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Criminal Law - 2021 Outline - Part 3

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Felony Murder


  • Felony murder = kiling during the course of a felony
    • Some states define which felonies, others just say “dangerous/forcible” felonies
  • Purpose of the rule
    • Easier to prosecute; holds those who recklessly kill liable for that killing; deters violent felonies that can result in death; morally driven (if you are commiting a felony and something bad happens, you should be punished)
  • Do we need it? Marcus says no (you could still convict bc of gross recklessness)
    • 10-12 states don’t have it
    • Evidence shows that it doesn’t actually deter
  • Note: You can’t have attempted felony murder, but you can have felony murder attached to a crime of attempt (that was never completed
  • When does a felony end?
    • Marcus gives example of robbers that meet up a year later: says in that case, it ends when you divide the goods or decide to never meet again
    • People v. Johnson - Cal Ct. App. 1992 - “Place of Temporary Safety”
      • Fleeing robber; after crime, drove around and believed he reached safety; police found him and car chase led to accident killing another
      • Issue: Is a determination about a “temporary place of safety” S or O? - Court says objective. ∆ G for murder
    • State v. Maudlin - Kan 1974 “Completion of sale”
      • Heroine sale; buyer ended up dying later on; trying to convict for felony murder.
      • Holding: Crime was completed and finished upon completion of sale
Which Killings Matter/ Does It Matter Who Does the Killing?
  • Deals w/ causation/foreseeability
Causation and Felony Which Felonies Can Be Felony Murder (Ex: Mail Fraud ≠ Felony Murder)
  • Abstract Approach: CA (before) + 50% of States
    • Looks at felony in the abstract: is this the type that leads to ppl dying on accident
  • People v. Howard - Cal 2005
    • High speed chase leads to civilian death; felony murder clause in CA; underlying felony = evading police
    • CA rule: Felony must be inherently dangerous in the abstract, not case-by-case
    • Evading police in abstract ≠ inherently dangerous felony
  • Circumstantial Approach: MD + 50%
    • Look at how the felony occurred in that case: jury decision
    • Did the circumstances render it dangerous to the point of
  • Jackson v. State - Md Ct. App. 1979
    • Hostage situation, police shoots hostage
    • But-for the robbers committing that felony, this wouldn’t have happened
  • People v. Aaron - Mich 1980
    • Issue: is the element of malice, required for murder, saisfied by intent to commit an underlying felony.
    • Issue of malice should be decided by jury
  • Rose v. State - “Merger Rule” but not actually a merger rule
    • Ignore that name: think of it as independent felony rule
    • Somone beats another to death: they are not guilty of assault, attempted murder, and murder: bc there is no independant felony rule
    • However, w/ armed robbery that ends in a death
      • If ∆ isn’t charged w/ original felony, jury might be instructed to ensure all of the underlying elements of the felony are satisfied to use it to establish felony murder.
First Degree Murder Intent to Kill + Premeditation/Deliberation + Act


  • 1st degree murder pretty uncommon (harder to get)
    • If they can’t prove premeditation, they can go for 2nd degree
  • In some states, certain types of murder are 1st degree (ex.: poisoning)
  • Premeditation: if they planned any part of the murder before an affirmative act
  • Must not be in heat of moment


  • Austin v. United States - D.C. 1967 Premeditation
    • ∆ murdered & mutilated woman, left her body near river where police found her, knife lodged in her skull; He is convicted of first degree murder
    • ∆ argues that they cannot prove premeditation (jury instruction issue)
    • Holding: no sufficient evidence to support a jury instruction on premeditation: remanded with instructions to convict of 2nd degree murder.
      • Says ∆ was correct to ask for an instruction that described premediation as an “appreciable” amount of time; court denied this + added can be moments, minutes “even seconds”) - this court does NOT like this
    • Deliberation = decision reached in cool-headed state, wasn’t impulsive
    • Dissent:
      • the wounds indicate that the crime took some time + him taking the knife out in the first place shows deliberation + him moving her body, lying to officers
  • Cardozo quote about allowing jury instructions that permit “only a moment” deliberation to equal premediation
    • “I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words”
    • Basically saying okay to leave it up to juries to pick and choose level of culpability (in looking at difference between “impulsive” killing and “just seconds” premeditation
  • People v. Scott - Cal 1959 Corpus delecti (bring forth the body)
    • Man convicted of murdering his wife; no evidence of violence, no body
    • Rule: circumstantial evidence can prove murder if it is only reasonable conc.
    • Establish his motive bc he was pleased when she disappeared, he coveted her estate, forged checks afterwards, fled country, lied to authorities
Manslaughter Voluntary Manslaughter: Intent to Kill + Heat of Passion
  1. Causing a death of another human being;
  2. as a result of a sudden, violent, and irresistible passion
  3. resulting from serious provocation
  4. sufficient to excite such passion in a reasonable person.


