Criminal Law Outline - Homicide

  1. Homicide at Common Law
    1. Criminal Homicide- a killing committed without justification or excuse
    2. Murder- defined at CL as a killing committed with "malice aforethought."
      1. Malice aforethought encompassed four different states of mind at common law (and, in the process, lost much of its plain meaning).
        1. Intent to Kill
        2. Intent to cause grievous bodily harm
        3. Depraved heart killing (extreme recklessness)
        4. Intent to commit a felony with death occurring (felony murder precursor).
      1. Early American CL eventually divided murder into degrees in order to confine use of the death penalty to particularly heinous murders.
    1. Manslaughter- a killing without malice aforethought w/o justification or excuse
      1. Originally was not distinguished at CL
      2. Three types of crimes:
        1. Sudden heat of passion killing as a result of adequate provocation (voluntary manslaughter).
        2. Death resulting from the commission of an unlawful act not amounting to a felony (misdemeanor manslaughter).
        3. Death resulting from the commission of a lawful act in an unlawful manner or without due cause and circumspection (involuntary manslaughter).


  1. Murder in the MPC/State Statutes (I,P+, P, K, R+)
    1. First Degree Murder (I/P +)
      1. Defined as willful, deliberate, and premeditated killing.
        • Willful- to have the specific intent to commit a homicide
        • Deliberate- a measured and evaluated choice
          • Deals with quality of D's thought process.
          • Free from sudden passion.
        • Premeditated- killing is thought about beforehand
          • Interval between initial thought and ultimate actions should be long enough to afford a reasonable man time for a "second look."
          • Courts are split on the amount of time between forming the intent to kill and the killing that is necessary to satisfy the premeditation requirement.
      1. Proving First Degree Murder
        • Circumstances that can prove these elements include:
          • Lack of provocation on the part of the deceased
          • Conduct and statements of D
          • Threats and declarations of the D given before and during the course of the act giving rise to the death.
          • Ill-will or previous difficulty between the parties
          • Dealing of lethal blows after V has been felled and rendered helpless.
          • Evidence that the killing was done in a brutal manner.
          • The nature and number of the victim's wounds
            • Courts are split on whether a single wound or multiple wounds are more telling of premeditation and deliberation.
        • Ex: State v. Forrest- D killed sick father in hospital bed. Held that this is first degree murder since killing was premeditated. Application of factors: V did not provoke and was lying helpless in bed, D brought gun to hospital, D said he didn't want his dad to suffer, D had to cock gun before each of the four shots to head.

Second Degree Murder (I/P, K, R+)

  1. Includes three categories of homicides:
    1. Intentional killing without premeditation (I/P)
      • Ex: State v. Guthrie- D had psychiatric problem/nose sensitivity. D stabbed V when V poked fun at him and snapped him w/towel. Held that there was not adequate premeditation. The state cannot prove premeditation by showing merely that the intent to kill came into existence at the time of the killing, as this would abrogate the line between first and second degree murder.
    1. Committing an act  which the actor knows will probably cause death (K)
      1. Ex: Midgett v. State- D habitually beat his malnourished son. While drunk, he hit and killed him. Held that first degree murder conviction could not stand. Second degree murder was appropriate since there was no premeditation and D knew his blows were likely to kill the victim.
        • AR changed statute after Midgett to allow for first degree murder for K mental state if V under 14.
    1. Depraved indifference/Malignant heart killings (R+)
      1. Theory is that malice can be inferred when D disregards a substantial risk and commits an act with a high probability of resulting in a death and does so with a base, antisocial motive and a wanton disregard for human life.
      2. Ex: Berry v. Superior Court- D raised fighting dogs and used them to guard his pot field. Two year-old V was mauled and killed by the dog. Held that D ignored significant and unjustifiable risk by having the dog unfenced and that the dog was there for a base, antisocial purpose. Ill-will or hatred of V is not required for malignant heart murder.
