Homicide, Felony Murder, Attempt, and Conspiracy Flashcards
Homicide Essay Question Template
- bullet points are okay!
I: ________’s homicide of ________
R MPC: A person is guilty of criminal homicide under the MPC if they purposely, knowingly, recklessly or negligently cause the death of another human being.
Actus Reus: voluntary action/legal omission [duty]
Causation: actual/proximate
Mens Rea: purposely, knowingly, recklessly, or negligently
Initial C: Prosecution/Defense can easily/not easily prove . . . UNLESS
- state if elements of the offense are met and whether a defense is applicable
Affirmative/Partial Defenses:
Final C:
- state if elements of the offense are met
- if any defenses are applicable
- final conclusion
_________________________________________
I: ________’s homicide of ________
R CL: A person is guilty of criminal homicide under common law if they intentionally/willfully, recklessly, or negligently cause the death of another human being.
Actus Reus: voluntary action/legal omission [duty]
Causation: actual/proximate
Mens Rea: Intentionally/knowingly, subjective fault, or objective fault - also consider strict liability
Initial C: Prosecution/Defense can easily/not easily prove . . . UNLESS
- state if elements of the offense are met and whether a defense is applicable
Affirmative/Partial Defenses:
Final C:
- state if elements of the offense are met
- if any defenses are applicable
- final conclusion
Murder MPC
- NO distinction between degrees *
1. Intent to kill - done purposely or knowingly? - does not care about premeditation
- Done with a reckless disregard for human life (“depraved heart”)? (KNOLLER)
Manslaughter MPC
- Done with a reckless disregard of a substantial and unjustifiable risk?
- Murder demoted with reasonable emotional disturbance/provocation (subjective/objective standard)?
- allows for a “cooling off” period
(CASASSA)
Negligent Homicide MPC
A GROSS deviation from the standard of care that a reasonable person would exercise
Murder CL
- First Degree:
- Intent to kill [Doctrine of Intended Consequences]? AND
- Premeditation? Planning? Motive?
(GUTHRIE and FORREST) - Second Degree:
- Intent to kill without premeditation?
- Intent to inflict grievous bodily harm?
- Extreme disregard for human life - “depraved heart”?
(MIDGETT)
Manslaughter CL
- Voluntary: typically murder demoted with provocation - partial defense
ELEMENTS . . .
a. adequate provocation [objective]
- categorical approach (GIROUARD)
i. discovering spouse physically cheating
ii. mutual combat
iii. assault/battery
iv. resistance of illegal arrest
v. injury to love one
OR
- Would a reasonable man be so inflamed as to strike out [jury question]?
b. killing in the “heat of passion” [subjective]
c. heat of passion was sudden [objective]
*DOES NOT ALLOW for a “cooling off” period
d. there is a causal connection between the provocation, passion & killing [subjective]
- Involuntary:
- Wanton disregard for safety?
- Gross negligence/recklessness? (WILLIAMS)
- whatever is left over
* similar to negligent homicide in MPC
Felony Murder History
At common law felony murder is typically second degree
- legislature decided to create statutes indicating which felonies are a basis for first degree and even second degree
Felony Murder Policy Reason
Trying to deter people from killing during the course of a felony
Steps for a Felony Murder Essay Question
- Statutorily recognized?
> YES - stop here; first degree
> NO - proceed - Is it inherently dangerous?
> YES - proceed
> NO - do NOT proceed, cannot be felony murder - Does it merger into murder?
- NOT all states have a merger doctrine!
* “Assuming that the state has a merger doctrine . . . “
> YES - proceed to murder analyzation
> NO - it is felony murder - then go through what type of murder it would be
Felony Murder CL/MPC
First degree felony murder typically includes felonies at common law (e.g., larceny, arson, burglary, rape)
* many states have felony murder 1 crimes enumerated/listed in the statute
(FULLER)
If the felony is not a felony at common law or listed in the statute MUST analyze the following for a 2nd degree/”depraved heart” conviction:
a. Inherently dangerous?
b. In the course of?
c. Excluded by merger?
a. inherently dangerous - one bite of the cookie
jurisdictional split
i. In the abstract [minority - KS and CA]?
ii. As committed [majority]?
(STAMP)
i. in the abstract
Asks whether there was an alternative why the felony could have been committed to where it would not have been inherently dangerous
- CA made felony murder more difficult with this rule but the legislature counteracted this by creating statutes for which many felonies are listed
ii. as committed
Ask if the felony was committed in a dangerous manner (FISHER)
b. in the course of
jurisdictional split
i. Agency [majority]?
ii. Proximate cause [minority]?
i. agency
Killed by felon or co-conspirator
ii. proximate cause
Killed by anyone
c. excluded by merger - bite on the other side of the cookie
- do not want felony murder to absolve the intent requirements necessary for homicide
Look at . . .
1) Is it assaultive in the abstract? - felony murder rules does NOT apply when the predicate felony is already an integral part of the homicide
- something that is already part of the killing itself (SMITH)
2) Is there an independent felonious purpose?
