Murder/Voluntary Manslaughter
2) Intent to inflict great bodily harm
3) Malignant/depraved heart (Gross Recklessness)
4) Felony Murder
What is the difference between Murder and Manslaughter?
Murder is the killing of another human being with malice.
Murder without malice is manslaughter.
What is criminal negligence involuntary manslaughter?
A killing that occurs due to a gross deviation from the standard of care a reasonable person would observe in defendant’s situation that goes beyond civil negligence but is NOT enough to be considered gross recklessness/negligence (depraved/malignant heart)
What is misdemeanor-manslaughter?
A killing that occurs during the perpetration of an inherently dangerous misdemeanor. Like Felony-Murder, but based on a misdemeanor.
A few jurisdictions also include non-inherently dangerous felonies as the basis for conviction of a misdemeanor manslaughter.
A death which is foreseeable and occurs during the perpetration, or attempted perpetration, of an inherently dangerous common law felony.
BARTRACM crimes (Burglary, Abduction {kidnapping}, Rape, Train wrecking, Robbery, Arson, Car Jacking, Mayhem)
What is the different mens rea requirement between first degree murder and second degree murder?
First degree murder: Malice – premeditated and deliberate intent to kill OR *certain types of felony murder
Second degree murder: MALICE: *non-premeditated or deliberate intent-to-kill OR *intent-to-inflict-serious- bodily-harm OR *certain types of felony murder OR *recklessness-with-depraved indifference (malignant/depraved heart)
What is the mens rea requirement for voluntary manslaughter?
NO MALICE: *Mitigation from 1st or 2nd degree murder (intent-to-kill or intent-to- inflict-serious-bodily-harm murders ONLY) using *provocation OR *diminished capacity
What is the test to determines if gross recklessness?
Step 1 – Did the defendant realize the risk to human life?
If yes, then defendant acted with recklessness
Step 2 – Was defendant's recklessness particularly egregious or gross?
To make this determination, you need to consider whether there was any good reason ∆ took the risk and how extreme that risk was?
Look at the costs of behavior v. the benefits.
What is the mens rea requirement for involuntary manslaughter?
NO MALICE: *Mitigation from 1st or 2nd degree murder (felony or depraved/malignant heart murders only) OR *criminal negligence OR *misdemeanor-manslaughter
What are the defenses to Felony Murder?
1) defense to the underlying felony
2) felony is assault based
3) death was not foreseeable
4) reaching a point of apparent safety
5) felony is not inherently violent
6) co-felon issues
What are the mitigations that go from first degree to second degree murder?
Caruso Standard – provocation (a partial defense) (only if subjectively provoked, but a reasonable person would not have been provoked.) At common law, provocation would eliminate malice and reduce a killing to a voluntary manslaughter due to the provocation sending defendant into a heat of passion.
Wolff Standard – diminished capacity. At common law, it mitigates murder to manslaughter since the lack of mental capacity just short of insanity either as a result of some mental disease or defect, some injury to the head, or voluntary intoxication that would reduce the ability of ∆ to significantly reason like a normal person.
What are the differences between murder in the first degree and murder in the second in the second degree?
1) Out of the 4 types of malice, 2 always end up in only Second Degree
a) Intent to commit serious bodily injury
b) Depraved/malignant heart (gross recklessness)
2) The other 2 types of malice could result in the First or Second
a) Intent to Kill
i) If premeditated and deliberate – FIRST DEGREE
ii) If NOT premeditated and deliberate – SECOND DEGREE
iii) If honestly, but unreasonably provoked (Caruso Standard) – Second Degree
iv) If premeditated and Deliberate, but NOT maturely reflected (Wolff Standard) – SECOND DEGREE
b) Felony Murder in CA:
i) If inherently dangerous AND listed – FIRST DEGREE
ii) If inherently dangerous and NOT listed – SECOND DEGREE
What are the two main differences between criminal negligence/involuntary manslaughter and second degree murder of malignant/depraved heart of the gross recklessness?
1) Matter of degree: Engage in careless action which is criminally negligence, but still not reckless of second degree murder (second degree murder example: driving really fast while drunk in a really bad rainstorm)
2) Malice – subjective awareness of the danger created. 2nd Degree Murder – need objective and subjective test. Manslaughter – can only establish objective awareness.
Objective – establish high degree of risk
Subjective - ∆ must have known of risk. (Look at the circumstances – jury could conclude ∆ was too stupid to actually know, then go to manslaughter.