  1. Issues with grading distinctions:
    • Use of premeditation/deliberation as line between first and second degree murder can cause seemingly unjust results, e.g. Midgett (2nd degree) and Foster (first degree).
    • Premeditation/deliberation are somewhat vague and difficult to prove.
    • Arbitrary division- does premeditation really equal more culpability?
  1. Felony Murder
    1. In general: Death that results from the commission of a specifically listed felony (usually arson, rape, robbery, burglary, and sometimes kidnapping) or during the commission of any felony (MO), constitutes first/second degree murder.
    2. Policy Arguments
      • Deterrence
        • Proponents argue that:
          • FM rule deters negligent and accidental killings during commission of felonies. Co-felons will dissuade one another from using violence during commission of crimes.
          • FM rule deters dangerous felonies themselves because it increases punishment should an accidental killing result.
        • Opponents argue that:
          • Considerable doubt exists that increasing the punishment for serious crimes actually works.
          • It is more efficient to punish the actions intended by the felon harshly, not the ones he did not intend. If killing occurred, sentence should be enhanced for felony, but a murder charge should not be piled on.
          • The rule can have no deterrent effect if the felon does not know how the rule works or does not believe that a killing will actually result.
      • Culpability
        • Proponents argue that:
          • The felon has exhibited an "evil mind" and is deserving of punishment (in for a dime, in for a dollar).
          • The resulting harm, which is the death, should drive the punishment.
        • Arguments by Opponents
          • Culpability cannot be transferred from a felony to murder. FM equates the intent to commit the felony with premeditation and deliberation.
          • The "evil mind" theory conflicts with the basic premise that the criminal law is concerned not only with guilt or innocence in the abstract, but also with the degree of criminal liability.
          • Mens Rea element is eliminated in FM; it becomes a SL crime with a very high increase in possible punishment.
    1. Unlimited Form of FM (ex: MO)
      • Felony + a killing= murder
      • Ex: People v. Fuller- D broke into vans to steal spare tires. Police chase ensued and motorist killed. Held that burglary was a felony and a killing occurred as a result of flight from felony, thus, felony murder applied. However, CA court noted that this was unjust and legislature should change the rule.
    1. Limitations of FM Rule
      • Inherently Dangerous Felony Limitation
        • Some states limit FM convictions to homicides that are the direct causal result of the commission of a felony inherently dangerous to human life.
          • In CA, there is no FM if the felony can be committed in some way that does not create a substantial risk that someone will be killed.
            • Ex: People v. Howard- Car thief got pulled over, then bolted. Police chased and D hit and killed motorist. Held that FM did not apply since the underlying felony (driving w/a willful or wanton disregard for the safety of persons or property) could be committed in a way that is not inherently dangerous to human life. Crime was committed b/c of three traffic violations in a short period of time.
            • Court has also ruled that "practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death" is not inherently dangerous (Burroughs).
            • Also, "false imprisonment by violence, menace, fraud, or deceit" was also deemed to not be an IDF under CA law.
          • In RI, there is no FM if the felony is not dangerous in the abstract or in view of the manner in which the crime was committed by the D.
        • This is the most common limitation on the FM rule.
      • The Merger (Independent Felony) Limitation
        • Some states hold that FM does not apply if the predicate felony is an "integral part of the homicide" and when it is "included in fact within the offense charged."
          • If death is committed with a collateral and independent felonious design, felony does not merge.
        • Without the merger doctrine, every assault that resulted in death would be a murder under FM (instead of involuntary manslaughter). Merged felonies:
          • Manslaughter (HOP crimes would not exist)
          • Battery/Aggravated Battery
          • Burglary with intent to assault (courts split)
            • CA- No FM: Burglary treated as coincidental where it was committed for the purpose of committing assault inside.
            • NY- FM.
        • CA test for applying merger:
          • Is the MR w/r/t the underlying felony different than the MR w/r/t the death?
            • If different MR, then merger does not apply, and FM applies.
            • If same MR, merger does apply, and FM does not apply.
