M5: Homicide

Question 1

A Connecticut lawyer stabbed to death his neighbor because he erroneously thought, based on information from his wife, that the neighbor had just molested his daughter.

Should this be charged as murder or manslaughter? Does it matter whether the heat-of-passion defense is a partial justification or partial excuse?

Answer 1

MPC §210.3(1)(b)

Reasonable, but mistaken belief that the neighbor molested the lawyer’s daughter b/c the lawyer had an extreme emotional disturbance upon learning the news.

This would likely downgrade the offense from murder to manslaughter.

Question 2

Explain the difference between justification and excuse when determining manslaughter v. murder in common law

Answer 2

Justification: society does not believe that the death of a human being was undesirable, or that it at least represents a lesser harm than if D had not acted as he did

Excuses: focusing on the actor, he is not morally blameworthy

Question 3

How is criminal homicide defined under MPC?

Answer 3

“unjustifiably and inexcusably taking the life of another human being purposefully, knowingly, recklessly, or negligently.”

Three forms: murder, manslaughter, and negligent homicide

Question 4

D kills V as a result of EMED. What would a jury be instructed re: manslaughter v. murder?

Answer 4

Manslaughter instructions are warranted (but the verdict is not required) if the basis for the EMED was that

1) V derided D because he was unable to have an erection when he attempted to have intercourse with her (People v. Moye);
2) V took D’s reserved parking space in an apartment building (State v. Raguseo);
3) In a restaurant, V demanded money owed to him by D from an earlier drug transaction, a verbal argument ensued and V placed his hand on D’s plate (People v. Walker)

Question 5

D arrives at home and discovers her husband in bed with V. In sudden heat of passion, she shoots and kills V.

Under the merger limitation, is D guilty of voluntary manslaughter? Or felony-murder? Or something else?

Answer 5

D is guilty of voluntary manslaughter, a felony. If the felony offense could serve as the predicate for felony murder, the offense of voluntary manslaughter. BUT if the felony is not independent, it cannot be the basis for felony-murder.

Could the prosecution say that the predicate felony was assault with a deadly weapon? May that be used to raise D’s offense to murder? Unless the jurisdiction uses an assaultive-based “independent felony” limitation, the offense of felonious assault could be used to take a case of manslaughter and “upgrade” to murder.

Question 6

F1 and F2 enter a liquor store in order to rob it. F1 points a gun at X (store employee) and threatens to kill X unless she hands over the money in the register. To prove her point, F1 fires multiple warning shots over X’s head.

In response, X justifiably fires a weapon at F1 to prevent the robbery and in self-defense. Two people — F1 and V (a customer in the store) —are struck and killed by the bullets from X’s weapon.

Under the “agency” approach, is F2 guilty of felony-murder?

Answer 6

A felon who does not shoot anyone (F2) is not responsible for the actions of the non-felon shooter (X)

Because X was acting independently from F1 and F2, X is not a co-agent to F1 or F2’s felonious acts.

Question 7

F1 and F2 enter a liquor store in order to rob it. F1 points a gun at X (store employee) and threatens to kill X unless she hands over the money in the register. To prove her point, F1 fires multiple warning shots over X’s head.

In response, X justifiably fires a weapon at F1 to prevent the robbery and in self-defense. Two people — F1 and V (a customer in the store) —are struck and killed by the bullets from X’s weapon.

Under the proximate causation approach, is F2 guilty of felony-murder

Answer 7

Possibly, F2’s behavior could be a proximate cause of X’s reasonable and foreseeable response. F could be convicted of the death of her friend F2 and innocent bystander V.

Question 8

D gave birth to V. Shortly after the birth, D went on drug binges, during which she ingested illegal narcotics for days on end. During these periods, she placed V in a walker and propped a bottle of formula up on the walker for the baby to feed itself. She did not hold the baby or change its diaper or clothes for days.

V lived only 52 days. D was charged second-degree felony murder. Is this felony inherently dangerous in the abstract? Or on the facts of the case?

