Homocide Flashcards
COMMON LAW MURDER
- Murder: unlawful killing of a human being w/ malice aforethought.
- Malice aforethought: no facts reducing killing to voluntary manslaughter & was committed w/ one of the SOM:
(1) Intent to kill
(2) Intent to inflict great bodily injury
(3) Reckless indifference to an unjustifiably high risk of death (“abandoned & malignant heart” or “depraved heart”); or
(4) Intent to commit a felony (felony murder) - Intentional use of a deadly weapon grants inference of intent to kill.
Tip
If D killed w/ one of the SOM above, they are guilty of murder; if they did not, they are not guilty of murder (although they could be guilty of other crimes). Thus, even where facts go out of their way to paint D as a completely despicable human being, you cannot convict them of murder when some element of murder is missing. More troublesome is the mercy killing case. If D intends to kill, even as an act of love, they are guilty of murder. Society does not accept compassion as a sufficient justification for killing
STATUTORY MODIFICATION OF COMMON LAW CLASSIFICATION
In some jurisdictions, murder is divided into degrees by statute.
First Degree Murder
- A murder will be 2nd degree murder (similar to CL murder) unless it is 1st degree murder
Deliberate and Premeditated First Degree Murder
- If D killed in a dispassionate manner & contemplated on idea killing, even if only for a very brief period, it is 1st degree murder.
- D must have acted w/ intent/knowledge conduct would cause death
Tip
1st degree murder based on premeditation requires specific intent, which may be negated by the defense of voluntary intoxication. If D was so intoxicated that they were unable to premeditate, they can be convicted only of 2nd degree/CL murder, which requires only reckless indifference to human life (and for which `voluntary intoxication is not a defense).
First Degree Felony Murder
- In many states, a killing committed during commission of an enumerated felony is felony murder & called 1st degree murder.
- Felonies: BARRK, burglary, arson, rape, robbery, and kidnapping, but other felonies that are inherently dangerous to human life may be included
- States differ on when FM will be 1st degree murder
Others
- Some statutes make killings performed in certain ways (ex. by torture)/ w/ certain vics 1st degree murder.
- Many states make homicide of an officer 1st degree murder.
- D must know vic is an officer, & vic must be acting in the line of duty.
Second Degree Murder
If jurisdiction divides murder into degrees, 2nd degree murder is usually classified as a depraved heart killing (killing done w/ a reckless indifference to an unjustifiably high risk to human life)/ any murder that is not classified as a 1st degree murder.
FELONY MURDER
- Any death—even if accidental —caused in the commission of, or in an attempt to commit, a felony is murder.
- Malice is implied from intent to commit underlying felony
Felonies Include
- At CL, there are only a handful of felonies (such as burglary, arson, rape, etc.).
- Statutes today have created many more felonies.
Limitations on Liability
There are several limitations on this rule:
(1) D must have committed/attempted to commit underlying felony; a defense for underlying offense will also be a defense to FM.
(2) Felony must be distinct from killing itself (ex. commission of aggravated battery that causes a victim’s death does not qualify as an underlying felony for FM liability).
(3) Death must be foreseeable result of felony (min of cts require only that felony be malum in se).
(4) Death must occur b/f D’s “immediate flight” from felony; once felon has reached a place of “temporary safety,” subsequent deaths are not FM
(5) In most jurisdictions, D is not liable for FM when co-felon is killed due to resistance from vic/police.
- “Proximate cause” theory: felons are liable for deaths of innocent vics caused by someone besides co-felon.
- Alternative “agency” theory: killing must be committed by felon/“agent” (accomplice)
- Exceptions: vic used as shield/forced by felon into a dangerous place.
VOLUNTARY MANSLAUGHTER: “Heat of Passion”
- Voluntary manslaughter: killing that would be murder but b.c of adequate provocation it is not.
- Provocation is adequate only if:
(1) Provocation would cause sudden & intense passion in an ordinary person, causing loss of self-control (ex. threat of deadly force, finding spouse in bed w/ another, or being vic of serious battery)
(2) D was in fact provoked
(3) Not enough time between provocation/s & killing a reasonable person to cool; and
(4) D in fact did not cool off between provocation & killing
Tip
Adequacy of provocation is a key issue in homicide questions. Be sure to consider carefully 4 factors for adequate provocation and not just jump to the conclusion that there was adequate provocation b/c you see some signs of provocation in facts. Also note interplay between reasonable person standard & what actually happened to D.
Consider:
* Sudden & intense passion that would cause a reasonable person to lose control—passion must be reasonable under the circumstances; D cannot have been set off by something that would not bother most others.
* D lost control—even if a reasonable person
would have been provoked, if D was not, there is no reduction to manslaughter.
* Not enough time for reasonable person to cool off— tricky b/c it is hard to say how much time is needed to cool off; a lot is situational, the more time that has passed, more likely it is that a reasonable person would have cooled off.
* D did not cool off—this is a little easier to
judge; if facts show D calmed down, there is no reduction to manslaughter.
Tip
Remember that “heat of passion” is not a defense to a killing, although it may reduce killing from murder to manslaughter. Often a question will set up facts showing sufficient provocation & then ask about D’s criminal liability. Don’t be fooled by a choice such as “Not guilty b/c D acted in the heat of passion.” The correct choice will be something like “Guilty of manslaughter, but not murder, b/c D acted in the heat of passion.
