Homicide

Question 1

Elements of common law murder

Answer 1

1. Unlawful killing;
2. Of a human being;
3. With malice aforethought

Question 2

What is the actus reus and mens rea for common law murders?

Answer 2

Actus reus: the act that results in death of another human being

Mens rea: malice, either express (e.g. intent to kill) or implied (e.g. felony murder)

Question 3

What are the types of malice?

Answer 3

1. Express malice
2. Implied malice

Question 4

What are the 4 mental states that fall under malice aforethought for homicide?

Answer 4

Either with:

• Intent to kill (express);
• Intent to inflict grievous bodily harm (implied);
• Reckless disregard for human life (implied); or
• Intent to commit a felony (implied)

Question 5

What constitutes acting with intent to kill?

Answer 5

Acting with the purpose to kill or the knowledge that it is substantially certain death will result

Question 6

What constitutes intent to inflict grievous bodily harm?

Answer 6

Intent to cause serious bodily harm without an intent to kill

Question 7

Elements of depraved heart murder

Answer 7

1. Reckless or grossly negligent conduct;
2. That creates an extreme risk to others; and
3. Demonstrates a wanton indifference to human life

Question 8

Elements of felony murder

Answer 8

1. Unintentional and foreseeable killing;
2. Proximately caused during the attempt, commission, or flight from;
3. An inherently dangerous felony (remember BARRK)

Question 9

What are inherently dangerous felonies?

Answer 9

Felonies that create a substantial risk of death or serious bodily harm.

Common: “BARRK”

• Burglary
• Arson
• Robbery
• Rape
• Kidnapping
• Also, felonious escape (MPC only)

Inherently dangerous felonies can be identified by statute and/or through case law

Question 10

Can a D be liable for felony murder if the underlying felony is not inherently dangerous, but it was committed in an inherently dangerous manner?

Answer 10

Yes

Question 11

How does the merger doctrine apply to felony murder?

Answer 11

The felony murder rule cannot apply unless the underlying elements of the felony are distinct from the murder.

For example, if D is involved in a battery in which the victim is killed, D cannot be charged with felony murder because the elements of battery are incorporated (i.e. merged) into the elements of murder. Generally, this doctrine arises when the underlying felony is one that causes injury.

Question 12

What is the time period in which D may be liable for felony murder?

Answer 12

During:

• Attempt of the felony;
• Commission of the felony; and
• After the commission of the felony

Question 13

For the purposes of felony murder, when does the felony end?

Answer 13

Only when the felon has reached a temporary place of safety

Question 14

If V dies after the commission of a felony, can D still be liable for felony murder?

Answer 14

Yes, as long as D has not yet reached a place of safety

⭐️ This scenario typically arises during escape

Question 15

What is the majority rule on felony murder co-felon liability?

Answer 15

Agency/”in furtherance of” approach: A co-conspirator is liable for all killings by co-felons

For example, if one co-felon shoots and kills a bank patron during the commission of a robbery, all co-felons are liable

Question 16

What is the minority position on felony murder co-felon liability?

Answer 16

Proximate cause approach: Co-felons are liable for deaths during the felony as long as the death was reasonably foreseeable. This includes liability for deaths caused by police officers, bystanders, or others.

⭐️ Note: This is a much broader view of liability than the majority approach.

Question 17

Police enter a bank during a bank robbery being committed by A, B, and C. A grabs a bank teller, using him as a human shield. In the chaos, a police officer shoots and kills the bank teller instead of A.

Who, if anyone, is liable for felony murder?

Answer 17

• In a majority jurisdiction, no one is liable for felony murder because the killing was not committed by any of the co-felons.
• In a minority jurisdicition, A, B, & C would be liable for felony murder because the killing was a reasonably foreseeable consequence of a robbery.

Question 18

Does the MPC include felony murder?

Answer 18

No, but the MPC considers the commission of a felony to presume an intent of reckless disregard for human life

Question 19

Does common law or MPC recognize degrees of murder?

Answer 19

No, degrees are only recognized in statutes

⚠️ Note: If you see degrees on an MBE question, look for an appropriate statute in the question

Question 20

Define

first degree murder

Answer 20

Killing that is premeditated and deliberate and some felony murders

⭐️ Specific intent crime

Question 21

What type of evidence can prove premeditation?

