X. Homicide Flashcards
What are the five steps of analysis in Common Law homicide?
A. Step One: Was D’s voluntary act or omission the actual and proximate cause of the death?
a. At Common Law, D not liable unless victim dies within one year plus one day
B. Step Two: Did D commit the killing with malice aforethought? If so, D is liable for Common Law Murder absent mitigating facts (see steps 3-5). Malice aforethought one of following mental states:
a. (1) Intent to kill a human being; OR
b. (2) Intent to inflict grievous bodily injury on another; OR
c. (3) Reckless indifference to an unjustifiably high risk to human life (“depraved heart murder); OR
d. (4) Intent to commit a felony (felony murder)
C. Step Three: Did D commit killing in a “sudden heat of passion” as a result of adequate provocation? If so, Voluntary Manslaughter
D. Step Four: Did D commit killing unintentionally with criminal negligence OR during misdemeanor? If so, Involuntary Manslaughter absent a valid defense.
E. Step Five: Possible defenses? E.g., self-defense, can be no crime.
Unintentional killings can result in which of 2 charges?
Murder or involuntary manslaughter
Intentional killings can result in which of 2 charges?
Murder or voluntary manslaughter
What are the elements of Involuntary Manslaughter?
- An unintentional killing;
- Of another human being;
- Committed:
a) With Criminal Negligence [can be murder depending on level of criminal negligence];
OR
a) What is Criminal Negligence: A “gross” deviation from the standard of care that a reasonable person would exercise in the same situation, which puts another person at a significant risk of serious bodily harm or death.
b) During the commission of an unlawful act under Felony Murder or Misdemeanor Manslaughter
Always argue that it was foreseeable - this gets you to criminal negligence and an involuntary manslaughter charge.
I thought the gun wasn’t loaded. I’ve killed my neighbor (or someone else loaded the gun and I didn’t think it was loaded)
Involuntary Manslaughter. Could be murder depending on level of criminal negligence. Argue Foreseeability!
You want your wife to win and shoot a gun at her best competition but accidentally shoot wife in chest and kill her. What is most serious crime he can be convicted of?
Murder. This is the transfer victim theory. He caused the death while intending to do great bodily harm to someone else. When intent to harm one person accidentally transfers to second, D still responsible.
Jogger jogs into street on accident. You hit them and kill them.
Likely no crime, no murder, worst case is involuntary manslaughter. Argue foreseeability!
Questions to ask: Was driver on phone; have their glasses on; car safe; driver sleepy; weather; witnesses
What crime are the following: Shooting into a crowd; driving down a crowded sidewalk; throwing timber from a roof onto a crowded street; shooting into a train; driving a car at high speeds down the highway; throwing stones from a building onto street below.
Depraved Heart Murder [2nd degree in modern law].
Which type of homicide does foreseeability apply to?
A reckless state of mind. Depraved Heart Murder.
The more foreseeable the risk, the higher likelihood it will be deemed reckless. If arguing D not guilty of murder, argue not aware of risk. Test for whether it should have been foreseeable is whatever the 12 people in the jury box think.
Does First Degree Murder Exist in the Common Law?
No. Only murder, voluntary manslaughter and involuntary manslaughter.
What are the four elements for First Degree Murder?
(WIPD)
- Willful; and
- Intent to kill; and
- Premeditated to kill (you thought about it); and
- Deliberate (you asked should I do it or not).
For months, D knew friend having sex w/wife. He wanted divorce. Knew expensive. Decides to kill both when he finds them having sex. Is it first or second-degree murder in Common Law?
Neither. No first or second degree murder in the Common Law.
I shoot an apple to shoot it off your head. That’s my intent. Now on trial for murder for killing the person. What questions would I want to ask?
- Was there a heated argument?
- Was he under the influence?
- What level of skill he has on the cross bow? More experience, less risky, death not as foreseeable. If I never miss that lowers the probability of death.
- Answer: This can’t be first degree murder. But it can be common law murder.
What are the elements for Voluntary Manslaughter in the Common Law?
a. Mens Rea: Intent to kill.
b. Actus Reus: : (1) false arrest, (2) aggravated assault, (3) mutual combat (4) serious crime against close relative, or (5) a husband observing wife adultery
What are the elements for a heat of passion killing?
Was there actual provocation? Was there reasonable provocation? Was there an actual cooling off? Would a reasonable person have cooled off? This is where time matters. If a year passes, cooling off period has occurred.
