Homicide: Murder and Manslaughter

Question 1

State the rule: Homicide

Answer 1

Homicide is the killing of another person caused by the defendant.

Question 2

State the rule: Murder (general rule)

Answer 2

Murder is a homicide committed (physical act) with malice (mental state)

Question 3

What are the four ways a defendant can cause the death of another?

Answer 3

1. Acting alone to cause death
2. Her omission caused the death, and she had a duty to act (from a statute, contract, relationship, or voluntary undertaking)
3. Act of a third party caused the death
4. Death for a foreseeable result of defendant’s act or omission

Question 4

What is vicarious liability?

Answer 4

Vicarious liability stands for the proposition that a defendant may be liable for the crime of another.

Question 5

Who can be liable for vicarious liability?

Answer 5

1) a solicitor
2) a conspirator
3) accomplice
4) through the felony murder rule

Question 6

What mental state is required for murder?

Answer 6

Malice

Question 7

What are the four ways to establish malice?

Answer 7

1) intent to kill
2) intent to inflict great bodily harm or serious bodily injury/harm
3) depraved heart
4) felony murder rule

Question 8

How can you demonstrate intent to kill?

Answer 8

Through defendant’s words or by using the deadly weapon doctrine

Question 9

What is the deadly weapon doctrine?

Answer 9

The use of a deadly weapon, in a dangerous manner, creates a presumption of intent to kill

Question 10

What is a depraved heart?

Answer 10

The reckless indifference to the known high risk of death or serious bodily harm. (Reckless indifference is objective, the known risk is subjective)

Question 11

A shoots a gun at a target in a vacant lot, knowing there are houses in range. A bullet misses the target and kills an occupant of one of the houses. Does A have the requisite intent to establish murder?

Answer 11

Likely yes. Shooting a gun in a vacant lot KNOWING there are houses nearby is reckless indifference to the lives of others and can be enough to establish depraved heart.

Question 12

A shoots a gun at an abandoned commercial building around 2 am. Unknown to A, a homeless vagrant was asleep in the building and is killed by A’s bullet. Does A have the requisite intent to establish murder?

Answer 12

Likely no. He lacks the subjective knowledge of the high risk of death or bodily harm as he does not know anyone is inside an abandoned commercial building.

Question 13

Define, simply, the felony murder rule

Answer 13

Homicide committed during the perpetration of an inherently dangerous felony***can be first degree murder.

Question 14

What is the time frame for the application of the felony murder rule? (e.g. from when can it apply to when does it end?)

Answer 14

From attempt until felon reaches a place of temporary safety (out of hot pursuit, getaway house)

Question 15

What are the inherently dangerous felonies for the purposes of the felony murder rule?

Answer 15

BARRK (Burglary, Arson, Rape, Robbery, and Kidnapping)

Minority: Some states include non-dangerous felonies committed in a dangerous manner.

Question 16

What is the minority position on felonies that suffice for the felony murder rule?

Answer 16

Non-dangerous felonies committed in a dangerous manner.

Question 17

Joe commits assault and during the assault someone dies. Can assault satisfy the felony murder rule to establish intent to kill?

Answer 17

No. The felony must be independent from the act that caused the death.

Question 18

What is a defense to the felony murder rule?

Answer 18

Any defense to the underlying felony is a defense to the felony murder charge.

Question 19

Which felons are liable for the death caused by a co-felon?

Answer 19

All of them. Except if a non-felon kills a felon, under the majority view. Under the minority of states, felons are excused from the felony murder liability if a non-felon kills another non-felon while resisting the felony.

Question 20

Name the basic elements of the felony murder rule.

Answer 20

1) homicide
2) committed during the perpetration of
3) an inherently dangerous felony (Barrk)
4) that is a foreseeable result of the felony

Question 21

Is there a proximate cause requirement for the felony murder rule?

Answer 21

Yes. The homicide must be a foreseeable result of the felony. Put differently, the felony must be the proximate cause of the homicide.

Question 22

Define involuntary manslaughter

Answer 22

A homicide committed without malice

Question 23

What are the three situations in which involuntary manslaughter can be shown?

