Homicide

Question 1

Murder

Answer 1

the unlawful killing of another human with malice aforethought

1. intent to kill
2. intent to do serious bodily harm
3. gross recklessness (aka: implied malice)
4. felony killing

Question 2

Manslaughter

Answer 2

the unlawful killing of another human without malice aforethought

1. Provocation (voluntary manslaughter)
2. Gross negligence (involuntary manslaughter)
3. Misdemeanor manslaughter

Question 3

Malice Aforethought

Answer 3

Really only about malice – “aforethought” is misleading

Malice has a positive and a negative side

Question 4

Malice Aforethough: Positive

Answer 4

1. Positive: prosecutor has to prove one of four things to establish malice
   
   1. Intent to kill
   2. Intent to do serious bodily harm
   3. Extreme or gross recklessness regarding human life
   4. Killing during a felony

Question 5

Malice Aforethought: Negative

Answer 5

even if the prosecutor can establish malice, the defendant can negate the existence of malice based on a defense claim, reducing the crime to manslaughter

Question 6

Provocation Defense

Holmes v. Dir. of Public Prosecutions

(traditional/minority rule)

Answer 6

1. D murdered his wife after a confrontation in which she admitted to cheating and accused him of cheating as well
2. D clearly intended to kill her, so malice was established, but D used the defense of provocation
3. However, words alone are not enough to constitute provocation
   
   1. Under Holmes, provocation requires ocular observation of the act itself
4. Provocation defense (reduces crime to “voluntary” manslaughter)
   
   1. Defendant acted in a heat of passion
   2. Caused by “adequate” provocation
      
      1. Provocation such that a reasonable person might be so rendered subject to passion or loss of control as to be led to use violence with fatal results
   3. Before passage of a reasonable cooling period
   4. Causal connection between provocation and killing
      
      1. The victim must be the source of the provocation
5. To apply the common law Holmes test, the judge must find that there was one of five things:
   
   1. Ocular observation of spousal adultery
   2. Aggravated battery or assault
   3. Commission of a serious crime against a close relative
   4. Illegal arrest
   5. Mutual combat

Question 7

Provocation Defense

People v. Berry

(CA/majority rule)

Answer 7

1. None of the Holmes situations apply
2. Reasonable person test – would a reasonable person be provoked?
   
   1. If the victim did something to the defendant that the judge thinks could cause a reasonable person to be upset and to act rashly, provocation can be used as a defense
3. Adequate provocation definition changed
   
   1. Provocation such that a reasonable person might be so rendered subject to passion or loss of control as to be led to act rashly
4. Primary difference between the Berry and Holmes rule is the definition of adequate provocation
   
   1. Much looser definition in Berry

Question 8

Extreme emotional disturbance defense

Answer 8

1. State v. Elliott (MPC rule)
   
   1. Criminal homicide constitutes manslaughter when a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance for which there is a reasonable explanation.
   2. This is the MPC substitute
      
      1. Under the MPC test, there is no requirement that he act quickly after he was provoked

Question 9

Words Alone

Answer 9

1. In most non-MPC jurisdiction, words alone do not constitute adequate provocation, unless the words are informational AND highly insulting
2. Some jurisdictions have permitted the defense to be raised with informational words OR insulting words alone

Question 10

First Degree v. Second Degree Murder

Answer 10

First degree murder requires premeditation and deliberation

1. “All murder which shall be perpetrated by any kind of willful, premeditated and deliberate killing or which shall be committed in the perpetration, or attempt to perpetrate [certain listed felonies] shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree”

Question 11

Premeditation

Answer 11

to overcome hesitation and doubt; to form a definite purpose (People v. Caruso)

1. Deliberation and premeditation imply the capacity at the time to think and reflect, sufficient volition to make a choice, and by the use of these powers, to refrain from doing a wrongful act
2. Premeditation occurs when D acted with consideration and reflection, turning it over in the mind, giving it a second thought (Jones v. United States)
   
   1. An intent to kill with a little bit of time to think about it will be sufficient for premeditation
   2. Lesser standard for finding premeditation

Question 12

Premeditation

People v. Anderson

Answer 12

1. Evidence that suggests premeditation
   
   1. Planning activity
   2. Motivating evidence
   3. Exacting manner of killing
2. CA test: three options
   
   1. Some evidence of all three
   2. Strong evidence of #1
   3. Some evidence of #2 with either #1 or #3

Question 13

Gross Recklessness

Answer 13

1. Gross recklessness “depraved heart” (People v. Knoller)
   
   1. Defines the standard for gross recklessness
   2. Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life
   3. So the standard is “danger to life” without any specific percentage of probability

