Homicide

A homicide offense generally requires proof that the defendant caused the death of another human being with the required mental state. The actus reus is conduct causing death. The result is death. The mens rea depends on the grade of homicide.

The most serious homicide is usually murder. Murder involves a killing with malice aforethought or a statutory equivalent. Manslaughter is less serious than murder but still criminal. Voluntary manslaughter often involves an intentional killing mitigated by provocation or extreme emotional disturbance. Involuntary manslaughter usually involves an unintentional killing caused by criminal negligence, recklessness, or certain unlawful acts.

Modern statutes vary. Some jurisdictions divide murder into first degree and second degree. Some define manslaughter by recklessness or negligence. Some retain traditional common-law categories. Some follow the Model Penal Code. On an exam, always read the governing rule carefully.

Begin homicide analysis by identifying every possible grade. Do not jump directly to murder. Ask whether the facts support murder, voluntary manslaughter, involuntary manslaughter, felony murder, or a defense.

At common law, murder is the unlawful killing of another human being with malice aforethought.

“Malice aforethought” is misleading. It does not necessarily mean hatred. It does not always require long planning. It is a term of art that traditionally includes four mental states:

• Intent to kill.
• Intent to inflict serious bodily injury.
• Depraved-heart recklessness.
• Felony murder.

These four categories are the foundation of common-law murder. Each supplies the malice required for murder, but each does so in a different way.

Intent-to-kill murder involves a purpose to cause death. Intent-to-inflict-serious-bodily-injury murder involves a purpose to cause grave harm, with death resulting. Depraved-heart murder involves extreme recklessness toward human life. Felony murder supplies malice from the commission of a qualifying felony.

The student’s job is to match the facts to the correct mental state.

Intent-to-kill murder is the clearest form of murder. The defendant acts with the purpose of causing death, and death results.

Intent can be proven by direct evidence, but it usually is proven circumstantially. A defendant may say, “I am going to kill you,” and then shoot the victim. But more often, intent is inferred from conduct. Firing a gun at close range toward the victim’s head or chest, repeatedly stabbing vital areas, poisoning someone, or planning an ambush may support an inference of intent to kill.

The prosecution does not need to show that killing was the defendant’s only motive. A defendant may intend death for revenge, money, fear, jealousy, escape, or some combination of reasons. If death was the defendant’s conscious object, intent to kill exists.

Intent-to-kill murder may be graded as first-degree murder under many statutes if accompanied by premeditation and deliberation.

Premeditation means the defendant thought about the killing before acting. Deliberation means the defendant made a cool or reflective decision to kill rather than acting in sudden passion or panic.

Jurisdictions vary on how much time is required. Some allow premeditation to form quickly, even in a short period, if the defendant had time to reflect. Others require stronger evidence of actual planning or careful thought.

Evidence of premeditation may include planning activity, motive, procurement of a weapon, lying in wait, prior threats, repeated shots after a pause, or conduct showing reflection. Evidence against deliberation may include sudden rage, panic, intoxication, confusion, or a rapid impulsive act, though those facts do not automatically defeat murder.

Premeditation does not always require days or weeks of planning. But it does require more than the mere intent to kill. Look for evidence that the defendant reflected before acting.

A killing may be murder even if the defendant did not specifically intend death. At common law, malice exists when the defendant intends to inflict serious bodily injury and death results.

Serious bodily injury means grave harm, not a minor bruise or ordinary offensive contact. It may include broken bones, severe beating, stabbing, shooting to wound, permanent disfigurement, or injury likely to threaten life.

For example, if a defendant intentionally beats a victim with a metal pipe intending to cause serious injury, and the victim dies, the defendant may be guilty of murder even if the defendant says, “I only meant to hurt him, not kill him.” The intent to cause grave bodily harm supplies malice.

This category matters because defendants often deny an intent to kill. Criminal law may still treat the killing as murder when the intended injury was sufficiently serious and death resulted.

Depraved-heart murder involves extremely reckless conduct showing indifference to human life. It is sometimes described as abandoned-and-malignant-heart murder.