Answer 23

1) Intent to inflict slight bodily harm
2) Criminal negligence
3) Misdemeanor-manslaughter

Question 24

What is the misdemeanor-manslaughter rule?

Answer 24

When a defendant kills while committing a non-inherently dangerous felony (i.e. a felony not sufficient for felony murder rule) or a malum in se (inherently wrongful act) misdemeanor as opposed to a malum prohibitum (wrongful only because of a statue)

Question 25

What is a malum in se misdemeanor?

Answer 25

A misdemeanor that is inherently wrong in nature (theft, larceny, public intox, possession)

Question 26

What is a malum prohibitum misdemeanor?

Answer 26

A misdemeanor that is only wrongful because of a statute or other similar devise.

Question 27

Define criminal negligence (one of the three situations in which involuntary manslaughter can occur)

Answer 27

Defendant kills victim while acting in a more than ordinary negligent manner, but not in such a manner sufficient for depraved heart. D’s conduct was a gross deviation from the standard of care a reasonable person would exercise.

Question 28

What are the four primary justifications for murder (or any other crime)?

Answer 28

1) Self-defense
2) Defense of others
3) Crime prevention
4) Apprehension/Arrest of a Criminal

Question 29

If a homicide or any other crime is justified, is the actor liable for the crime?

Answer 29

No.

Question 30

When can self-defense be used?

Answer 30

Deadly force may be used to protect against an imminent deadly attack. The deadly force must be reasonable and necessary to repel the attacker.

Question 31

Is there a duty to retreat under the self-defense doctrine?

Answer 31

No, unless the defendant is the initial aggressor and safe retreat is possible.

Minority: defendant must retreat before using deadly force if safe retreat is possible (unless D is in his home, a police officer, or victim of violent felony)

Question 32

If the defendant is the initial aggressor may he ever use self-defense?

Answer 32

Yes if: 1) he clearly withdraws OR 2) the defendant initially used non-deadly force and is now faced with an attacker suddenly using deadly force AND 3) if safe retreat is available, the initial aggressor must retreat before using deadly force.

Question 33

Can a defendant use deadly force to protect a criminal or initial aggressor who had no right to use self-defense against their attacker?

Answer 33

Majority, a defendant may claim defense of others if the victim reasonable appears to have the right to use deadly force, even if the other does not actually have that right (mistake allowed)

Minority, a defendant can use no more force than that person they are defending (steps into the shoes, no mistake allowed)

Question 34

Who can use deadly force to prevent crimes?

Answer 34

A police officer or private person, if that deadly force is reasonably necessary to prevent the commission of a dangerous felony (BARRK)

Question 35

Who can use deadly force to apprehend criminals?

Answer 35

Police and private persons. Private persons can only use deadly force is the person they are attempting to apprehend is actually guilty of the dangerous felony.

Question 36

Is there a right to use deadly force in the protection of one’s dwelling or property?

Answer 36

Generally no, unless the intruder is violent or intends to commit a felony inside.

Question 37

Under what circumstances is the defendant allowed to make a reasonable mistake?

Answer 37

Self-defense, defense of others (majority rule only), and crime prevention.

Question 38

What are the three excuses to homicide (or any other crime?

Answer 38

1. Youth/infancy
2. Insanity
3. Intoxication

Question 39

What is the law regarding the excuse of infancy?

Answer 39

1. Under the age of 7=no criminal liability
2. Between 7 and 14=rebuttable presumption of no criminal liability
3. Over 14=treated as an adult

Question 40

Name the four tests for insanity\

Answer 40

1. M’Naughten (Right/Wrong Test)
2. Irresistible Impulse Test
3. ALI/MPC Test
4. Durham Test

Question 41

What is the M’Naughten Test of insanity?

Answer 41

Defendant, as a result of mental defect did not know the wrongfulness of his act OR could not understand the nature and quality of hi acts

Focus on cognitive impairment

Question 42

What is the irresistible impulse test?

Answer 42

Defendant as a result of a mental defect was unable to control his conduct or conform his conduct to the law

Focus on volitional ability/impairment

Question 43

What is the ALI/MPC test of insanity?

