Homicide

Question 1

What is the CL definition of human being?

Answer 1

A viable child in the process of being born that would normally live “in the natural course of events” if it is given normal and reasonable care

Question 2

What is the MPC definition of a human being?

Answer 2

A person who has been born

Question 3

What is the ‘Year and a Day Rule’?

Answer 3

The mostly abolished CL rule that refused to hold a defendant liable for a death occurring more than a year and a day after the act that caused it

Question 4

What is murder?

Answer 4

Killing of a human being by another with malice aforethought

Question 5

What is manslaughter?

Answer 5

Unlawful killing of a human being without malice aforethought

Question 6

What is malice aforethought?

Answer 6

a) States of mind that, accompanied by a homicide, characterize the homicide as murder
b) Generally, an intent to willfully take the life of a human being or an intent willfully to act in a callous and wanton disregard of the consequences to human life; does not imply ill will toward individual killed

Question 7

When is malice aforethought imputed to the defendant? (5 types)

Answer 7

(1) Intent to kill a human being
(2) Intent to cause grievous bodily injury (not in MPC)
(3) Extreme Recklessness
(4) Intent to commit a [dangerous] felony
(5) Resistance to lawful arrest

Question 8

What causation is necessary for homicide?

Answer 8

The alleged unlawful act antedating death must be so integrated with and related to the homicide that it can be said to have proximately caused or contributed to it

Question 9

What is the burden of proof for causation?

Answer 9

The prosecution must prove causation beyond a reasonable doubt. It is an element of homicide.

Question 10

What is the ‘Rule of Hale’s’?

Answer 10

A victim’s poor self care after injury does not remove or affect defendant’s liability

Question 11

What is transferred intent?

Answer 11

The defendant is liable for the act he would have committed had he committed the crime against the intended target.

Question 12

Who is liable when multiple people inflict separate mortal wounds?

Answer 12

All are liable

Question 13

What is the CL definition of first degree murder?

Answer 13

Willful (intentional), deliberate, or premeditated killing

Question 14

What evidence is relevant to proof of first degree murder?

Answer 14

(1) How and what D did prior to the actual killing (planning)
(2) D’s prior relationship with victim (motive)
(3) Nature of killing from which jury could infer manner of killing shows killing was so exacting as to be preconceived (manner)

Question 15

What is the CL definition of second degree murder?

Answer 15

Any kind of murder not deemed first degree murder

Question 16

What is the MPC definition of murder?

Answer 16

The MPC does not distinguish degrees (only murder and manslaughter). Murder is “purposefully or knowingly killing another human being.

Question 17

What is voluntary manslaughter?

Answer 17

An Intentional killing:

(1) for which there was adequate provocation, and which was committed in a
(2) sudden
(3) heat of passion (w/o cooling time of ~ 1 hr),
(4) with a causal connection between the provocation, passion, and fatal act [Rule of Provocation]

Question 18

Provocation is relevant to which crime? What is considered adequate provocation?

Answer 18

Provocation mitigates 2nd degree murder into voluntary manslaughter.b) Adequate provocation generally includes:

(1) Extreme assault or battery on D
(2) Mutual combat
(3) D’s illegal arrest
(4) Injury or serious abuse of D’s close relative
(5) Sudden discovery of adultery

Question 19

What does not constitute adequate provocation?

Answer 19

Mere words or racial slurs cannot be adequate provocation (unless accompanied by physical acts)

Question 20

What is the burden of proof for provocation?

Answer 20

The prosecution must prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation

Question 21

What is the CL definition of involuntary manslaughter?

Answer 21

The unintentional killing of another in which D’s negligence is so gross and culpable as to indicate a callous disregard of human life and of the probably consequences of his act

Question 22

What are some examples of involuntary manslaughter?

Answer 22

a) Violation of a statute may be per se negligence or prima facie evidence of unlawfulness
b) Some states have pushed for misdemeanor-manslaughter rule (like felony-murder)
c) Failure to act according to the following duties:
(1) statutory
(2) status relationship
(3) contract, and
(4) voluntary assumption

*Generally failure to act resulting in death is involuntary manslaughter, but if D intended death then it is still murder

Question 23

What is the MPC definition of involuntary manslaughter?

Answer 23

(1) A reckless killing or
(2) A killing under circumstances ordinarily constituting murder, but as a result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse

Question 24

What is the CL definition of felony murder?

Answer 24

a) A killing committed in either the perpetration of or an attempt to perpetrate a felony (sometimes described as “in the course of and in furtherance of”)
b) Strict liability rule
c) Constructive malice aforethought

Question 25

Felony murder generally constitutes which type of homicide?

Answer 25

Specified in statute: a first degree murder

Not specified: likely second degree murder

Question 26

What is the MPC definition of felony murder?

Answer 26

The MPC does away with felony murder but adds presumption of extreme indifference for commission of certain felonies (effectively brining it back into the fold)

Question 27

What are some limitations on the felony murder rule?

Answer 27

a) Felony must be inherently dangerous
b) Merger/Independent doctrine: underlying felony must be independent of homicide and assault merged there in (e.g. could not use manslaughter as underlying felony to bump killing to murder)
c) Homicide must be direct causal result of felony, although
(a) foreseeability is irrelevant and
(b) felon takes victim as he finds him

Question 28

What are some approaches to liability for third party killings in the felony murder rule?

Answer 28

a) Agency - Liability limited to acts committed by D or co-D’s, but not those committed by third parties
b) Proximate Cause - Liable for any death proximately caused by the felony, even if D and co-Ds did not commit the killing
c) Vicarious Liability - Used to work around situations in which proximate cause is fuzzy

Question 29

What is the liability for accomplices (aiders and abettors)?