What is the checklist when approaching a felony murder exam question?
1) Who did the killing? Majority: agency theory or Minority: proximate cause theory
2) Who was killed? Majority: Washington rule or Minority: Redline rule
3) When did it occur?
4) Did it further the felony? Unanticipated acts by a co-felon not in furtherance of the common purpose of the felony may not be charged under the felony-murder doctrine.
What are the two tests for liability based on who did the killing?
Majority – Agency Theory – only deaths directly caused by the defendant or a co-felon qualified for prosecution under the felony-murder rule.
Minority – Proximate Cause theory – the felon may be responsible for any death proximately resulting from the unlawful activity.
Are words enough to use provocation as a defense?
Words may be enough for provocation – insulting language can never qualify as reasonable provocation but descriptive and dangerous language can qualify because they can be viewed as a threat of an attack, which can justify self-defense.
RULE – It doesn’t have to be one momentary thing that’s done, it can be a slow build up that has the culminating effect of causing the heat of passion at a given moment in time.
What are the elements of provocation?
1) If a reasonable person would have been provoked;
2) If defendant was provoked;
3) If a reasonable person at the time ∆ acted would not have yet cooled; AND
4) If defendant himself had not yet cooled.
For 2nd degree murder, malignant/depraved heart, what are the things the government must show?
1) the conduct of defendant esposed a high degree of risk to human life and safety;
2) no social value to the conduct;
3) defendant intentionally engaged in the reckless conduct; and
4) defendant must subjectively have been aware that his intentional conduct had a high degree of risk to human life and safety.
For it to be a part of felony murder, when does it have to occur?
During the course of the felony – the death must occur “during the course” of the felony and this includes killings that take place during a felon’s attempted escape.
Duration of the Felony – Courts differ as to when the felony beings and ends; typically, the felony begins when the defendants begin preparation for the crime and does not end until ∆s are in custody or have reached a position of “temporary safety.”
What is the Ireland rule /Merger rule?
IRELAND RULE/MERGER RULE – Assault-based felonies do NOT apply to the felony murder rule; the underlying felony must be independent of the homicide (Mayhem is the only exception.); certain underlying felonies (assault based ones) merge with the homicide and CANNOT be used for the purposes of felony murder.
RATIONALE – the purpose of felony murder is to use independent felonies, otherwise it would be illogical because it would eliminate all manslaughter and give the prosecution too much power to always file the case on felony murder theory.
**This is different than misdemeanor manslaughter – Assault-based felonies are NOT allowed to be used under FM, but assault-based misdemeanors are allowed to be used under the misdemeanor manslaughter rule. This is because we wouldn’t have to eliminate all of manslaughter with the misdemeanor manslaughter, whereas we do with the assault-based felonies since manslaughter is itself a felony.
Provide a case showing diminished capacity.
People v. Wolff
1) FACTS - defendant convicted of killing his mother for a bizarre sexual scheme. Although it was premeditated and deliberate, defendant had a real mental problem short of insanity. Caruso Standard did not apply because his subjective belief was not provoked by the victim.
2) HOLDING – Court held that defendant himself subjectively did not qualify for the first-degree murder because he did not possess the ability to maturely reflect due to his age and some mental disability. Mitigated down from first to second degree murder.
a) Here, 1st degree is being treated as a specific intent crime and defendant can still be guilty of 2nd degree because the law treats it like a general intent crime. It can also be brought down from 2nd degree murder.
3) Court Looked to the defendant himself and his subjective beliefs when determining whether he had the mental capacity to maturely reflect on his actions.
4) CA NO LONGER ALLOWS WOLF STANDARD
Provide one case showing provocation.
People v. Berry
1) FACTS - ∆ convicted of first degree murder for killing his wife by choking her with a phone cord as a result of her taunting about adultery.
2) HOLDING – Court reversed the conviction because mere words CAN be enough for reasonable provocation.
3) RULE – Mere words can constitute reasonable provocation when a reasonable person would have been thrown into a heat of passion.
a) No longer do you have to see the actual provoking act.
b) No longer does it have to make you insane and make you lose your mind.
c) Microaggressions and descriptive provocation can be enough to satisfy provocation
People v. Caruso
1) FACTS - ∆ was convicted of 2nd degree murder for killing his son’s doctor. Provocation here was that the doctor killed the child by commission (giving the wrong medication) and omission (failing to show up to treat the child when he was supposed to). ∆ was provoked by his subjective belief that the doctor killed his son AND he had not yet cooled.
