CRIMINAL HOMICIDE
COMMON LAW
MODEL PENAL CODE
Homicide Generally
Homicide Generally
· guilty if purposely, knowingly, recklessly OR negligently causes death of another human being
· GRADATIONS: crim homicide is murder, manslaughter or negligent homicide
Murder (w/ malice aforethought)
· Unlawful killing of a human being w/ malice aforethought [same as premeditation/deliberation]
· Malice aforethought through 4 Mens Rea:
o Intent to kill even if no desire to actually kill is evident (knowing that intended harmful act would result)
o Intent to cause grievous bodily harm (knowing that intended harmful act would result)
o Depraved malign heart murder (murder under conditions evidencing depraved mind OR abandoned/malignant heart) = extreme recklessness
o Wanton and willful disregard of an unreasonable human risk OR wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and mind regardless of social duty = recklessness
· Felony-Murder Rule (extreme recklessness presumed so = strict liability)
· 20-30 yrs TO LIFE (DP)
· FACTORS OF PREMEDITATION:
o Want of provocation by deceased
o Conduct and statements of d before and after killing
o Threats and declarations of D before and during course of acts leading to death
o Ill-will or previous difficulty b/ween parties
o Dealing of lethal blows after deceased has been rendered helpless AND
o Evidence that killing was brutally done(nature and number of wounds can help inference)
RULES OF LAW:
Schrader’s RULE OF LAW: a killing can be willful, deliberate, and premeditated even if the intent to kill did not arise until the instant in which the killing took place [Absent a cooling off period OR in the twinkling of an eye]
Midgett’s RULE OF LAW: Evidence of intentional child abuse, which eventually resulted in the child’s death, is not sufficient by itself to show the premeditated intent to kill necessary to sustain a conviction for murder in the first degree.
Forrest’s RULE OF LAW: Killing someone to prevent his further suffering is still murder in the first degree, if it is willful, deliberate, and premeditated.
Murder
· Purposeful
· Knowing
· Recklessness w/ extreme indifference to the value of human life (presumed to exist in Felony Murder)
· Life or Death Penalty for sentence
· except as 210.3(1)(b) says, crim hom is murder when:
o committed purposely or knowingly OR
o committed recklessly manifesting extreme indifference to the value of human life
o this is assumed to be present if engaged in or accomplice to the commission, attempt or flight after committing or attempting robbery, rape or deviate sexual intercourse by force OR threat of force , arson, burglary, kidnapping or felonious exchange
· except as 210.3(1)(b) says, crim hom is murder when: 1st degree felony (but may be sentenced to death under 210.6)
NO PREMEDITATION
Voluntary Manslaughter [absence of malice aforethought] [HARDER TEST for D]
· homicide w/out malice aforethought OR w/ justification/excuse defense
· An intentional homicide done in a sudden heat of passion caused by adequate provocation before there has been a reasonable opportunity for passion to cool
Reasonable person would be provoked into heat of passion
No cooling off period
· 10-20yrs
· ADEQUATE PROVOCATION:
Must be calculated to inflame the passion of a REASONABLE MAN (not an unreasonable D) and tend to cause him to act for the moment from passion RATHER than reason
Causal connection stemming from VICTIM as PROVOCATOUR
Some say provocation must be proportional to your reaction.
MAJORITY (Girouard) RULE OF LAW: words alone are not adequate provocation to provoke a reasonable person to kill in the heat of passion so they cannot mitigate murder to manslaughter UNLESS they are accompanied by a real threat of bodily harm (holding a gun).
MINORITY RULE (Girouard cites to Maryland): if words indicate present intention and ability to cause D bodily harm.
· MITIGATING FACTORS:
Discovering spouse in act of sexual intercourse w/ another
Mutual combat
Assault and battery
Authority recognizing harm to Ds relatives/3rd party
Authority recognizing illegal arrest
Cultural considerations are NOT required BUT juries can take into consideration whatever characteristics they think might make you more vulnerable to the specific provocation
Manslaughter [EASIER TEST FOR D]
· Murder mitigated by heat of passion OR EED
· recklessness OR
· Extreme(Mental or) Emotional Disturbance for which there is a reasonable excuse
o Reasonableness based on Ds situation under circumstances as he believes them to be
· 10yrs
· crim hom is manslaughter when:
o recklessly [law abiding person in Ds situation] OR
o would otherwise be murder but committed under influence of extreme emotional or mental disturbance for which there is reasonable expectation or excuse.
o This determined from viewpoint of accused under circumstances he/she believes them to be
· 2nd degree felony
· Casassa’s RULE OF LAW: The test of whether the extreme emotional disturbance of the killer had a reasonable explanation or excuse depends on a reasonable evaluation of the external circumstances that the killer believed he was facing and not on the killer’s personal viewpoint.
· TEST of EED DEFENSE as mitigating: whether in the subjective totality of the circumstances in which D found himself [subjective], a juror can understand [objective] how the person would have overcome his reason and acted under EED [subjective].
