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Homicide Outline

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Grading a. (MPC) i.



Criminal homicide is

1. acting purposely, knowingly, recklessly, or negligently to cause the death of a human being, and

2. death results (SS 210.1). ii. Capital murder is

1. murder with an aggravating circumstance, e.g. committing a felony, or manifesting exceptional depravity (SS 210.6). iii. Murder is

1. PK criminal homicide, i.e. D is aware that it is practically certain that actions will cause death.

2. R criminal homicide under circumstances of extreme indifference to the value of life (SS

210.2). iv. Manslaughter is

1. PK criminal homicide with the excuse of extreme emotional disturbance.

2. R criminal homicide: a. compared to law-abiding person, b. D acts with a grossly deviant disregard of a substantial and c. unjustifiable risk of death, d. and death results (SS 210.3). v. Negligent homicide is

1. N criminal homicide: a. compared to reasonable person, b. D acts with a grossly deviant lack of awareness of a substantial and c. unjustifiable risk of death, and d. death results (SS 210.4). (CL) i. First-degree murder is

1. the unlawful killing of a human being,

2. with malice aforethought,

3. plus an aggravating factor, e.g., committing a felony or premeditation and deliberation, and

4. death results. ii. Second-degree murder is

1. first-degree murder without the aggravating factor.

2. reckless murder committed a. with a depraved heart, or b. intent to cause serious bodily injury. iii. Voluntary manslaughter is

1. second-degree murder with the excuse of provocation or

2. without malice. iv. Involuntary manslaughter is

1. unintentionally causing the death of another person. Purposely



Murder (Second-Degree Murder)

Aggravati ng Factor

Capital Murder (First-Degree Murder)

Mitigatin g Factor

Manslaughter, with provocation (CL) or extreme emotional disturbance (MPC)



Manslaughter (Voluntary Manslaughter) Murder, with depraved heart (CL) or extreme indifference to value of human life (MPC)

Negligent Homicide (Involuntary Manslaughter)






Malice Requirement a. Malice aforethought is a prerequisite for murder. It may be i. expressed by:

1. premeditation and deliberation (MPC: PK murder) ii. implied by:

1. a depraved heart (MPC: R murder)

2. an intent to cause serious bodily injury (MPC: R manslaughter)

3. or felony murder (MPC: presumption of R murder).

Premeditated and Deliberate Murder / First-Degree Murder I / Purposeful Murder / Knowing Murder a. Rule i. (MPC)

1. Purposely, or knowingly causing (aware of a high probability of) the death of a human being is murder, unless a. there is extreme emotional or mental disturbance. ii. (CL)

1. Premeditation and deliberation is a. a sufficient requisite for first-degree murder (C. v. O'Searo (Pa. 1976)), unless i. there is provocation. b. Analysis i. Premeditation and deliberation?

1. May be formed while killer is pressing trigger (Young v. S. (Ala. Crim. App. 1982)).

2. Can even be for mercy-killing (Forrest). c. Case i. S. v. Forrest (N.C. 1987)

1. D mercy-killed father had premeditation and deliberation, so first-degree murder.

Depraved Heart Murder / Second-Degree Murder I / Reckless Murder I a. Rule i. (MPC)

1. If D demonstrates extreme indifference to the value of life,

2. reckless criminal homicide is murder, i.e. a. compared to law-abiding person, b. D acts with a grossly deviant disregard of a substantial and c. unjustifiable risk of death, d. and death results (SS 210.2). ii. (CL)

1. Malice may be implied by gross recklessness (depraved heart murder). b. Analysis i. Extreme indifference . . . ?

1. Shown in class by drunk driving (Fleming) and Russian Roulette (Malone).

2. When recklessness is the element, D's unawareness due to voluntary intoxication is immaterial (MPC SS 2.08(2)). a. Unlike PK, R is less about a requisite mental state; if knowledge of danger is widespread and there is no social value to getting intoxicated, no need to give drunk killers lenity (S. v. Dufield (N.H. 1988). ii. Depraved heart murder?

1. Gross recklessness with a reasonable likelihood of death indicates a depraved heart (Malone)(Burden).

2. Same as "implied malice" (P. v. Dellinger (Cal. 1989)).

3. The degree of risk is all that separates depraved-heart murder from manslaughter (P. v. Roe (N.Y. 1989)). a. Drunk driving murders typically require actual knowledge of high degree of risk of death (Fleming). i. Actual knowledge may be inferred because D was told (Pears), or just because Ds should know that driving while drunk is grossly reckless (Watson). c. Cases i. C. v. Malone (Pa. 1946, 426)

1. D shot friend playing Russian Roulette. Even though he did not intend to kill him and victim consented, depraved heart murder.


iii. IV.

V. U.S. v. Fleming (4th Cir. 1984, 431)

1. D was driving super fast, while drunk, on wrong side of median. Hit and killed victim. Since the degree of risk of killing someone was extremely high, D drove in manner of depraved disregard for human life. Murder. Squibs

1. P. v. Burden (Cal. Dist. App. Ct. 1977) a. Father's not feeding of infant because he "didn't care" = depraved heart.

2. Pears v. S. (Alaska Ct. App. 1983) a. D who had actual awareness of great risk of fatal harm (because police told him he was too drunk to drive) guilty of murder.

