Murder- w/ malice aforethought
1st Degree Murder
Wilful (Intentional) Premeditated (Quantity- amount of time) & Deliberate (Quality- the consideration or deliberation during that time)
Premeditated- planned or thought about beforehand
Deliberate- to hold down, a conscious choice and weighing of consequences
– by a certain means (poison, lying in wait, explosive or incendiary device, weapon)
o Use of a deadly-weapon rule: kills another with a deadly weapon, then, intentially uses a deadly weapon directed at a vital part of the human anatomy, intention to kill may be properly inferred.
– during the commission or attempted commission of an enumerated felony
o Is the individual capable of deliberation in the amount of time available?
o MENTION IN EXAM, Factors to determine:
§ 1) Planning Activity
§ 2) Motive (look at relationship)
§ 3) Manner of killing- did they really want to do it.
B) urglary
A) rson
R) ape
R) obbery
K) idnapping
Usually BARRK crimes are enumerated felonies
2nd Degree Murder
Intent to kill (not rising to W.P.D)
– Intent to cause Grievous Bodily Harm
– Extreme Recklessness evincing a depraved indifference to the value of human life.
– aka: depraved heart murder, abandoned & malignant heart, extreme recklessness
o Four Factors for 2nd Degree to establish EXTREME RECKLESSNESS
§ Conscious disregard of a substantial and unjustifiable risk.
1. Objective Circumstances
2. Mens Rea
3. High Probability/Degree of risk
4. Multiple victims
– during the commission or attempted commission of any/unenumerated felony * subject to limitations
Felony Murder Rule (F.M.R.)
– (Old COMMON LAW)- during the commission or attempted commission of any felony) Do not have to prove the mens rea @ all which alleviates the culpability, and reduces significantly the burden on prosecution.
§ Just has to be during a felony.
– 1st degree- during the commission or attempted commission of an enumerated felony (usually BARRK)
o Res Gestae- Latin for “things done.” Was it during the commission of the crime?
§ Temporal/Physical proximity
§ Causal Connection/relationship
In certain felony murder statutes, “Res Gestae” is a term defining
the overall start-to-end sequence of the underlying felony. Generally, a felony’s Res Gestae must be interrupted by a point in which the defendants have achieved a position of relative safety from law enforcement for the underlying felony to be considered terminated
o Who is the shooter
§ Agency- the majority rule is that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon.
§ Proximate Causation- the issue becomes one of proximate causation: if an act by one felon is the proximate cause of the homicidal conduct by [the non-felon] or the police officer, murder liability is permitted.
· In some states, it matters who is shot.
– 2nd degree- during the commin or att. commin of any unenumerated felony. (spelled out in the statute)
o I.D.F. (Inherently Dangerous Felony)
§ Abstract Test- Objectively dangerous
§ Particular- dangerous in these circumstances
o I.F (Independent Felony) Merger Doctrine- Needs to be an independent felonious activity outside of assault.
§ Rule of Law: the FMR may not be invoked when it basked on a felony which is an integral part of homicide
o Res Gestae : Was it during the commission of the crime?
o Who is the s
BETWEEN MURDER AND MANSLAUGHTER IS THE DEALING WITH MALICE OF FORETHOUGHT.
DEFENSES
1) Failure of Proof “Defense”
2) Offense Modifications Defense
3) Justification Defense-weaffirm the facts, but circumstances justify the act
a. When you’re justified, it means that what you did was at least not wrongful, if not actually good. Four theories of justification: (1) Public benefit, (2) moral forfeiture, (3) moral rights, and (4) lesser harm.
4) Excuse Defense- Even though the prosecutor may prove every element of the offense because the defendant lacks “moral blameworthiness” normally attached, STILL HAS A SOCIAL HARM
a. Excuse focuses on the actor, not the act. Excuse concedes that the act was bad, but there was something about the actor such that we’re willing to let them go without punishment. When we use an excuse defense, the burden of proof is placed on the defendant.
5) Non Exculpatory Public Policy Defenses- unrelated to social harm/actor’s blameworthiness. E.g statue of limitations, diplomatic immunity, competency to stand trial
a. AFFIRMATIVE DEFENSES are JUSTIFICATION OR EXCUSE
i. These have a burden on the defendant to prove by a perponderence of the evidence rather than the prosecutor proving beyond a reasonable doubt.
ii. Be very sensitive to the difference between excuse and justification
