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Flashcards in Homicide Deck (42)
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Elements of common law murder

  1. Unlawful killing
  2. Of a human being
  3. With malice aforethought


What is the actus reus and mens rea for common law murders?

Actus reus: the act that results in death of another human being

Mens rea: malice, either express (e.g. intent to kill) or implied (e.g. felony murder)


What are the types of malice?

  1. Express malice
  2. Implied malice


What are the 4 mental states that fall under malice aforethought for homicide?

Either with:

  • Intent to kill (express);
  • Intent to inflict grievous bodily harm (implied);
  • Reckless disregard for human life (implied); or
  • Intent to commit a felony (implied)


What constitutes acting with intent to kill?

Acting with the purpose to kill or the knowledge that it is substantially certain death will result 



What constitutes intent to inflict grievous bodily harm?

Intent to cause serious bodily harm without an intent to kill 



Elements of depraved heart murder

  1. Reckless or grossly negligent conduct;
  2. That creates an extreme risk to others; and
  3. Demonstrates a wanton indifference to human life


Elements of felony murder

  1. Unintentional and foreseeable killing
  2. Proximately caused during the attempt, commission, or flight from; 
  3. An inherently dangerous felony (remember BARRK)




What are inherently dangerous felonies?

Felonies that create a substantial risk of death or serious bodily harm.

Common: "BARRK"

  • Burglary
  • Arson
  • Robbery
  • Rape
  • Kidnapping
  • Also, felonious escape (MPC only)

Inherently dangerous felonies can be identified by statute and/or through case law


Can a D be liable for felony murder if the underlying felony is not inherently dangerous, but it was committed in an inherently dangerous manner?



How does the merger doctrine apply to felony murder?

The felony murder rule cannot apply unless the underlying elements of the felony are distinct from the murder.

For example, if D is involved in a battery in which the victim is killed, D cannot be charged with felony murder because the elements of battery are incorporated (i.e. merged) into the elements of murder. Generally, this doctrine arises when the underlying felony is one that causes injury.



What is the time period in which D may be liable for felony murder?


  • Attempt of the felony; 
  • Commission of the felony; and
  • After the commission of the felony


For the purposes of felony murder, when does the felony end?

Only when the felon has reached a temporary place of safety



If V dies after the commission of a felony, can D still be liable for felony murder?

Yes, as long as D has not yet reached a place of safety

⭐️ This scenario typically arises during escape


What is the majority rule on felony murder co-felon liability


Agency/"in furtherance of" approach: A co-conspirator is liable for all killings by co-felons

For example, if one co-felon shoots and kills a bank patron during the commission of a robbery, all co-felons are liable



What is the minority position on felony murder co-felon liability?

Proximate cause approach: Co-felons are liable for deaths during the felony as long as the death was reasonably foreseeable. This includes liability for deaths caused by police officers, bystanders, or others.

⭐️ Note: This is a much broader view of liability than the majority approach.


Police enter a bank during a bank robbery being committed by A, B, and C. A grabs a bank teller, using him as a human shield. In the chaos, a police officer shoots and kills the bank teller instead of A.

Who, if anyone, is liable for felony murder?

  • In a majority jurisdiction, no one is liable for felony murder because the killing was not committed by any of the co-felons.
  • In a minority jurisdicition, A, B, & C would be liable for felony murder because the killing was a reasonably foreseeable consequence of a robbery. 


Does the MPC include felony murder?

No, but the MPC considers the commission of a felony to presume an intent of reckless disregard for human life


Does common law or MPC recognize degrees of murder? 

No, degrees are only recognized in statutes

⚠️ Note: If you see degrees on an MBE question, look for an appropriate statute in the question 


first degree murder

Killing that is premeditated and deliberate and some felony murders

⭐️ Specific intent crime



What type of evidence can prove premeditation?



  • Activities planning the murder (ex. googling methods of killing)
  • Evidence showing motive
  • Killing in a manner that shows D must have pre-planned the method


True or False: Premediation requires a long period of thinking and planning beforehand

False, many courts would consider a minimal amount of time to be sufficient if pre-planning can be proved


second-degree murder

Killing with malice but without premeditation and deliberation




What are types of second-degree murders

  • Murders without premeditation
  • Murder resulting from intent to cause serious bodily harm 
  • Murders committed with reckless indifference to human life
  • Some felony murders not otherwise classified as first degree


What are the types of manslaughter?

  1. Voluntary manslaughter (intent to kill); and
  2. Involuntary manslaughter (no intent to kill)



voluntary manslaughter

An intentional killing that has been downgraded due to mitigating factors such as:

  • Adequate provocation ("heat of passion"); 
  • Imperfect self-defense; or
  • Diminished capacity


Elements needed to prove "heat of passion" manslaughter

  1. D acted in response to provocation that would have lead an ordinary, reasonable-person to lose self control; 
  2. There was insufficient time to cool off (subjective standard); and
  3. D had not cooled off and was "in the heat of passion" at the time of the killing


Is "heat of passion" a defense

No, "heat of passion" only downgrades murder into manslaughter 


For heat of passion manslaughter, what are some examples of scenarios in which adequate provocation may exist?

  1. D is a victim of a serious (more than trivial) battery;
  2. D sees spouse engaged in sexual conduct with another person; or
  3. D observes the serious physical injury of a close family member


True or False: To be adequate, provocation needs to be more than what would make a reasonable person lose their temper

False: it only needs to be such that a reasonable person would lose their temper


Do courts take D's particular emotional tendencies (tendency to lose temper, etc) when determining how a reasonable person would act?



Are mere words enough for adequate provocation?

Typically no.  

But if the words contain information that would cause a reasonable person to lose control, they may suffice for adequate provocation (ex. Max tells Ian, "I forgot to tell you, I'm the one who murdered your mother last week")


Is D still eligible for manslaughter if D was reasonably provoked by information that later proved to be false?

Yes, as long as the facts, if they had been true, would have caused a reasonable person to lose control


imperfect self defense

Used as a partial defense to murder when D is not entitled to the complete defense because of an honest, but unreasonable mistake as to the necessity of D's actions


In what scenarios does imperfect self-defense exist?

  • D was unreasonably mistaken about the danger;
  • D was unreasonably mistaken about the need for deadly force; or
  • D was the aggressor


involuntary manslaughter

  • Killing committed with gross negligence (criminal); or
  • Killing during the commission of a misdemeanor or other unlawful act


gross negligence for the purposes of involuntary manslaughter

When D acts with conscious reckless disregard for serious bodily harm or death (more than ordinary negligence)




An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is either:

  • Malum in se (evil in and of itself)
  • Malum prohibitum (death is a natural and foreseeable consequence of the act)




Crime punishable by fines, imprisonment for one year or less, or both 


Does the MPC have a misdemeanor manslaughter rule? 



When can an individual use non-deadly force to resist a police officer?

When the police officer is attempting an arrest and the individual does not know it is a police officer


If V is already dying, can D be charged with homicide for accelerating V's death?

Yes, if the accelerating factor is the actual cause of death