Homicide Flashcards
(12 cards)
Murder (CL)
(Acts or Omission w/ duty) – death must occur
Premeditation: Thinking about the thing before doing it (this can occur instantly) - Subjective
Deliberation: The process of weighing the act with a cool head and reflecting on it. (This requires both time and a cool head) – Subjective
Note: Past abuse, or repeated blows do not tell us anything about premeditation or deliberation. Brown
Intent to kill Murder (CL)
Intent to kill: (Intent)
-By Poison, Lying in wait, or torture = 1st degree
(must be premeditated and deliberate) – Brown
- Lying in wait = wait, watch, and conceal with intent to catch victim unaware for sufficient time to suggest (P+D)
- Torture = intended to inflict prolonged pain and death (P+D)
- Poison = intentionally give with intent to kill or inflict injury likely to cause death.
(Remember that you are playing from behind with these three)
-Other premediated and deliberate = 1st degree
- Everything else = 2nd degree
Intent to Cause Grevious Bodily Harm Murder (CL)
Intent to Cause Grievous Bodily Harm: (intent)
- By poison, lying in wait, or torture = 1st degree
(must be premeditated and deliberate) - Brown
- Everything else = 2nd degree
Grievous Bodily Harm = Harm that is likely to cause death
- This is a specific intent crime
1. Must subjectively Intend to cause GBH
2. Must subjectively know the harm is likely to cause death – Thornton – Stab with knife
Depraved Heart Murder (CL)
Depraved Heart: (involuntary)
- All = 2nd degree
- Depraved heart + poison = 1st degree in some courts
Depraved Heart: Extreme recklessness manifesting depraved indifference to human life.
Objective or Subjective approach (this varies)
Subjective = subjectively aware of the risk + disregard it (under this approach, unreasonable MOF = Defense)
Objective: Objective factors = only reasonable MOF
One or multiple people put endangered(varies)
- Some courts say 1 person, others say multiple
(Remember – Russian Roulet is your gold standard)
- Statistics does not impact this analysis.
Felony Murder Enumerated Felonies (CL)
Felony Murder: Killings during a felony count as murder, regardless of mental state. (Strict liability)
- Enumerated Felonies = 1st degree (arson, rape, burglary, and robbery + any that legislature enumerates)
- Other Felonies = 2nd degree
Step one with this question is to determine if you are dealing with an enumerated or unenumerated felony.
Enumerated Felonies: (analysis)
1. Scope of the felony (res gestae) – The killing must occur during the felony, which included the time leading up to the felony and the flight from the felony. (must be close to the felony in terms of time, location, and casual connection)
- Res gestae ends once the felon reaches a place of apparent safety during flight.
2. Causation: (requires but for and proximate causation) – Just do your but for and proximate cause analysis.
3. Some Jurisdictions: Agency theory: FMR will not apply if the killing, which satisfies all elements, was not committed by the felon or a co-felon (Sophophone) (you cannot escape on agency theory if you pull someone in front of a bullet)
Felony Murder Unenumerated Felonies (CL)
Felony Murder: Killings during a felony count as murder, regardless of mental state. (Strict liability)
- Enumerated Felonies = 1st degree (arson, rape, burglary, and robbery + any that legislature enumerates)
- Other Felonies = 2nd degree
Step one with this question is to determine if you are dealing with an enumerated or unenumerated felony.
Unenumerated Felonies: (analysis)
1. Scope of the felony (res gestae) – The killing must occur during the felony, which included the time leading up to the felony and the flight from the felony. (must be close to the felony in terms of time, location, and casual connection)
- Res gestae ends once the felon reaches a place of apparent safety during flight.
2. Inherently dangerous to human life felony – death is foreseeable
- Categorical approach: Look at all the elements of the crime in the abstract and ask if the crime could be committed in a way which is not dangerous to human life.
- Factual approach: Look at the facts of this particular crime and ask whether is actually created a foreseeable risk if death.
3. Merger? – (Both are ways in which merger can occur – enumerated felonies never merge)
1. Was there an independent felonious purpose (This looks at subjective – did I do the felony, just so I can kill you? – if so, it merges, but if I did the felony to get money, and you were killed than FMR applies)
2. Is it an integral or inherent part of the killing. (Smith – beating child who dies)
4. Causation (But for and Proximate)
5. Some Jurisdictions: Agency theory: FMR will not apply if the killing, which satisfies all elements, was not committed by the felon or a co-felon (Sophophone) (you cannot escape on agency theory if you pull someone in front of a bullet)
Murder (MPC)
Except as provided in section 2.10.3(1)(b), criminal homicide constitutes murder when:
(a) It is committed purposely or knowingly (or)
(b) It is committed recklessly under circumstances manifesting extreme indifference to the value of human life.
- Such recklessness and indifference is presumed if the actor is engaged in or is an accomplice in the commission or an attempt to:
1. Rob
2. Rape/deviate sexual intercourse by force or threat of force
3. Arson
4. Burglary
5. Kidnapping
6. Felonious escape
Shop (CL) Voluntary MS
Sudden Heat of Passion (reduces 2nd degree murder to voluntary manslaughter – will not for 1st degree because P+D) – this is a mitigation, so do you murder analysis then try to mitigate.
Elements:
1. Adequate Provocation (objective)
- Provocation that would inflame the passions of an ordinary person enough to kill
- Consider objective factors: size differential, relationship of the parties.
- Words alone are insufficient, Girouard, but words of revelation w/o prior suspicion and threats may count in some jurisdictions.
- MOF: must be reasonable (AI video)
- Cumulative provocation: some courts consider if the provocation has happened before into the equation
SHOP 2 (CL) Voluntary MS
- Heat of Passion (subjective)
Test: - Must actually subjectively have been provoked by the adequate provocation
- Must kill while the during the provocation
- (anger, fear, jealousy) - Sudden/no reasonable opportunity to cool off (objective)
- Would a reasonable person have cooled off
- Cumulative provocation: some courts consider this when determining reasonable time. - Causation: Provocation by the victim must cause the passion which causes the killing.
- Exception: Transferred intent might work
MPC (Extreme Emotional Disturbance)
This is a mitigation, so do you murder analysis then try to mitigate.
Criminal homicide constitutes manslaughter when a homicide which would be murder is committed under the influence of extreme emotional disturbance for which there is a reasonable explanation. The reasonableness shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
Elements:
- Extreme emotional disturbance (subjective)
- But excludes unique sensitivity – includes life experience. - Reasonable Explanation for the disturbance (objective) – from the pov had the circumstances been as he believed them to be.
Differences Between the Doctrines:
1. EED does not care if there has been a cooling off period
2. The victim does not have to be the provocation
3. Reasonableness is an objective test, but based on the subjective situation that the person believes to be in (counts if you’re hallucinating)
Casassa – experiences particular to you don’t count – stabbed when didn’t take alcohol.
Involuntary Homiside (CL)
Reckless Homiside
Criminal homicide constitutes manslaughter when:
It is committed recklessly
Negligent homicide:
Criminal homicide constitutes negligent homicide when committed negligently.
Misdemeanor Murder Rule = manslaughter. (many jurisdictions do not observe this – merger varies
Involuntary Homiside (MPC)
MPC 210.3 (1): (Reckless manslaughter)
Criminal homicide constitutes manslaughter when:
(a) It is committed recklessly
MPC 210.4 (negligent homicide)
(1) Criminal homicide constitutes negligent homicide when committed negligently.
NO Misdemeanor Murder Rule