Answer 29

Accomplice liability is derivative: accomplice can generally be convicted of (1) any offense he intentionally assisted or (2) any offense that was a natural/probably consequence of the crime

Question 30

Who is an accomplice (aider and abettor)?

Answer 30

Someone who intentionally assists another in engaging in criminal conduct by aiding, abetting, counseling, commanding, inducing, procuring, etc.

Question 31

What are the types of accomplices?

Answer 31

(1) Accessory before the fact: one who is not present at actual crime, but assisted beforehand (and is thus liable for offenses he assisted with and natural consequences thereof)
(2) Accessory after the fact: one who, with knowledge of another’s guilt, intentionally helps that person avoid arrest/trial/conviction; most JDs treat this as a separate crime w/ separate penalty

Question 32

What is the limited capacity defense?

Answer 32

The defense used in Wolff that D has limited capacity to reflect on the act or limited volition to commit the act.

*Generally rejected: there is no intermediate stage of partial criminal responsibility between insanity and ordinary responsibility, but the D can still bring it in as a fact of the case

Question 33

What is the argument for the limited capacity defense?

Answer 33

Law doesn’t reflect reality; there is not one insane/sane line, but rather a continuum

Question 34

What is the argument against the limited capacity defense?

Answer 34

Culpability may not have as much variance as mental capacity; if someone really doesn’t know what they are doing, then they are likely to kill again so we should lock them up

Question 35

When does self defense justify a homicide?

Answer 35

Self-defense is justified if a person has

(a) a reasonable apprehension of
(b) imminent
(c) great bodily harm and
(c) a reasonable belief that no other means would suffice to prevent such harm

*No criminal liability if it turns out appearances were false, so long as they were reasonable

Question 36

What type of force is justified for self defense?

Answer 36

The use of force cannot be greater than the harm threatened (in that case, self-defense may constitute a voluntary manslaughter)

*Deadly force can never be used to repel non-deadly attack

Question 37

When is there a duty to retreat?

Answer 37

(1) No duty to retreat except for deadly force
(2) No duty to retreat for deadly force if there is no avenue for retreat
(3) No duty to retreat in home/work (MPC)
(4) Stand your ground law: if you reasonably think you are in danger of great bodily harm then you can use all necessary force, even deadly if there is no other available option
(5) If you are required to retreat and don’t→voluntary manslaughter

Question 38

What is the CL treatment of battered-woman syndrome as a defense?

Answer 38

a) No imminent danger, so not regular self-defense
b) Past battering relevant for whether D thought she was in mortal danger and can be considered for reasonableness (but standard is still reasonable person, not reasonable battered woman)
c) Most cases come out with voluntary manslaughter verdicts

Question 39

When does defense of others justify a homicide?

Answer 39

Generally, a person is justified in protecting a third party to the extent he is justified in acting in self-defense

HOWEVER, some jurisdictions limit:

(1) Who you can defend (family, etc.)
(2) Allowable mistakes (help at your own peril)

*Rule balances wanting to help someone in danger but also protects innocent people from meddlers’ mistakes

Question 40

When does defense of property justify a homicide?

Answer 40

a) If an assault on a dwelling and an attempted forcible entry are made under circumstances which would create
(a) a reasonable apprehension that it is the design of the assailant to
(b) commit a felony or to inflict on the inhabitants injury which may result in loss of life or great bodily harm,
(c) and that the danger that the design will be carried into effect is imminent, a
(d) lawful occupant of the dwelling may prevent the entry even by the taking of the intruder’s life

*Spring gun cases test this rule and the result depends on JD

Question 41

What is the duress defense?

Answer 41

It is an affirmative defense that D engaged in conduct because he was coerced by the use of unlawful force or threat of such force against his person or another, which he could not have resisted (threat must be human source)

Question 42

What is the necessity defense?

Answer 42

It is an affirmative defense that D believed his conduct was necessary to avoid a harm or evil to himself or another.

It is justifiable if the harm sought to be avoided is > than harm caused by conduct [i.e. D may choose lesser of two evils] (threat is non-human source)

Question 43

When is prison escape justified?

Answer 43

Prison escape may be justifiable under duress/necessity defense, but escapee would have to immediately report himself as soon as it would be safe to do so

Question 44

What are the justifications for punishment?

Answer 44

Retributive
Utilitarian
Composite Theories

Question 45

What is the retributive justification for punishment?

Answer 45

D should be punished when deserved; backward looking

*But, how do we know what D deserves? Why should we inflict more pain into the system (compare to tort law, where we apportion loss)? Retribution is easy to apply to others but hard to justify for self

Question 46

What is the utilitarian justification for punishment?

Answer 46

D should be punished when punishment serves some purpose (rehabilitation, deterrence, incapacitation)

*But, if only reason is utility, then punishment and conscription are equal (which is not true); ignoring retributive aspect can lead to punishing the innocent or finding that prison conditions are not punishment but just an effect of punishment

Question 47

What are the composite theories justifying punishment?

Answer 47

(1) Use retribution to determine when to dole out punishment, utilitarian theory to determine how much
(2) Rules of crim are utilitarian, application is retributive

Question 48

What are the mitigating and aggravating factors for capital punishment?

Answer 48

a) Mitigating Factors: impaired capacity, duress, minor participation, equally culpable defendants, no prior criminal record, severe emotional disturbance, victim’s consent, etc.
b) Aggravating Factors: death during commission of another crime, previous convictions, grave risk of death to others, depraved manner, pecuniary gain, substantial planning, vulnerability of victim, public officials, etc.