20.1 Homicide: Murder, Felony Murder & Manslaughter

20.1 Homicide: Murder, Felony Murder & Manslaughter

Homicide questions usually turn on the defendant's mental state. Identify whether the facts show malice aforethought (murder), a mitigating circumstance for an intentional killing (voluntary manslaughter), or only criminal negligence or an unlawful act (involuntary manslaughter), and then check felony murder separately.

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Homicide is the killing of one human being by another. At common law, criminal homicide is divided into Murder, Voluntary Manslaughter, and Involuntary Manslaughter. Distinguishing among these offenses requires a rigorous analysis of the defendant's mental state, the presence of provocation, and the strict rules governing proximate causation.

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Homicide Classification Decision Tree

                         HOMICIDE CLASSIFICATION DECISION TREE

                               ┌────────────────────────┐
                               │   UNLAWFUL KILLING     │
                               └───────────┬────────────┘
                                           │
                    ┌──────────────────────┴──────────────────────┐
                    ▼                                             ▼
        ┌─────────────────────────┐                   ┌─────────────────────────┐
        │   MALICE AFORETHOUGHT   │                   │    NO MALICE PRESENT    │
        │       (MURDER)          │                   │     (MANSLAUGHTER)      │
        ├─────────────────────────┤                   ├─────────────────────────┤
        │ 1. Intent to Kill       │                   │ 1. Adequate Provocation │
        │ 2. Grievous Bodily Harm │                   │    or Imperfect Self-   │
        │ 3. Depraved Heart       │                   │    Defense              │
        │ 4. Felony Murder (BARRK)│                   │    ──► VOLUNTARY        │
        └───────────┬─────────────┘                   │        MANSLAUGHTER     │
                    │                                 │ 2. Criminal Negligence  │
       ┌────────────┴────────────┐                    │    or Unlawful Act      │
       ▼                         ▼                    │    ──► INVOLUNTARY      │
┌──────────────┐          ┌──────────────┐            │        MANSLAUGHTER     │
│ FIRST-DEGREE │          │SECOND-DEGREE │            └─────────────────────────┘
├──────────────┤          ├──────────────┤
│• Premeditated│          │• Depraved    │
│  & deliberate│          │  heart       │
│• BARRK felony│          │• Grievous    │
│• Heinous mean│          │  harm murder │
│  (poison)    │          │• Unpremedita-│
└──────────────┘          │  ted intent  │
                          └──────────────┘

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Common Law Murder: Malice Aforethought

Common law murder is defined as the unlawful killing of a human being with malice aforethought. Malice aforethought does not require hatred or advance planning; it is a legal term of art satisfied by any of four distinct mental states:

1. Intent to Kill (Express Malice)

• The defendant possesses the conscious purpose or desire to cause the victim's death, or knows that death is practically certain to result.
• Deadly Weapon Doctrine: An inference of intent to kill arises from the intentional use of a deadly weapon directed at a vital part of the human body (e.g., firing a gun at a victim's chest, stabbing a victim in the neck).

2. Intent to Inflict Serious / Grievous Bodily Harm

• The defendant acts with the conscious objective or knowledge that their conduct will cause severe bodily injury (such as permanent disfigurement, organ loss, or protracted impairment), even without intending to cause death.
• If death results from such an assault, the killing is common law murder.

3. Depraved Heart Murder (Extreme Recklessness)

• Characterized by an 'abandoned and malignant heart'—a reckless indifference to an unjustifiably high risk to human life.
• The defendant does not necessarily desire death, but acts with conscious disregard of a grave risk of death under circumstances demonstrating complete callousness toward human life.
• Classic Examples: Firing multiple gunshots into an occupied passenger train or crowded banquet hall; dropping heavy concrete blocks from an overpass into fast-moving highway traffic; playing Russian roulette with another person.

4. The Felony Murder Rule (FMR)

• An unlawful killing that occurs during the commission or attempted commission of an inherently dangerous felony.
• Malice is Imputed: The intent to commit the underlying dangerous felony substitutes for malice aforethought. The prosecution need not prove intent to kill, intent to injure, or recklessness regarding the homicide.

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Statutory Degrees of Murder

At common law, all murder was of a single grade. Modern statutes divide murder into degrees:

First-Degree Murder

Typically established under three statutory theories:

1. Premeditated and Deliberate Intent to Kill: The defendant acted with premeditation (thought about the killing beforehand, even for a brief moment of cool reflection) and deliberation (with a cool, dispassionate mind, not in the throes of sudden emotion).
2. Statutory Felony Murder: A killing occurring during an enumerated, inherently dangerous felony specified by statute (traditionally the BARRK felonies: Burglary, Arson, Robbery, Rape, Kidnapping).
3. Heinous Means: Killings perpetrated by poison, torture, lying in wait, ambush, or explosives.

Second-Degree Murder

All other common law murders that do not meet the statutory criteria for first-degree murder are second-degree murder. This includes:

• Depraved heart murder;
• Intent to inflict serious bodily injury murder;
• Non-premeditated, sudden intentional killings (without adequate provocation);
• Felony murder where the predicate felony is inherently dangerous but not enumerated in the first-degree statute.

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The Felony Murder Rule: Critical Limitations

The MBE heavily tests five doctrinal limitations on the Felony Murder Rule:

1. Inherently Dangerous Predicate Felony (BARRK)

The underlying felony must be dangerous to human life by its very nature. The classic common law felonies are Burglary, Arson, Robbery, Rape, and Kidnapping.

