Murder

(Common Law)

Murder

(MPC)

The Model Penal Code rejects the degrees-of-murder approach.

A homicide is murder if the defendant intentionally takes a life, or if he acts with extreme recklessness (i.e., depraved heart murder). 

Manslaughter

(Common Law)

"Manslaughter" – Manslaughter is "an unlawful killing of a human being by another human being without malice aforethought."

Manslaughter

(MPC)

Reckless Homicide (w/o extreme indifference to the value of human life)

Extreme Mental or Emotional Disturbance

Any time a D is prosecuted for Reckless Murder, they are entitle to the jury instruction for Reckless Manslaughter.

The difference is that this, lesser offence is reckless yet, it does not show an extreme indifference toward human life.

A person who would be guilty of murder b/c she purposely or knowingly killed or b/c she killed recklessly w/ extreme indifference for human life, BUT

did so while suffering from an "extreme mental or emotional disturbance" for which there is "reasonable explanation or excuse."

This reasonableness is determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.

Encourporates two common law doctrines: 1. Heated passion (but in a much expanded form). 2. Partial responsibility (diminished capacity). 

EMED

Subjective Test

EMED

Objective Test

The "Reasonable Excuse"

NOT that there is a reasonable explanation or excuse for the homicide,but rather that there is a reasonable explanation or excuse for the EMED that caused the actor to kill.

Partially subjective in that the reasonableness of the explination is considered form the viewpoint of a person "in the actor's situation under the circumstances."

MPC-EMED is broader than

CL "Heat of Passion"/Provocation

because:

1. No specific provocative act is required

2. Even if provocation, it need not involve an injury, affront, or other provocative act

3. even if the decendent provoked the incident, it need not fall within the fixed category of provocations

4. words alone can warrant a manslaughter instruction

5. No rigid cooling-off period rule.

MPC

Negligent Homicide

Equivalent to “Involuntary Manslaughter” at common law.

In sharp contrast to CL, drafters believed that no person should be convicted of an offense as serious as manslaughter in the absence of subjective fault, e.g., conscious disregard of a substantial and unjustifiable risk. 

Felony Murder

MPC

The Code also provides for felony-murder by setting forth that extreme recklessness (and, thus, murder) is presumed if the homicide occurs while the defendant is engaged in, or is an accomplice in, the commission, attempted commission, or flight from one of the dangerous felonies specified in the statute. [MPC § 210.2(1)(b)]

1. intention to kill

2. Intention to inflict grievous bodily injury on another

3. an atremely reckless disregard for the value of human life

4. the intention to commit a felony during the commission or attempted commission of which a death results

Degrees of Murder

(Common Law ONLY)

1st Degree

1) wilful, deliberate, premeditated

2) Felony Murder

2nd Degree

1)Intent to Inflict Grievous Bodily Injury

2)Extreme Recklessness ("Depraved Heart")

Intent to Kill

CL

1.      Intent to Kill

a.       "Deliberate and Premeditated" – Typically, a murder involving the specific intent to kill is first-degree murder in jurisdictions that grade the offense by degrees if the homicide was also "deliberate" and "premeditated."

b.      "Wilful, Deliberate, Premeditated" – Nearly all states that grade murder by degrees provide that a "wilful, deliberate, premeditated" killing is murder in the first degree.

: “to measure and evaluate the major facets of a choice or problem.” It is “the process of determining upon a course of action to kill as a result of though, including weighing the reasons for and against the action and considering the consequences of the action.”

NOTE: speaks more to the quality of thought process as opposed to Premeditate which speaks to quantity.

“to think about beforehand”. Courts are divided on this, at one end, “no time is too short for a wicked man to frame in his mind the scheme or murder” Twinkling of an Eye. This approach essentially makes any intentional killing “Premeditated”. This undermines legislative intent to divide murder into degrees.

MAKE ARGUMENT 

Other courts hold that “Premeditation” requires some “appreciable time”. No specific amount of time is required but the essence of the term is preserved by requiring proof that the killer had time to give the matter at least a second thought.

"Intent to Inflict Grievous Bodily Injury" 

      Malice aforethought is implied if a person intends to cause grievous bodily injury to another, but death results.  In states that grade murder by degree, this form of malice nearly always constitutes second-degree murder.

Extreme Recklessness

("Depraved Heart" Murder) 

 Malice aforethought is implied if a person’s conduct manifests an extreme indifference to the value of human life. In states that separate murder into degrees, this type of murder almost always constitutes second-degree murder.

