Homicide

What is the common law definition of Homicide?

The unlawful killing of a human being by another human being. 

Why was the attendant circumstance of “Unlawful” included in the definition of homicide? What is the current understanding about when such force may be used?

To exclude LE who used deadly force when permitted. Deadly force could be used if they reasonably believed they were in imminent threat of deadly force against themselves AND when they were arresting a fleeing felon.

Supreme Court (Tennessee v. Garner) rejected common law approach.  4^th amendment prohibits LE from using lethal force against a fleeing felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a threat of death or serious bodily injury to either that officer or others. Where feasible/reasonable, LE must give warning to fleeing felon before using deadly force.

What is the special causation principle that was applicable in homicide cases during the common law? What is the current status of this principle?

Year and a Day Rule—A defendant could not be prosecuted for a homicide unless the victim died within a year and a day of the act inflicting the injury.

Rejection in a modern approach.  It is changing because of improvements in forensic science and improved changes of survival due to medical advancement. If we can trace the death, they are being held accountable, regardless of how long it was after the death.  Most states have moved away from the rule.

What are determinate sentencing and jury nullification, and what role did they play in the evolution of homicide law?

• Determinate Sentencing—All sentencing was predetermined. Once the defendant is liable, the punishment automatically flows. Jury had no ability to adjust that.

• Jury nullification—If they did not think a person should get the death penalty (the punishment for murder), they had to find them not guilty, despite compelling evidence of guilt. This is why manslaughter came to be so that way the jury had other options.

What is the common law definition of Murder?

The unlawful killing of a human being with malice aforethought.

What does Malice Aforethought mean? What does Express Malice mean? What does Implied Malice mean?

Malice aforethought refers to the intention to cause harm. Malice/intent that existed prior to the act, even if just a split second before the act.

Express malice means clear intent to kill whereas implied malice means no explicit intent, but actions show a reckless disregard for human life (ex: firing a gun into a crowd)

What is the common law definition of Manslaughter?

The unlawful killing of a human being without malice aforethought.

Into what categories does the PA scheme divide Intentional killings?

By default, all intentional killings were 2nd degree murder. However, with premedication and deliberation, you got 1st degree murder and lower, by a sudden heat of passion, you got voluntary manslaughter.

In what categories does the Model Penal Code (MPC) divide Intentional killings?

Murder, which is purposefully or knowingly killing and manslaughter which is purposefully or knowingly killing under extreme mental or emotional disturbance (EMED)

What are the elements of the MPC concept of EMED?

• The defendant had an extreme mental or emotional disturbance

• For which there was a reasonable explanation or excuse.

  • Reasonableness based on viewpoint of a person in their shoes under circumstances he believes to be true.

• Under the influence of EMED at the time of the act.

What does it take to move an intentional killing from Second Degree Murder to First Degree Murder in the PA scheme? What is the meaning of each of the two additional elements for elevating these intentional killings?

1st degree murder had to be cold-blooded murder—an intentional killing that is committed with premeditation and deliberation.

• Premeditation—quantity of time (to reflect)

• Deliberation—quality of thought (during that time to reflect, are they thinking clearly)

2nd degree were people who acted with emotion. So, people who tortured their victims or inflicted serious harm might not rise to 1st degree murder. Only 1st degree got death.

What changes in sentencing schemes contributed to the MPC’s rejection of degrees of murder?

We got indeterminate sentencing, so juries could decide, based on the specifics of the crime.

Murder under MPC is defined as a criminal homicide that is committed purposely or knowingly.

What category of intentional killings moved down from Murder to Manslaughter? (Common law and PA scheme)

Killings that were done under the influence of:

• Sudden

• Heat of passion

• Caused by

  • The sudden burst of intense emotions were a result of something the victim did to provoke the defendant, which caused them to respond by killing the person doing the provoking.  

• Adequate provocation, AND

• Before reasonable opportunity to cool off.

While “adequate provocation” was understood during the common law as “an amount of provocation as would excite the mind of an ordinary person,” what were the fixed categories of provocation that traditionally were found sufficient by common law courts?

1. An aggravated assault or battery (victim commits this against defendant) Not something that rises to using self-defense for the death.

2. Mutual combat. Fight between victim and defendant

3. Commission of a serious crime against a close relative. (defendant becomes aware that victim raped/killed child, etc.)

4. Illegal arrest (if a defendant resisted arrest that was an illegal arrest and it caused the death)

5. Observation of spousal adultery (defendant actually had to see their spouse engaging in sex with someone else)

What is the modern common law approach to Adequate Provocation?

More expansive. Ask whether or not the victim engaged in such behavior that would cause an ordinary person of fair average disposition to act rationally or without due deliberation or reflection, and from passion rather than judgment.

