Professor Strader/ Criminal Law/ Homicide Review

The common law crimes for which you are responsible:

1. Homicide (murder 1 and murder 2; voluntary manslaughter; involuntary manslaughter; felony

murder 1 and 2; misdemeanor manslaughter)

Murder

Murder – a killing w/ malice aforethought

Malice can be Express or Implied
 Implied – not crime of passion – you thought about it
 Express – crime of passion – you didn’t think about it before hand it just happened as a
reaction to something else

1st Degree Murder (purpose)

1. Intent
2. Premeditation
3. Deliberation

2nd Degree Murder (knowledge)

1. Extreme Recklessness/Depraved Heart– you know your actions create a high risk of grave
bodily harm or death but you do it anyway

i.e. Commonwealth v. Malone (Russian roulette) – boy held a gun w/ 1 bullet to another boys head

Provocation or “heat of passion” – partial defense, doesn’t get you not guilty just reduces the crime
from 2nd degree to voluntary manslaughter.

Manslaughter

Voluntary Manslaughter - an unlawful killing of a human being without malice/ upon a sudden
quarrel or heat of passion/provocation

Provocation/heat of passion – partial defense, reduces sentence from murder to manslaughter.

Heat of passion: 2 approaches

Traditional common law approach
o Limited to 5 categories
Defendant has to allege that:
1. aggravated assault + battery
2. observation of a serious crime against a close relative
3. illegal arrest
4. mutual combat
5. catching ones wife in act of adultery

If defendant alleges any of the 5 categories, it goes to the jury to decide, if not, goes to judge.

o Any passage of time would render the defense unavailable as a matter of law (“cooling off”)

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 Modern, reasonable person approach (replaced categorical approach in most states)
o D was actually in the heat of passion
o The provoking incident would have provoked a reasonable person in Ds shoes to lose control –
jury question.
o D did not cool off
o A reasonable person would not have cooled off
o Causation – provoking incident caused the heat of passion

Under the traditional common law approach, you can only use provocation defense only against the
person who provoked you. Under the reasonable person, you can use that defense if someone else
provoked you

MPC’s version of heat of passion:

Extreme mental or emotional disturbance

Much broader than CL heat of passion.

1. Specific provocative act is not required, all that must be proven is that the homicide occurred as
a result of an EMED for which there is a reasonable explanation
2. Provocation doesn’t need to involve an ‘injury, affront or some other provocative act by
victim’, P can claim this defense if he believes, although incorrectly, that V did it.
3. Provoking incident does not need to fall within the 5 categories; words alone can be enough

Involuntary Manslaughter –

Unintentional killing w/ criminal negligence – something more than the degree of negligence sufficient to
justify tort liability.

I.e. Commonwealth v. Welansky – nightclub owner didn’t fix a fire hazard and as a result the club burned
down and people died. He was charged with involuntary manslaughter.

Felony murder
Felony Murder Rule – If you kill someone during the commission of an inherently dangerous felony,
you are automatically guilty of 2nd degree murder. If you kill someone during a commission of an
enumerated felony; you are guilty of 1st degree murder. No Mens Rea is required for felony murder rule,
strict liability. If you had the mens rea for the felony, the mens rea for the murder is automatic.

Enumerated (statutory) felonies - burglary, arson, rape, robbery, mayhem

Felony Murder Rule Elements:

1. Inherently Dangerous – is the felony inherently dangerous?

Every state uses some version of the inherently dangerous limitation

1. abstract approach ( per se) – the crime, by its very nature, cannot be committed
without creating a substantial risk that someone will be killed
2. fact specific approach – based on the facts of the particular facts
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 Some states apply the Abstract Approach, some apply the Fact Specific Approach, and some test for
both.

2. Res Gestae
1. causation – felony caused the death
2. relationship in time and geography – death happened within a reasonable time and place of felony

3. Independent (Merger Doctrine) – the felony has to be independent from the actual killing. The killing
must be independent of the felony. If the killing isn’t independent, then it merges into the felony and does
not qualify for a felony murder rule.

In order to not trigger the Merger Doctrine, there must have been another purpose other than the killing.
If the very purpose of the felony is to commit the killing, the merger doctrine applies.

Agency Rule – a felon can only be liable if the killing is by a co- felon (majority)

Proximate Causation – a felon is liable for any death that is the proximate result of the felony, whether
the shooter is a co-felon or a 3rd party. (Minority)

Provocative act doctrine – a Mens Rea based doctrine –

Assume you’re in an agency rule jdx
If the killing is not committed by a co-felon, the felons may not be liable under the Felony Murder Rule
However, the felons may be liable under Provocative Act Doctrine
Doctrine is based on the principle that felons are liable for crimes committed by each other.

Misdemeanor Manslaughter

Misdemeanor Manslaughter Doctrine – if the crime is a misdemeanor instead of a felony, you get a
manslaughter charge instead of a murder charge.