Homicide Flashcards
What is Homicide?
Homicide = The killing of one human being by another.
Includes both innocent & criminal killings.
Criminal Homicide = A killing without justification or excuse.
Key Element: Mens rea (mental state) determines:
* Whether the killing is criminal.
* What type of criminal homicide it is.
Basic Homicide Analysis
Elements to Analyze:
Actus Reus? → Killing
Mens Rea? → Determines level of culpability, which framework: Common, Degrees, MPC
Circumstances? → Victim must be another human being
Causation? → Did the defendant’s act cause the death?
Key Reminders:
* Facts matter—analyze details carefully.
* Apply the law to the facts
* Mens Rea is central, but don’t ignore other elements.
Common Law Criminal Homicide
Murder: “The killing of a human being by another with malice aforethought.”
Manslaughter: “The unlawful killing of a human being without malice aforethought.”
Felony Murder:
* An intentional killing where intent is imputed from the felony that serves as the predicate.
Common Law Notes:
* No degrees of murder or manslaughter at common law.
* Courts often distinguished between voluntary and involuntary/unintentional manslaughter.
Common Law Homicide: Mens Rea Analysis
Step 1: Does the killing involve malice aforethought?
1️⃣ Intent to kill?
2️⃣ Intent to inflict grievous bodily injury?
3️⃣ Extreme recklessness (depraved heart)?
4️⃣ Intent to commit a felony (BARRK: Burglary, Arson, Robbery, Rape, Kidnapping)?
🔹 If YES → Murder
🔹 If NO → Proceed to Step 2
Step 2: If no malice aforethought, ask:
1️⃣ Heat of passion?
2️⃣ Lawful act, done in an unlawful manner (criminal negligence)?
3️⃣ Unintentional killing during a non-felony crime?
🔹 If YES → Manslaughter (Later distinctions: Voluntary vs. Involuntary Manslaughter)
Degrees Homicide Analysis
Step 1: First-Degree Murder?
* Was the killing willful, deliberate, and premeditated?
* Was the killing done in a specified way? (e.g., lying in wait)
* Was the killing during a specified felony? (BARRK: Burglary, Arson, Robbery, Rape, Kidnapping, or others in statute)
If YES → First-Degree Murder
If NO → Move to Step 2
Step 2: Second-Degree Murder?
* Was the killing intentional but doesn’t fit first-degree categories? (Includes depraved heart and other murders listed in statutes)
If YES → Second-Degree Murder
If NO → Move to Step 3
Step 3: Murder during commission of a felony?
Was there an intention to commut a felony that led to the killing? BARRK
If Yes then felony murder rule
Step 4 : Voluntary/ Involuntary Manslaughter?
* Was the killing intentional but done with provocation or imperfect self-defense?
If YES → Voluntary Manslaughter
* Was malice absent?
* Was there gross negligence or recklessness (in some jurisdictions)?
If YES → Involuntary Manslaughter
MPC Criminal Homicide
Step 1: Murder?
* Was the killing unjustified, inexcusable, and without mitigating circumstances?
* Did the actor:
1. Kill purposely or knowingly?
2. Kill recklessly, with extreme indifference to human life?
3. Kill during the commission, attempted commission, or flight from a listed felony?
(Recklessness & indifference are presumed in felony cases.)
If yes → Murder
If no → Move to Step 2
Step 2: Manslaughter?
* Did the actor recklessly cause death due to extreme mental or emotional disturbance for which there is a reasonable explanation or excuse?
(from the viewpoint of the person in teh actor’s situation under the circumstances as he believes them to be)
If yes → Manslaughter
If no → Move to Step 3
Step 3: Negligent Homicide?
* Involuntary manslaughter at common law.
If yes → Negligent Homicide
Is “momentary deliberation” enough for premeditation from a public policy perspective?
In my opinion no here is why,
Deterrence:
* Expanding premeditation to include momentary deliberation may deter impulsive killings by increasing the likelihood of harsher penalties.
* However, if almost all intentional killings qualify as first-degree murder, the deterrent effect may weaken since offenders may see no distinction in punishment.
