Homicide – Introduction Intentional Killing – Heat of Passion
1) THEORIES OF PUNISHMENT
a) Utilitarianism
i) Deterrence- punishment is only justifiable if it is expected to result in the reduction of crime. Must be proportional to crime. General deterrence: dissuade community at large to forego criminal conduct in the future. Specific deterrence: meant to deter future misconduct by individual ∆.
ii) Rehabilitation – reforming by psychiatric are, therapy, vocational training, etc
b) Retributivism – ∆ punished b/c deserves it. Make ∆ suffer. Assigns proportional punishment.
c) Denunciation (Expressive Theory) – justifiable as a means of expressing society’s condemnation of the crime. Combines utilitarianism and Retributivism —educates individuals about society’s expectations and also punishes ∆ by stigmatizing him.
2) BURDENS OF PROOF
a) Burden of Production
i) ∏ – must every element of the crime prove beyond a reasonable doubt. If fails, ∆ may ask for a directed verdict regarding any element of offense.
ii) ∆ – must give advance notice of defenses intends to assert at trial. For affirmative defenses, sometimes need only a scintilla of evidence…others require ∆ to raise a reasonable doubt. If ∆ meets this burden, jury must be given instructions on that defense.
b) Burden of Persuasion – once a party has satisfied burden of production, matter goes before fact finder to determine whose is more persuasive.
i) ∏ – (Winship Doctrine) – must persuade fact finder beyond a reasonable doubt of every fact necessary to constitute the crime charged.
ii) ∆ – some jurisdictions require ∏ to disprove any of the ∆’s defenses beyond a reasonable doubt. Others require the ∆ to prove the validity of the claim by a preponderance of the evidence.
c) MPC and Burdens – Except for defenses that the Code expressly requires ∆ to prove (with preponderance) the ∏ must prove every element of an offense beyond a reasonable doubt, including conduct that negates an excuse or justification (∆’s defenses).
3) ACTUS REUS – Voluntary act that causes social harm.
a) Voluntary Act: generally, a person is not guilty unless his crime is the result of a vol. act. Act must be an element of the crime and only a physical act counts.
b) MPC – also requires that criminal conduct include a voluntary act.
c) OMISSIONS – subject to a few exceptions, a person has no legal duty to act to prevent harm to another.
i) Exceptions
(1) Status Relationship – duty to prevent harm if in special status relationship —usually based on dependence of one party to other. (children, spouse, etc).
(2) Contractual Obligation – may be implied or express K – caretaker, etc.
(3) Creation of a Risk – a person who harms another or puts in harm (even if accidentally), must render assistance. Must mitigate damage.
(4) Voluntary Assistance – once you render aid, must continue if the subsequent omission would leave the V worse than if the ∆ had not helped at all.
(5) Statutory Duty – ex. driver involved in accident must stop, parents and food for kids. Some states have Good/Bad Samaritan laws —offense to fail to come to the aid of a person in certain circumstances.
ii) MPC & Omissions – consistent with common law.
4) MENS REA –Culpability
i) In general: A person is not guilty of an offense unless he performs a voluntary act (or omits an act that is his legal duty to perform) that causes social harm (the actus reus) with a mens rea (guilty mind). Particular mental state provided for in definition of offense or general moral blameworthiness.
ii) Frequently Used Mens Rea Terms –Levels of Culpability
(1) Intentionally: A person intentionally causes the social harm of an offense if :
a. It is his desire, i.e. his conscious object to cause the harm, OR-
b. He acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.
c. **The intent is subjective…it requires an awareness, not on what he should have been aware of, but what he was.
(2) “Transferred Intent” – we attribute liability to a ∆ who, intending to kill or injure one person, accidentally kills or injures another instead. The law transfers the actor’s state of mind regarding the intended victim to the unintended one.
(a) i.e. if A fires a gun at B, intending to kill him, but hits an unintended person C, is he guilty of intent to kill murder? YES –
(b) Justified on grounds of necessity and proportionality: Necessity means the bad aimer should not avoid conviction b/c he killed the wrong person…and proportionality means that he should receive punishment and prosecution in accord with his culpability.
(3) “Knowingly” or “With Knowledge” – A person who knowingly causes a particular result or knowingly engages in specified conduct is said to have intended the results.
(a) However, sometimes knowledge of a material fat—(like an attendant circumstance) —is a req. element of an offense. i.e. –it is a federal crime for a person to knowingly import any controlled substance into the country…can’t be guilty unless someone knows the contraband is on board.
(b) Knowledge can also be found if a person is guilty of “willful blindness” or “deliberate ignorance.” Generally exists if the actor is aware of the high probability of the existence of the fact in question and he deliberately fails to investigate in order to confirm that fact. Sometimes called an ostrich instruction: when there is evidence the ∆ knowingly or strongly suspecting that he is involved in shady dealings…takes steps to be sure that he does not acquire full or exact knowledge.
(4) “Willfully” – Sometimes used as a synonym for intentional —sometimes used to mean an act done with a bad purpose—or with an evil motive. May also connote an intentional violation of a known legal duty or a purpose to disobey the law. Someone can do something intentionally and not have an evil motive or do it with a bad purpose.
(5) “Recklessness: More culpable than negligence.
