Criminal Law Outline Part 2
HOMICIDE: generic term for offenses that involve a killing; requires specific result of dead
body (or very good evidence), gradations based on culpability and surrounding
circumstances
INTENTIONAL HOMICIDE
1. Murder
a. English common law (judge-made) of 14th century defined murder as “killing
with malice aforethought” meaning then an intentional, preplanned,
deliberate killing often motivated by malice or ill will toward victim
i. No gradations in old common law
ii. Malice: “unlawful, deliberate intent to kill another human being
without excuse, justification, or mitigation”
1. Malice distinguishes murder from lesser homicide offenses
2. 3 elements of malice murder: (1) D unlawfully (2) causes the
death (3) with malice aforethought
iii. Over centuries “malice aforethought” expanded to encompass those
killings resulting from “implied malice” (wanton or reckless conduct)
= broadening of murder scope
b. 4 types of murder: the unjust killing manifesting:
i. purpose to cause death
ii. intent to inflict serious bodily harm
iii. extreme recklessness with respect to a serious risk of harm to
another’s life (suggesting callous indifference to human life)
iv. felony-murder rule
c. First Degree Murder: back to narrow definition of malice aforethought
(exception in felony murder)
i. Punishable by death or life imprisonment; only crime where death
penalty possible
ii. United States v. Watson – Murder 1 conviction ~ heightened level of
mens rea of premeditation – malicious intent and deliberation (still a
subjective level of mens rea) ~ must be inferred if no confession
1. Held “first degree murder is a calculated and planned
killing while second degree murder is unplanned or
impulsive”
2. Circumstances amounting to premeditation (why this is 1st
degree rather than 2nd):
a. Fled from police while stealing a car, resisting arrest –
crime committed in the course of other crimes
b. D pinned officer to ground ~ D had the upper hand at
time of killing (larger, officer disarmed) = could have
taken gun and made getaway but chose to kill
c. Officer said it was not worth it ~ reasonably inferred as
plea for his life
i. Unlike Francis, this was cold-blooded killing
d. D shot the officer in the line of duty
3. Objective criteria in favor of D
a. No prior hostile threats, no relationship or ill will
towards the victim
b. Gun was not D’s
c. No prior preparation
4. **2 points where D had time to deliberate, give a second
thought
a. immobilization of officer
b. when officer repeated the plea
5. premeditation can be formed in a matter of seconds
a. *recent trend: require some “reasonable period of time”
to find premeditation – look at 3 elements:
i. extent of the planning activity
ii. D’s motive
iii. Manner of killing
d. Distinction between super-heavy premeditation (first degree) and “mere
intent to kill” (second degree) ~ gray area but legal distinction
i. If mitigating circumstances, usually second degree
ii. If extenuating circumstances, usually first degree
iii. When jurors can understand what happened and why, usually less
than first degree (unless you went out of your way to commit the
killing)
iv. If contract for killing or intimate relationship, easier to show first
degree
1. Exception: Watson
v. When someone other than intended victim is shot, intent transfers but
premeditation does not transfer (and so not first degree)
1. Can be intentional killing but not premeditated (Francis)
vi. Manner of killing
1. Ex: terrorist acts or other random violence (drive-bys) or
killings in commission of another crime usually first degree
vii. Who the victim is
1. Intentional killing of officer in line of duty (Watson) or child
usually first degree
viii. 1st degree = includes capital offenses, life imprisonments, most
serious and most blameworthy
1. *heightened level of mens rea – not only intentional but
premeditated, willful, and deliberate killing = return to more
narrow definition of “malice aforethought”
ix. 2nd degree = default position, killing done with malice aforethought
but not premeditated, lesser, not a capital offense but can have life
imprisonment punishment (low end = a few yrs.)
x. MPC does not distinguish first and second degree murder – use
mitigating and aggravating circumstances for sentencing
1. Rationale: original purpose behind distinction of degree to
separate cases where capital punishment automatic (now, no
“automatic” death penalty anywhere)
2. Deliberation as a mitigating factor
e. Why is a premeditated killer worse than an impulsive killer?
