Murder

Murder
1.
2.
3.

malice (Common Law)

Intent to kill persons conscious object to kill somebody
Intent to inflict grievous bodily harm
Extreme recklessness/depraved heart conscious of risk and knew of
substantial risk of your behavior, and still did it
4. Felony murder committing a dangerous felony and someone dies, even
by accident
Provocative act murder CA doctrine not Common Law Not on exam
Voluntary
Involuntary

Generally, these definitions converge on 4 constituent states of mind:

Intent to kill (express malice)
persons conscious object to kill somebody.
Intent to cause grievous bodily harm (implied malice)
Included awareness that serious bodily injury would result from
defendants actions, even if he did not actually want it to occur.
Depraved heart murder (implied malice)
Applies if the defendant acted in extreme recklessness regarding the
homicidal risk.
Subjective requires that defendant had actual awareness of the risk
of death.
Felony murder (implied malice)
Strict liability exists for homicide committed during the commission of
a felony.
Evaluation
Malice, Intent to kill
OR voluntary manslaughter
Or gross negligence, involuntary manslaughter
Then first/second degree
Common principles (not common law)
Murder Unlawful killing of a human being with malice aforethought
First degree murder Intentional killing of a person with premeditation and
deliberation
Common Law Felony Murder Arson, robbery, burglary, rape,
possibly kidnapping
Willful, deliberate and premeditate murder
Specified Ways
Torture murder
Felony murder in the first degree
Willful, deliberate, and premeditated murder
Lying in wait
Murder by poison
Drive by shooting murder
Explosives or armor penetrating ammunition
Second degree Intentional killing of a person without premeditation and
deliberation

Spur of the moment did not give it thought, not premeditated

Intent to kill that was not first degree murder because it was not
in specified ways, not deliberate and premeditated
Intent to kill without deliberation and premeditated
Intent to cause grievous bodily injury murder
Depraved heart murder
Provocation sufficient to lower first degree intent to kill murder
to second degree murder
Second degree felony murder
Manslaughter killing of a human being by another human being without malice
Voluntary intentional killing of a human being in the heat of
passion based on sufficient provocation without time to cool down
Includes adultery, mutual combat, battery
Does not include words alone
Involuntary unintentional killing of a human being based on gross
negligence
Includes drunk driving, hitting someone in crosswalk, running
red light and killing someone
Difference between criminal negligence and extreme recklessness
Reckless knew it was dangerous, shooting in to a train
Criminal negligence did not realize danger but should have known
risk, gross negligence
Common law there is no first and second degree murder but need to know
because it is on the bar
Intentional defined:
Conscious object
Virtually certain results will occur
Intent to cause grievous bodily harm meant to cause injury not to kill
Intentional virtually the same as purposefully
Negligence should have been aware if the person was not aware
Felony Murder limiting doctrines
1. Inherently dangerous felony arson, rape, robbery, burglary
2. Causal relationship
3. Continuous Transaction until they reach place of safety
4. Merger assault
5. Third party doctrine
Majority rule
Agency rule no liability for the third party
Co-felon action
Police fires on felon and kills co-felon
Minority rule
Proximate cause liability for killing of co-felon

MPC Mens Rea definitions to help with other definitions

Purposely killing the instructor in a plane with bomb, intentionally killing
Knowingly practically certain the results of the bomb killing everyone else on the
plane
Recklessly understand the risks and doing it anyway
Negligently didnt understand the risks, should have known, may not know
because impaired or acting crazy
MPC Attempts
Substantial steps
MPC Insanity
a Act
b Mental defect or disease
c Defendant lacked substantial capacity
d Did D lack ability to appreciate nature and quality crime (or
wrongfulness/morally) OR
e Lack capacity to conform to law
Robbery
Taking and carrying away the property of another with force or fear and the intent to
steal
?? would not be include in essay answer
Act must cause the crime
Actus Reus + causation + Mens Rea = Crime
Actus Reus = Volitional Act + Omissions
Mens Rea = Strict Liability (Statutory Rape)
Cause
Actual Cause
1. But For
2. Acceleration
3. Aggravation
Proximate Cause be able to categorize cause and then know the rule
Intervening cause something else intervenes after D does something
1. Responsive intervening cause/Dependent does not cut off liability of the
original defendant unless completely unforeseeable, freakish, bizarre (reg
med malpractice not going to cut off liability, if MD is smoking crack out
back that cuts off liability)
2. Independent Intervening causes does cut off criminal liability unless it is
foreseeable lightening strikes, not in response to crime
3. Free will
4. Apparent safety
5. Intended Consequences
6. Omissions
Negligence doesnt trump an intentional act