Question 14

Gross Negligence

Answer 14

“involuntary manslaughter” (Laurie Walker v. Superior Court)

1. Involuntary manslaughter is an objective standard
2. Question is whether a reasonable juror could find that she was grossly negligent
3. The difference between gross recklessness and gross negligence is the appreciation of the risk
   
   1. If a reasonable person would understand that the conduct endangers life, there is gross negligence
      
      1. The defendant should be aware of the risk, but is not
   2. If the defendant understands that the conduct endangers life, there is gross recklessness

Question 15

Felony Killing

Answer 15

1. Not every state follows this felony killing theory, but most do
   
   1. Many see it as unfair
   2. Can be found guilty of murder even for accidental killing
   3. Some courts do not see felony killing as a theory of malice
      
      1. In these states, however, if a different form of malice is found (constituting murder), and the murder occurs during a felony, it is first degree murder
   4. California still follows the felony killing theory, while Michigan does not (People v. Aaron)
2. Argument is focused on dessert vs. deterrence
   
   1. Courts that focus on dessert will not support felony killing
   2. Courts that focus on deterrence will support felony killing

Question 16

Limitations of Felony Killing

Answer 16

1. Must be a dangerous felony (People v. James)
   
   1. The test for dangerousness is a high probability of death
   2. Some states consider whether something “inherently” dangerous and others base what is dangerous on the facts
2. Must be an independent felony
   
   1. The underlying felony must be bound up in the killing
   2. The only felonies which are not independent are aggravated assault, assault with a deadly weapon, child endangerment, etc.
3. Proximate cause limitation
   
   1. If it is too unforeseeable, it is not the proximate cause of the death
4. Agency limitation (State v. Canola)
   
   1. “Killing of a co-felon by a non-felon”
   2. If someone other than the co-felon shoots somebody, then the co-felon is not liable for the death
   3. Does not protect a co-felon who dies out of their own acts
   4. Not all states follow this agency limitation
   5. A felony lasts until the villain has reached a place of safe repose (State v. Hoang)

Question 17

Misdemeanor “unlawful act” manslaughter

Answer 17

1. Foreseeability is a requirement for the application of the misdemeanor manslaughter ruling
2. Courts work hard not to apply this theory anymore
3. To limit the doctrine, courts create limitations like foreseeability and proximate cause
4. There aren’t very many dangerous misdemeanors, and the death must be a foreseeable consequence of the misdemeanor

Question 18

Causation

Answer 18

Causation is only an issue when the crime is defined in terms of bringing about some kind of result

1. Cause in fact
   
   1. Was the defendant’s act necessary to produce the harm when it occurred?
   2. Without the defendant’s act, would the harm still have occurred when it did?
      
      1. If not, there is no cause in fact
   3. Must establish cause in fact before you move on to proximate cause
   4. Even if there is a cause in fact relation, a mens rea is still required
   5. If you hasten death, you are a cause in fact of the death
      
      1. If death was imminent and would have occurred immediately anyway, there is no cause in fact

Question 19

Proximate Cause (legal cause)

Answer 19

1. An act that is a direct cause of social harm is also a proximate cause of it
2. Ordinary negligence by doctors will not let the defendant off the hook for proximate cause, but gross negligence or intentional malpractice would (People v. Bonilla)
   
   1. Negligence that is foreseeable will not let the defendant off the hook, and they will still be liable for proximate cause
3. Foreseeability (People v. Kibbe)
   
   1. If it is foreseeable that the death would occur, there is proximate cause
4. If a person reaches a point of safety, and assumes the risk of partaking in a dangerous activity, it would cut the chain of legal causation
   
   1. Even if death was foreseeable
5. Considerations
   
   1. Extent of culpability of any intervening actor
   2. Extent of culpability of defendant
   3. Time delay between defendant’s act or omission and social harm
   4. Extent to which victim made a voluntary decision to assume risk

Question 20

Murder liability for the suicide of anothe

Answer 20

1. D is liable if he committed an egregious, violent crime causing severe or mental harm to the victim such that it is foreseeable the victim would, while under defendant’s control, commit suicide (Stephenson v. State)
   
   1. This is a very rare and narrow rule
2. Using force, duress, or deception to cause victim to commit suicide where defendant had the purpose to cause it
   
   1. This is the MPC and common law rule
3. Participating in the last overt act that causes death
   
   1. Even if the victim wanted to die, you will be guilty of murder
   2. A doctor would be guilty of murder if he participated in the last act that caused a person’s death (People v. Kevorkian)
   3. Exception: suicide pact involving expected simultaneous death from a single instrumentality (In Re Joseph G)
      
      1. D would be guilty of assisted suicide only, but not murder