Answer 8

State v. Stewart (1995)

The prosecution did not allege that defendant intentionally killed her son but rather that he had been killed during the commission of an inherently dangerous felony, specifically, wrongfully permitting a child to be a habitual sufferer. Moreover, the prosecution did not allege that defendant intentionally withheld food or care from her son. Rather the state alleged that because of defendant’s chronic state of cocaine intoxication, she may have realized what her responsibilities were but simply could not remember whether she had fed her son, when in fact she had not.

Question 9

State the common law definition of murder

Answer 9

Common law definition of murder; Killing of a human being by another human being with malice aforethought, and without justification or excuse.

Question 10

Identify the primary difference between murder and manslaughter

Answer 10

The primary difference between murder and manslaughter is the presence of malice aforethought in murder. Malice aforethought is not present in manslaughter.

Question 11

Identify the “common” contents of malice aforethought

Answer 11

Malice aforethought previously was proven by any one of 4 things – 1) intent to kill; 2) intent to cause serious bodily injury or grievous bodily harm; 3) circumstances evincing a depraved heart or an abandoned and malignant heart; and 4) the intent to commit a felony.

Question 12

Explain the shifting content of “malice aforethought”

Answer 12

Current contents of malice aforethought are determined by statute, so it can be anything we want. Overtime, it has included killing of a particular person, or killing by a certain means (poison or lying in wait); killing as a result of child abuse; and in the course of other particular felonies, in addition to the traditional contents.

Question 13

Explain the separation of murder into degrees

Answer 13

Most common law statutes separate murder into degrees – usually first and second degree. First degree murder is reserved for those kinds of killings that rise to a particular level of heinousness, for these the death penalty may be an available penalty. Second degree murder is every other murder – in other words, every other killing of a human being by another human being with malice aforethought.

Question 14

Identify the key differences between the MPC organization of homicide and the common law organization of homicide.

Answer 14

Under the common law, the primary categories are murder and manslaughter,. Murder is divided into two degrees, and manslaughter is divided into Voluntary and Involuntary. Under the MPC, murder is not divided into degrees. In addition, the MPC has a third category of criminal homicide – criminally negligent homicide. Finally, it is noteworthy that the MPC version of voluntary manslaughter, EMED, is an affirmative defense to murder. The prosecution cannot just charge you with EMED.

Question 15

Discuss how law in general, and courts in particular, can draw from other fields in defining and determining death.

Answer 15

The law can draw from fields of science and medicine in defining and determining death. A purposive interpretation of the statute with an understanding of the definition of death in the medical sciences helps the law to keep pace with societal changes and avoid becoming outdated.

Question 16

Explain the common law “year and a day” rule and its applicability in modern times

Answer 16

The common law year and a day rule stated that the victim must die within a year and a day of the injury inflicted by the defendant for homicide charges to be laid. This made sense in an age of less certain medical science. Now that medical science can more accurately trace the initial injury to the death, most states find this rule to be outdated.

Question 17

Explain and discuss how mens rea relates to the organization of criminal homicide

Answer 17

Mens rea is the single most important factor determining the degree of criminal homicide applicable. Afterall, in all cases, the result is the same in that we always have a death as a result of someone’s actions. It is mens rea that determines the applicable degree of criminal homicide.

Question 18

Distinguish between intentional killings in 1st and 2nd degree murder

Answer 18

1st degree murder is an intentional killing that is willful, premeditated and deliberate, or done with willful premeditation and deliberation. 2nd degree murder is an intentional killing not rising to willful premeditated and deliberate. In other words, 1st degree murders are those where the actor has ruminated on the plan to kill, and are not deterred by the natural consequences. In contrast, 2nd degree intent to kill murders are more spontaneous killings, or those without the necessary qualitative aspect.

Question 19

Identify the separate types of 1st degree murder

Answer 19

1st degree murder includes those with: an intent to kill that is willful, premeditated and deliberate; killing by a certain means (usually poison and lying in wait); and killings that occur during the commission or attempted commission of an enumerated felony.