If person is shot and crawls into street instead of going equal distant to
hospital
Rape
Carnal knowledge of a woman against her will and with force
Causation only need to say the rape had to cause the death to be guilty, but dont
need to know whether it did
Offer a likely conclusion
Be sure to use one line to take out issues:
Intent to kill doesnt appear to be here
Statutory Rape is not present because they are both over 18.
Mistake of Fact in Rape Prosecutions
- Nothing happened
- There was rape, but I didnt do it
- There was consent
- There was no consent, but I thought there was consent I was mistaken
Strict liability rape if he believes she is over 18 because he carded her, may be
mistake of fact
If he believes she is over 18 without any proof, mistake of fact may not be
reasonable
Rape Sexual intercourse with a woman, not his wife, with force and without her
consent
Against will and use of force
General intent crime honest and reasonable
Mistake of fact
Commits a fraud by lying to her leading to intercourse (ie telling a woman she
needs sexual intercourse as a course of medical treatment)
Not rape fraud in the inducement
If told a medical procedure and need to insert a tool then insert penis
instead
Fraud in factum
Mistake of Fact
D must ask for Mistake of Fact instruction, judge wont give without being requested
Subjective and Objective requirement for a Mayberry instruction
Subjective whether D honestly and in good faith, albeit mistakenly, believed
that the victim consented to sexual intercourse
Must be substantial equivocal conduct by the woman
Objective whether Ds mistake was reasonable under the circumstances
False pretenses possession and title based on fraud
Different from larceny by trick
False pretenses can steal real property intending passage of ownership is
key versus theft based on false representation

Theft cant steal real property, theft is an offense against possession, larceny by
trick
Embezzlement
fraudulent conversion of the personal property of another by the one in lawful
possession
Specific intent
lawfully got title, then converted to own use
Burglary
breaking and entering of the dwelling house of another at night with the intent to
commit a felony therein
Must have knowledge of it being a dwelling house squatters in an
abandoned building, if you knew there were people there at the time of
breaking in
some part of body had to enter the building
Breaking
Entry
Dwelling
Nighttime break in during day is
Instrument to gain entry
Degrees
Burglars tools
CA has eliminated the breaking, dwelling and nighttime requirements
Larceny
Trespassory caption and asportation of the personal property of another with the
intent to steal
Specific intent
personal property, not real property
Larceny by trick lied to get possession, received by fraud
Possession crime based on fraud
Robbery
Larceny (theft) by force or violence
Arson
maliciously burning of the dwelling house of another
Kidnapping
forcibly moved
False imprisonment p 370 unlawful restraint of a person against her will by
someone without legal authority or justification
Inchoate Crimes
Solicitation

Asking, commanding, encouraging another person to commit a crime

common law
Under common law it had to be communicated to person, if a letter of
solicitation never made it to the intended recipient then there is no
solicitation
Thoughts not enough
Dual intent
Specific intent
Conspiracy
agreement between two or more people agree to commit a crime
if the person agrees to the solicitation
Accomplice liability
Specific intent to agree and to commit crime if murder then specific intent
to murder
If one person is undercover cop, there is no duality, no specific intent
Express or implied malice to burglary or robbery
Actus Reas agreement
Target offense plus any other crime reasonably foreseeable from the
conspiracy
Agreement in Conspiracy can be through
Knowledge of enterprise and stake in furthering the enterprise
Knowledge alone is not enough to constitute a conspirator, but if you have a
stake more than normal
Common Law once there is a conspiracy and intent to commit the crime
Cop has no intent, cant be charged with conspiracy
Duality requirement
Knowledge is not enough guy with prostitute phone service
Crimes considered under conspiracy
Look at the purpose behind the action
Conspiracy is agreement between two more individuals to commit a crime, here
there is not an intent by the officer, no duality so conspiracy would not be charged
Withdrawal must tell all other members you are done and out
Under common law, once the agreement is made you are stuck, under state
law you can withdrawal if you let everyone else know
Conspiracy must tell everyone youre out
Conspiracy committed as soon as agreement is made
Accomplice liability
must withdraw and tell everyone, including victim and cops, trying to stop
the crime
Pinkerton Doctrine: a conspirator is liable for any foreseeable crime committed by
a conspirator in furtherance of the conspiracy. Youre guilty of crimes you didnt
intend to commit and played no role in
Whartons Rule if it requires two conspirators then the parties cannot be charged
with conspiracy ex. Adultery, incest, bigamy, dualing

