MBE Criminal Law - Homicide

Unlawful killing;

Of a human being;

With malice aforethought

Actus reus: the act that results in death of another human being

Mens rea: malice, either express (e.g. intent to kill) or implied (e.g. felony murder)

Express malice

Implied malice

Either with:

Intent to kill (express);

Intent to inflict grievous bodily harm (implied);

Reckless disregard for human life (implied); or

Intent to commit a felony (implied)

Acting with the purpose to kill or the knowledge that it is substantially certain death will result

Intent to cause serious bodily harm without an intent to kill

Reckless or grossly negligent conduct;

That creates an extreme risk to others; and

Demonstrates a wanton indifference to human life

Unintentional and foreseeable killing;

Proximately caused during the attempt, commission, or flight from;

An inherently dangerous felony (remember BARRK)

Felonies that create a substantial risk of death or serious bodily harm.

Common: “BARRK”

Burglary

Arson

Robbery

Rape

Kidnapping

Also, felonious escape (MPC only)

Inherently dangerous felonies can be identified by statute and/or through case law

Yes

The felony murder rule cannot apply unless the underlying elements of the felony are distinct from the murder.

For example, if D is involved in a battery in which the victim is killed, D cannot be charged with felony murder because the elements of battery are incorporated (i.e. merged) into the elements of murder. Generally, this doctrine arises when the underlying felony is one that causes injury.

During:

Attempt of the felony;

Commission of the felony; and

After the commission of the felony

Only when the felon has reached a temporary place of safety

Yes, as long as D has not yet reached a place of safety

⭐️ This scenario typically arises during escape

Agency/”in furtherance of” approach: A co-conspirator is liable for all killings by co-felons

For example, if one co-felon shoots and kills a bank patron during the commission of a robbery, all co-felons are liable

Proximate cause approach: Co-felons are liable for deaths during the felony as long as the death was reasonably foreseeable. This includes liability for deaths caused by police officers, bystanders, or others.

⭐️ Note: This is a much broader view of liability than the majority approach.

Who, if anyone, is liable for felony murder?

Answer: In a majority jurisdiction, no one is liable for felony murder because the killing was not committed by any of the co-felons.

In a minority jurisdicition, A, B, & C would be liable for felony murder because the killing was a reasonably foreseeable consequence of a robbery.

No, but the MPC considers the commission of a felony to presume an intent of reckless disregard for human life

No, degrees are only recognized in statutes

⚠️ Note: If you see degrees on an MBE question, look for an appropriate statute in the question

Killing that is premeditated and deliberate and some felony murders

⭐️ Specific intent crime

Activities planning the murder (ex. googling methods of killing)

Evidence showing motive

Killing in a manner that shows D must have pre-planned the method

False, many courts would consider a minimal amount of time to be sufficient if pre-planning can be proved

Killing with malice but without premeditation and deliberation

Murders without premeditation

Murder resulting from intent to cause serious bodily harm

Murders committed with reckless indifference to human life

Some felony murders not otherwise classified as first degree

Voluntary manslaughter (intent to kill); and

Involuntary manslaughter (no intent to kill)

An intentional killing that has been downgraded due to mitigating factors such as:

Adequate provocation ("heat of passion");

Imperfect self-defense; or

Diminished capacity

D acted in response to provocation that would have lead an ordinary, reasonable-person to lose self control;

There was insufficient time to cool off (subjective standard); and

D had not cooled off and was "in the heat of passion" at the time of the killing

No, "heat of passion" only downgrades murder into manslaughter

D is a victim of a serious (more than trivial) battery;

D sees spouse engaged in sexual conduct with another person; or

D observes the serious physical injury of a close family member

False: it only needs to be such that a reasonable person would lose their temper

No

Typically no.

But if the words contain information that would cause a reasonable person to lose control, they may suffice for adequate provocation (ex. Max tells Ian, "I forgot to tell you, I'm the one who murdered your mother last week")

Yes, as long as the facts, if they had been true, would have caused a reasonable person to lose control

Used as a partial defense to murder when D is not entitled to the complete defense because of an honest, but unreasonable mistake as to the necessity of D's actions

D was unreasonably mistaken about the danger;

D was unreasonably mistaken about the need for deadly force; or

D was the aggressor

Killing committed with gross negligence (criminal); or

Killing during the commission of a misdemeanor or other unlawful act

Lack of care that shows willful (conscious), wanton, and reckless disregard for the safety or lives of others; substantially deviates from the standard of care (much more than ordinary negligence)

An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is either:

Malum in se (evil in and of itself)

Malum prohibitum (death is a natural and foreseeable consequence of the act)

Crime punishable by fines, imprisonment for one year or less, or both

No

When the police officer is attempting an arrest and the individual does not know it is a police officer

Yes, if the accelerating factor is the actual cause of death