Question 20

For “willful, premeditated and deliberate” murder, analyze and discuss the separate elements

Answer 20

For the separation of 1st degree and 2nd degree murder to have meaning, willful, premeditated and deliberate must mean more than intentional.

“Willful” means intentional. Premeditated is the quantitative component, requiring that the actor thought about the killing prior to the killing, but the time can not be arbitrarily fixed. It can happen in an instant, and yet the amount of time should be sufficient for the actor to turn the matter over in his mind, enough time for the defendant to deliberate. Deliberate is the qualitative component. It means that the actor has considered his actions before acting. The 1st degree killing is more heinous because it demonstrates that the actor was not deterrable – instead, the actor thought about the killing and proceeded anyways.

Question 21

Explain the importance of motive in culpability for murder

Answer 21

Motive is not a requirement for first degree murder. However, motive can be used to help determine whether a killing was first or second degree. According the Anderson factors, 1) planning activity; 2) motive and 3) manner of killing can all be assessed to help determine if a killing is a first degree murder.

Question 22

Relate causation and concurrence with respect to culpability for murder

Answer 22

Causation and concurrence are important ingredients of every crime, including murder. It’s important that the action that causes the death be concurrent with the mental state of intent to kill with willful, premeditation and deliberation.

For example, if I intend to kill the victim on the weekend, but by accident I run them over with my car killing them instantly on Wednesday, it will not constitute 1st degree murder because the action that causes the death is not concurrent with the intent to kill.

Question 23

State the rule for voluntary manslaughter at common law and identify its 4 ingredients

Answer 23

Voluntary manslaughter (heat of passion manslaughter) is an intentional killing in the sudden heat of passion as a result of adequate provocation.

The 4 ingredients are

1) the killing must occur in the heat of passion,
2) the provocation must be adequate
3) there must have been no reasonable opportunity to cool off (it must be sudden)
4) there must be a causal connection between the provocation, the passion and the killing.

Question 24

Discuss how words might or might not constitute adequate provocation

Answer 24

Traditionally, adequate provocation had to fall within one of 4(or 5) categories. Under that rule, word were not enough. However, as provocation moves to a standard, (the kind of provocation that would cause a reasonable person to lose self-control) instead of a rule, some kinds of word may constitute adequate provocation. Informational words conveying that an adequate provocation has occurred, and some particularly heinous insults, may be sufficient.

Question 25

Explain the reasoning behind heat of passion manslaughter.

Answer 25

Heat of passion manslaughter can serve as a partial defense to murder. Essentially it is a “there but for the grace of God go I” defense. It forgives the understandable loss of control that lead to the killing, (not the killing itself).

Theoretically, it is a partial excuse and partial justification defense. In focusing on the provocation, it functions as a partial justification defense; it argues that the killing of the provocateur was justified a little bit because of the provocation.

In focusing on the heat of passion, it functions as a partial excuse defense. Because the defendant was not in his right mind when he killed, but rather in the heat of passion, it is not a cold-blooded killing but a hot-blooded killing, we excuse the defendant a little bit.

Question 26

Explain why heat of passion can be viewed as a partial excuse and/or a partial justification.

Answer 26

Heat of Passion can be viewed as a partial excuse and a partial justification because the test has standards for both the mental state of the defendant and the provocation of the victim.

Excuse: To successfully assert Heat of Passion manslaughter, the defendant would have to have been acting in the sudden heat of passion, that is, not thinking coolly. This is a factor which goes to the defendant’s individual capacity, and is what makes this a partial excuse.

Justification: At the same time, the test requires that the passion arise from adequate provocation, meaning the kind of provocation that would cause the ordinary person to lose self-control. Because, especially in those states where the decedent must also be the provocateur, this is a partial justification. That is, we say the defendant’s loss of control is partially justified, because any reasonable person might have lost control given the nature of the provocation.

