Homicide

MBEMax wiki article — paired with the Criminal Law question set on mbemax.com.

One-line summary

Homicide is the unlawful killing of a human being by another human being; degree depends on the defendant's mental state and the surrounding circumstances.

Mnemonic

MAP-I-V — Murder, Aggravated (first-degree), Provocation (voluntary MS), Involuntary manslaughter, Vehicular/felony variants.

Or memorize the murder mens rea as P-I-G-F — Purpose (intent to kill), Intent to do serious bodily injury, Grossly reckless (depraved heart), Felony murder.

Common-law murder

Rule. Unlawful killing of another with malice aforethought.

Malice is shown in any of four ways:

1. Intent to kill (purposeful).
2. Intent to cause serious bodily injury that results in death.
3. Depraved heart / extreme recklessness — conscious disregard of a high risk of death.
4. Felony murder — death during commission of an inherently dangerous felony.

Result: common-law murder (often treated as second-degree murder in modern statutes).

First-degree murder (modern statutes)

Usually: premeditated + deliberate killing; or willful, deliberate, premeditated; or enumerated-felony murder (BARRK: Burglary, Arson, Rape, Robbery, Kidnapping) or murder of specific victims (police officer, witness).

Premeditation — did actually reflect before acting; a moment's reflection can suffice in many jurisdictions. Deliberation — calm, cool state of mind.

Voluntary manslaughter

Rule. Intentional killing committed in the heat of passion resulting from adequate provocation.

• Adequate provocation — sudden, serious, would cause a reasonable person to lose self-control (mutual combat, witnessing adultery, serious physical attack).
• No cooling-off — passion still heating at the moment of the killing.
• Actual and reasonable inflammation — subjective and objective.
• Imperfect self-defense — in some jurisdictions, unreasonable but honest belief in necessity to use deadly force reduces murder to voluntary manslaughter.

Involuntary manslaughter

Rule. Unintentional killing resulting from criminal negligence (gross deviation from standard of care) or from unlawful acts not amounting to felony murder (misdemeanor-manslaughter).

• Criminal negligence — more than ordinary negligence; gross or wanton disregard.
• Misdemeanor-manslaughter rule — killing during commission of a misdemeanor or non-dangerous felony. Abolished in many modern codes.

Felony murder

Rule. Any death caused during the commission or attempted commission of an inherently dangerous felony is murder.

Limiting doctrines:

• Inherently dangerous felonies — BARRK is the standard list (Burglary, Arson, Rape, Robbery, Kidnapping). Some states require the felony to be inherently dangerous in the abstract; others consider it in the manner committed.
• Independent-felony (merger) rule — the predicate felony must be independent of the killing (assault, battery, aggravated assault usually merge and cannot support felony murder).
• Agency theory — majority: defendant not liable for killings committed by non-co-felons (e.g., police). Proximate-cause theory: minority; defendant liable if foreseeable.
• Res gestae — death must occur during the felony or immediate flight; causal and temporal connection required.
• Co-felons. All co-felons vicariously liable for foreseeable killings by any co-felon.

NCBE loves to test

• Premeditation timing. Can be formed in seconds. Not measured by duration but by whether defendant actually reflected.
• Adequate provocation trap. Mere words are NOT adequate provocation at common law (some jurisdictions allow informational words — discovery of infidelity). Trivial affronts never qualify.
• Transferred intent. Intent to kill A who is missed and B is killed instead — murder of B with transferred intent. But not from crimes of different natures.
• Causation. Eggshell-victim principle: unforeseeable vulnerability is no defense. Intervening negligent medical treatment usually does not break causation; grossly negligent or reckless treatment may.
• Year-and-a-day rule. Abolished in most jurisdictions; common-law default was conviction only if death occurred within a year and a day.
• Concurrence. Mental state and act must concur temporally.
• Duress. Not a defense to murder in most jurisdictions; may reduce to manslaughter in some.
• Voluntary intoxication. Defense to specific-intent murder (first-degree premeditated) but not general-intent murder (depraved heart).

Fast hypos

Hypo 1. D, in a rage, drives home, loads his gun, drives back, and shoots V. Common-law analysis? First-degree murder — time and actions show deliberation and premeditation.

Hypo 2. D sees his spouse in bed with X. D grabs a gun from the nightstand and shoots X. Voluntary manslaughter if killing is in heat of passion from adequate provocation.

Hypo 3. D and E rob a bank. E shoots teller. D charged with felony murder. Yes — co-felon vicariously liable for killings in furtherance of inherently dangerous felony.

Hypo 4. D's drunk driving kills a pedestrian. Involuntary manslaughter (criminal negligence or vehicular-manslaughter statute).

Hypo 5. D burglarizes home. Homeowner suffers fatal heart attack from shock. Felony murder possible if causation proven and predicate burglary qualifies.

Case anchors

• Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946) — depraved-heart (Russian roulette).
• People v. Anderson, 447 P.2d 942 (Cal. 1968) — premeditation framework: prior planning, motive, manner.
• Girouard v. State, 583 A.2d 718 (Md. 1991) — words alone not adequate provocation.
• People v. Washington, 402 P.2d 130 (Cal. 1965) — agency theory of felony murder.
• Tison v. Arizona, 481 U.S. 137 (1987) — reckless indifference sufficient for felony-murder death penalty.
• Enmund v. Florida, 458 U.S. 782 (1982) — limits on felony-murder death penalty for non-killer.

See also

• Inchoate Crimes
• Miranda
• Fourth Amendment
• Burglary

Sources

Model Penal Code §§ 210.0–210.4; Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946); People v. Anderson, 447 P.2d 942 (Cal. 1968); Girouard v. State, 583 A.2d 718 (Md. 1991); Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S. 782 (1982); People v. Washington, 402 P.2d 130 (Cal. 1965).