Homicide - M1, M2, FM1, FM2, Vol Man, Invol Man

Tree

HOMICIDE

├── MURDER

│ ├── First-Degree Murder

│ │ ├── Premeditated & Deliberate Killings

│ │ └── Felony Murder 1 (enumerated felonies)

│ │

│ └── Second-Degree Murder

│ ├── Intent to Kill / Serious Bodily Injury

│ ├── Depraved Heart (Extreme Recklessness)

│ └── Felony Murder 2 (non-enumerated felonies, in some jurisdictions)

│

└── MANSLAUGHTER

├── Voluntary Manslaughter

│

└── Involuntary Manslaughter

├── Gross Criminal Negligence Manslaughter

└── Misdemeanor Manslaughter

Homicide

Homicide is a human UNLAWFULLY killing another human being.

The big bucket for Murder and Manslaughter types.

Murder

Common law murder is:

1. The unlawful killing;

2. Of another human being;

3. With malice aforethought.

Malice Aforethought

Pick one

1. Intent to kill:

The defendant formed the actual subjective intent to kill another human being.

2. Intent to inflict grievous bodily injury:

The defendant intends to cause grievous bodily injury, but death results.

No intent to kill below (heat of passion is NOT a defense)

3. Reckless indifference/awareness of an extremely high, unjustifiably high risk to human life (AKA “depraved heart murder”)

• The defendant’s conduct is “so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability…” as an intent to kill. 

4. Intent to commit a felony (i.e., “felony murder rule”)

• Intent to commit a felony

• Death caused in the course of that felony

Felony Murder Rule

Both FM1 and FM2:

1. If felony is inherently dangerous to human life

• Approach 1 - in the abstract: Look at the statute. Can you commit the non-enumerated felony without being dangerous?

• Approach 2: on the facts (majority): D, a convicted felon, possessed a firearm against statute. He killed his friend mistaking him for turkey. Possessing a firearm isn’t dangerous in itself, but the facts indicated inherent dangerousness.
  

2. If death happens after felony is complete

3. If death is foreseeable and related to the death
   

4. AGENCY EXCEPTION: Only deaths directly caused by D or co-felon can qualify them for FM. Not by third parties (e.g. police shooting cuts off the felon’s liability)

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Analyze Only under FM2 (since FM1 is for predetermined enumerated felonies, merger isn’t an issue):

The felony doesn’t merge with the resulting homicide (otherwise all homicides would become murder)

• Approach 1: Integral felony intending to kill → merges. Separate felonious purpose not intending to kill → does not merge
  

• Approach 2 (Chun): The felony has an assaultive aspect and death ensues. The crime merges with the underlying homicide.

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Hypos:

Hypo: Defendant robs a bank. Teller dies from heart attack immediately. Felony murder established.

Hypo 2: Defendant robs a bank. Teller dies from heart attack next day. No felony murder.

Hypo 3: Defendant commits insurance fraud. Insurance adjuster dies from surprise of the fraud. No felony murder.

Hypo 4: D robs a store. Ten minutes later, while police are writing a report across town, a drunk driver crashes into a pedestrian, killing them. The crash has no connection to the robbery or the escape.

Murder 1

First-degree murder is a willful, deliberate, and premeditated killing.
Anderson (defendant-friendly) focuses on the process the Defendant went through. It requires evidence of significant calculation, shown by planning, motive, and method.

Carroll (prosecution-friendly) is focused on the result. It requires only a conscious purpose to kill. No time is too short - even a brief moment suffices.

Proof of premeditation may be inferred from defendant’s words or conduct, or from specified means, such as intentional use of a deadly weapon on a vital body part, drive by shootings, poison, lying in wait, or torture

Murder 2

The default

Felony Murder 1

FM1 applies if the killing occurs during the commission or attempted commission of certain felony murder enumerated felonies, such as arson, rape, robbery, burglary, kidnapping, or mayhem/chaos, carjacking, train wrecking, or child sex crimes.

FM1 is strict liability since the law presumes that the malice element from Murder 1 is present. Defendant is punished under M1.

Felony Murder 2

FM2 applies if the killing occurs during the commission or attempted commission of NON-enumerated felonies (anything that’s not in the statute).

FM2 is strict liability since the law presumes that the malice element from Murder 2 is present. Defendant is punished under M2.

Mitigation to Murder (Downgrades to Voluntary Manslaughter)

Heat of Passion

1. Adequate provocation (objective test) (Girouard: Must be conduct; words not enough. Simonovich: You must see the actual intercourse).

2. Actual heat of passion (subjective test).

3. Cooling time (subjective and objective) (Maher: 30 minutes is not enough. Bordeaux: A few hours is enough. Rekindling REJECTED)

Involuntary Manslaughter

Involuntary manslaughter consists of:

1. An unintentional killing;

2. Of another human being;

3. Committed:

   • With gross criminal negligence; OR

   • During the commission of an unlawful misdemeanor (Strict liability) OR

     • committed during the commission of a felony that fails the “felony murder rule” elements

Gross Criminal Negligence:

1. Great risk of harm.

2. Effort required to alleviate harm (with small effort indicating GCN).

3. Foreseeability to a reasonable person of grave harm.

4. Benefit to society of the defendant's conduct