(a) One definition: Some definitions say a person acts recklessly if he takes a very substantial and unjustified risk. Civil negligence, criminal negligence, and recklessness are all on a continuum—they differ in respect to the degree of the actor’s deviation from the standard of due care.
(b) Second definition: Most jurisdictions define recklessness as needing the proof that the actor disregarded a substantial and unjustified risk of which he was aware. The deviation is gross for both this definition of recklessness and criminal negligence—the difference is in the actor’s state of mind. Criminal negligence involved inadvertent risk taking (in which he should have been aware objectively, as a reasonable person would) and recklessness implicates that the actor was aware of the risk and took it anyway (that he was..it’s subjective).
(6) “Negligence”
(a) Categories of Risk-Taking: 1) Desirable or neutral, 2) risk taking that justifies civil liability (civil negligence), 3) Criminally negligent risk taking (criminal negligence), and 4) reckless conduct (recklessness).
(b) A person’s conduct is negligent if it constitutes a deviation from the standard of care that a reasonable person would have observed in the actor’s situation. Conduct constitutes such a deviation of the actor takes an unjustifiable risk of causing harm to another. Should have been aware.
(i) Objective fault – —i.e. the actor is not blamed for a wrongful state of mind instead is punished for his failure to live up to the standards of a reasonable person.
(ii) 3 factors come in determining reasonable person standard: 1) gravity of harm that would result from ∆’s actions, 2) probability of such harm occurring, 3) burden to the ∆ of desisting from the risky conduct, or evaluating the reason for taking the risk. As gravity/probability of harm increases, the more substantial the actor’s reason for taking the risk must be.
(iii) Distinguishing civil from criminal negligence: Criminal – prosecution must ordinarily show more than the mere deviation from the standard of care that would constitute civil negligence. Criminal negligence represents a gross deviation from the standard of reasonable care. A person is criminally negligent if he take a substantial, unjustified risks causing the social harm that constitutes the offense charged.
(c) “Malice:” – A person acts with malice if he intentionally or recklessly causes the social harm prohibited by the offense. Means a ∆ would be aware of a risk and disregard it, and recklessly caused the social harm acting with malice.
(i) Strict Liability —offenses that lack a mens rea requirement regarding one more elements of actus reus. Mere proof of actus reus is sufficient, re
uilty of felony is guilty of murder. In Regina, (English case) the 2 ∆’s killed a man’s son as the result of arson attempt.
· People v. Stamp: ∆ is guilty of FM if the V’s death was a direct result of the felony murder….if the felony was the proximate cause of death. In Stamp, the robbery victim died of a heart attack after the ∆ had left. ∆ found guilty. Doesn’t matter if V’s death was foreseeable if the death was a direct result of the felony.
(3) Second Degree Murder –Implied Malice
-can include unintended killings
(a) Intentional Spontaneous Killing –
(b) Extremely Reckless Killing – implied malice by actions
(i) Depraved Heart; awareness of consequence
(ii) Conscious and wanton disregard for substantial and unjustifiable risks to human life.
(iii) Gross negligence – depends on malice. Acting with extreme indifference to life. Lack of malice may mitigate charged.
(c) Killing in an unreasonable heat of passion
(d) Assault with intent to do great bodily harm
**Implied malice is proven when an actor’s conduct involves the deliberate perpetration of a knowingly dangerous act, with unconcerned and indifference as to whether anyone is harmed or not.
· Commonwealth v. Welansky – An individual whose act of gross/wanton negligence results in an unintended killing is guilty of M2. (Welansky knew risk of fire in restaurant, but ignored it and failed to take precautions.
· Commonwealth v. Malone – Although a killing is committed with an intent to kill, the reckless abandon with which a ∆ acts with callous disregard for others constitutes malice and M2. In Malone, D killed his cousin while playing Russian roulette. Fired 3 shots. Court found that ∆ acted with reckless abandon for human life although it was an unintended killing.
o Malice isn’t necessarily towards the deceased – can be evidenced by reckless disregard for life – implied malice.
· US v. Fleming: the manner in which wanton and reckless disregard for life is exhibited – if qualifying as a malignant heart, constitutes implied malice – M2. In Fleming, a drunk driver was driving extremely recklessly and killed another driver. Intoxication is not a defense for unawareness in M2 – usually gross negligence. Must show extreme indifference for life in addition to intoxication.
(4) Second Degree Felony Murder
(a) Killing during the commission of a non-enumerated felony or inherently dangerous felony. Felony murder is easier way for prosecution to convict if they don’t have all the necessary elements for reg murder. Malice is not always necessary (depends on state) but helps if you can prove it.
(i) Use abstract test to determine inherent danger
(ii) Merger: DEFENSE — does the felony have a distinctive element separate from assault; also analyze intent behind action.
1. People v. Smith: a felony murder conviction cannot be supported where the felony is an integral part of the homicide and which the evidence produced for the felony proves to be included in the fact charged. In Smith, court found that felony child abuse could not be separated from the death of the child.
2. If there is ANY element of the felony that’s independent of the killing, the merger rule cannot be invoked. MERGER DOES NOT APPLY TO FM1. Primary ingredient of homicide is assault, so if you can determine that an element of a felony that is not assaultive, you can escape the merger rule. (i.e. robbery – main goal is theft).
Merger is a defense tool to prevent FM convictions
