Criminal Homicide

Common Law Statutes (following CA or Penn models)

Murder The unlawful killing of a human being by another human being with malice First Degree Murder (~ heightened C.L. intent to kill)
aforethought without justification or excuse. 1. Specified Means: Poisoning, lying in wait, explosives, torture etc (CA:
1. Intent to kill – consciously desire result itself or virtual certainty that result knowing use of armor-piercing ammo)
will occur 2. Willful (actual intent to kill), Deliberate (possession of a cool mind
 Factors to consider include: capable of reflection), and Premeditated (with reflection but no specified time
(1) Want of provocation on part of deceased; required)
(2) Conduct / statements before and after killing;
(3) D’s threats and declarations before / during course of act causing death;
3. Specified Felony Murder: burglary, arson, robbery, rape, kidnapping
(4) Ill-will or previous difficulty between parties (CA: carjacking, certain sex offenses etc.)
(5) Dealing lethal blows after deceased has been felled and rendered helpless Second Degree Murder: All other murders. No premeditation
(6) Evidence killing was done in brutal manner. Express Malice
 Intent can be inferred if D uses a deadly weapon 1. Intent to Kill: Malice aforethought is express
2. Intent to commit grievous bodily injury Implied Malice
3. Depraved Heart: Reckless/extreme indifference to value of human life 2. Intent to Inflict Grievous Bodily Injury: Malice aforethought is implied
(conscious awareness of risks) if a person intends to cause grievous bodily injury to another, but death results
4. Felony Murder: Intent/attempt to commit any felony (Pure FM) 3. Extreme Recklessness (Depraved Heart) – Malice aforethought implied
if conduct manifests extreme indifference (or wanton disregard) for life.
 Proximate Cause – D liable if proximate cause of death by non-D
4. Felony Murders - felonies not specified felony in 1st deg
Some jurisdictions limit felony murders to
 Inherently dangerous felonies (judged in the abstract or judged as act was
committed)
 And/or exclude felonies that are not independent felonies (under “merger
doctrine”) determined by “independent felonious purpose” rule
 Res Gestae - felony not over for purposes of FM until all Ds reach temporary
safety
 Killing by a non-felon (police, V etc) does not apply
 Agency approach—not FM if death not caused by D, co-felon or D’s agent
 Proximate Cause – D liable if proximate cause of death by non-D (minority)
 Provocative Act Rule – non-felon kills in response to act by any of the
felons that goes above and beyond elements of predicate felony
Notes and  Fetus must be born alive  Fetus murder specified for murder but not manslaughter
Distinctions  Death = cessation of respiration/circulation  Death = brain death
 Year/day rule – death must occur within 366 days  CA: 3 years = rebuttable presumption: injury caused death
Voluntary  The intentional unlawful killing of a human being by another human being Generally the same as common law:
Manslaughter without malice aforethought committed in heat of passion under adequate
Requires provocation before passion has cooled  Statutory law uses common law elements but loosens pure categorical approach
intent to kill
but under heat 1. Adequate provocation – would cause reasonable man to lose self-control and (rigid common law specifies what categories constitute adequate provocation) and
act out of passion not reason (objective standard evaluated by court) allows more to go to jury (ex: sufficiency of cooling off lapse of time).
of passion
 Not words alone  Judge still retains power to determine whether provocation is adequate (and if not,
jury will not be instructed).
2. Heat of passion (anger, jealousy, rage etc)  Elements themselves do not change. Differences mostly how much will go to jury
3. No cooling off: Lapse of time not enough to cool off and had not cooled off or be decided by court.
(sudden & immediate)
 Victim must be the source of the provocation
Involuntary  Criminally Negligent Homicide: an unintentional killing resulting from commission
Manslaughter  CA also adds imperfect/unreasonable self-defense as a form of voluntary
of lawful act that might produce death done in an unlawful manner or without due
Requires NO caution and circumspection (close to depraved indifference murder—usually manslaughter
intent to kill distinguished by an objective awareness of risk by reasonable person standard)  CA adds a distinct vehicular manslaughter charge
 Unlawful-Act Manslaughter or Misdemeanor-Manslaughter: unintentional killing
during commission or attempt of unlawful act (or noncriminal morally wrongful act)
 Some jurisdictions limit to MM to malum in se, not malum prohibitum or limit to
inherently dangerous misdemeanors (either in abstract or as act was committed)