Question 27

Identify the current factors that are most readily accepted as modifying the “reasonable person” in tests which use the “reasonable person” standard.

Answer 27

Current factors that affect reasonable standard include age, gender, and physical attributes/disability (directly related to provocation).

Question 28

Argue both for and against the expansion of factors to modify the “reasonable person”.

Answer 28

Pro: For years, the reasonable person really reflected the reasonable man, and that too, the reasonable, able bodied, white, land-owning heterosexual man. One need only look at the traditionally adequate provocations to understand this. Modifying the reasonable person test to take into account age, sex, and physical disability is a recognition of the limitations of the original test and the resulting jurisprudence. Modifications beyond this may also demonstrate an understanding that people’s’ experiences and reactions are tied to their identities in the world. The reasonable black man’s reaction may be different from a white man’s reaction in some circumstances even if the provocation is not race related. There are many unspoken aspects to interactions that are difficult to articulate but relate to the identity of the people involved.

Con: modifications on this basis can be an unending stream, resulting in the subjectivization of the reasonable person to the point of eliminating standards altogether. One cannot subjectivize the reasonable person based on their own idiosyncrasies or individual experiences or it would eliminate the justification aspect of the defense completely.

Question 29

Articulate the MPC affirmative defense to reduce a murder charge to voluntary manslaughter.

Answer 29

The MPC provides for an affirmative defense to reduce murder to manslaughter. The killing will be manslaughter if the defendant kills intentionally while suffering from an extreme mental or emotional disturbance (EMED) for which there is reasonable explanation or excuse, based on the circumstances as the defendant believed them to be.

Question 30

Identify the 2 basic components of the EMED test and characterize each as objective or subjective.

Answer 30

subjective: State of mind where defendant must be suffering from an extreme mental or emotional disturbance.

subjective + objective: Is there a reasonable explanation for the extreme mental or emotional disturbance? This does not require a provocation – it only requires that there be a reasonable explanation for the disturbance. The reasonable explanation or excuse is based upon circumstances as the defendant believed them to be, even if those beliefs are unreasonable.

Question 31

Identify the differences between the Common Law Heat of Passion defense/standard and the MPC EMED defense/standard.

Answer 31

There are 4 primary differences between Heat of Passion manslaughter defense and the EMED defense.

EMED:
1. The mental disturbance need not be sudden; it can grow over time, and there is no prohibition on cooling off;
2. The provocation need not be a singular event. It can be a series of events with a cumulative result;
3. The provocateur need not be the decedent. It is not necessary to have a connection between the underlying circumstances that led to the disturbance and the killing;
4. No limited set of sufficiently provocatory events.
The trier of facts looks at the circumstances to determine if they constitute a reasonable explanation or excuse for the extreme mental or emotional disturbance.

Question 32

Relate the MPC EMED test to the overall outlook of the MPC.

Answer 32

Consistent with the rest of the MPC, the EMED defense is focused on what is in the defendant’s head. Even when examining whether there is a reasonable explanation or excuse for the disturbance, the circumstances are assessed according to what the defendant believed them to be.

Question 33

Articulate the place of 2nd degree murder vis-a-vis 1st degree murder and voluntary manslaughter.

Answer 33

1st degree murder is an intentional killing with willful premeditation, and deliberation. It is a cold blooded murder.

2nd degree murder is also an intentional killing, but it lacks premeditation and deliberation, and is also without justification or excuse

Voluntary manslaughter is also an intentional killing, but it is a hot blooded killing, where the defendant is acting in the heat of passion or distress.

The manslaughter defense offers a partial excuse and a partial justification for the killing. All three cases are intentional killings, but voluntary manslaughter represents a hot blooded killing that is partially excused and partially justified.

Question 34

Articulate the contents of general common-law 2nd degree murder.