Moral Fairness:
* Blurring the line between true premeditation and heat-of-the-moment killings undermines fairness.
* Treating impulsive killings the same as carefully planned murders may lead to unjust outcomes.
Retribution:
* Premeditation is meant to differentiate between levels of culpability.
* Allowing momentary deliberation to suffice dilutes this distinction and could result in disproportionate punishment.
Incapacitation:
* If the standard increases the number of offenders convicted of first-degree murder, more individuals receive life sentences or the death penalty, keeping them off the streets.
* However, it could also overburden the prison system by treating impulsive killers the same as calculated murderers.
Rehabilitation:
* Over-labeling killings as premeditated could reduce opportunities for rehabilitation by imposing harsher sentences.
* Individuals who may be capable of reform lose access to rehabilitative measures due to being classified as first-degree murderers.
What are the required elements of Voluntary Manslaughter?
Both subjective and objective elements must be established:
Subjective Elements:
* The defendant was actually and sufficiently enraged at the time of the killing.
Objective Elements:
* A reasonable person would have been similarly enraged or provoked.
* The defendant did not have time or opportunity to cool off before acting.
Proving Lack of Provocation
- The prosecutor must prove all elements of a crime beyond a reasonable doubt.
- In jurisdictions where provocation negates malice aforethought, it is the prosecutor’s burden to prove that the defendant was not provoked.
- If the prosecutor fails to disprove provocation beyond a reasonable doubt, the charge may be reduced from murder to voluntary manslaughter.
Common Law Elements of Provocation
- The defendant acted in the heat of passion.
- The passion resulted from adequate provocation.
- The defendant did not have a reasonable opportunity to cool off.
- There was a causal link between the provocation, passion, and homicide.
- Examples of Provocation
- Aggravated assault or battery.
- Mutual combat.
- A serious crime committed against a close relative.
- Illegal arrest.
- Observing a spouse committing adultery.
- Examples that are NOT sufficient:
- Learning about, but not witnessing, adultery.
- Observing sexual unfaithfulness of a fiancé or unmarried partner.
- Words alone, no matter how insulting.
Are Words Enough for Provocation?
- Common Law: No, words alone are not sufficient.
- MPC: Yes, words can be enough to constitute provocation.
Common Law vs MPC Standard for Provocation
Common Law:
* Objective standard: A reasonable person of average disposition, not overly aggressive, sober, and mentally sound.
* Subjective consideration may be limited.
MPC:
* Viewed from the actor’s situation (more subjective).
* Ongoing debate: How much subjectivity should be allowed?
* Juries often instructed to consider the “ordinary person in the actor’s situation.”
Provocation: Justification or Excuse?
Justification Theory: “Heat of Passion” The killing is less serious because the victim partially deserved it.
Excuse Theory: The killing remains wrong, but the defendant’s emotional state reduces culpability.
Unclear classification—courts often struggle with whether provocation is a partial justification or an excuse.
Why do some courts allow imperfect Self-Defense in Manslaughter cases?
To mitigate murder when self-defense would apply except for the lack of objective reasonableness.
Kansas Senate Judiciary Committee’s reasoning:
* It acknowledges human imperfection, recognizing that people may act out of an honest but unreasonable belief in the need to use deadly force.
* Helps ensure that unreasonable but genuine fear does not result in a full murder conviction.
Questions to ask in C/L homicide
- Did the defendant’s acts cause the victim’s death?
- Malice Aforethought:
- Intent to kill?
- Intent to inflict grievous bodily injury?
- Extremely reckless disregard for human life (depraved heart)?
- Intent to commit a felony?
- Was there Adequate Provocation?
- Objective: Would a reasonable person be provoked?
- Subjective: Was the defendant actually provoked?
- Imperfect Self-Defense?
- Subjective only: Did the defendant honestly, but unreasonably, believe deadly force was necessary?
- Gross Negligence or Recklessness?
- Was the killing due to criminal negligence or recklessness?
Should the felony murder rule apply to all felonies or only a narrow list?
