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CrimLaw: Cat I: Homicide (A. Intended killings) – MBE: 1-2 Qs – MEE: 0/22 exams (0%) – JULY 2018 MBEMEE PRIORITY: HIGH-LOW – REVIEW: ONCE A WEEK 1.

Homicide a. Significant Points (i) Murder is the killing of another human being with malice aforethought (intent to kill). (a) “Another human being” – victim must be human (NOTE: unborn child can be victim of a homicide crime) (b) Malice aforethought requirement is satisfied if D: (i) intends to kill; (ii) intends to inflict serious bodily harm; (iii) has a reckless indifference to human life; OR (iv) kills during the intentional commission of an inherently dangerous felony (4) Mens rea usually determines type of homicide and punishment (5) Death must be the natural and probable consequence of the act

HYPO: If a D fires a gun in the air, and it causes V to become frightened and run into the street where V is killed by a car, D is not liable for murder but for manslaughter.

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(ii) Inevitable consequences – if you hasten the death of another, you have committed murder, even if that person was going to conclusively die anyway (iii) Mercy killings – assisting in the inevitable death of another is a crime regardless of its underlying noble motive. (a) If D merely furnishes the means to kill, D can be found guilty of manslaughter or aiding a suicide (e.g. D sets up a suicide machine, but V has to trigger it himself) (b) If D actively participates in the death of the suicide victim, he is guilty of murder (e.g. wife can be convicted of 1st degree murder for a mercy shooting of her terminally ill husband b/c there is premeditation) (iv) MBE terminology (a) On MBE, 1st degree murder is labeled as such, or given set of statutes that define it as a 1st degree murder (b) If the word "murder" is used on the MBE without specification, it is regular common law murder which is second degree murder (malice crime so you can’t use the additional specific intent defenses available for 1st degree murder). (c) Capital murder – D commits 1st degree murder with aggravating circumstances (e.g. killing a police officer) making D eligible for the death penalty Intentional killings (1st degree murder/homicide) – Prosecutor must prove the following to obtain a conviction: (i) Willful Act – Defendant must have specifically intended to cause the death. (a) Intent to kill can be inferred – e.g. if D deliberately swings a baseball bat at victim's head, intent to kill is inferred even if the D argues he had no intent to kill (b) If there is no intent to kill, but only an intent to inflict serious bodily harm, it is 2nd degree murder which is an unintentional homicide. (ii) Premeditation – D thought about the Act beforehand (no impulsive act). (f) Most jux require there be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. (1) true test of premeditation/deliberation is not the duration of time, but the extent of the reflection. (2) Factors that suggest premeditation include: (i) Motive (money, hatred, revenge); (ii) Prior threats/hostility; (iii) Interruption/continuation of killing; (iv) Stalking victim beforehand; and/or (v) Bringing murder weapon to the scene. (g) Presumption of premeditation exists for certain homicides (e.g. homicides perpetrated by poison or torture or after lying in wait for the victim). (iii) Deliberation – D had a cool mind, not acting out of an immediate passion, fear, or rage. Deadly weapon doctrine – intent to kill is raised through the intentional use of any instrument which, judging from its manner of use, is calculated to produce death or serious bodily injury (e.g. D deliberately swings baseball bat at victim's head) (i) whether a weapon is deadly depends upon: (i) what it intrinsically is; and (ii) how it is used. (ii) items held to be deadly weapons in view of the circumstances of their use: loaded guns, daggers, swords, axes, iron bars, baseball bats, bricks, rocks, ice picks, bowling balls, and automobiles. Transferred intent – if D intends to harm V1, but accidentally harms a different person instead, D's intent will transfer from the intended victim V1 to the actual victim V2 (i) D is liable for the completed crime and the attempt against the original victim

HYPO: D shoots at V1, intending to kill him. V1 moves and D's bullet strikes V2 instead, killing him. D is guilty of V2's murder b/c the intent to kill V1 transfers to V2. D is also guilty of attempted murder against V1 b/c D intended to kill V1 (two victims, so no merger). (ii) transferred intent applies mainly to homicide, but also occurs with battery & arson. (iii) Exception: transferred intent does NOT apply to attempts, only to COMPLETED crimes

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HYPO: D shoots at V1, intending to kill him. V1 moves and D's bullet strikes V2 instead, injuring him. D is guilty of attempted murder against V1, but D is NOT guilty of attempted murder against V2 b/c the crime is incomplete since V2 did not die, so intent to kill V1 does not transfer. e.