2) HOLDING – Remanded back down to Trial Court
3) RULE – Caruso Standard – see above
a) If a reasonable person would be provoked – NO
b) If defendant was provoked – YES
c) If a reasonable person at the time ∆ acted would not have yet cooled – YES
d) If defendant himself had not yet cooled – YES
4) RULE – This court created a semi-mitigation because Provocation standard was not met.
Provide one case showing second degree depraved/malignant heart murder.
Commonwealth v. Malone (Russian poker)
1) FACTS - defendant was convicted of 2nd degree murder for killing another boy while playing “Russian Poker.” While holding a gun up to the victim’s side, defendant pulled the trigger 3 times, whereby the third one shot and killed the victim. Court held that even though defendant honestly believed that the gun would not go off, his conduct (playing Russian Poker) exposed such a high risk of serious injury that he was considered grossly reckless.
2) RULE - defendant is guilty of 2nd degree murder, even if he never intended to kill or seriously injure the victim (only intentionally pulled the trigger). It is enough that he KNEW his conduct involved an unacceptably high risk of death.
People v. Register – liable because voluntarily drunk.
1) FACTS - defendant is drunk in a crowded bar. After his friend got into an argument with someone, defendant shoots and kills 2 people. The prosecution charged defendant with malignant heart murder instead of intentional murder because (1) there was no premeditation and deliberation, and (2) they wanted to prevent defendant from using his intoxication as a defense since this JDX doesn’t allow for intoxication as a defense to a reckless crime. Since defendant was carrying a gun in the first place, he bears more than just negligent liability. If defendant was allowed to argue his intoxication as a form of diminished capacity under an intentional killing, he would only have been guilty of voluntary manslaughter.
2) HOLDING – This court concluded that it does NOT matter at which point you acted intentionally, as long as you voluntarily got drunk, then you are liable. If the origin starts with voluntary intoxication then you do not have diminished capacity defense.
Pears v. State
1) FACTS - ∆ was convicted of 2nd degree murder for killing two people in an accident while driving drunk. Even after being warned by cops not to drive since he was too drunk, he still got in his truck and drove at high speeds through traffic lights. However, ∆ had never previously been convicted of drunk or reckless driving. Court still found ∆ guilty of 2nd degree murder because he was put on NOTICE by the cops. His intentional acts were drinking and then getting behind the wheel, and also driving through a traffic light.
2) RULE – two reasons why a ∆ would get murder for DD instead of manslaughter
Repeated offenses (charged with DD over and over)
They KNOW they’re a DD and should be more careful (i.e. being put on notice that you’re drunk)
***This was the first time we see a ∆ convicted of a murder of a malignant heart for DRUNK DRIVING; historically, treated as involuntary manslaughters (criminal negligence).
Provide a case showing inherently dangerous felony limitations.
People v. Phillips
FACTS - defendant, a chiropractor, faced murder charges after he defrauded a child’s parents into paying him for her treatment instead of opting for potentially life-saving surgery. One of the theories available to the jury was felony murder.
HOLDING – The court reversed defendant’s conviction for second degree murder because the underlying felony, grand theft, was not inherently dangerous to human life.
What are the two tests for liability based on who was killed?
Majority – Washington RULE – A felon is guilty for ANY killing, including that of his co-felon, as long as he himself has done something beyond the normal commission of the felony that creates a danger to human life or safety.
Minority – Redline Rule – CA- Approach – Will be felony murder if felon does something to really escalate the situation.
Washington: CA RULE – Felony murder if death came from barrel of felon’s own gun; if felon sufficiently escalated the situation in a really dangerous way.
As long as he himself has done something beyond the normal commission of the felony that creates a danger to human life or safety.
Broader than Redline, because it allows ∆ to be guilty even when the killing was committed by others (cops, Victims)
Narrower than Redline, because unless the felons do something to escalate the situation, just a death that occurs will not allow for the felony murder rule to apply.
***So, felonies that wouldn’t be FM under Redline, are FM under this case. Washington Rule expanded potential coverage to include non-defendant victims as well. If an innocent victim dies during the felony by someone other than the D - ∆ will be responsible if he escalated the crime into a risky area.
REDLINE RULE – Agency Theory: if a co-felon dies from a bullet fired from resistance by the victim or from police pursuit, the surviving felon cannot be held liable for felony murder; justifiable kills cannot result in ∆ being held criminally liable. Traynor Rule.