If the answer to 1) is YES and 2) is NO then it must be merged
Attempt Overview - specific intent crime
When the defendant took a substantial step towards the commission of a crime AND they had the specific intent to commit a crime
2 Types -
Complete: usually some mistake of fact; the defendant has done everything they planned to do, but due to some fact they were unaware of, they did not commit the crime
* e.g., shooting an unloaded gun
Incomplete: usually involves some interruption; maybe had not done every step defendant wanted to do
* e.g., got all set up to pull the trigger –> gets tackled by a cop
Elements of Attempt CL
- mens rea
1) intent to do actus reus
2) specific intent to commit completed offense (BRUCE)
- attempted murder MUST involve intent to kill (GENTRY)
– most states do not have attempted reckless homicide or attempted felony murder - actus reus
ASK: Did the defendant take substantial step toward completion of the offense? (MANDUJANO)
- more than “mere preparation” (PEASLEE)
Tests include . . .
a. physical proximity
b. dangerous proximity
c. indispensable element
d. probable desistance
f. res ipsa/unequivocality
- cannot be charged with both attempt and the offense if completed - one or the other
a. physical proximity
Overt act is “directly tending toward completion of the crime”
* e.g., your outside the bank, gun loaded, ski mask on, about to walk in
b. dangerous proximity
The greater the seriousness and probability of the offense AND the nearer the act of the crime, the stronger the case for attempt (RIZZO)
* e.g., your seconds away from entering a bank to commit armed robbery
c. indispensable element
If there is an indispensable aspect to the endeavor over which the actor has not yet required control it is less likely an attempt
* e.g., you want to rob the bank but you have not gotten the gun yet
d. probable desistance
If in the ordinary and natural course of events, without interruption, it will result in the crime intended
* e.g., you have already entered the bank, pointed the gun at the teller, and demanded the cash; if nothing stops you [i.e., gun jamming] it is almost certain you will complete the robbery
f. res ipsa/unequivocality
When the actor’s conduct manifests an intent to commit a crime
- mere intent is insufficient
– acts MUST mark conduct as inherently criminal (OVIEDO)
– some act, even slight, MUST be done in furtherance of the crime (STOKES)
Objective: How clear is it to a reasonable person that this was a criminal attempt?
Subjective: How clear is it to the defendant that this was a criminal attempt?
* e.g., your sneaking around the bank’s back entrance with a mask an gun; it is clear what you are up to
Way to attack an attempt question
Think of it like a timeline!
- walk through all the facts and see at what point the test(s) apply to constitute a substantial step
[i.e., “Although dangerous proximity may be satisfied when ________, it is clearer here because . . . “]
– separate each test when explaining their significance
* consider impossibility as a defense
Elements of Attempt MPC - persuasive
5.02(2)
(a) lying in wait, searching for or following the contemplated victim of the crime
* e.g., your sitting in a car outside someone’s house, watching and waiting for them to leave so you can jump them
(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission * e.g., you text your target to meet you somewhere specific so you can rob/hurt them (c) reconnoitering the place contemplated for the commission of the crime * e.g., you walk around a jewelry store pretending to browse, but you are really checking out the security cameras to plan your heist (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed * e.g., you sneak into someone's house through a window with the intention of stealing (e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances - about what you have * e.g., you have lock-picking tools in your backpack while hanging out at the mall (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances - about where you have it * e.g., you are standing outside a store late at night with a crowbar and a duffel bag (g) soliciting an innocent agent to engage in conduct constituting an element of the crime * e.g., you convince your little sibling to carry a package, not telling them it is full of stolen goods
Impossibility as a Defense to Attempt Crimes
Types . . .
1. factual impossibility
2. legal impossibility
a. pure
b. hybrid
(THOUSAND)
- factual impossibility
Defendant is trying to commit a crime, but there is a fact they did NOT know about that makes it literally impossible for them to succeed
* e.g., you try to rob someone, but their wallet is empty
- NEVER a defense because defendant’s intentions were still criminal
- expectable in rare cares of “inherent factual impossibility”
– i.e., attempting to murder someone by stabbing a voodoo doll
- legal impossibility
a. pure [imaginary crimes]
Defendant thinks they are breaking the law, but it is not even a real crime
* e.g., sneaking around to buy weed in Colorado
- ALWAYS a defense
b. hybrid - do NOT need to know for test
Defendant’s “crime” could be real, but the specific situation made it legally impossible to complete
* e.g., you try to sell illegal drugs but they turn out to be sugar pills
- Majority Rule: not a defense because it is hard to distinguish from factual impossibility (JAFFE - receipt of goods defendant believed were stolen but were actually not)
- Minority Rule: creates a defense
Elements of Conspiracy CL
Actus Reus: agreement between at least two people [“meeting of the minds” - plurality rule]
- can be expressed or sometimes implied - prosecution may try to make and implied conspiracy argument
* e.g., winking/head nodding
Mens Rea: specific intent to commit a crime or lawful act by unlawful means (SWAIN)
* Required Intent: purpose or knowledge in some cases
- Factors to analyze when someone is in “business” with a criminal . . .
1) “stake in venture”
2) no legitimate use for goods/services
3) no legitimate reason for the volume of business - look at the quantity of products sold
4) seriousness - the crime is a felony
(LAURIA [prostitution phone service] and FALCONE [yeast seller]) - can be evidenced by an overt act demonstrating the defendant’s intent (AZIM)
- can be charged with conspiracy, attempt, and the completion of an offense if the circumstances are right
Vicarious Liability
Co-conspirators are ALSO guilty of the substantive offenses their co-conspirators commit “in furtherance of the conspiracy”
- defendants can withdraw from a conspiracy, but this is hard to do
(PINKERTON)