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Defenses – voluntary intoxication and mistake of fact defenses available to reduce 1st degree to 2nd degree murder (e.g. depraved heart murder), BUT cannot reduce 1st or 2nd degree murder to manslaughter) Manslaughter a. Voluntary Manslaughter – intentional killing committed in the heat of passion, or where D acts with reasonable adequate provocation (intent + heat of passion + provocation + no cooling time). (i) Requires PASSION (not simmering hatred)for provoked killing; to determine heat of passion: (a) D lost control (subjective standard) – D must be very upset/enraged at the time (b) D had no time to “cool off” between the loss of control and the harm committed (objective standard) (1) May be as little as a few minutes or may be as long as a few hours if D was in a continuous frenzy for the whole period (2) Examples of “cooling off” would be reloading or waiting (c) A causal connection between the provocation, the passion, and the homicide (d) Adequate Provocation (objective test, subjective assessment) (ii) Provocation must come from victim – adequate provocation can be based on adultery (actually observing your spouse in the sex act), serious mutual combat, illegal arrest, serious battery or assault (can’t be trivial), trespass with gestures threatening deadly force, or words that go beyond insult (e.g. words conveying inflammatory information or threats of violence that would inflame the passions of a reasonable person). (iii) EXAMPLE: If D kills his wife's stepfather immediately upon receiving information that the stepfather allegedly sexually molested D’s wife years earlier, D is guilty of voluntary manslaughter. b. Imperfect self-defense – arises when D has an actual subjective belief that he is in apparent imminent danger of death or serious bodily harm, but that belief is not objectively reasonable. (i) Occur when D, in good faith, is mistaken about the necessity of the use of force, OR used too much force under the circumstances (a) Imperfect self-defense requires for there to be an actual and imminent threat. (b) D must honestly but unreasonably believe that deadly force is necessary (unreasonableness can be based on intoxication). (ii) EXAMPLE: D is the initial aggressor, but does not have the intent to kill or seriously injure V, but V escalates the confrontation where it reasonably appears to D to be necessary to kill V. (iii) allows for a mitigation, making the crime a lesser offense, but does NOT allow for complete exoneration (e.g. murder may be downgraded to voluntary manslaughter, and even sometimes involuntary manslaughter). (iv) Court treats the crime committed with an imperfect self-defense on the same level as provocation.

CrimLaw: Cat I: Homicide (B. Unintended killings) – MBE: 1-2 Qs – MEE: 5/22 exams (23%) Avg Pts: 35 – JULY 2018 MBE-MEE PRIORITY: HIGH – REVIEW: THREE TIMES A WEEK 1.

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Intent to injure a. Intent to inflict serious bodily harm (2nd degree murder) – can reduce a murder from 1st degree to 2nd degree by proving that D did not intend to kill, but only intended to cause the victim serious bodily harm. (i) If D causes the victim serious bodily harm using a deadly weapon and the victim dies, jury is permitted to infer that D intended to kill the victim & a 1st degree murder conviction would be warranted. (a) Any device/item likely to produce death/serious bodily injury based on the manner it is used is regarded as a deadly weapon. (b) E.g. A fist could be a deadly weapon if it is used in a way that could cause death or great bodily harm to the victim. (ii) If D intended less than serious bodily harm, the crime is either manslaughter or a form of reckless or negligent homicide. Reckless and negligent killings a. Depraved Heart Murder (Highly reckless murder) (2nd degree murder) – D recklessly engages in conduct that creates a grave risk of death, and thereby causes the death of another (i) D’s reckless indifference must create an unjustifiably high risk to human life. (ii) EXAMPLES: killing that results from firing gun without provocation into a moving train or crowd of people; operating a vehicle at a very high speed near others; placing obstructions on a railroad track; throwing heavy rocks from a roof onto a crowded street; a game of Russian Roulette – survivor is guilty; selling "pure" (i.e. undiluted) heroin that results in the purchaser's death; firing several shots near a home known to be occupied; OR intending to shoot over a victim's head in order to scare him b. Involuntary Manslaughter

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(i) Involuntary Manslaughter – death caused by criminal negligence or an unlawful act that isn’t a felony; occurs when extreme negligence or wanton or reckless conduct by D brings about an unintended or accidental death (a) Killings from criminal negligence (gross or wanton negligent conduct) –...