Common law and modern—words alone do not rise to the level of adequate provocation. Insulting words will never count but informative words may sometimes count in a few courts.

• Ex: Informative words are “I just raped your wife.” Something that informs the defendant of the egregious act by the victim

What are the ways in which EMED is different from Sudden Heat of Passion? Is EMED a subjective concept or an objective one?

• EMED permits gradual buildup of the disturbed mental or emotional state. At the time of the killing, were they acting from an extreme mental or emotional disturbance?

• EMED can be used, even if the person who caused the provocation is not the person who was killed.

• Victim doesn’t need to provoke. What matters is if they are in the state, not how they got into that state. However, a reasonable person would also need to be in EMED under the same circumstances. EMED is Subjective

• Given the passage of time, would that person or an ordinary person have come out of EMED? No express cooling off requirement.

What was the crime of Misdemeanor Manslaughter under the common law? How did courts restrict this crime over time?

Any death that occurred during the defendant’s commission on a non-felony crime. They adopted “inherently dangerous” as a limitation—meaning that misdemeanor manslaughter could only be used in cases where the misdemeanor posed an inherent danger to human life.

Under the common law, negligent and reckless killings were classified as manslaughter. How were such killings classified in the PA scheme and under the MPC?

MPC—unintentional killings are generally manslaughter, which starts at reckless.  They can decrease if just negligence or increase to murder with extreme recklessness

PA—involuntary manslaughter 

Under the common law, while unintentional killings are typically classified as manslaughter, three categories of unintentional killings move up to murder. What are these three categories?  What is their mens rea? 

1. Intent to cause serious bodily injury

2. Depraved Heart Murder

3. Felony Murder

Mens Rea—Implied Malice

During the Common Law, why were death that occurred when the defendant only intended to cause a serious bodily punished the same as a killing done by a defendant who wanted to kill the victim?How did the PA scheme and the MPC treat such killings?

Because historically, even a small wound would cause death, any tear in the skin was almost a certain death experience.

PA—bumps up to 2^nd degree murder, just like Common law

MPC—does not recognize intent to cause serious bodily injury.  Any killing due to extreme recklessness is just murder.

How are crimes when a death occurred when the defendant only intended to cause a serious bodily injury punished under modern criminal law statutes?

Due to changes in medicine and the accompanying increase in chances of survival, some jurisdictions no longer deem these extreme recklessness killings with intent to cause serious bodily injury to be murder.

Ex: NY—when Someone dies but the defendant was acting without Mens Rea to kill, just intent to cause serious bodily injury, this is called Manslaughter in the 1st degree.

What is Depraved heart murder? How did the Common law, PA scheme and the MPC treat such killings?

Common law—elevated to murder

PA scheme—2nd degree murder

MPC—all extremely reckless killings are murder.

Depraved heart murder—applies to situations when the defendant, aware of the significant potential for loss of life, nevertheless acts because she does not care about loss of life.

What is the purpose of the “transferred” intent doctrine?

The purpose is to ensure that a person will be prosecuted for the crime that they intended to commit even when, because of bad aim or some other lucky mistake, the intended target was not the actual victim. It is to ensure that a defendant who has committed all the elements of a crime not escape responsibility for that crime because they had bad aim.

As a generally matter, why are issues of “transferred” intent better understood as “switched” intent?

It is better understood as switched intent because the intent that I had for one person switches to the next person and vice versa. So if I intended to harm person A and B would have been a bystander who may have been fearful,, but instead I harmed person B my intent switches and my intent to harm a switches to B whereas my intent to worry be switches to A, It means that my original intent is still all that I can be charged with. So I cannot be charged with two intents to murder crimes when I really only intended to murder 1.

What does the felony murder rule provide? In what way did the broad rule resemble strict liability and vicarious liability?

• Originally provided that a defendant is guilty of murder when any person is killed during the defendant’s intentional commission, or attempt, of a felony.

• They were liable for any death, regardless of their involvement and they were liable because they were intentionally committing a crime, even if they had nothing to do with the death.

• Seems like strict liability—The defendant is liable irrespective of their mens rea toward the killing. Only mens rea required is the defendant intentionally committed the felony

• Seems like vicarious liability—the defendant is liable irrespective of the defendant’s actus reus toward the killing. Only Actus Reus—Defendant commits, attempts to commit, or is complicit in the commission of the underlying felony.

What is the Inherently-Dangerous-Felony Limitation on the use of felony murder? What are the competing approaches to these limitations?

Not applicable to specified felonies in PA scheme

• In abstract—majority approach. Courts look solely at the elements listed in the statute to see if it is possible to commit the crime without posting a danger to human life. If so, then cannot use felony murder. Examples of yes are rape, robbery, burglary, kidnapping, arson

• As applied—minority approach. Courts will look to the specific facts of the case to determine whether the commission of the felony posted an inherent danger to life'.

