Defenses to Murder

§        Negate either premeditation and/or deliberation

§        Psychiatrist to testify that the act was an “impulsive, automatic reflex.”

·        Felony Murder Rule – when a death occurs during commission or attempted commission of an independent and dangerous felony, those committing the felony possess requisite mens rea for murder even thought they didn’t intend to kill.  Requires that death be a foreseeable consequence of such felonious acts

o       Transferred intent applies

o       Requires the underlying felony first

o       By and large, results in murder of the first degree

o       Limitations

§        Requires an inherently dangerous felony to make it a first degree murder

·        Burglary

·        Robbery

·        Escape

·        Arson

·        Kidnapping

·        Rape

·        Sodomy

·        Serious Sexual Crimes

§        Underlying felony has to be an independent felonious purpose

·        Cannot merge felony murder rule

§        Proximate Cause – death must be proximately caused by commission of the felony, or attempt thereof

·        Redline Exception – can’t boot-strap a justifiable homicide into felony murder because it’s not a criminal homicide

·        Agency Limitation – in order to impose felony murder, the killing must have been committed by one of the felons/co-felons

·        In the Commission – The death must occur during the perpetration of the felony

§        Deaths caused while fleeing from the crime are still considered felony murder if the crime otherwise qualifies

o       Statutory Language – “if the death of anyone ensues from the commission or attempt to commit any suck crime….”

o       Merger Doctrine – Cannot have felony murder if only purpose of felony is to cause death.  The act must have an independent felonious purpose

o       Affirmative Defenses

§        1- Did not commit the act, and

§        2- Was not armed with a weapon, and

§        3- Did not believe anyone was armed, and

§        4- No reason to believe that anyone would engage in homicidal action

·        Second Degree Murder

o       Difference between First and Second Degree Murders

§        1st Degree requires PREMEDITATION and DELIBERATION

§        If only one or neither, maybe we have 2nd Degree

o       Four Types of 2nd Degree Murder

§        1- Intent to kill without premeditation or deliberation

§        2- Intent to cause grievous bodily harm

§        3- Recklessness +

§        4- Intent to injure where death results

o       Recklessness + - used to go from involuntary manslaughter to 2nd degree murder. 

§        Reckless => conscious disregard for a substantial and unjustifiable risk that a death will occur

§        Plus => under circumstances manifesting extreme indifference to the value of human life

§        If there is no “plus” – then we are left with Involuntary Manslaughter

·        Voluntary Manslaughter – intentional killing distinguishable from murder by the existence of adequate provocation

o       Homicide is manslaughter when it is committed recklessly.

§        Disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation

o       Three Types

§        1- Heat of Passion (Provocation)

§        2- Mistaken Justification (Imperfect Self Defense)

§        3- Diminished Capacity

o       Certain types of provocation are enough for case to go to jury for decision whether to mitigate murder to manslaughter

§        Extreme assault or battery upon Δ

§        Mutual combat

§        Δ’s illegal arrest

§        Sudden discovery of spouse’s adultery

§        Injury or serious abuse of a close relevant

o       Heat of Passion Provocation Elements

§        5 Part Test (Girouard Question of Law)

·        1- Legally adequate provocation (Threshold Judge Question)

·        2- Would a reasonable person have been provoked to heat of passion?

·        3- Was this Δ provoked to heat of passion?

·        4- Would the reasonable person have cooled off in the time period?

·        5- Did this Δ cool off in the time period?

§        4 Part Test (Maher Legal Status – Questions for a Jury)

·        1- Would a reasonable person have been provoked to heat of passion?

·        2- Was this Δ provoked to heat of passion?

·        3- Would the reasonable person have cooled off in the time period?

·        4- Did this Δ cool off in the time period?

§        Cannot claim provocation over mere words