Answer 43

Defendant lacked the substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law

Focus on both volitional and cognitive impariment

Question 44

What is the Durham Test of insanity?

Answer 44

Defendant is not guilty if his crime was the product of a mental disease or defect.

Only followed in New Hampshire, but still mention

Question 45

When is the excuse of intoxication going to excuse one from criminal liability?

Answer 45

Voluntary intoxication can negate specific intent crimes but only if the defendant is so intoxicated he cannot perform the specific intent required for the crime. It may also preclude a finding of deliberation if the defendant is charged with First Degree Murder.

Question 46

Is voluntary intoxication an excuse to all crimes?

Answer 46

No. It is not an excuse to general intent crimes, no intent crimes (strict liability), or malice. It is only an excuse to specific intent crimes if the D was so drunk he could not form the requisite specific intent.

Question 47

When does involuntary intoxication arise?

Answer 47

When the defendant involuntarily (forced to consume) or unknowingly (voluntarily consumed without knowledge substance was intoxicant) becomes intoxicated.

Question 48

Is involuntary intoxication a defense to crimes?

Answer 48

Yes, if the intoxication renders the defendant “insane” under the applicable insanity test.

Question 49

What is the minority position on involuntary intoxication as a defense to criminal liablity?

Answer 49

Minority recognizes a diminished capacity defense where evidence of defendant’s mental defect is insufficient for insanity is admissible to prove the defendant did not or could not form the intent required for the crime.

Question 50

What is mitigation in homicide cases?

Answer 50

Lowering the criminal liability to voluntary manslaughter.

Question 51

When can a murder be mitigated to voluntary manslaughter?

Answer 51

Through provocation to kill or good faith mistake as to self-defense, defense of others, or crime prevention

Question 52

If a defendant experiences provocation, what must the provocative act be?

Answer 52

One that would cause both subjective and objective passion, and no “cooling off” occurred

Question 53

What is objective passion under provocation?

Answer 53

The provocation must be one that would have caused a reasonable person to lose self-control and a reasonable person would not have cooled off in the time lapse between the provocation and time of the killing,.

Question 54

What is subjective passion under provocation?

Answer 54

Defendant must have been actively provoked losing self-control and did not cool off before killing the victim.

Question 55

State the rule statement for voluntary manslaughter via provocation

Answer 55

an intentional killing will be mitigated to voluntary manslaughter if the defendant experiences adequate provocation. The provocative act must be one that would cause both subjective and objective passion, and no cooling off occurred.

Question 56

What are some examples of objective provocation?

Answer 56

Inflicting a staggering blow

Catching a spouse in an act of adultery with the victim

Question 57

What is the imperfect self-defense?

Answer 57

When a defendant kills a victim under good faith, but unreasonable mistaken belief as to self-defense, defense of others, or crime prevention. Will work as a mitigation to voluntary manslaughter.

Question 58

At common law were there degrees of murder?

Answer 58

no

Question 59

What are the two types of first degree murder?

Answer 59

1. Premeditation and deliberate intent to kill

2. Felony Murder Rule

Question 60

What is premeditation for first degree murdeR?

Answer 60

The intent to kill is premeditated if the defendant had time, even for a brief moment, to think about killing the victim before doing so.

Question 61

What is deliberate intent to kill for first degree murder?

Answer 61

The intent to kill is deliberate if the defendant acted in a calm and cool frame of mind (cold blooded). If the defendant was at all angry, excited, suffering from a mental disturbance, that will likely lead to a finding that the killing was not deliberate.

Question 62

How can the felony murder rule elevate to first degree murder?

Answer 62

If the murder satisfies the felony murder rule AND is based on one of the specified felonies in the state’s First Degree Murder statute (usually Barrk)

Question 63

What murders are second degree murders?

Answer 63

All other murders that do not qualify as first degree.

Question 64

Not a question, just a summary card!

Answer 64

Murder: homicide with malice and no justification, excuse, or mitigation. Finish with degrees of murder

Involuntary manslaughter: homicide without malice and no justification or excuse.

Voluntary manslaughter: homicide with malice but with mitigation (and no justification or excuse)