrest (false arrest)
How has adequate provocation evolved? (CL)
Many jurisdictions now use the “ordinary man” standard instead of a reasonable man standard b/c a killing is never reasonable
What is the subjective test for adequate provocation (CL)
provocation is assessed based on the defendants susceptibility, vulnerability, and reasonability. Asks: in his shoes, based on his experiences, would that conduct be provocative
What is the objective test for adequate provocation (CL)
reaction is assessed based on the ordinary person standard. Ask: Maybe it was subjectively provocative, but was there enough provocation to make an ordinary person with ordinary control respond the way the defendant responded
What happens if defendant was subjectively reasonable but not objectively reasonable
they are guilty
What is involuntary manslaughter (CL)
an unintentional killing resulting from reckless conduct that does not manifest a wanton disregard for the value of human life or that results from gross negligence
What is gross/criminal negligence (CL)
when the deviation from the standard of care is more than simple negligence
What makes MPC and CL murder different
MPC does not have degrees. murder is murder in MPC
What is the definition of murder in MPC
Murder is an unlawful killing where death is the purpose/desired result
What is necessary to prove murder in MPC
that the murder was done with purpose or that it was done with knowledge of substantial certainty that death could occur
What are the two categories some MPC jurisdictions break murder down into
Capital murder (murder with aggravating circumstances that are listed in the code, death sentence on the table)
Murder (not as bad, done without aggravating circumstances, death sentence is not an option)
What is “extreme indifference murder”
extreme indifference murder (aka “depraved heart murder”)is an unintentional killing that is bumped from manslaughter back up to murder by proving an extreme indifference to the value of human life
How do you prove extreme indifference
High degree of recklessness which manifests an extreme indifference to human life (a conscious disregard)
How does felony murder work in MPC
no such thing as felony murder. in MPC felony murder is captured under extreme indifference as a reckless murder (presumed if death was committed within a named felony)
What is voluntary manslaughter in MPC
an intentional homicide, done as a result of an extreme emotional disturbance
What can create an extreme emotional disturbance in MPC manslaughter
words actions or anything else that the jury finds
What makes manslaughter in MPC different from CL
no causal connection requirement, does not have to be proximate
Ex. When the dad finds out 5 years later who raped and killed his daughter and goes out and murders him, he can please EED in a MPC jurisdiction
Who bears the burden of proof in MPC manslaughter and what is it
Defendant bears the burden of proof. must show that they acted under pressure of emotional disturbance, that the emotional disturbance was extreme (subjective standard) and that a reasonable explanation and excuse for the disturbance (objective standard)
What is involuntary manslaughter in MPC
Involuntary manslaughter in MPC is a killing resulting from reckless conduct that does not manifest a wanton disregard for the value of human life
What is negligence homicide (MPC)
A death that results from gross/criminal negligence
What must be proven in negligent homicide
The risk is of such a nature and degree that the actors failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, is a gross deviation from the standard of care that a reasonably prudent person would observe
First prove a reasonable person would have realized, then prove that most everyone would have realized (gross aspect)
