Murder Flashcards
What is Murder?
The killing one human being by another with malice aforethought, or “Homicide with Malice”
What are the two types of Malice?
Express and Implied
What is Express Malice?
Intent to kill
Within Express Malice, what constitutes an Intent to Kill?
1) Desire to kill 2) Knowledge with substantial certainty that death will occur
Within Express Malice - Intent to Kill, what is the Deadly Weapon Doctrine?
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.
What are the three types of Implied Malice?
1) Intent to cause serious bodily harm 2) Wanton Conduct 3) Felony Murder
Within Implied Malice, what constitutes Intent to Cause Serious Bodily Harm?
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
Within Implied Malice, what is Wanton Conduct?
Defendant was aware but consciously disregarded a VERY HIGH risk of death
Within Implied Malice, what are the four elements of Wanton Conduct?
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
Within Implied Malice, what are some examples of Wanton Conduct?
1) Shooting into an occupied structure 2) Playing Russian roulette 3) Engaging in a shootout with police
Within Implied Malice, what is Felony Murder?
If a death is caused during the perpetration of an inherently dangerous or enumerated felony, Malice is implied.
Within Implied Malice, what is the purpose of Felony Murder?
1) To deter the commission of felonies 2) To regulate conduct during the commission of felonies
Within Implied Malice, what are the limitations to Felony Murder?
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
Within Implied Malice - Felony Murder - what constitutes the Res Gestae?
Begins when an attempt is viable and ends when the defendant has reached a place of temporary or seeming safety.
Within Implied Malice - Felony Murder - what does Res Gestae mean?
“Things done”
Within Implied Malice - Felony Murder - what constitutes an “Inherently Dangerous Felony”?
1) When there is a high probability that the commission of the felony will result in death 2) Must be examined in the abstract
Within Implied Malice - Felony Murder - “Inherently Dangerous Felony”, is Larceny Excluded as an Inherently Dangerous Felony?
Yes, Larceny is Excluded
Within Implied Malice - Felony Murder - what constitutes a “Felony That Is Independent or Collateral To the Act that Causes the Death”?
The felony does not have as its dominant feature the very act that brought about the death
Within Implied Malice - Felony Murder - what are the Common Law (enumerated) felonies for Felony Murder?
BARR - Burglary, Arson, Rape and Robbery (watch target offense of Burglary)
Within Implied Malice - Felony Murder - must death be foreseeable?
Yes
Within Implied Malice - Felony Murder, what is the liability when a co-felon is killed by a third person (resisting victim, police, innocent bystander)?
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).
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)?
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.
What is Common Law murder?
Second degree murder. All murder that is not first degree murder is second degree murder.
What is First Degree Murder?
Intent to kill plus premeditation and deliberation
Within First Degree Murder, what is Premeditation?
Resolution to kill
Within First Degree Murder, what is Deliberation?
Reflection on the consequences
Within First Degree Murder, how long must deliberation occur?
Can occur for a very short time, even a few seconds
Is First Degree Murder a specific Intent Crime?
Yes
What is First Degree Felony Murder?
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.
What are the two types of First Degree Murder?
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).
What is the only type of Malice that can be elevated to First Degree Murder?
Only Express Malice - the specific intent to kill. Implied malice cannot be elevated with the exception of Felony Murder.
What is the difference between Wanton Conduct and Reckless Conduct?
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.