Felony Murder

CL

One is guilty of murder if a death results from conduct during the commission or attempted commission of any felony.

b

Typically, felonies are listed within the statute (such as arson, rape, robbery, or burglary) constitute 1st D. murder

b

If the felony is unspecified by statute then it is 2nd D.

Applies whether felon kills with intent, recklessness, negligence, or accident and unforeseeable. (Strict Liability)

Limitations to CL 

Felony Murder

 Inherently-Dangerous-Felony Limitation

Independent Felony (or Merger) Limitation 

 Res Gestae Requirement

Killing by a Non-Felon

FM-CL-Limitation

Inherently-Dangerous-Felony Limitation

Inherently-Dangerous-Felony Limitation – Many states limit the rule to homicides that occur during the commission of felonies which by their nature are dangerous to human life, e.g., armed robbery.

1.      “Abstract View” (Objective) – doesn’t look at facts of case, but the elements of the crime. Asks if crime can be committed without threat to human life, and disregards whether or not the particular case caused harm.

2.      “In Fact View” (Subjective) – looks more at the particular case in order to determine whether the circumstances made it inherently dangerous.

FM-CL-Limitation

Independent Felony (or Merger) Limitation

Independent Felony (or Merger) Limitation – Most states recognize some form of "independent felony" or "collateral felony" limitation. That is, the felony-murder rule only applies if the predicate felony is independent of, or collateral to, the homicide. If the felony is not independent, then the felony merges with the homicide and cannot serve as the basis for a felony-murder conviction.  For example, most jurisdictions hold that felonious assault may not serve as the basis for felony-murder.

FM-CL-Limitation

Res Gestae Requirement 

1. Temporal and geographical proximity: Must be within the time an attempt would be commited and the point where the felon reaches safety.

2. a causal relationship between the felony and the homicide.

FM-CL-Limitation

Killing by a Non-Felon

The Agency Approach

The Proximate Causation Approach

The Provocative Act Doctrine

A majority of states that have considered the issue apply the so-called "agency" theory of felony murder, which precludes any killing committed during the commission of the felon by a person other that the defendant or his accomplices from serving as the basis for felony-murder. (We are responsible for only OUR actions, not those of independent actors)

FM-CL-Limitation

Killing by a Non-Felon

"Proximate Causation" Approach

 – A minority of courts apply the "proximate causation" theory of felony-murder under which a felon is liable for any death proximately resulting from the felony, whether the killer is a felon or a third party.

FM-CL-Limitation

Killing by a Non-Felon

"Provocative Act" Doctrine

"Provocative Act" Doctrine – A felon may be held responsible for the death of another at the hands of a third party, if the basis for the charge is not felony-murder, but instead is founded on what is sometimes termed the "provocative act" doctrine, which is simply a form of reckless homicide, e.g., a felon recklessly provokes a victim to shoot in self-defense, killing an innocent bystander.

Forms of Manslaughter

(CL)

1. Intentional Killing in "Heat of Passion"

2. Unintentional Killing (lawful act in unlawful manner) (involuntary)

3. Unintentional killing during a misdemeanor

Provocation

(“Sudden Heat of Passion”)

1.      Provocation (“Sudden Heat of Passion”)

An Intentional Killing committed in “sudden heat of passion” as the result of “adequate provocation”.

Four Elements

a.       The actor must have acted in heat of passion (Passion = any violent or intense emotion such as fear, jealousy, and desperation.)

b.      The passion must have been the result of adequate provocation. (Jury determines this typically using objective “reasonable person” standard. “might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion rather than judgment.”

c.       The actor must not have had a reasonable opportunity to cool off

d.      There must be a causal link between the provocation, the passion, and the homicide. (Must be the reason of the killing)

Words alone do not constitute adequate provocation. A few courts allow informational words to count but not insults. 

Criminal Negligence

(Involuntary Manslaughter)

1.      Criminal Negligence (Involuntary Manslaughter)

An unintentional killing resulting from the commission of a lawful act done in an unlawful manner. (Involuntary Manslaughter) Akin to Criminally Negligent Homicide.

 Unlawful-Act

(Misdemeanor-Manslaughter) Doctrine

1.      Unlawful-Act (Misdemeanor-Manslaughter) Doctrine

Occurs during the commission of an unlawful act (Involuntary manslaughter).

An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony (or , at least, not amounting to felony that would trigger the felony-murder rule) constitutes involuntary manslaughter.