  • Heat of passion = must be (1) sudden and (2) great provocation
  • Very similar to 2nd degree murder + added element of heat of passion +NO MALICE
  • Can serve as an imperfect self defense for murder (if they can prove they subjectively believed they needed SD + that amt of force, but objectively they didn’t)
  • Test for adequate provocation is objective: would reasonable man, confronted w/ these events, become so impassioned that his mind was incapable of cool reflection

Burden of proof w/ Voluntary Manslaughter:

  • Voluntary manslaughter is treated similar to affirmative defense (for murder)
    • ∆ has to raise the issue by prod. of evidence (by showing heat of passion)
    • SCOTUS SAYS: Then burden of proof moved to gov’t to disprove “heat of passion” (BYD) + prove intentional killing to attain a murder conviction.


  • People v. Najera - Cal Ct. App. 2006
    • ∆ was called “jota” meaning faggot by victim, who putshed him; went inside for 5-10 minutes, came out and stabbed him; jury found him guilty of 2d murder; ∆ argues it should be reduced to MS bc of heat of fashion
    • Issue: what level of provocation is sufficient?
    • Holding: Name calling is insufficient to cause an avg person to lose reason and judgement under an objective standard, and thus no basis for MS
    • Note: words almost always insufficient, but might be when something like “i killed your mother and i am going to kill your other family”
  • State v. Faulkner - Ct App. MD 1984 - imperfect self-defense
    • ∆ killed brother in fight; believed he had a knife and took out a gun and shot him; requested instruction on imperfect self defense
    • If subj belief that SD was required + sub belief that level of force was required (but obj neither was) = that is sufficient for imperfect self defense
Involuntary Manslaughter
  1. Reckless behavior (objective standard)
  2. Resulting in death
  3. Conscious awareness of risk (subjective)
  4. Taking that risk results in death.
Elements of Involuntary Manslaughter
  • Mental state of recklessness and/or gross negligence
  • Similar to Murder (gross recklessness) - minus the “gross”
    • Under IVMS is negligent homicide
  • Note: Most don’t distinguish bt involuntary/voluntary, but distinction remains
  • 3-7 avg sentence for both


  • Commonwealth v. Welansky
    • See above for description of events; gross departure from standard human behavior (Coconut Grove fire)
  • Commonwealth v. Konz - PN 1982
    • Religious diabetic “putting health in god’s hands”; asked wife and friend to help; they withheld medicine; IVMS for the wife?
    • Holding: marital relations don’t create duty to spouse to summon medical aid; no recklessness bc no breach of duty (note: duty doesn’t usually come up in these cases)

Actual Cause/ But-for Cause/ Cause in Fact

  • But-for this act, the effect wouldn’t have occurred
  • Usually several but-for causes
  • Easiest to establish in crim law
  • Defense: I wasn’t the actual cause = victim would have still died w/o my actions

Proximate Cause/ Legal Cause

  • Death is a natural/probable result of ∆’s act or omission
  • Establishes the culpability
  • Defense: I wasn’t the proximate cause, there were intervening facts that supersede my culpability


  • Commonwealth v. Root - PN Sup Ct. 1961 (Same court as Feinburg)
    • Two friends racing; the one that challenged tries to go around and is hit head-on; dies; friend charged with IVMS
    • Issue: is ∆’s reckless conduct a sufficiently direct cause of the death
    • Rule: ∆’s reckless conduct not direct cause & the issue of proximate cause (which they tried to establish his culpability on) has no place in prosecution for criminal homicide
    • Dissent: its the ppl of the commonwealth that are threatened by this behavior; we are not worried about the actions of the victim; if someones recklessness causes in any way another’s death = felonious homicide
  • Commonwealth v. Barry - MA Supreme Ct. 2019
    • Shooting outside nightclub; 2 ∆’s charged with a murder; both argue that prosecution lacks causation bc it can’t say who shot the bullet that killed
    • Rule: Conduct of 2 or more persons can both be proximate causes if it concurrently contributes to the death.
    • Note: there is no “one dead, one killer” theory: 2 people can both separately (or jointly) be the cause of a death and can be convicted of such
    • Weren’t prosecuted under joint venture theory (conspiracy)- could have been
  • Brackett v. Peters - 7th Cir 1993
    • ∆ raped and beat elderly man; she admitted to hospital, transferred to nursing home where she was fed and aspirated/died; ∆ convicted of felony murder, files habeas corpus; ∆ claims he is not the COD
    • Rule: eggshell rule applies here (although it doesn’t with intentional murder, it does to felony murder)
    • But-for cause isn’t enough to convict : ex. If the nursing home burnt down
    • However, proximate causes is satisfied here: judge says it was foreseeable (proximate = enhancement of likelihood (foreseeability)
Capital Punishment


