Homicide

Question 1

Definition of homicide

Answer 1

Homicide is the killing of a living human being by another, and includes the offenses of murder and manslaughter. At common law, homicide was divided into three categories: Criminal homicides were divided into three offenses: murder, voluntary manslaughter, and involuntary manslaughter.

Question 2

Causation

Answer 2

To prove a homicide, the prosecution must show that the defendant caused the victim’s death. The prosecution must prove both actual and proximate causation.

Question 3

Actual Cause

Answer 3

If the victim would not have died but for the defendant’s act, then the defendant’s act is the actual cause (i.e., cause-in-fact) of the death. When the defendant sets in motion forces that led to the death of the victim, the defendant is the actual cause of the victim’s death.

Question 4

Substantial Factor

Answer 4

Actual causation can be found when there are multiple causes, (i.e., other persons are also responsible for the victim’s death) and the defendant’s act was a substantial factor in causing the death.

Simultaneous acts by different individuals who are acting independently may each be considered the actual cause of a victim’s death, even though the victim would have died in the absence of one of the acts.

Question 5

Victim’s preexisting condition

Answer 5

A victim’s preexisting condition that contributes to the victim’s death does not supplant the defendant’s conduct as an actual cause of the victim’s death.

Question 6

Mercy Killing

Answer 6

Providing a person with the means by which that person can commit suicide generally does not make the provider guilty of murder as an accomplice (because suicide is not homicide) but instead guilty of a lesser crime, such as assisting a suicide. Note, however, that consent is not a defense to homicide, so a “mercy killing” (i.e.,euthanasia) can be a criminal homicide even if the person was willing to die because of a painful terminal illness.

Question 7

Proximate cause

Answer 7

Proximate cause (i.e., legal cause) exists only when the defendant is deemed legally responsible for a homicide. For the defendant to be legally responsible for a homicide, the death must be foreseeable. A death caused by the defendant’s conduct is deemed foreseeable if death is the natural and probable result of the conduct.

Question 8

Intervening acts by third parties

Answer 8

Actions by a third party (e.g., negligence by the doctor treating the victim), as well as actions by the victim (e.g., suicide to escape the pain that resulted from the injuries inflicted by the defendant), are generally foreseeable. However, actions by third parties will relieve the defendant of liability if they are independent of the defendant’s conduct and unforeseeable, or dependent on the defendant’s conduct and “abnormal” (i.e., not just unforeseeable, but unusual or extraordinary in hindsight).

Question 9

Intervening forces of nature

Answer 9

Actions by a force of nature that are not within the defendant’s control are generally not foreseeable (e.g., a lightning strike that kills a victim the defendant tied to a tree). An act that accelerates death is a legal cause of that death.

Question 10

Year and day

Answer 10

At common law, the defendant’s act was conclusively presumed not to be the proximate cause of the killing if the victim died more than one year and one day after the act was performed. Most states either have abolished this rule or have extended the time period of responsibility.

Question 11

Common-law murder

Answer 11

i) Unlawful (i.e., without a legal excuse);
ii) Killing;
iii) Of another human being;
iv) Committed with malice aforethought.

Question 12

Malice aforethought

Answer 12

“Malice aforethought” includes the following mental states: intent to kill, intent to inflict serious bodily injury, reckless indifference to an unjustifiably high risk to human life (depraved heart), or intent to commit certain felonies (felony murder).

Question 13

Intent to kill

Answer 13

Conduct accompanied by the intent to kill that is the legal cause of the death of a living person constitutes intent-to-kill murder unless the legal circumstances surrounding the homicide are such that the crime is reduced to voluntary manslaughter. An inference of intent to kill may be made if a deadly weapon was used intentionally in the commission of the crime.

Question 14

Intent to inflict serious bodily harm

Answer 14

A person who intends to do serious bodily injury or “grievous bodily harm” but actually succeeds in killing is guilty of murder despite the lack of intention to kill.

Intent to inflict serious bodily harm is an unintentional killing that results in death.

Intent to inflict serious bodily harm can be inferred from the use of a deadly weapon to inflict the bodily injury.

Question 15

Depraved heart

Answer 15

A killing that results from reckless indifference to an unjustifiably high risk to human life is a depraved-heart murder. Depraved-heart murder is an unintentional killing that results in death.

Question 16

Felony Murder

Answer 16

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. The felonies traditionally considered inherently dangerous are: Burglary, Arson, Rape, Robbery, and Kidnapping. [Mnemonic: BARRK].

Question 17

What must the state prove to convict a defendant of felony murder?

Answer 17

To convict a defendant of felony murder, the prosecution must establish the underlying felony and that the defendant committed that felony. In addition, in most states, any aggravated felony committed with the use of a dangerous weapon is subject to the felony-murder rule. However, such an aggravated felony must be independent of the killing itself to qualify as an underlying felony for felony murder (e.g., aggravated battery cannot be the basis for a felony-murder charge).

Question 18

Double jeopardy implications

Answer 18

The underlying felony will generally “merge” into the crime of felony murder for the purposes of Double Jeopardy. That is, the predicate felony is generally deemed a lesser-included offense of the felony murder.