On test, think about inchoate offenses

Solicitation
Conspiracy
Attempts
Complete
Incomplete
Aider and abettor
Attempts
Dual intent all inchoate crimes
Dual mens rea
Intent to take actions beyond preparation into perpetration common
law
Mens rea must be specific intent even if the crime is general intent
crime Common law
Ultimate intent is to commit crime you intended to commit
Actus Reus
Actions you took to commit the crime
Actions beyond preparation into perpetration
CL proximity How close did you get to the offense
MPC Substantial steps Took substantial steps toward the crime
Complete vs incomplete
Depends on how close D got to committing crime
Proximity test Common Law
P 391 Dressler, 6 tests for common law courts and judges
Beyond Line between Preparation and Perpetration
Substantial steps MPC
Focused on end results
Impossibility
Factual impossibility not a defense
Physical impossibility not a defense. Pick pocket reaches in pocket, wallet
was in another pocket, still Attempted larceny
Legal impossibility is a defense Thought something was illegal but wasnt
Most states have done away with the impossibility defenses, the law looks at
whether you attempted to break the law
Accomplice liability
one person kills, everyone is guilty for the murder
Common law
Common law accomplice liability
Principle 1st degree perpetrator of the crime
Principle 2nd degree aids, assists, or encourages (aider and abettor) at scene
(Look out, driver/accomplice) knowledge and intent, dual mens rea
Accessory before the fact not at scene (planner) not actively or constructively
there
Accessory after fact with knowledge, helps after
Mens Rea for an accomplice
Knowledge of the perpetrators intent

Must do your act with the intent to help the crime

Strict Liability
Almost all crimes require mens rea, those requiring only actus reus
Strict liability is usually reserved from crimes that relate to public health and
safety and impose relatively light penalties
No mens rea
Liable if you do the act
Intent doesnt matter
Typically statutory rape
Sex with her, not your wife
No specific intent to negate
CA does allow mistake
Food and Drug rules alcohol under 21
Honest belief alone will negate the charge, is a mistake in fact
Mistake of fact, must be honestly believed and reasonable
If specific intent must be honestly believed
Common Law accessory after the fact is now charged separately and is less serious
Principle in the 1st, 2nd, accessory after the fact
Early common law everything together, current common law treats them separately
for principles and accessories
Committing a crime everyone is guilty under
Conspiracy or accomplice liability
CA considers principles as
Principle 1st degree
Principle 2nd degree
Accessory before the fact
Conspiracy liability
Principle in 1st/2nd
Conspiracy to commit robbery
Robbery
If caught inside, attempted robbery
Aiding and Abetting accomplice liability
Defenses
Failure of Element Defenses
Mistake of fact
Accident
Alibi
SODDI some other dude did it
Diplomatic Immunity
Affirmative Defenses
Excuse

