Brain based criteria for death is better than traditional cardiorespiratory criteria

Eulo shot person in head, artificially maintained at hospital and transplants were done. 

Brain activity better life indicator - cardiopulmonary also OK - determine corpus delicti (show when death occurred)

Transplants were not superseding intervene cause 

First degree murder (premeditated) must have some period of time between intent to kill and actual killing

Schizoid dishwasher killed co worker after harassment

Intent to kill cannot be instantaneous - requires deliberation and more than only "intent to kill"=(2nd deg)

Elaborate plan is not required for 1st deg - only that there was some previous consideration.  

1st degree murder requires premeditation and deliberate

Killed 8 yr old son beating, convicted 1st degree

Murder must be premediatated and deliberate to kill - Midgett was not deliberate or premeditated, therefore not 1st degree (but was 2nd degree)

Dissent - 1st or 2nd degree is for jury to decide

premeditation and deliberation for 1st degree murder may be proven via circumstantial evidence

Son killed terminal father with gun - promised father he would not let him suffer - he was suffering

Both premeditation and deliberation six factors: 1) no provocation, 2) actions and words before/after killing, 3) threats, 4) poor history between def and victim, 5) was there lethal attack after victim helpless, 6) evidence of brutality  

Murder can be lowered to manslaughter if there is "extreme emotional disturbance"

Two lovers, obsessed guy rejected, kills woman knife then drowned her.  Was he under EED? no because drowning

Under EED because bizzare-even though it was not spontaneous - trauma can be over time. 

Requires 1) murder was under EED, and 2) reasonable explanation for EED (subjective and objective) (not met with Casassa - not ORP reasonable)

Implied Malice requires that one act with CONSCIOUS disregard for human life

Lawyer with killer dogs, dog kills apartment neighbor.  Convicted of 2nd degree murder with implied malice

Implied malice not met - implied malice requires conscious disregard for human life (high likelihood of death - high likelihood of SBI is too low of bar)

Depraved mind is UTTER disregard for human life 

Death during commission of dangerous felony is murder

Burglary of car, sped away from police, hit/killed another driver - no gun, minor burglary, still felonious murder

Even if killing is negligent or accidental, can be murder if associated with burglary, arson, rape, robbery, mayhem, lewd act with minor (BARRML)

Some states are limiting the harshness of felonious murder rule by limiting to more violent felonies or affirm defense. 

If felony can be done without risk of death to another, it is not inherently dangerous. 

Defendant pulled over no licence plate, fled officer, ran red light, sped, killed another driver. 

Felony (flee officer) must be inherently dangerous in the abstract  - could be done by running on foot - underlying offense of licence is not inherently dangerous.  

Where killing is the lawful act of a non felon, the felony murder rule does not apply

Sophophone and 3 others B&E - one of his accomplices pulled a gun on the police, police shot and killed accomplice. Sophophone charged with felony murder. 

Officer lawfully killed accomplice, killing was not the ACT OF SOPHOPHONE - ergo not attributable to Sophophone.  

Is evidence of a victim’s consensual sexual conduct in public demonstrative of her consent to intercourse to allow such evidence despite the rape shield statute. NO

Flashed breasts and fondled in bar, went home, had sex, was non consensual, wanted to bring evidence into trial.  

There are times when prev. sex activity can be introduced: when it is highly indicative of consent - sexual acts with multiple in one day, explicit prev sex acts that day, etc. 

Rape done by fraud in the factum nullifies consent, whereas rape done by fraud in the inducement does not.

Fraud in factum=pretending to be husband, Dr. starts med procedure then inserts penis unknowingly - heart of consent is violated

Fraud in inducement = pretending to be famous, rich, claim sexual procedure needed to save life, 

Mistake regarding consent is not a defense for rape.

Rape requires intercourse by means of physical or non physical force, constructive force, expressed or implied threats and proof that victim did not consent. 

Mistake of consent was clearly not evidence as there was evidence of abuse and trauma which is unlikely to point to consent.  

A rape charge may be sustained if the victim does not affirmatively express consent.

Rape can be upheld without evidence of threat, use or force, or nonconsenting conduct

Consent can be demonstrated by showing that a reasonable person would have thought victim consented.  

Verbal resistance alone is insufficient to show that sexual intercourse was obtained by force

Dorm room situation - girl looking for boyfriend, was flirtatious with roommate, roomate plied her for sex but she "moaned" no but did no other resistance.  He was not guilty

Factors include: age of victims, physical sizes, mental conditions, atmosphere, did defendant have control or dominance of victim, was victim under duress

Georgia, two counts of armed robb, two murder--> death penalty by same convicting jury;

Death penalty is not cruel and unusual - C&U are fluid concepts; deters and retribution

Cannot be excessive, no wanton infliction of pain

Aggravating & mitigating circumstance factors 

should have separate sentencing procedure

Black man, GA, armed robbery and killed police officer, got death penalty for police officer. 

Appealed based on stat data saying black defendant 22X more likely to get death when killing white vs black man

Sup Ct rejected, said needed to prove discriminatory effect to him 

Tennesse, killed mother and daughter, almost killed son, allowed testimony of grandmother re son's trauma

Victim testimony cannot be used for guilt/blamewothiness but CAN BE used for sentencing decision for death penalty

Dissent said could prejudice the jury, appeals to emotions, whether victim is good or valued does not bear on culpability  

8th - no cruel and unusual punishments

14th - equal protection under law, due process, 

Tison inmate, escaped, killed four other people, escape was helped by other people - the helpers were sentenced to felony murder and death penalty even if they didn't kill

Reckless indifference to human life in helping escape and knew that killings may happen in escape --> DP

(intent to kill  can be xferred to non murdering def)

Edmunds case different-escape car driver cannot get DP

In rape, lack of consent and be established even when victim failed to resist due to genuine/reasonable fear.  First case failed b/c no resistance shown.  

Took victims car keys, followed upstairs to room, asked if I do what you want will you let me go without killing me. 

Lack of consent normally done by resistance, but if there is reasonable and grounded fear, no resistance required.  

Rape requires sufficient evidence that sexual intercourse was obtained against victims will and by FORCE. 

Couple broke up, man demanded to have sex, went for a walk, went into house, said no but did not push him away. 

Need more than just "no" - consent can be defense for rape but also need force or threat of force not shown in this case

.

Larceny by trick = gain possession by fraud /false pretenses

Larceny by false pretenses occurs when the defendant, through his misrepresentations, obtains title in addition to possession.

Man was given watch in shop to try on, ran out of store. 

Trespassory taking can still be established when possession is temporarily transferred by the owner. 

Did not transfer lawful possession, physical control of object does not equal transfer of property