· Test of EED Defense as mitigating: D must act under influence of EED [wholly subjective] AND there must have been a reasonable explanation or excuse for such disturbance from the viewpoint of a person in Ds situation under the circumstances as D believed them to be [wholly objective] = or this one instead of above?
· EED defined: can be spontaneous significant mental trauma that affected Ds mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore.
· EASIER than HEAT OF PASSION b/cause:
No cooling off period
subjective part of EED [look at veracity of actions]
objective of reasonableness of reaction based on subjective totality of the circumstances in which D found himself
no need for ED to be causally linked to reaction
· CRITICISMS of EED:
too broad everything counts
allows for idiosyncratic moral values of individual D to come into evidence
Involuntary Manslaughter
· misdemeanor/manslaughter
· homicide w/out malice aforethought (no intent) BUT w/ gross negligence
MAJORITY RULE: Unintentional killings where the killer did not show depraved heart BUT showed gross negligence (commission of lawful act in unlawful way or w/out due caution; higher level of proof of neg= gross deviations from standard of care used by an ordinary person where negligent conduct can reasonably be said to manifest a wanton or reckless disregard for human life)reckless (acts of a life-endangering nature so reckless that they manifest wanton indifference to human life)
MINORITY RULE: Fail to exercise caution a reasonable person would have to the extent where your failure would be a deviation from standard of care. William’s RULE OF LAW: A showing of ordinary negligence may be sufficient to support a conviction for manslaughter.
State v. Hernandez (WHAT?) RULE OF LAW: Evidence to show that the accused was aware of the risks of his behavior is not admissible to show mental state when the charge is involuntary manslaughter.
(Strict Liability exception) Misdemeanor-manslaughter rule: Unintended death caused by commission of illegal act which is manslaughter (NOT a felony)
· 3 – 5 years
Negligent Homicide
· negligent killing
· gross negligence that deviates from reasonable standard of care
· 5 yrs
· negligent hom occurs when:
o negligently committed
· 3rd degree felony
Felony-Murder
rcourse includes anal and oral sex and intercourse w/ an animal
Male sex w/ female not his wife (EXCLUDES SPOUSAL RAPE)
Broad definition of spouse (living together counts)
ATTENDANT CIRCUMSTANCES:
FORCE (or threat of force) = Ds conduct in overcoming victim’s unwillingness to engage in act.
Alston’s RULE OF LAW: The element of force or threat must occur at the time of the alleged rape, and must be used to obtain sexual intercourse. [History of sexually passive relationship and earlier violent threat not good enough. Force can occur if totality of circumstances gives rise to reasonable inference that unspoken purpose of threat was to force victim to submit to unwanted sexual intercourse.]
Rusk v. State’s RULE OF LAW: actual force or threat of force is a necessary element of rape [implied is not enough]
W/drawal of consent vitiates force requirement.
CONSENT = victim’s unwillingness to engage in act.
Alston’s RULE OF LAW: Can be w/drawn any time prior to penetration acting as complete bar.
WITHDRAWAL OF CONSENT (post penetration)
People v. John Z’s MAJORITY RULE OF LAW: Can have rape even in the absence of force b/cause of withdrawal of consent… no reasonable time to withdraw and no primal urge theory accepted and doesn’t matter if its before intercourse so long as w/drawal is communicated to D and he ignores it.
MINORITY RULE OF LAW: if w/drawal of consent is communicated to D and ignored by D post-penetration then force requirement must still be met.
CONSENT OBTAINED BY FRAUD
MAJORITY Boro’s RULE OF LAW: FRAUD IN FACTUS (misrepresentation or concealment of actual act about to occur = doc inserting penis NOT medical instrument) and not FRAUD IN THE INDUCEMENT (misrepresentation or concealment which leads another to enter into transaction w/ false/mistaken beliefts = sex for cure of illness NOT sex for the heck of it; sex w/ husband v. sex w/ stranger impersonating) will vitiate consent to intercourse.
MINORITY RULE: allows for BOTH FRAUD in FACTUS and in the INDUCEMENT [same as MPC]
RESISTANCE = victims conduct in resisting force; proof of non-consent
MAJORITY Alston’s RULE OF LAW: Verbal notification of w/drawal of consent is enough to prove resistance. [No means no][same as MPC]
MINORITY Brown v. State’s RULE OF LAW: there is a requirement of most vehement exercise of physical and faculty to prevent penetration persisting until offense is consummated UNLESS unconscious, threats or exhaustion.
Reasons why resistance element should be abolished:
· invitation of danger of death or serious bodily injury
· wrong to excuse male assailant b/cause victim failed to protect herself the way the ct wants
· b/cause the victim may be weak or fearful there shouldn’t be a question about submission by force [verbal/physical either or should be sufficient]
ATTENDANT CIRCUMSTANCES:
FORCE (or threat of force)
Physical or drugs, etc.
Violence extends to anyone else (3rd parties)
CONSENT: NOT REQUIRED
MPC = same as minority rule = ALL FRAUD is allowed as proof of “other force”
RESISTANCE = ordinary person’s standard [same as majority rule]