Answer 34

Second degree murders are generally “all other murders that are not first degree,” including:

1) intent to kill not rising to willful premeditation and deliberation
2) Intent to cause serious bodily injury or grievous bodily harm
3) A killing that evinces a depraved heart; willful and wanton disregard for the sanctity of human life; depraved indifference to the sanctity of human life; that occurs as a result of extreme recklessness
4) A killing that occurs during the commission or attempted commission of an unenumerated felony

These are still cold-blooded killings but not so heinous as to deserve death penalty or first degree status.

Question 35

Articulate the depraved heart murder standard and relate it to involuntary manslaughter.

Answer 35

Depraved heart murder is demonstrated by extreme recklessness. This can be stated as a conscious disregard of an extremely substantial and unjustifiable risk. In contrast, involuntary manslaughter is a reckless killing, where there is a conscious disregard of a substantial and unjustifiable risk. Involuntary manslaughter at common law also includes criminally negligent killings.

Question 36

Articulate the involuntary manslaughter standard under common law and under the MPC.

Answer 36

Under the MPC, a reckless killing is involuntary manslaughter. Under the common law, involuntary manslaughter includes reckless killings and killings as a result of criminal negligence.

Question 37

Articulate the relation, using mens rea, between murder, involuntary manslaughter and criminally negligent homicide under the MPC.

Answer 37

Under the MPC, the mens rea for murder includes killings that are committed purposely, knowingly or with recklessness manifesting extreme indifference to the value of human life, in other words extreme recklessness.

Involuntary manslaughter under the MPC encompasses reckless killing.

Criminally negligent homicide is a separate category under the MPC for criminally negligent killings.

Question 38

Articulate the different ways of separating conduct that constitutes 2nd degree murder and conduct that constitutes involuntary manslaughter.

Answer 38

There are 4 different factors that are sometimes used to find extreme recklessness:

1) objective circumstances
2) multiple victims
3) base social motive
4) degree of risk

Question 39

Explain how “intent to cause GBH” murder would be treated differently under the common law and the MPC.

Answer 39

CL: Intent to cause GBH (grievous bodily harm) specifically satisfies malice aforethought.

MPC: Intent to cause grievous bodily harm is not specifically stated. Nonetheless, intent to cause grievous bodily harm would likely satisfy the requirements for murder under the MPC under recklessness manifesting extreme indifference to the value of human life.

Question 40

Articulate the standard under the MPC for criminally negligent homicide with particular attention to the “gross deviation” aspect.

Answer 40

Criminally negligent homicide under the MPC is a killing that occurs as a result of criminal negligence. Criminal negligence s the failure to be aware of a risk that the harm will result where the failure to be aware constitutes a gross deviation from the standard of care that a reasonable law abiding person would observe.

Question 41

Recall the difference between negligence as a tort standard and negligence as a criminal standard.

Answer 41

Mere negligence under torts is a mere deviation from the standard of care.
Criminal negligence involves a gross deviation from the standard of care.

Question 42

Argue why reasonable person in negligence standards should or should not be particularized to the individual characteristics of the defendant. Is this argument different than in other homicide levels (recklessness, heat of passion)? If so, why?

Answer 42

Negligence is the one mens rea state which is objective and based upon what the defendant did not know. As such, culpability imposed at this mental state is designed to impose a minimum standard of conduct, for all people.

Unfortunately, many people of different capacities engage in all kinds of activity. If this standard is not applicable to everyone, it has little purpose. By the same token, the reasonable person standard should not apply to those incapable of meeting it. Holding people culpable without a free will violation of the social contract is against fundamental principles.

Question 43

Articulate the classic formulation of the felony murder rule.

Answer 43

Any killing that occurs during the commission or attempted commission of a a felony constitutes felony murder, regardless of whether the death occurs intentionally or accidentally. Modern formulations of the felony murder apply limitations to this rule.

Question 44

Discuss three arguments in support of the felony murder rule.

Answer 44

Three arguments in support of the felony murder rule are:

1. That it deters people from committing felonies generally;
2. It deters people from committing felonies in a dangerous manner;
3. It recognizes and honors the loss of a human life. To the extent that someone should be punished for the loss, it should be the person who committed the felony.