  • Very few capital punishment cases in US now- generally moving away (<100)
    • Some through Supreme Ct decisions, others from gov’t freezes or legislature
  • Now- Only murder can be the basis
  • Geographic disparities w/in states
  • Death-eligible jurors: when picking jurors on potential capital cases, juror has to be able to say that depending on the facts of the case, they could sentence someone to deaths (and in other cases would not)
  • 8th amendment challenges
    1. Cruel and unusual punishment because of method of punishment
      • “Standards of decency” argument: argues that bc society has changed our punishment of criminals should too
    2. Not proportionate to offense committed, nature of crime, or the ∆

Standard statute:

  • Focuses on ∆, victim, other crimes committed (at same time), manner committed
    • Certain other crimes very serious: arson, rape, terrorism
  • Typically described in terms of remorse
  • Certain victims increase likelihood: very young/old
  • Certain jobs of victims: Police officers, prison guards (those most at risk)
  • Especially awful crimes: Poinsoning , torture, particually heinous, abhorrent, cruel

Arguments for

  • Deterrence (unclear if it actual deters)
    • 80% of police chiefs don’t believe it does
  • Retribution (punishing the worst of the worst)

Possible solutions

  • Only allow attorneys to defend that have experience
  • Forbid certain people to be eligible for it
  • Continue legal education
  • Proposed changes to statutes:
    • Include standards of what are aggravating/mitigating factors
    • Include variations of the person of the ∆ or victim
    • “Worst of the worst”
    • Exclusions- no children, intellectually disabled (and define it)
    • Marcus’ favorite recommendation : No DP for anyone who suffered from mental disorder that imparied their capacity to appreciate the nature of their act


  • Gregg v. Georgia - Supreme Court 1976
    • Upheld GA statute that limited circumstances that could ii\mpose death penalty (so it is not imposed arbitrarily)
      • Why? It met the standards set out in Furman (no DP for some ppl and other sentences for others w/ same crime/circumstances (no arbitrary))
    • How did the statute pass this test: (1) Called for aggravating factors (2) auto appeal to state Sup Ct (3) Req’s state to cite similar cases w/ DP
    • Note: Issue of whether capital punishment in itself is cruel and unusual was brought up in Furman and not resolved: this court resolves the issue: it is not
    • Note: theire statute called for bifurcated proceeding: first determines guilt, second, the option of the death penalty
  • Roper v. Simmons - SCOTUS 2005
    • 17 yo committed murder (vile manner); was tried as an adult, sentenced to death
    • Holding: Age of 18 is where they draw the line; ∆ sentence commuted to life
      • Why? Less culpability, more reckless and less responsible, susceptible to negative influence, character not as well formed
    • Dissent: Scalia: Ct’s moral views shouldnt’ be imposed on the states; the meaning of constitution shouldn’t be determined by the “subjective views of 5 members of this ct and like-minded foreigners”
    • Dissent: O’Connor: we just decided that we can put to death <18; we need clearer showing our society is against this b4 deciding it for them; some under 18 year olds do have the requisite culpability (decide case by case)
    • Cites Atkins (decided after sentenced)
      • Unconstitutional to execute intellectually disabled ; however, up to states to decide definition of intellectual disability
      • Simmons argued reasoning of Adkins shows that <18 also prohib.
  • Miller v Alabama - Banned mandatory life w/o parole for juvenile
  • Graham v. Florida - state must give juvenile non-homicide ∆ some opportunity to obtain release based on demonstrated rehabilitation (but not required to guarantee eventual freedom)
  • McClesky: if you are going to argue racial bias of jurors; overall racial bias in that state doesn’t count: you need to show that in that case, prejudice existed.
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