What is the Independent Felony Limitation (or Merger Doctrine) on the use of felony murder? What are the competing approaches to these limitations?

NOT applicable to specified felonies in PA scheme

Recognizes that applying the felony murder rule is only useful if the felony is independent of the homicide. (ex: intentionally assaulting someone who then dies, you cannot apply felony murder, but kidnapping a person and they die, felony murder can be applied)

When someone is engaging in behavior that is not independent of the death, the felony murder rule cannot be used.

If the felony is not independent, then the felony is said to "merge" with the homicide and cannot serve as the basis for a felony murder conviction. The most common approach to the "independent felony" limitation is to merge assault felonies with the homicide.

What is the Res Gestae Requirement Limitation on the use of felony murder? What are the competing approaches to these limitations?

Applies to both specified and unspecified felonies in PA scheme.

The death must happen during the commission of the felony; there must be a temporal connection between the felony and the death.

The death must happen after the point at which the defendant has attempted the felony and before the felony or flight thereof has ended.

What is the Killings by non-felons (“In furtherance of”) Limitation on the use of felony murder? What are the competing approaches to these limitations?

Applies to both specified and unspecified felonies under the PA scheme.

The defendant is only liable if the killing was done in furtherance of the underlying felony.

There must be a causal connection between the felony and the death. If the death was unrelated, there is no felony murder liability.

2 approaches courts take:

• Proximate causation approach—minority approach

  • The defendant is liable for any death that is the proximate result of the felony, irrespective who does the killing. (ex: during a robbery, store owner fires a gun and kills a bystander, defendant is liable); (ex: defendant running away from a bank robbery and police car hits a bystanding, defendant is liable)

• Agency approach—majority approach

  • Not only must there be a causal connection between the death and the felony, but the person doing the killing must be either the defendant or an accomplice. (ex: during a robbery, store owner fires gun and kills a bystander, defendant is NOT liable) (ex: defendant running away from a bank robbery and police car hits a bystanding, defendant is NOT liable)

When can Felony Murder move up to First Degree Murder under the PA scheme? What is the MPC approach to Felony Murder?  What is the Common Law Approach to Felony Murder? 

PA—Felony murder=2^nd degree murder, but legislature has specified specific felonies that will bump up to 1^st degree murder. (ex: kidnapping or rape)

MPC—No express concept of felony murder.  When killings are committed during the course of certain limited felonies, the defendant’s behavior is presumed to be extremely reckless, thus murder.  It is up to the defendant to show the jury that they should not presume them to be extremely reckless.   

Common Law—Felony murder brings unintentional killing up to murder

What is the status of Capital Murder?

1972—Supreme Court found the death penalty unconstitutional. Violated 8th amendment (Furman v. Georgia). It was being used in arbitrary and discriminatory ways (on basis of race and class).

Prior several years, no state used it. However, once unconstitutional, 38 states adopted new statutes. Only 1 was rejected by the Supreme Court—mandatory death penalty for certain crimes. They said that 8th amendment requires individualized sentencing. We must account for what someone did AND who they are.

What are the rules to for a Capital Murder statute to be constitutional?

• Trial is separated into 2 parts (bifurcated trial)—1st part guilt/innocence, 2nd on sentencing.

• The statutes guided the jury’s discretion in choosing who to sentence to death by narrowing the class of persons (narrowing the types of cases) eligible for the death penalty.

  • Some factor that goes above and beyond murder to narrow the class.

8th Amendment’s proportionality principle prohibits the death penalty for:

• Certain types of crimes—if the victim lived, death penalty not applicable, only applicable when victim(s) died.

• Certain categories of persons—if defendant was juvenile or has I/DD, not applicable.

In common law, when did personhood begin? When did personhood end? What other variations exist on when personhood ends?

Common Law—At birth. A fetus was not a person. Life ends at the cessation of cardio-respiratory function.

Life can begin based on whatever a statute decides.

3 approaches to when a person has died:

1. Kansas—doctor says absence of spontaneous breathing and heart function where resuscitation is hopeless OR absence of spontaneous brain function.

2. Brain-based criteria only

3. Lack of cardio/respiratory, unless using life-support, then brain only spontaneous cessation.

What is the insufficient evidence standard? What is the weight of the evidence standard?

Insufficient evidence—the court asks if there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury based on the evidence at trial.

Weight of the evidence—Court must, like the trier of fact, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. If based on all the credible evidence a different finding would not have been unreasonable and if the trier of fact has failed to give the evidence the weight is should be accorded, the court may set aside the verdict. Court sits as the 13th juror.