          • Sometimes this does not lead to the correct policy outcome.
        • Ex: People v. Robertson- V stealing hubcaps off of D's car. D came out and shot over V's head, but accidentally hit and killed him. Charged with discharging weapon in a grossly negligent manner. Held that D's intention in firing weapon was to scare, thus his purpose was collateral to the homicide and FM applies. Dissent says D should have testified that he was trying to hit victim, because then he would only be guilty of manslaughter.
      • The Res Gestae Doctrine [things done to commit]
        • Some states say that FM only applies if the homicide is relatively close in proximity in terms of distance and time to the underlying felony.
        • The commission of the felony is held as beginning when D could be prosecuted for attempt, and continuing throughout flight until felon reaches place of temporary safety.
        • Death also must be natural and probable consequence of his conduct.
      • Limitations on Killings by a Non-Felon
        • Agency Approach- Most states follow the agency approach, which provides that FM does not apply if killer is a non-felon.
          • Ex: State v. Sophophone- Police caught D and his co-felons during a robbery. One felon resisted and was shot and killed by police. Held that D was not responsible under FM for the killing since it was done by a non-felon. Also, D should not be held responsible for lawful killing by third parties. Also, intent of FM statute was not to cover this type of situation.
        • Proximate Cause Approach- A felon may be held responsible under FM for a killing committed by a non-felon if the felon set in motion the acts that resulted in V's death.
          • NJ has this approach explicitly, but excludes death of co-felon.
          • Minority of states under proximate cause theory believe legislative intent was that any person who commits an IDF should be held responsible for any death that is a direct and foreseeable consequence of the actions of those committing the felony. These courts apply civil proximate cause concept to FM.
        • "Chattering" Case: A and B enter liquor store to rob it. C is in getaway car. A, "chattering insanely," ordered owner to put money in a bag. Owner, freaked out by A, shot B, who had the gun. Court refused to apply FM here, but concluded that A's conduct was reckless (depraved indifference) and proximately caused the gunshot. Therefore, A could be convicted of murder for B's death, and C was also guilty because of accomplice liability.


  1. Murder in the MPC
    1. Murder is a homicide committed with P or K
    2. Murder is also a homicide committed R+ under circumstances manifesting extreme indifference to the value of human life.
      • Felony Murder Provision- Recklessness and indifference are presumed if the actor is engaged in the commission, attempt, or flight after commission or attempt of robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape.
        • Once D proves sufficient evidence to discredit assumption of R+, P must prove R+ beyond a reasonable doubt.
    1. MPC abandons the malice aforethought/deliberation and premeditation approach to murder.
    2. There are no grades in murder under the MPC.


  1. Manslaughter and Negligent Homicide Generally in MPC/State Statutes (HOP, R, N)
    1. Heat of Passion Killings
      1. Intentional homicide done in a sudden heat of passion and caused by adequate provocation (according to reasonable man standard) before there has been a reasonable opportunity for the passion to cool.
      2. Some states apply the "Rule of Provocation" as a template to determine if murder should be mitigated to manslaughter.
        • There must have been adequate provocation calculated to inflame the passion of a reasonable man. Adequate provocations usually held to include:
          • Discovering one's spouse in the act of sexual intercourse with another.
          • Mutual combat
          • Assault and battery
          • Injury to one of the D's relatives or to a third party
          • Illegal arrest
          • Words, if they are accompanied by conduct indicating a present intention to cause D bodily harm.
            • Ex: Girouard v. State- Wife taunted D and made fun of his sexual prowess. D went to kitchen, got knife, and killed wife. Held that words are not enough provocation. Adequate provocation must be enough to inflame the passion of a reasonable man and cause him to act from the passion rather than reason.
        • Whether the provocation was sufficient for the mitigating defense is usually a jury issue. This may produce inconsistent results.
        • The reasonable man- look at response to provocation
          • Can take into account D's characteristics (but not including alcoholism or idiosyncratic values or personality flaws).
