HOMICIDE

Murder - Common law

An unlawful killing committed with malice aforethought:

• Intent to kill

• Intent to cause serious bodily harm

• Reckless indifference (depraved heart)

• Intent to commit certain felonies (felony murder)

First Degree Murder - Modern Approach

• Murder committed with premeditation and deliberation

• Heinous acts (e.g., bombing, torture) or

• Enumerated felony murder

Second Degree Murder - Modern Approach

Any murder that is not first-degree murder

Voluntary Manslaughter

An intentional killing mitigated by:

• Adequate provocation (i.e., heat of passion) or

• Other mitigating factors (e.g., imperfect self-defense)

Involuntary Manslaughter

An unintentional killing that:

• Is caused by criminal negligence (or recklessness under the MPC) or

• Occurs during the commission of a criminal act (e.g., misdemeanor manslaughter)

COMMON-LAW MURDER

Common-law murder is the unlawful killing of another human being with malice aforethought. There must be a causal relationship between the defendant’s actions and the victim’s death. Malice aforethought can be shown by any of the following:

• Intent to kill: When accompanied by a defendant’s intent to kill, conduct that is the legal cause of the death constitutes intent-to-kill murder.

• Intent to inflict serious bodily injury: A person who intends to do serious bodily injury is guilty of murder despite the lack of intent to kill.

• Reckless disregard for human life: Depraved-heart murder is an unintentional killing that results from reckless indifference to an unjustifiably high risk to human life.

• Intent to commit an inherently dangerous felony: Felony murder is an unintended and foreseeable killing proximately caused by and during the commission (or attempted commission) of an inherently dangerous felony—the most commonly tested of which are BARRK crimes.

Felony Murder

For felony murder, if someone (other than a cofelon) is killed by a police officer or dies as a result of the victim’s resistance to the felony, then the defendant’s liability for that death depends on the theory applied in that jurisdiction:

• And under the Redline doctrine, a defendant is generally not guilty of felony murder when a victim or a police officer kills a cofelon.

Felony Murder - Agency Theory (Majority position)

Agency theory (majority position): The defendant is not liable for a bystander’s death caused by a felony victim or police officer because neither person is the felon’s agent.

Felony Murder - Proximate-cause theory (minority position):

Proximate-cause theory (minority position): A bystander’s death falls under the felony-murder rule because the death is a direct consequence of the felony.

STATUTORY CRIMES OF MURDER - First-Degree Murder

First-degree murder is deliberate and premeditated murder. Premeditation means that the defendant planned the killing or reflected on the idea of killing—even if only for a brief time. First-degree murder is a specific-intent crime and often encompasses felony murder.

STATUTORY CRIMES OF MURDER - Second-Degree Murder

Second-degree murder is murder committed with the necessary malicious intent—intent to kill, intent to do great bodily harm, or depraved heart. It is often used to characterize murder that does not fit within the definition of first-degree murder. Second-degree murder, like common-law murder, is a malice crime.

***Because degrees of murder did not exist at common law, the fact pattern on the bar exam must supply a statute if you are to consider degrees of murder.

VOLUNTARY MANSLAUGHTER

Voluntary manslaughter is a homicide committed with malice aforethought and mitigating circumstances (i.e., heat of passion or imperfect defense).

Heat of Passion

Voluntary manslaughter can arise when a murder is committed in response to adequate provocation, i.e., in the “heat of passion.” “Heat of passion” means the defendant was provoked by a situation (subjective test) that could inflame a reasonable person (objective test). Examples include serious battery, threat of deadly force, discovery of adultery. However, if there was sufficient time between the provocation and the killing for a reasonable person to cool down, then murder is not mitigated to manslaughter.

When the defendant, because of a reasonable mistake of fact, errs in identifying her provoker or accidentally kills the wrong person, she will be guilty of voluntary manslaughter (not murder) if that would have been her crime had she killed the provoker. This is referred to as “transferred provocation.”

INVOLUNTARY MANSLAUGHTER

Involuntary manslaughter is an unintentional homicide committed with criminal negligence (recklessness under the MPC) or during an unlawful act. An unlawful act can arise in two ways:

• Under the misdemeanor-manslaughter rule, a killing committed in the commission of a malum in se (wrong in itself) misdemeanor, such as assault or battery or

• A killing committed in the commission of a felony that is not statutorily treated as first-degree felony murder or second-degree murder.