Question 19

Defenses to felony murder

Answer 19

One of the following circumstances can constitute a defense to a felony-murder charge:

i) A valid defense to the underlying felony;
ii) The felony was not distinct from or independent of the killing itself (e.g., aggravated battery);
iii) Death was not a foreseeable result or a natural and probable consequence of the felony (i.e., there was no proximate causation); or
iv) Death occurred after the commission of the felony and the ensuing flight from the scene of the crime.

Question 20

Death of a bystander

Answer 20

When someone other than a co-felon is killed by a police officer or dies as a result of resistance by the victim of the felony, the felon’s liability for that death will depend on whether an agency theory or proximate-cause theory is applied.

Question 21

Agency theory and felony murder

Answer 21

Under an agency theory, the felon will not be liable for the death of a bystander caused by a felony victim or police officer because neither person is the felon’s agent. Under the proximate-cause theory, liability for the bystander’s death may attach to the felon because the death is a direct consequence of the felony.

The same analysis is applicable when a victim of the underlying felony or a police officer is killed by someone who is not one of the felons. (Agency theory is the majority position and should be applied on the MBE unless the question specifically indicates that the jurisdiction is a proximate-cause theory jurisdiction.)

Question 22

Death of a co-felon

Answer 22

Under the Redline doctrine, a defendant is generally not guilty of felony murder when a victim or a police officer, acting in self-defense or trying to prevent the escape of the defendant or his co-felon, kills the co-felon. Instead, the killing by the victim or the police officer is considered justifiable homicide.

Question 23

First-degree murder

Answer 23

First-degree murder is generally defined as a deliberate and premeditated murder. First-degree murder, defined in this manner, is a specific-intent crime, which means that specific-intent defenses are available for a defendant

In addition, felony murder is frequently classified as first-degree murder.

Question 24

Premeditation

Answer 24

The distinguishing element of first-degree murder is premeditation, meaning the defendant reflected on the idea of killing or planned the killing. The amount of time needed for premeditation may be brief, as long as, after forming the intent to kill, the defendant had sufficient time to become fully conscious of the intent and to consider the killing (i.e., had time for reflection). This requirement does not apply to felony murder.

Question 25

Heinous murder

Answer 25

A murder resulting from an egregious act, such as ambush (i.e., lying in wait), torture, bombing, terrorism, or poisoning, may be classified as first-degree murder.

Question 26

Second-degree murder

Answer 26

Second-degree murder is a homicide committed with the necessary malicious intent: the intent to kill, the intent to do great bodily injury, or a depraved-heart murder. In addition, a murder that occurs during the commission of a felony other than the felonies that trigger first-degree murder may statutorily be treated as second-degree murder.

Question 27

Voluntary Manslaughter

Answer 27

Voluntary manslaughter is homicide committed with malice aforethought, but also with mitigating circumstances.

“Heat of passion”

Question 28

“Heat of passion”

Answer 28

Murder committed in response to adequate provocation (i.e., in the “heat of passion”) is voluntary manslaughter. The “heat of passion” means that the defendant was –

• provoked by a situation
• that could inflame the passion of a reasonable person
• to the extent that it could cause that person to momentarily act out of passion rather than reason.

The defendant cannot have been set off by something that would not bother most people.

Question 29

Adequate provocation

Answer 29

A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes adequate provocation. Usually mere words, such as taunts, do not.

While an intentional killing committed when resisting arrest is generally murder, the intentional killing can be manslaughter if the arrest is unlawful and the defendant acts in the “heat of passion.”

Question 30

“Cooling off”

Answer 30

If there was sufficient time between the provocation and the killing for a reasonable person to cool off, then murder is not mitigated to manslaughter. If there was sufficient time to cool off for a reasonable person even though the defendant himself did not regain self-control, the murder is not mitigated to manslaughter.

Question 31

Second provocation

Answer 31

Even when the defendant has “cooled off,” a second encounter with the victim may give rise to another situation in which the defendant acts in the “heat of passion.”

Question 32

Causation in heat of passion

Answer 32

There must be a causal connection between provocation, passion, and the fatal act. There will be no mitigation if the intent to kill was formed prior to the provocation.

Question 33

Transferred provocation

Answer 33

When, because of a reasonable mistake of fact, the defendant is in error in identifying her provoker or accidentally kills the wrong person, she will be guilty of voluntary manslaughter if that would have been her crime had she killed the provoker. If, however, the defendant, in her passion, intentionally kills another person known to her to be an innocent bystander, then there will be no mitigation, and murder, rather than voluntary manslaughter, will apply.

Question 34

Imperfect defense

Answer 34

In many states, murder may be reduced to voluntary manslaughter when the defendant contends that his use of deadly force was necessary in defense of himself or others, but (i) the defendant started the altercation or (ii) the defendant unreasonably (if truly) believed in the necessity of using deadly force.

Question 35

Involuntary Manslaughter

Answer 35

Involuntary manslaughter is an unintentional homicide committed with criminal negligence (recklessness under the MPC) or during an unlawful act.

Question 36

What constitutes an unlawful act?

Answer 36

The unlawful act may occur in one of two ways:

i) Under the misdemeanor-manslaughter rule, which is a killing committed in the commission of a malum in se (wrong in itself) misdemeanor; or
ii) A killing committed in the commission of a felony that is not statutorily treated as first-degree felony murder or second-degree murder.

There must be a causal connection between the unlawful act and the death for involuntary manslaughter to apply.