Question 45

Explain when limitations are placed on the felony murder rule and why.

Answer 45

Limitations are placed on the felony murder rule because the unlimited or classic rule has no connection to mens rea and there is little evidence that it actually deters people from engaging in dangerous felonies.

For first degree murder, felony murder which only applies for enumerated felonies; is limited in 2 ways: 1. res gestae applies so that only those cases where the killing occurs in the scope of the felony (geographic, temporal and causally connected) will be felony murder; 2. killing by a non-felon applies so that when the killing is committed by someone other than the felon charged, it may not apply.

For second degree murder, felony murder is limited in 4 ways: 1. the underlying felony must be inherently dangerous (in the abstract or in the particular); 2. The independent felony or merger doctrine says that the underlying felony may not be an integral part of the homicide (for instance an assault); 3. res gestae applies so that only those cases where the killing occurs in the scope of the felony (geographic, temporal and causally connected) will be felony murder; 4. killing by a non-felon applies so that when the killing is committed by someone other than the felon charged, it may not apply.

Question 46

Explain how the felony murder rule serves to reduce the burden on the prosecution.

Answer 46

The unlimited felony murder rule eases the prosecutor’s burden by imposing strict liability for killings that occur during the commission or attempted commission of a felony.

The prosecutor need only prove that a felony was committed or attempted and that a death resulted. The prosecution does not need to prove any mens rea associated with the death. Even if the death was accidental, and not foreseeable, it will be murder, so long as it was a result of the felony.

Question 47

Identify and discuss the two ways that the inherently dangerous felony limitation is applied.

Answer 47

The inherently dangerous felony may be applied in the abstract or in the particular.

When applied in the abstract, we ask whether there is any way the underlying felony could be committed in a non-dangerous manner. If the underlying felony could be committed in a non-dangerous manner, then the felony murder rule does not apply.

When applied in the particular, we ask whether on this occasion the felony was committed in a dangerous manner. If not, then the felony murder rule does not apply.

Question 48

Explain the independent felony rule and why it is needed.

Answer 48

The independent felony or merger doctrine says that if the underlying felony is an inherent part of the homicide, then the felony murder rule does not apply.

This is necessary because otherwise any other level of criminal homicide could be bootstrapped up to be felony murder. For instance, any involuntary manslaughter is still a felony, and without this rule could be turned into a felony murder.

Question 49

Explain and discuss the limitation of “who is the shooter” for application to the felony murder rule.

Answer 49

The “who is the shooter” or killing by a non-felon limitation applies when the person being charged with felony murder is not the person who did the killing. In some cases the killing was committed by a co-felon and in other cases the killing may have been committed by an adversary.

Question 50

Identify and discuss the two approaches under the “who is the shooter” limitation.

Answer 50

The “who is the shooter” limitation applies in two ways: the agency approach and the proximate cause approach.

The agency approach says that if the killing was committed by an adversary (a bystander or the police) then the felony murder rule will not apply.

The proximate cause approach is broader and says that if the felony is a proximate cause of the killing then the felony murder rule will apply.

Question 51

Identify and discuss the division within the proximate causation approach.

Answer 51

Within the proximate cause approach to the killing by a non-felon limitation, there is a further division; some jurisdictions also consider the identity of the victim. In those jurisdictions, even if the felony is a proximate cause of the killing, if the victim was a felon, the killing is considered justified and the felony murder rule does not apply.

Question 52

Explain and discuss the res gestae limitation on the felony murder rule.

Answer 52

Res gestae means “things done.” The res gestae limitation on the felony murder rule limits its application to killings that occur within the course of the felony.

3 components:

1) and 2) the killing must not be too temporally or geographically remote from the felony (for instance after the felon has reached a place of apparent safety and the car chase is over)
3) the killing must be causally connected to the felony (a killing that is independent of the felony should not be felony murder.)