3. P. v. Watson (Cal. 1981) a. D was aware of danger because he drove car to bar and knew driving drunk was dangerous. Guilty of murder.

Intent to Cause Serious Bodily Injury Murder / Second-Degree Murder II / Reckless Murder II a. Rule i. (MPC)

1. The intent-to-cause-serious-bodily-injury rule is incorporated into reckless criminal homicide, which could be murder or manslaughter: a. compared to law-abiding person, b. D acts with a grossly deviant disregard of a substantial and c. unjustifiable risk of death, d. and death results (SS 210.3). ii. (CL)

1. It is murder if death results from an act which is intended to do no more than cause serious bodily injury (Grey). b. Analysis i. Serious bodily injury?

1. (MPC) a. A serious bodily injury is one which i. creates a substantial risk of death, ii. causes serious, permanent disfigurement iii. causes protracted loss or impairment of the function of any bodily member or organ (SS 210.0(3)).

2. (CL) a. A serious bodily injury is one which i. (Ill.)

1. causes peril to life or great bodily harm. ii. (Cal.)

1. seriously interferes with a person's health or comfort. c. Case i. The Case of Grey (Eng., 375)

1. A blacksmith hit his apprentice over the head with a poker; the blow killed the apprentice. Same "as if D ran him through with a sword."

Felony Murder / First-Degree Murder II / Reckless Murder III a. Rule i. (MPC)

1. If D is complicit in, attempts to commit, or does commit an inherently dangerous felony, this creates a rebuttable presumption that an extreme indifference to the value of human life exists (Washington). a. Boosts reckless criminal homicide to murder (SS 210.2(b)). b. Makes D eligible for capital punishment (SS 210.6). ii. (CL)

1. D is guilty of first-degree murder if a. D commits an inherently dangerous felony b. that proximately and factually causes someone's death, and c. the death was committed in furtherance of the felony (Stamp), unless i. the felony was merged into the offense, e.g. assault with deadly weapon and murder, in which case the rule is not applicable (Burton), or ii. the death was a co-felon killed by an innocent party (Canola). b. Analysis i. First-degree murder?


1. Some states have offered various reforms: reasonable/rebuttable presumptions of malice, requirement of recklessness, second-degree murder instead of first-degree, etc. ii. Inherently dangerous?

1. Three standards of an inherently dangerous felony: a. enumerated: i. (MPC)

1. robbery, rape, arson, burglary, kidnapping, or felonious escape (SS 210.2). ii. (Cal.)

1. arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, sexual deviancy, or a drive-by (Cal. Pen. Code, 375). b. per se: if felony in the abstract cannot be violated without danger, it is inherently dangerous (Phillips)(Stewart). i. This includes if felony as statutorily defined includes a provision that is not inherently dangerous, even if as committed it was dangerous (Henderson). c. in the manner/circumstances in which it was committed, it creates a high/foreseeable risk of death (Stewart). i. High v. foreseeable can lead to different outcomes (Hines). iii. Proximate/factual cause?

1. Similar to tort law: if, but for the felony, victim would have survived, D caused the death (King).

2. The purpose is to deter felons from killing negligently or accidentally. iv. In furtherance?

1. This includes a. accidental deaths (Stamp). b. deaths while the D is escaping (Gillis). c. homicides committed by co-felons (Amaro), even against other co-felons (Cabaltero), and even if accidentally (Martinez) unless i. co-felon goes on a "frolic" of his own, including something completely unexpected or not in furtherance of plan (Heinlein). d. deaths resulting from return fire i. including death of bystanders (Washington)(Gilbert). ii. but not necessarily death of co-felons, see infra at Co-felon death. v. Merger?

1. If the felony had an "independent purpose" from the murder, FM rule applies, e.g. if D
kills victim during armed robbery, the robbery had its own purpose (Burton). a. Other examples: D supplied methyl alcohol to inmate who died = FM (Mattison); D who shot at victim intending to scare him = FM (Robertson).

2. California briefly abandoned the independent purpose test in Hansen. vi. Co-felon death?

1. Homicides committed by defenders count as FM murder for D (Oimen), unless a. the defender kills a co-felon (Canola) NOTE: this is the agency theory, in which defenders can NOT satisfy felony murder idea. i. (N.Y.)

1. unless a statute says any death during a felony = murder (Hernandez). ii. (N.J. / Wis.)

1. even if a statute says any death during a felony = murder (Canola). Cases i. P. v. Stamp (Cal. App. 1969, 438)

1. D robbed victim at gunpoint. Victim died of heart attack soon after D ran away. D is guilty of felony murder. ii. P. v. Phillips (Cal. 1966, 447)

1. D charged cancer-stricken girl for "treatment" that didn't work. Prosecuted for "grand theft" + felony murder, but since grand theft is not inherently dangerous, no FM. iii. P. v. Stewart (R.I. 1995, 448)

1. D went on cocaine binge and violated statute of wrongfully permitting infant to be a habitual sufferer of food/care. Child died. The felony is not inherently dangerous per se, but is in the manner committed, so FM applies. iv. Hines v. S. (Ga. 2003, 450)

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