This is more than ordinary negligence. It is more than ordinary recklessness in many jurisdictions. The defendant must consciously disregard a grave risk of death under circumstances showing extreme indifference to human life.

Classic examples include firing into a crowded room, driving at extremely high speed through a crowded sidewalk, shooting into an occupied house, or playing Russian roulette. The defendant may not desire death, but the conduct shows such extreme disregard for human life that the law treats the killing as murder.

The line between depraved-heart murder and manslaughter can be difficult. Both may involve risk-taking. The difference is degree. Manslaughter may involve conscious disregard of a substantial risk. Depraved-heart murder involves an extreme risk of death and a level of indifference approaching malice.

D fires a gun into a crowded subway car “just to scare people.” One passenger is killed. D may claim he did not intend to kill anyone. But firing into a crowded enclosed space creates an extreme risk of death. A court could treat the killing as depraved-heart murder.

Now suppose D carelessly tosses a small object in a room and accidentally causes a freak fatal injury. That may be negligent or accidental, but it likely lacks the extreme risk and indifference required for depraved-heart murder.

Felony murder imposes murder liability for a killing caused during the commission or attempted commission of certain felonies. It is one of the most controversial doctrines in Criminal Law because it can impose murder liability without proof that the defendant intended to kill, intended serious injury, or consciously disregarded a grave risk of death in the ordinary way.

The classic common-law predicate felonies are burglary, arson, rape, robbery, and kidnapping. Students often remember them with the memory aid BARRK: burglary, arson, rape, robbery, kidnapping.

The basic idea is that certain felonies are so dangerous that a death occurring during their commission is treated as murder. If a robber points a gun at a store clerk, a struggle occurs, and the clerk dies, felony murder may apply even if the robber did not specifically intend death.

Felony murder is heavily tested because it has several limits.

First, the predicate felony must qualify. Many jurisdictions require the felony to be inherently dangerous, either in the abstract or as committed. Burglary, arson, rape, robbery, and kidnapping are traditional examples. Less dangerous felonies may not qualify.

Second, the felony must be independent of the killing. This is the merger doctrine. Assaultive felonies often merge into the homicide and cannot serve as the predicate felony. Without this limitation, nearly every assault resulting in death could become felony murder, eliminating the distinction between murder and manslaughter.

For example, if the defendant commits aggravated assault by shooting the victim and the victim dies, the assault may merge with the homicide. The prosecution may still argue intent-to-kill murder, serious-bodily-injury murder, or depraved-heart murder, but the assault itself may not serve as the felony-murder predicate.

Third, the death must occur during the felony or immediate flight. If the felony is over and the defendant has reached a place of temporary safety, felony murder may no longer apply. Deaths during escape are often treated as occurring during the felony.

Fourth, the felony must be a legal cause of death. The death must be connected to the felony in a way that supports liability. If a death is completely unrelated, felony murder may fail.

Fifth, many approaches require foreseeability. The death must be a foreseeable result of the felony or within the risks created by the felony.

For felony murder, walk through the limits: qualifying felony, merger, timing, causation, foreseeability, and the jurisdiction’s approach to killings by third parties.

Felony murder becomes especially difficult when someone other than the defendant or a co-felon causes the death. Jurisdictions often use either the agency theory or the proximate-cause theory.

Under the agency theory, felony murder generally applies only when the killing is committed by the defendant or a co-felon. If a police officer or victim kills someone during resistance to the felony, the defendant may not be liable for felony murder under this theory, though other charges may apply.

Under the proximate-cause theory, felony murder may extend to any death proximately caused by the felony, even if the fatal act is committed by a third party. If the felony sets in motion a foreseeable chain of events leading to death, liability may apply.

Suppose two robbers hold up a store. A police officer arrives and shoots one robber while trying to stop the crime. Under the agency theory, the surviving robber may not be guilty of felony murder for the co-felon’s death because the killing was committed by police, not by a felon. Under the proximate-cause theory, liability may be possible if the death was a foreseeable result of the robbery.

This is a classic exam distinction. Always state which theory governs if the facts involve a killing by a victim, police officer, or bystander.

