Homicide, Felony Murder, Attempt, and Conspiracy

Question 1

Homicide Essay Question Template

Answer 1

• 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

Question 2

Murder MPC

Answer 2

• NO distinction between degrees *
  1. Intent to kill - done purposely or knowingly?
• does not care about premeditation

2. Done with a reckless disregard for human life (“depraved heart”)? (KNOLLER)

Question 3

Manslaughter MPC

Answer 3

1. Done with a reckless disregard of a substantial and unjustifiable risk?
2. Murder demoted with reasonable emotional disturbance/provocation (subjective/objective standard)?
   - allows for a “cooling off” period
   (CASASSA)

Question 4

Negligent Homicide MPC

Answer 4

A GROSS deviation from the standard of care that a reasonable person would exercise

Question 5

Murder CL

Answer 5

1. First Degree:
   - Intent to kill [Doctrine of Intended Consequences]? AND
   - Premeditation? Planning? Motive?
   (GUTHRIE and FORREST)
2. Second Degree:
   - Intent to kill without premeditation?
   - Intent to inflict grievous bodily harm?
   - Extreme disregard for human life - “depraved heart”?
   (MIDGETT)

Question 6

Manslaughter CL

Answer 6

1. 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]

2. Involuntary:
   - Wanton disregard for safety?
   - Gross negligence/recklessness? (WILLIAMS)
   - whatever is left over
   * similar to negligent homicide in MPC

Question 7

Felony Murder History

Answer 7

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

Question 8

Felony Murder Policy Reason

Answer 8

Trying to deter people from killing during the course of a felony

Question 9

Steps for a Felony Murder Essay Question

Answer 9

1. Statutorily recognized?
   > YES - stop here; first degree
   > NO - proceed
2. Is it inherently dangerous?
   > YES - proceed
   > NO - do NOT proceed, cannot be felony murder
3. 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
4. then go through what type of murder it would be

Question 10

Felony Murder CL/MPC

Answer 10

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?

Question 11

a. inherently dangerous - one bite of the cookie

Answer 11

jurisdictional split
i. In the abstract [minority - KS and CA]?
ii. As committed [majority]?
(STAMP)

Question 12

i. in the abstract

Answer 12

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

Question 13

ii. as committed

Answer 13

Ask if the felony was committed in a dangerous manner (FISHER)

Question 14

b. in the course of

Answer 14

jurisdictional split
i. Agency [majority]?
ii. Proximate cause [minority]?

Question 15

i. agency

Answer 15

Killed by felon or co-conspirator

Question 16

ii. proximate cause

Answer 16

Killed by anyone

Question 17

c. excluded by merger - bite on the other side of the cookie

Answer 17

• 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

Question 18

Attempt Overview - specific intent crime

Answer 18

When the defendant took a substantial step towards the commission of a crime ADN 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

Question 19

Elements of Attempt CL

Answer 19

1. 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
2. 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

Question 20

a. physical proximity

Answer 20

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

Question 21

b. dangerous proximity

Answer 21

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

Question 22

c. indispensable element

Answer 22

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

Question 23

d. probable desistance

Answer 23

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

Question 24

f. res ipsa/unequivocality

Answer 24

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

Question 25

Way to attack an attempt question

Answer 25

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

Question 26

Elements of Attempt MPC - persuasive

Answer 26

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

Question 27

Impossibility as a Defense to Attempt Crimes

Answer 27

Types . . .
1. factual impossibility
2. legal impossibility
a. pure
b. hybrid
(THOUSAND)

Question 28

1. factual impossibility

Answer 28

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

Question 29

2. legal impossibility

Answer 29

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

Question 30

Elements of Conspiracy CL

Answer 30

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

Question 31

Vicarious Liability

Answer 31

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)