Common Law Murder

Defintion

The unlawful killing [causing the death] of another human being with malice aforethought.

Unlawful

(attendant circumstance) – no legal justification/ reason recognized by law such as. during war, etc.

Killing (actus reus) – what action did the criminal actor take to cause death?

1. Act – positive, voluntary action proceeding from the actor’s free will

   1. Not voluntary includes sleepwalking, hypnosis, reflex, convulsion, unconsciousness, automatism

2. Omission to Act— negative act or failure to act BUT only when there is a duty to act, including 

   1.  duty based on relationship, statute, contract, voluntary assumption of care

Causation (because murder is a result crime) – actual causation and proximate causation are required – did criminal actor CAUSE the death?

1. Actual - but for test: but for the criminal’s act, would the victim have died at this time and place?

2. Proximate – among all the actual causes, which is the legal cause?

   1. Focus on issues of fairness & foreseeability

   2. Were there any intervening causes between the criminal’s act and the resulting social harm that broke the chain of causation?

   3. Remember, thin skull, medical malpractice, dressler 6 

Of another

Of another (attendant circumstance) - not one’s self (that is suicide, not homicide)

Human being

1.  the “person” must have been born alive

Malice aforethought (mens rea) – 4 branches of the murder “tree” 

1. Intent to kill

2. Intent to cause serious bodily injury

3. Depraved heart (aka extreme recklessness)

4. Felony-murder rule ( no mens rea required unlike MPC)

Intent to Kill

1. which includes awareness that death would result from one’s actions

Intent to cause serious bodily injury

which includes awareness that grievous bodily harm would result from one’s actions

Depraved heart (aka extreme recklessness)

1. Caution: distinguish extreme recklessness from ordinary recklessness that is sufficient for involuntary manslaughter

2. Extreme recklessness and recklessness differ in the degree of risk to human life

3. Depraved heart murder consists of “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

Felony-murder rule ( no mens rea required unlike MPC)

1. The classic formulation of the felony-murder doctrine declares that one is guilty of murder if a death results from conduct during the commission or attempted commission of any felony.

2. Strict liability is attached to unintentional killings during the commission of a serious felony

3. Disfavored: Building block of criminal liability: mens rea is eliminated here

   1. The law treats accidental deaths during minor crimes (like shoplifting) the same as premeditated murder, which distorts legal fairness.

List them out

1. Inherently dangerous felony

2. Independent felony (merger doctrine) 

3. In the commission of the felony – Time, place, and causal connection

4. Who did the killing?

Limitations of the felony Murder Rule (1)

1. Inherently dangerous felony

   • Majority:  look at how the crime was committed on this occasion – was the crime committed in a way that posed a risk to human life? If not, then the felony-murder does not apply.

   • Minority: look at the elements of the crime in the abstract – can this crime be committed without risk to human life? If so, then the felony-murder rule does not apply.

Limitations of the felony Murder Rule (2)

1. Independent felony (merger doctrine) 

   1. Does this crime have an independent felonious purpose other than causing physical injury to another? If not, it merges and the felony murder rule does not apply.

   2. Ex: Robbery has an independent felonious purpose of obtaining the personal property of another

Ex: Burglary has has an independent felonious purpose of invading the habitation rights of others

Limitation 3

1. In the commission of the felony – Time, place, and causal connection

   1. Was the felony in progress when the death occurred or before the criminal actors had reached a place of safety? If not, then the felony-murder does not apply.

   2. Did a time, place, and causal connection exist between the commission of the felony and the death? If not, then the felony-murder rule does not apply.

Limitation #4

Who did the killing

1. Majority: agency approach requires that one of the felons did the killing

   1. The felons are agents of one another for purposes of criminal liability.

   2. Thus, a killing done by a police officer, a bystander, or the victim could NOT be attributed to the felons (b/c not agents of the felons) and therefore, the felony murder rule does not apply.

2. Minority: proximate cause approach requires that the killing be causally connected to the actions of the felons, but does not require that the felons themselves did the killing

   1.  CAUTION: do not to confuse this rule with the overall requirement that actual and proximate causation are needed in every murder case

First degree

Degrees of Statutory (not MPC) Murder

1. Intent to kill with premeditation and deliberation

• To premeditate is to think about beforehand; 

• to deliberate is to measure and evaluate the major facets of a choice or problem.  (to weigh the pros and cons) 

• undisturbed by hot blood.

• to subject the nature of his response to a “second look.”

  2. Felony-murder rule with BARRK felonies (burglary, arson, rape, robbery, and kidnapping)

     • Poison, lying in wait, torture, bomb, etc

Second degree

1. Intent to kill without premeditation and deliberation

2. Felony-murder with felonies other than BARRK crimes

3. Intent to cause serious bodily injury

4. Depraved heart (aka extreme recklessness)