Voluntary manslaughter is an intentional killing mitigated from murder because of legally recognized circumstances. The defendant may have intended to kill, but the law reduces the offense because the killing occurred under conditions that partially reduce blameworthiness.

The traditional common-law form is heat-of-passion manslaughter. The modern Model Penal Code approach uses extreme mental or emotional disturbance.

Voluntary manslaughter does not justify the killing. The defendant is still criminally liable. The doctrine recognizes that some intentional killings, while unlawful, are less blameworthy than deliberate or malicious murder.

At common law, heat-of-passion voluntary manslaughter usually requires four elements:

• Adequate provocation.
• Actual provocation.
• No reasonable cooling time.
• No actual cooling off.

Adequate provocation means provocation that would cause a reasonable person to lose self-control. Traditional categories included discovering a spouse in adultery, being subjected to serious assault, mutual combat, or seeing a close relative attacked. Mere words traditionally were not enough, though modern law may be more flexible.

Actual provocation means this defendant was actually provoked. It is not enough that a reasonable person might have been provoked if this defendant acted for a different reason.

No reasonable cooling time means not enough time passed for a reasonable person to regain self-control. No actual cooling off means this defendant did not actually regain self-control before killing.

Provocation does not acquit the defendant. It mitigates murder to voluntary manslaughter if the required elements are satisfied.

The Model Penal Code uses a broader mitigation doctrine. A homicide that would otherwise be murder may be reduced to manslaughter if committed under extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.

The reasonableness of the explanation is judged from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.

This approach is broader than traditional heat-of-passion doctrine. It does not require a fixed category of provocation. It does not always require sudden passion. It can consider more of the defendant’s situation, though it does not simply accept the defendant’s personal moral defects or violent temperament as controlling.

The MPC approach reflects a more flexible view of human emotional crisis. But it still requires a reasonable explanation or excuse. Extreme emotion alone is not enough.

Involuntary manslaughter generally involves an unintentional killing caused by criminal negligence, recklessness, or an unlawful act not amounting to felony murder. The exact standard varies by jurisdiction.

Criminal negligence requires more than ordinary civil negligence. It usually requires a gross deviation from the standard of care and a substantial risk of death or serious bodily injury. The defendant may not actually perceive the risk, but the failure to perceive it is seriously blameworthy.

Reckless manslaughter requires conscious disregard of a substantial and unjustifiable risk. The defendant actually recognizes the risk and disregards it. This is more culpable than negligence, but less culpable than depraved-heart murder when the risk and indifference do not rise to the murder level.

Examples may include grossly unsafe driving, mishandling firearms, leaving a child in a dangerous situation, or causing death through reckless conduct. The facts must show more than a simple accident.

D drives 80 miles per hour through a residential street while texting and runs a stop sign, killing a pedestrian. Depending on the jurisdiction and facts, this may support involuntary manslaughter based on recklessness or criminal negligence. If the conduct is extreme enough to show indifference to human life, prosecutors may argue depraved-heart murder.

The grading depends on the degree of risk and culpability.

Misdemeanor manslaughter, sometimes called unlawful-act manslaughter, may apply when a death occurs during the commission of a misdemeanor or non-felony unlawful act.

The doctrine is less severe than felony murder. It does not automatically convert the death into murder. Instead, the unlawful act may supply the basis for manslaughter liability if the death results from the act.

Jurisdictions limit the doctrine in different ways. Some require that the misdemeanor be dangerous or malum in se, meaning wrong in itself. Others require proximate causation or foreseeability. Minor regulatory violations may not be enough if the death is remote or unforeseeable.

For example, if a defendant commits a dangerous misdemeanor assault and the victim dies, involuntary manslaughter may be possible. If a defendant commits a minor licensing violation and an unrelated death occurs, the doctrine is much weaker.

Every homicide requires proof that the defendant caused the victim’s death. Causation includes actual cause and legal cause.

Actual cause usually asks whether the death would have occurred when and how it did but for the defendant’s conduct. If the defendant shoots the victim and the victim dies from the wound, actual cause is satisfied.

Legal cause asks whether the death is sufficiently connected to the defendant’s conduct to justify criminal liability. Intervening events may complicate the analysis.