Broad approach: Applies to all felonies, arguing that any felony creates foreseeable risks.
Narrow approach: Limits felony murder to inherently dangerous felonies (e.g., BARRK – Burglary, Arson, Robbery, Rape, Kidnapping).
Policy Considerations:
* Expanding the rule may lead to overcriminalization.
* Limiting it preserves proportionality in punishment.
Can a felony murder conviction stand if the jury acquits on the underlying felony?
- Jurisdiction-dependent: Some allow inconsistent verdicts, meaning a felony murder conviction can stand even if the jury acquits on the felony.
- Other jurisdictions require a conviction on the felony for felony murder to apply.
Can a conviction for the underlying felony stand if the jury acquits on felony murder?
- Yes. The felony is a separate charge and does not depend on a felony murder conviction.
- A jury may find the defendant guilty of the felony but not hold them responsible for a resulting death under felony murder.
Could People v. Portillo have been charged as a 1st degree murder (not under a felony-murder theory)?
Evidence Supporting Premeditation:
* Expressed Intent: Portillo had expressed to fellow seamen his intention to hire a prostitute, rape her, and then kill her. 
* Planning: He contacted an escort service, requested an “Asian girl,” and provided the address of his neighbor, indicating forethought and planning. 
Conclusion: The evidence of prior intent and planning could support a charge of first-degree murder based on premeditation and deliberation, independent of the felony-murder rule.
Should Noakes have been found guilty of murder instead of involuntary manslaughter?
- Murder typically requires malice aforethought, indicating an intent to kill or cause grievous harm.
- Involuntary manslaughter involves an unintentional killing resulting from criminal negligence or recklessness.
- In this case, Noakes did not intend to harm the child; her actions were negligent but lacked intent, aligning with involuntary manslaughter rather than murder.
Why wasn’t Noakes found guilty of murder?
- Noakes lacked the intent required for a murder conviction.
- Her actions, though reckless, did not demonstrate malice aforethought.
- The court determined her conduct constituted criminal negligence, fitting the criteria for involuntary manslaughter rather than murder.
Distinction Between Recklessness and Criminal Negligence in State v. Brooks
- Recklessness: The actor is subjectively aware of a substantial and unjustifiable risk but consciously disregards it. 
- Criminal Negligence: The actor fails to perceive a substantial and unjustifiable risk that they should have been aware of; this failure represents a gross deviation from the standard of care a reasonable person would observe. 
Could the Defendant in State v. Brooks Have Been Convicted of Murder Instead of Involuntary Manslaughter?
- Murder typically requires malice aforethought, indicating intent to kill or cause grievous harm.
- Involuntary Manslaughter involves an unintentional killing resulting from reckless or criminally negligent conduct.
- In State v. Brooks, the defendant’s actions were deemed reckless but lacked intent to kill, aligning with involuntary manslaughter rather than murder.
Did the Defendant in State v. Brooks Exhibit Reckless Disregard for Human Life?
Yes. The defendant’s actions showed a reckless disregard for human life, as he was aware of and consciously disregarded a substantial and unjustifiable risk.
What Was the Actus Reus in State v. Brooks?
The actus reus (guilty act) was the defendant’s omissiont to act (tell them about the faulty heater) when he had a duty to act
Why Did the Defendant in State v. Brooks Have a Legal Duty to Act?
As the seller of the property, the defendant had a legal duty to disclose known defects that could pose risks to the occupants.
Could the Defendant in State v. Brooks Be Prosecuted Without a Legal Duty to Act?
Without a legal duty to act, the defendant’s failure to disclose the defect would likely not constitute a criminal offense, as omissions are generally punishable only when there is a legal obligation to act.
In State v. Powell Could defendant have been held criminally culpable without the
statute?
ithout such a statute, the principle of nulla poena sine lege—meaning “no penalty without law”—would apply, preventing punishment for conduct not expressly prohibited by law. 
This principle ensures that individuals are only punished for actions that are clearly defined as criminal by existing statutes, upholding the rule of law and protecting against arbitrary enforcement.