Answer 21

• Activities planning the murder (ex. googling methods of killing)
• Evidence showing motive
• Killing in a manner that shows D must have pre-planned the method

Question 22

True or False: Premediation requires a long period of thinking and planning beforehand

Answer 22

False, many courts would consider a minimal amount of time to be sufficient if pre-planning can be proved

Question 23

Define

second-degree murder

Answer 23

Killing with malice but without premeditation and deliberation

Question 24

What are types of second-degree murders?

Answer 24

• Murders without premeditation
• Murder resulting from intent to cause serious bodily harm
• Murders committed with reckless indifference to human life
• Some felony murders not otherwise classified as first degree

Question 25

What are the types of manslaughter?

Answer 25

1. Voluntary manslaughter (intent to kill); and
2. Involuntary manslaughter (no intent to kill)

Question 26

Define

voluntary manslaughter

Answer 26

An intentional killing that has been downgraded due to mitigating factors such as:

• Adequate provocation (“heat of passion”);
• Imperfect self-defense; or
• Diminished capacity

Question 27

Elements needed to prove “heat of passion” manslaughter

Answer 27

1. D acted in response to provocation that would have lead an ordinary, reasonable-person to lose self control;
2. There was insufficient time to cool off (subjective standard); and
3. D had not cooled off and was “in the heat of passion” at the time of the killing

Question 28

Is “heat of passion” a defense?

Answer 28

No, “heat of passion” only downgrades murder into manslaughter

Question 29

For heat of passion manslaughter, what are some examples of scenarios in which adequate provocation may exist?

Answer 29

1. D is a victim of a serious (more than trivial) battery;
2. D sees spouse engaged in sexual conduct with another person; or
3. D observes the serious physical injury of a close family member

Question 30

True or False: To be adequate, provocation needs to be more than what would make a reasonable person lose their temper

Answer 30

False: it only needs to be such that a reasonable person would lose their temper

Question 31

Do courts take D’s particular emotional tendencies (tendency to lose temper, etc) when determining how a reasonable person would act?

Answer 31

No

Question 32

Are mere words enough for adequate provocation?

Answer 32

Typically no.

But if the words contain information that would cause a reasonable person to lose control, they may suffice for adequate provocation (ex. Max tells Ian, “I forgot to tell you, I’m the one who murdered your mother last week”)

Question 33

Is D still eligible for manslaughter if D was reasonably provoked by information that later proved to be false?

Answer 33

Yes, as long as the facts, if they had been true, would have caused a reasonable person to lose control

Question 34

Define

imperfect self defense

Answer 34

Used as a partial defense to murder when D is not entitled to the complete defense because of an honest, but unreasonable mistake as to the necessity of D’s actions

Question 35

In what scenarios does imperfect self-defense exist?

Answer 35

• D was unreasonably mistaken about the danger;
• D was unreasonably mistaken about the need for deadly force; or
• D was the aggressor

Question 36

Define

involuntary manslaughter

Answer 36

• Killing committed with gross negligence (criminal); or
• Killing during the commission of a misdemeanor or other unlawful act

Question 37

Define

gross (criminal) negligence for the purposes of involuntary manslaughter

Answer 37

Lack of care that shows willful (conscious), wanton, and reckless disregard for the safety or lives of others; substantially deviates from the standard of care (much more than ordinary negligence)

Question 38

Define

misdemeanor-manslaughter

Answer 38

An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is either:

• Malum in se (evil in and of itself)
• Malum prohibitum (death is a natural and foreseeable consequence of the act)

Question 39

Define

misdemeanor

Answer 39

Crime punishable by fines, imprisonment for one year or less, or both

Question 40

Does the MPC have a misdemeanor manslaughter rule?

Answer 40

No

Question 41

When can an individual use non-deadly force to resist a police officer?

Answer 41

When the police officer is attempting an arrest and the individual does not know it is a police officer

Question 42

If V is already dying, can D be charged with homicide for accelerating V’s death?

Answer 42

Yes, if the accelerating factor is the actual cause of death