Medical treatment generally does not break causation unless it is extraordinarily abnormal and becomes the sole cause of death. Rescue efforts usually do not break causation. Victim reactions to danger usually do not break causation if they are foreseeable.

The old common-law “year and a day” rule required death to occur within a year and a day of the injury. Many jurisdictions have abolished or modified the rule. On an exam, follow the rule stated in the problem. If no rule is stated, mention the traditional rule briefly only if timing is relevant.

In homicide, causation matters even when mens rea is obvious. A defendant may intend to kill, but the prosecution must still prove the defendant legally caused the death charged.

Consider several variations.

First, Defendant points a gun at Rival and fires directly at Rival’s chest intending to kill. Rival dies. This is likely intent-to-kill murder. If the jurisdiction requires premeditation and deliberation for first-degree murder, the facts must be examined for planning, reflection, and cool decision-making.

Second, Defendant fires into a house without knowing exactly who is inside, but aware that people are likely present. A person dies. This may support depraved-heart murder if the conduct showed extreme indifference to human life. The defendant may not have intended a particular death, but firing into an occupied home creates a grave risk.

Third, Defendant discovers a spouse in a legally recognized provocative situation and immediately kills in a rage. The prosecution may charge murder, but the defense may argue voluntary manslaughter based on heat of passion. The analysis should address adequate provocation, actual provocation, cooling time, and actual cooling off.

Fourth, Defendant accidentally kills someone while driving with gross negligence. There may be no intent to kill and no malice, but involuntary manslaughter may apply if the conduct was a gross deviation from reasonable care creating a substantial risk of death.

Fifth, Defendant commits robbery, and during immediate flight a victim dies from a foreseeable struggle. Felony murder may be argued if robbery is a qualifying felony, the death occurred during the felony or flight, merger does not bar the predicate, and causation is satisfied.

A strong homicide answer should move carefully.

First, identify the death and the defendant’s act. Second, analyze causation. Third, identify possible murder theories: intent to kill, intent to inflict serious bodily injury, depraved heart, and felony murder. Fourth, consider grading, such as first-degree murder if premeditation is present. Fifth, consider mitigation to voluntary manslaughter. Sixth, consider involuntary manslaughter if the killing was unintentional. Seventh, discuss defenses such as self-defense, defense of others, insanity, duress where available, or accident. Finally, conclude with the most likely grade and alternatives.

Do not assume only one theory applies. Prosecutors often charge in the alternative, and exams often reward discussion of multiple plausible grades.

Homicide is the killing of one human being by another, but not every killing is murder. Homicide may be criminal or noncriminal, justified or excused, intentional or accidental, murder or manslaughter.

At common law, murder is the unlawful killing of another human being with malice aforethought. Malice traditionally includes intent to kill, intent to inflict serious bodily injury, depraved-heart recklessness, and felony murder. Premeditation and deliberation may elevate intentional murder to first-degree murder under many statutes.

Felony murder imposes murder liability for deaths caused during qualifying felonies, traditionally burglary, arson, rape, robbery, and kidnapping. Important limits include inherently dangerous felony requirements, merger, timing during the felony or immediate flight, causation, foreseeability, and the distinction between agency and proximate-cause theories.

Voluntary manslaughter is an intentional killing mitigated by legally adequate provocation or extreme emotional disturbance. Common-law heat of passion requires adequate provocation, actual provocation, no reasonable cooling time, and no actual cooling off. The Model Penal Code’s extreme emotional disturbance standard is broader.

Involuntary manslaughter generally involves unintentional killing caused by criminal negligence, recklessness, or an unlawful act not amounting to felony murder. Criminal negligence requires more than ordinary civil negligence. Reckless manslaughter requires conscious disregard of a substantial and unjustifiable risk.

Homicide always requires causation of death. The defendant must be both an actual and legal cause of death. Foreseeable medical treatment, rescue, and victim reactions usually do not break causation; extraordinary unrelated events may.

The key lesson is careful grading. A strong homicide answer separates murder theories, manslaughter mitigation, felony murder limits, causation, and defenses before reaching a conclusion.