2. The Merger Doctrine (Independent Felony Rule)

The underlying felony must be independent of the homicide itself. If the felony is an integral part of the homicide (e.g., aggravated battery, assault with a deadly weapon, or manslaughter), it merges into the killing and cannot serve as the predicate for felony murder. To allow assault to serve as a predicate would eliminate manslaughter and the requirement of malice for nearly all homicides.

3. Immediate Flight & Temporary Safety

The homicide must occur during the perpetration or attempted perpetration of the felony, or during immediate flight. Once the felons reach a point of temporary safety, the felony is legally terminated, and subsequent homicides are not felony murder.

4. Foreseeability of Death

The death must be a natural and foreseeable consequence of the felony.

5. Liability for Killings by Non-Felons: Agency vs. Proximate Cause

When a police officer, security guard, or resisting victim fires a weapon that kills someone, jurisdictions divide:

• Agency Theory (MAJORITY RULE): The felon is liable for felony murder only if the lethal act was committed by a felon or an agent of the criminal conspiracy. If a police officer shoots and accidentally kills a bystander or a co-felon, the surviving felons are not guilty of felony murder, because the shooter was not their agent.
• Proximate Cause Theory (MINORITY RULE): Felons are liable for any death that is proximately caused by the felony, even if the fatal shot was fired by a police officer or resisting victim.
• The Redline Rule: Even in proximate cause jurisdictions, felons are generally not liable for the death of a co-felon who is lawfully killed by police or a victim during the felony (justifiable homicide of an aggressor).

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Voluntary Manslaughter: Mitigated Homicide

Voluntary manslaughter is an intentional killing that would otherwise constitute murder, but is mitigated because the defendant acted in the heat of passion resulting from adequate provocation, or under an imperfect self-defense.

1. Adequate Provocation (Heat of Passion)

Mitigation requires four cumulative elements:

1. Objective Provocation: The provocation must be calculated to inflame the passion of a reasonable person and cause them to act from passion rather than reason (e.g., discovery of a spouse in the act of adultery, extreme physical battery). Mere words alone, no matter how insulting or abusive, are never adequate provocation at common law.
2. Subjective Provocation: The defendant was actually provoked and in a state of passion at the time of the killing.
3. Objective Cooling-Off Period: There was insufficient time between the provocation and the killing for a reasonable person's passions to cool.
4. Subjective Failure to Cool Off: The defendant did not actually cool off during the intervening time.

2. Imperfect Self-Defense

Recognized in many jurisdictions: if the defendant killed with an honest but unreasonable belief that deadly force was necessary to protect against imminent death or serious bodily harm, or if the defendant was the initial aggressor, murder is mitigated to voluntary manslaughter.

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Involuntary Manslaughter: Unintentional Killings

Involuntary manslaughter involves an unintentional killing without malice aforethought, arising under two doctrines:

1. Criminal Negligence: The killing results from gross negligence—a gross deviation from the standard of care that a reasonable person would observe in the situation. This requires significantly more blameworthiness than ordinary civil tort negligence, but does not reach the depraved heart indifference to human life required for murder.
2. Misdemeanor-Manslaughter (Unlawful Act Rule): A killing committed during the commission of an unlawful act not amounting to an inherently dangerous felony (such as a malum in se misdemeanor or a non-dangerous felony), where death was a natural consequence.

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Homicide Tree: Malice Types, Degrees, and Manslaughter Reductions

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More on Homicide

The Model Penal Code Approach

• Murder (MPC § 210.2): A killing committed purposely or knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. Recklessness and extreme indifference are presumed if the actor is engaged in robbery, rape, arson, burglary, kidnapping, or felonious escape—so the MPC replaces the felony murder rule with a rebuttable presumption.
• Manslaughter (MPC § 210.3): A reckless killing, or a killing that would be murder but is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, judged from the viewpoint of a person in the actor's situation under the circumstances as the actor believes them to be. Unlike the common law, the MPC does not require a specific provoking act or bar words alone.
• Negligent homicide (MPC § 210.4): A killing committed negligently.

Provocation Details

• Recognized categories: Traditional adequate provocation includes a serious battery, mutual combat, discovering a spouse in the act of adultery, and serious violence against a close relative. Some modern courts accept informational words—such as a sudden confession of adultery—while others adhere to the rule that words alone are never enough.
• Rekindled passion: A new provocation, or a sudden reminder of an earlier one, can rekindle passion even after a cooling period.
• Misdirected killings: If a provoked defendant tries to kill the provoker but kills a bystander, most courts still treat the killing as voluntary manslaughter.

More Felony Murder Rules

• Co-felon as shooter: Under the agency theory, all felons are liable when one felon kills a bystander during the felony.
• Shields and gun battles: When a felon uses a hostage as a shield or starts a gun battle and police kill an innocent person, many courts impose murder liability based on the felon's own malicious conduct (the "provocative act" doctrine), even in agency jurisdictions.
• Attempts: A killing during an attempted felony can support felony murder, but there is no crime of attempted felony murder.
• Death penalty limits: A felony-murder accomplice who did not kill, attempt to kill, or intend to kill may not be sentenced to death unless he was a major participant who acted with reckless indifference to human life (Enmund v. Florida, 1982; Tison v. Arizona, 1987).

Other Homicide Rules

• Eggshell victims: If a defendant's battery triggers the death of a victim with a hidden heart condition, the defendant is the legal cause of the death; the mental state determines the grade of homicide.
• Year-and-a-day rule: The common-law rule that death must occur within a year and a day after the injury has been abolished in most jurisdictions, and courts may abolish it retroactively (Rogers v. Tennessee, 2001).
• Consent and mercy killing: A victim's consent to being killed and a merciful motive do not reduce murder to a lesser crime at common law.