            • Ex: Attorney General for Jersey v. Holley
          • Can take into account past experiences of D to some degree.
        • Must be sudden heat of passion- D can't have had time to cool down.
          • This is also a jury issue.
        • There must have been a causal connection between the provocation, the passion, and the fatal act.
      1. Justification vs. Excuse- what is the HOP defense?
        • History under CL seems to have some elements of justification, particularly due to the provocation rule.
          • Victim had to do something wrong, so in some way, partially "deserved" the retaliation.
        • However, it also has some elements of excuse, particularly in the MPC.
          • We are prepared to excuse the actor because an ordinary person might have such an emotional outburst after experiencing what he did.
        • It might be important how we view HOP defense in the case of the D killing a party who did not do the provoking.
          • Ex: D's son gets run over by V1. D goes after V1. V2 gets in the way, and D kills V2 to get to V1.
            • If HOP is a justification, D is guilty of murder for killing V2, because V2 did not provoke him so he was not partially justified in killing her.
            • If HOP is an excuse, D might only be guilty of manslaughter for killing V2 because his emotional state is partially excusable.
        • It is a partial defense, however, regardless of whether it is considered a justification or excuse. It is neither totally justifiable nor totally excusable, but it is enough to change what would be murder into manslaughter.
    1. Manslaughter in the MPC
      1. Manslaughter is homicide committed R
      • D must consciously disregard a substantial and unjustifiable risk that his conduct will cause the result.
      • Difference between R and R+:
        • Does the recklessness manifest an extreme indifference to the value of human life?
        • MPC commentary says this is mostly a jury question.
          • 210.2 accords no special significance to an intent to cause grievous bodily harm.
        • Under CL, this would have shown implied malice and thus be murder.
        • Under many state statutes, this is second degree murder via a specific clause saying that intent to cause grievous bodily harm that results in death is murder.
        • MPC would rather let jury decide whether this case is murder due to R+ or manslaughter due to R, and make the distinction that way.
      1. Manslaughter is homicide which would be murder but is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse as determined from the viewpoint of a person in D's situation under the circumstances as he believes them to be.
        • Seems to be more of a partial excuse rather than a partial justification.
        • Broader than common law provocation defense. No specific provocative act is required.
        • Need not involve an injury, affront, or other provocative act.
        • Need not fall within any fixed category, so words can count.
        • Allows for the subjective beliefs of the D, so is much more lenient than CL formulation.
          • Commentators suggest that "extreme emotional disturbance" was meant to catch mistakes of fact, i.e. killing the person you think murdered your parents, but who didn't actually kill them.
        • However, there still must be a reasonable explanation or excuse for a particular emotional disturbance.
          • Ex: State v. Cassassa- D obsessed with neighbor, who shunned his advances. Eventually, he stabbed and drowned her. NY adopted MPC for HOP. Held that while D was subjectively emotionally disturbed, it was not due to a reasonable explanation or excuse, so D does not get HOP defense.
        • Reasonable explanation does take into account the actor's situation, which includes personal handicaps and some external circumstances, but not idiosyncratic moral values.
    1. Negligent Homicide
      1. Homicide is committed N. D is not aware of the substantial and unjustifiable risk, but should be.
        • "Gross deviation" from the standard of care of a reasonable person in the actor's situation.
      1. Negligence is considered an "objective" form of fault because liability is based on the actor's failure to live up to the external standard of care of the "reasonable person." However, it does contain a subjective component:
        • There must be actual present knowledge by D of the present facts which make D's act dangerous. D does not have to make the conclusion that the act is dangerous, but he must know the facts that would lead a reasonable person to infer the danger.
      1. Ex: State v. Williams- Ds charged with manslaughter for failing to get medical attention for 17-month child. Thought the baby just had a toothache, but infection developed. Ds were Native Americans with little education, and were worried baby would be taken away if they went to the doctor. CA statute required mere civil negligence, not criminal negligence, for homicide conviction. Held that there is sufficient evidence to uphold conviction of negligent homicide.