Did do something wrong but due to something (mental illness) cant be

punished
Justify
Didnt do anything wrong
Defense of others
Defense of property
Self Defense
Public Policy Defenses
CL burden of proof on D with defenses
Mistake of fact
Honest belief of mistake for specific intent crime
General intent crime mistake must be honest and reasonable
Necessity
Breaking into house with tornado coming
Duress
Gun to head
Mistake Ignorance of Law
Not generally accepted, responsible to know laws
If lawyer says you can do it, then it is illegal, still cant do it
Exception statutes with language that you must knowingly or corruptly
do something
Immunity from Prosecution
Takes away the penalty, then must be give the testimony
Use immunity
Will not use what is said, or anything that comes from it, against you
Transactional Immunity
Will not charge for anything that comes out of the transaction
All defenses are common law defenses
Imperfect self-defense in CA only reasonably believe you are being threatened but
a reasonable person would not
Can a felon be liable for what a third party does, not included as co-conspirator
Majority Rule Felon not liable if not caused by co-conspirator
Minority Rule proximity, felon can be held liable
Self Defense CL rules
1. Defender honestly believed the defender was in imminent danger of being
killed or suffering great bodily injury or was in imminent danger of being
raped, maimed, or robbed subjective test
2. The defender honestly believed that the immediate use of deadly force
was necessary to defend against the imminent danger
3. The defenders beliefs in 1 and 2 were reasonable in the circumstances as
they were known to and appeared to the defender objective
4. The defender used no more force that reasonably necessary to defend
against the imminent danger
5. The defender was not the initial aggressor

Self Defense Elements

1) Honest Belief imminent
2) Honest Belief deadly force necessary
3) Reasonable person would have done #1, 2 under the same circumstances
4) Proportional response Used no more force than necessary
5) Was not provoker
Contributory negligence of the victim will not trump the intentional actions of the P
Transferred Intent
Intent follows the bullet
Retreat common law said yes but has largely been overcome. General majority
says you do not have to retreat.
Castle doctrine if in your home you do not have to retreat from your home
Includes curtilage
Majority and minority are the same
Perfect and Imperfect self-defense and defense of others CA doctrine
Not CL, not general principles
Imperfect self-defense CA not CL
Intentional
Honest but NOT reasonable self-defense mitigates murder to
manslaughter
Majority rule says felon not responsible for injuries caused by their person (police)
Minority says felon is liable for injuries
Necessity defense and defense of others
Typically created by nature, flood, fire, tornado
Duress p 302
1) D was threatened that if D refused to commit a crime, the life of D or
someone else would be in immediate danger
2) D believed the threat
3) Ds belief was reasonable in light of the circumstances known to the D
Not a defense to murder
Voluntary Intoxication
Not a defense to general intent crimes, is a defense to specific intent crimes
General Intent crimes
Rape
Battery
Assault
Arson
Manslaughter
2nd degree murder
Negligent Homicide
Specific Intent crimes

Larceny
Burglary
Robbery
Voluntary manslaughter
Attempted Rape
Embezzlement
1st degree murder
Kidnapping
General intent the defendant intended the conduct
Specific intent the defendant intended the conduct and the result
Involuntary Intoxication
Coerced Intoxication
Innocent or mistaken intoxication
Unanticipated reaction to a drug taken on medical advice
Pathological intoxication D knew taking drug but reaction was highly
excessive
Insanity Tests
MNaughten (Cognition)
1) Act
2) Defect or disease of mind
3) Did not know nature and quality did you know it was a person doing it
4) Did not know act was wrong was it morally wrong
a. 1 + 2 + (3 OR 4)
CA still uses MNaughten test
Irresistible Impulse (Volition)
1) Act
2) Defect of mind
3) Acted with impulse
Durham Test
1) Act
2) Defect
3) Product of mental disease
4 MPC
1) Act
2) Mental defect or disease
3) Defendant lacked substantial capacity
4) Did D lack ability to appreciate crime (or wrongfulness/morally) OR
5) Lack capacity to conform to law
Diminished Capacity not CA law
Some states allow mental disease or defect to defeat mens rea
Legal Impossibility Not a crime if you thought it was a crime but it wasnt a
crime
Merger
Inchoate offenses

Solicitation will merge if other parties agree

Conspiracy is created
Attempted murder will merge into murder
Wont charge both
Assault
an intentional act by one person that creates an apprehension in another of an
imminent harmful or offensive contact
Battery
an intentional unpermitted act causing harmful or offensive contact with the
"person" of another
mnaughten cognition
act
defect or disease
did not know nature or quality
did not know wrong
irrisistable impulse volition
act
defect disease
could not control impulse
durham
act
defect
product of mental disease
mpc
act
defect
no substantial capacity
cant appreciate
or lack capacity to conform
intent to kill
grevious bolidy harm
deparaved heart
felony