Murder

Question 1

What is Murder?

Answer 1

The killing one human being by another with malice aforethought, or “Homicide with Malice”

Question 2

What are the two types of Malice?

Answer 2

Express and Implied

Question 3

What is Express Malice?

Answer 3

Intent to kill

Question 4

Within Express Malice, what constitutes an Intent to Kill?

Answer 4

1) Desire to kill 2) Knowledge with substantial certainty that death will occur

Question 5

Within Express Malice - Intent to Kill, what is the Deadly Weapon Doctrine?

Answer 5

When a deadly weapon is used on a vital part of the body (head, neck, or torso) the jury is free to infer an intent to kill.

Question 6

What are the three types of Implied Malice?

Answer 6

1) Intent to cause serious bodily harm 2) Wanton Conduct 3) Felony Murder

Question 7

Within Implied Malice, what constitutes Intent to Cause Serious Bodily Harm?

Answer 7

1) A deadly weapon used on a non-vital part of the body 2) A non-deadly weapon used on a vital part of the body 3) A deadly weapon used on a vital part of the body with evidence to show no intent to kill

Question 8

Within Implied Malice, what is Wanton Conduct?

Answer 8

Defendant was aware but consciously disregarded a VERY HIGH risk of death

Question 9

Within Implied Malice, what are the four elements of Wanton Conduct?

Answer 9

1) Act that creates a very high risk of death 2) is of little or no social value 3) was performed intentionally, and 4) defendant is aware of the risk

Question 10

Within Implied Malice, what are some examples of Wanton Conduct?

Answer 10

1) Shooting into an occupied structure 2) Playing Russian roulette 3) Engaging in a shootout with police

Question 11

Within Implied Malice, what is Felony Murder?

Answer 11

If a death is caused during the perpetration of an inherently dangerous or enumerated felony, Malice is implied.

Question 12

Within Implied Malice, what is the purpose of Felony Murder?

Answer 12

1) To deter the commission of felonies 2) To regulate conduct during the commission of felonies

Question 13

Within Implied Malice, what are the limitations to Felony Murder?

Answer 13

1) Death must be caused during the “perpetration” of a felony - “Res Gestae” 2) Felony must be inherently dangerous 3) Felony must be independent or collateral to the act that causes the death

Question 14

Within Implied Malice - Felony Murder - what constitutes the Res Gestae?

Answer 14

Begins when an attempt is viable and ends when the defendant has reached a place of temporary or seeming safety.

Question 15

Within Implied Malice - Felony Murder - what does Res Gestae mean?

Answer 15

“Things done”

Question 16

Within Implied Malice - Felony Murder - what constitutes an “Inherently Dangerous Felony”?

Answer 16

1) When there is a high probability that the commission of the felony will result in death 2) Must be examined in the abstract

Question 17

Within Implied Malice - Felony Murder - “Inherently Dangerous Felony”, is Larceny Excluded as an Inherently Dangerous Felony?

Answer 17

Yes, Larceny is Excluded

Question 18

Within Implied Malice - Felony Murder - what constitutes a “Felony That Is Independent or Collateral To the Act that Causes the Death”?

Answer 18

The felony does not have as its dominant feature the very act that brought about the death

Question 19

Within Implied Malice - Felony Murder - what are the Common Law (enumerated) felonies for Felony Murder?

Answer 19

BARR - Burglary, Arson, Rape and Robbery (watch target offense of Burglary)

Question 20

Within Implied Malice - Felony Murder - must death be foreseeable?

Answer 20

Yes

Question 21

Within Implied Malice - Felony Murder, what is the liability when a co-felon is killed by a third person (resisting victim, police, innocent bystander)?

Answer 21

This is the Redline view - (Majority rule) Felon is is not liable for felony murder when the death of a co-felon is at the hands of a third party (resisting victim, police, innocent bystander).

Question 22

Within Implied Malice - Felony Murder, what is the liability when an innocent third party is killed by another third party (resisting victim, police, innocent bystander)?

Answer 22

There is no majority rule on this issue. At common law - the felon is liable for felony murder. However, under the Expanded Redline View (for jurisdictions that have adopted this view) the felon is not liable for felony murder.

Question 23

What is Common Law murder?

Answer 23

Second degree murder. All murder that is not first degree murder is second degree murder.

Question 24

What is First Degree Murder?

Answer 24

Intent to kill plus premeditation and deliberation

Question 25

Within First Degree Murder, what is Premeditation?

Answer 25

Resolution to kill

Question 26

Within First Degree Murder, what is Deliberation?

Answer 26

Reflection on the consequences

Question 27

Within First Degree Murder, how long must deliberation occur?

Answer 27

Can occur for a very short time, even a few seconds

Question 28

Is First Degree Murder a specific Intent Crime?

Answer 28

Yes

Question 29

What is First Degree Felony Murder?

Answer 29

Felony Murder during the commission of an enumerated felony - Burglary, Arson, Rape and Robbery. Modernly, some jurisdictions have included kidnapping, mayhem and other felonies as enumerated felonies for Felony Murder.

Question 30

What are the two types of First Degree Murder?

Answer 30

1) First Degree Murder (Intent to kill plus premeditation and deliberation) 2) First Degree Felony Murder (Death occurs during the commission of an enumerated felony).

Question 31

What is the only type of Malice that can be elevated to First Degree Murder?

Answer 31

Only Express Malice - the specific intent to kill. Implied malice cannot be elevated with the exception of Felony Murder.

Question 32

What is the difference between Wanton Conduct and Reckless Conduct?

Answer 32

The difference is in the severity of disregard for life:

Wanton conduct - defendant was aware but consciously disregarded a VERY HIGH risk of death.

Reckless conduct - defendant was aware but consciously disregarded a SUBSTANTIAL risk of death.