7. Grading Homicide Using Pa Statute Model (Non-Mpc)

Front 1

Four Grades of Homicide in PA (Non-MPC)?

Back 1

(1) First degree murder [death penalty in states with capital punishment]

(2) Second Degree Murder

(3) Involuntary Manslaughter

(4) Voluntary Manslaughter

Front 2

When the killing is intended in First Degree Murder, what are three examples of PREMEDITATION AND DELIBERATION?

Back 2

torture (specific example of P and D)

poison (specific example of P and D)

lying in wait (specific example of P and D)

Front 3

Rationale for Non-MPC First Degree M.?

Back 3

(1) Planned, Deliberate killings are the most blameworthy.
(2) Therefore, there should be a higher level of punishment for the more blameworthy crimes.

Front 4

Some jxdns find P&D as long as there was a (1)________________________, and there was (2) ________________.

[Broad View]

Back 4

(1) time to form an intent to kill

(2) evidence of formation of an intent to kill

Front 5

Death penalty doesn’t turn on P&D – but there are _______ and _______ factors?

Back 5

aggravating/mitigating factors

Front 6

Carroll Case:
whether the intention to kill and the killing were within a brief space of time or a long space of time is immaterial if..........?

Back 6

if the killing was intentional, willful, deliberate, and premeditated.

Front 7

Other jxdns find P&D ONLY if there is evidence of.....?

[more strict]

Back 7

Some jxdns find P&D only if there is evidence of conscious reflection on the act of killing.

Front 8

Evidence of P&D [something more than intent to kill] (Anderson)

INCLUDES? (3)

Back 8

a. Evidence of Planning

b. Evidence of Motive

c. Evidence of the Nature of the Wound

Front 9

When the killing is unintended under First Degree Murder (non-MPC)?

Back 9

Felony Murder Rule

Front 10

FMR:
i. Commission of felony ________?

Back 10

named in statute.

Front 11

FMR:

ii. ____ during felony?

Back 11

Death

Front 12

FMR:

iii. Causation: death was.....?

Back 12

death was....foreseeable result of the felony.

Front 13

FMR:

iv. FMR is essentially ____ ____ ____?

Back 13

Strict Liability murder

Front 14

Four Rationale for FRM

Back 14

i. Arguably there are none – Aaron; MPC

ii. Deter accidental killings during felony

iii. Deter dangerous felonies

iv. Retribution

Front 15

Criticism of FMR? (5)

Back 15

c. Critics (Aaron):

i. Rule of doubtful origin

ii. Strict Liability is Unjust

iii. Rule abolished in land of origin

iv. Rule subjected to significant limitations

v. Rule not needed because other theories work (just have to prove recklessness/negligence)

Front 16

Eight Limitations on FMR?

Back 16

i. Felony must be dangerous

ii. Death must be proximately caused by the felony.

iii. Felony must be Mala in Se

iv. Felony must be common law felony

v. Killing must be committed in course of felony

vi. Statutory Limitations


vii. Must be during commission of felony

viii. Merger Limitation

Front 17

" Underlying felony must be independent of the homicide "?

Back 17

Merger Limitation of FMR

Front 18

Factors to consider during "Must be during commission of felony" limitation on FMR?

Back 18

(1) Totality of the Circumstances

(2) Time, Place, Casual Relationship (between felony & death)

Front 19

Statutory Limitation:

Statute will limit based on (2) considerations?

Back 19

(1) Did Felon do the shooting?

(2) Non-felon killed?

Front 20

Where the FMR is unavailable, consider ________ as an alternative?

Back 20

Where the Felony Murder Rule is Unavailable ---- consider Depraved Heart as an Alternative

(2nd Degree Murder)

Front 21

Non-MPC
Where the killing is INTENDED in SECOND degree murder:

The killing is intended without ____________; AND

The killing is intended without ________________________.

Back 21

a. Killing intended without P&D and
b. Killing intended without SUFFICIENT PROVOCATION TO ELIMINATE MALICE.

Front 22

To determine if the killing is intended without sufficient provocation to eliminate malice - you use.....?

Back 22

4 Prong Test

Front 23

Non-MPC, SECOND degree murder - when the killing is UNINTENDED = _____________?

Back 23

Depraved Heart Killing

Front 24

DHM:

The level of risk is ______ and _____________________.

Back 24

The level of risk is GROSS and MANIFESTLY INDIFFERENT LIFE.

Front 25

The level of risk for DHM is indefinable, so what are (3) examples?

Back 25

(a) Shooting up into a crowded room

(b) Driving drunk, careening off cars, missing stop lights, driving on sidewalk

(c) Acting with social motive

Front 26

DHM is an act of gross recklessness for which D must...?

Back 26

reasonably anticipate that death of another is likely to result.

Front 27

The level of risk for DHM includes acting with intent to....?

Back 27

acting with intent to do serious bodily harm

Front 28

DHM: Level of Risk = Gross.

(1) Look at _____ and ____ of risk.
(2) Consider _____ and ____ of the conduct.

Back 28

(1) Look at the NATURE and DEGREE of the risk.

(2) Consider the NATURE and PURPOSE of the conduct.

Front 29

DHM:

You consider the nature and purpose of the conduct in what view?

Back 29

In the eyes of the Law Abiding Citizen.

Front 30

VOLUNTARY MANSLAUGHTER - where the killing is INTENDED = ?

Back 30

Heat of Passion

Front 31

Four Rationale for Heat of Passion Defense?

Back 31

i. Concession to human frailty (we understand why he did it; but we can’t let him off)

ii. Killing as much due to external factor as to moral depravity to the actor (partial excuse – actor has lost some ability of control)

iii. Mitigate crime because while we understand action we cannot condone it (partial justification – victim is “wrong”)

iv. However, lessens blame for the same result based on loss of control.

Front 32

4 Questions of Four Prong Test for HOP?

[Subj/Obj] ?
[Answer Required:Y/N] ?

Back 32

(1) Would a reasonable person be provoked
[objective]
[Y]

(2) Was the D provoked?
[Y]

(3) Would a reasonable person have cooled between provocation and killing?
[Obj]
[N]

(4) Did the D cool between the provocation and the killing?
[Subj]
[N]

Front 33

Four Prong Test (HOP Defense):

Question 1: Would a reasonable person be provoked?

Holmes view?

Back 33

Should be a question of law for the judges.

Front 34

Four Prong Test (HOP Defense):

Question 1: Would a reasonable person be provoked?

Berry View?

Back 34

Question of Fact For Jury

Front 35

Four Prong Test (HOP Defense):

Question 1: Would a reasonable person be provoked?

Holmes View (Q? of Law for the Judges)
- Three arguments supporting?

Back 35

(a) Distrust juries

(b) Essentially a legal standard (essent. a q? of law grading)

(c) Legally sufficient provocation [adultery, battery, illegal arrest, not words alone]

Front 36

Four Prong Test (HOP Defense):

Question 1: Would a reasonable person be provoked?

Berry View (Q? For the Jury)
- Three arguments supporting?

Back 36

(a) Jury in better position to judge human frailty.

(b) Juries represent evolving standard

(c) More likely to apply to words alone.

Front 37

Should the first question/prong of the Four Prong Test for HOP [Would a reasonable person be provoked?] be a rigidly OBJ. standard

* Some courts will give the reasonable person.......?

Back 37

(a) Some courts will give the reasonable person many physical characteristics & experiences of DEF (age, gender, physical statute, disabilities, lack of sleep, etc.)

(b) Not psychological characteristics (hothead)

Front 38

HOP:

When malice aforethought is an element of the crime, the _______ must prove malice (absence of provocation - aka disprove provocation) beyond a reasonable doubt.

Back 38

Prosecution

Front 39

Criticism of HOP Defense?

Back 39

Reasonable person does not kill under any circumstance

Front 40

INVOLUNTARY MANSLAUGHTER:

When the killing is unintended....?

Back 40

When the killing is unintended...there is no crime of involuntary manslaughter.

Front 41

INVOLUNTARY MANSLAUGHTER

When the killing is intended....?

Back 41

When the killing is INTENDED...NO voluntary manslaughter.

Front 42

VOL. MANSL.

When the killing is unintended...?

Back 42

There is a crime of Vol. Manslaughter!

Front 43

Voluntary Manslaughter is when the killing is the result of a ____ act in a _____ way.

Back 43

Voluntary Manslaughter is when the killing is the result of a LAWFUL act in an UNLAWFUL way (criminal negligence)

Front 44

Labels of "Criminal Negligence"? (4)

Back 44

i. Willful wanton, reckless
ii. Criminal Negligence
iii. Culpable Negligence
iv. Gross Negligence

Front 45

Meaning of "Criminal Negligence"

Back 45

something more culpable than tort negligence

Front 46

Alternative Meaning #1 of Criminal Negligence? [most popular definition]

Back 46

DEF aware (subjective) of a gross risk (level)(objective) that DEF’s act could cause death (awareness of the risk/level of that risk) [Ex. recklessness]

Front 47

Alternative Meaning #2 of Criminal Negligence?

Back 47

Reasonable man would have been aware (objective) of a gross risk (objective) that a DEF’s act could have caused death.

Front 48

Criminal Negligence most likely refers to when level of risk is ____ and the actor is ______.

Back 48

Most likely refers to when the level of risk is GROSS (likelihood of death) and the actor is SUBJ. AWARE.

Front 49

"When the killing is the result of an unlawful act"

Back 49

Misdemeanor Manslaughter Theory:

"When the killing is the result of an unlawful (misdemeanor) act"

Front 50

Killing during commission of an unlawful (misdemeanor) act?

Back 50

Strict Liability Manslaughter

Front 51

Limitations of Misdemeanor Manslaughter?

Back 51

(1) Only with mala in se misdemeanors
(2) No proximate cause unless death foreseeable from misdemeanor (i.e., dangerous misdemeanors) (ex. Carrying a weapon/reckless driving)
(3) Not applicable with Strict Liability misdemeanors.
(4) Not recognized by MPC!