i. retributive theme: if person thought about the act and made conscious
decision to kill, definitely blameworthy and morally responsible so
more deserving of punishment
ii. but Sir James Stephen says impulsive killers actually more dangerous
because more likely to kill again than premeditated killers and so
deliberation should be a mitigating factor rather than aggravating
factor in some cases
f. Second Degree Murder: the catch-all category – anything not first degree
i. Definition: Unlawful killing of another with malice aforethought but
without premeditation
ii. Francis v. Franklin – jury instructions objected to by D, saying it
deprived him of defense (said intend could be presumed because
death was the “natural and probable consequence of the act”), court
found error = will be corrected but D still may not walk
1. victim was prison warden
2. habeas corpus case – appeal for wrongful incarceration
a. D arguing he was convicted of malice murder which
involves intent but argues he never intended to kill the
victim, only trying to steal the car and death an accident
i. Not arguing he’s innocent just that guilty of
manslaughter, not 2nd degree ~ argues both
mens rea and actus reus (did not intend to shoot,
gun went off involuntarily when startled)
3. Circumstantial evidence weighing on both sides:
a. In D’s favor:
i. not violent to any others despite several other
opportunities to kill (parking lot guy, dental
assistant, wife, daughter) – allowed them to
escape unharmed
ii. his ceiling with 2nd bullet (maybe didn’t aim)
b. against D:
i. told wife “I might as well kill you too”
ii. escaping convict, stole gun, kidnapped dental
assistant
iii. fired 2 shots
4. this jury instruction allowed jury to presume intent, shifting
burden of proof of intent to D and so violated Due Process
presumption of innocence (intent is essential element of crime
and state has burden of proof)
a. Sandstrom precedent followed: similar issue except
here, jury instruction also explicitly said these
presumptions “may be rebutted”…still, unconstitutional
burden-shifting here too!
VOLUNTARY MANSLAUGHTER – evolved from common law to mitigate
the harshness of the death penalty; often a compromise verdict when
jury unsure about murder but doesn’t want to acquit
1. voluntary manslaughter only differs from involuntary in that it
is intentional
a. but why do we still have it where no more mandatory death
penalty laws?
i. because judges still see extenuating circumstances and
judges & juries feel punishment for regular murder
offense too harsh in some instances
2. *when murder may be reduced to manslaughter
a. when there is a provocation that caused defendant to act in
the heat of passion w/o cooling time
b. when a person kills in the unreasonable and mistaken
belief that he must do so in self-defense or kills in the face
of actual threat of death or serious bodily injury where he
himself was the initiator or provoker of the threat
3. provocation – can mitigate from murder to manslaughter ~ why?
–
a. provocation as excuse – negates an element of the offense by
focusing on the actor, reduces their responsibility for the
killing
i. here, passion D felt at moment of act makes him less
responsible for the act
ii. explains the requirement of temporal proximity
(“cooling off” period)
iii. “As a retributive matter, the killing is less ascribable
to malevolent character; as a utilitarian matter,
Walker is less deterrable because of his rage, but also
less dangerous in general”
b. provocation as justification - heat of passion killing less
serious offense than regular homicide because victim
partially deserved to die or D had an incomplete right to
kill because of something victim did
i. explains why words alone not sufficient provocation
1. traditionally, view was that with words alone,
should have opportunity to cool down, not
sufficient to incite killing and if they were, you
were a hothead so offense shouldn’t be mitigated
anyway
ii. explains why victim’s defensive force not sufficient
provocation
iii. explains why provocation must come from victim and
why D must have strong evidence of the provocation
(modern tendency)
iv. “As a retributive matter, he deserves some punishment,
but not as much as an unprovoked killer. As a
utilitarian matter, the law would seem to be trying to
find the optimal level of deterrence”
c. at common law, 2 things only constituted adequate
provocation: (1) physical battery or (2) sight of adultery
i. abusive words alone were never enough under common
law
ii. *over time, viewed as too restrictive since reasonable
people could be provoked by things outside the
traditional 5 categories  adequate provocation
expanded to words and tauntings of adultery if
outrageous enough (Berry)
d. Juries today often instructed on whether provocation would
cause a “reasonable person” to lose self-control under the
circumstances (MPC standard)
i. Modern standard of adequate provocation now also
includes:
1. Still the same common law provocations PLUS:
2. Mutual combat
3. Illegal arrest
4. Commission of a serious crime against a close
relative
ii. But who is the reasonable person? – special exception
for youth:
1. Director of Public Prosecutions v. Camplin – 15
yr. old boy sexually assaulted (similar facts to
Gounagias)
a. court here defines reasonable person as a
reasonable boy of his age
b. age & gender as circumstances to consider
in context of reasonable person
c. 2 ways to look at this:
i. (1) clearly, juveniles likely to become
more enraged over lesser issues than
more mature person would and since
we are talking about serious homicide
offense, it is only fair to take D’s age
into account
ii. (2) PROBLEM when you do this = no
longer an objective standard!!!! – once
you consider such background facts,
becomes a slippery slope – where do
you draw the line? – race, religion,
other things? = more of a subjective
standard
d. the more you individualize, the less
objective
iii. note: considering gender as a background factor
typically advantages men and disadvantages women in
provocation cases
e. MPC § 210.3 on EED – Extreme Emotional Disturbance –
effectively gives the jury permission to consider pretty much
any circumstance as a background factor and requires them
to treat as true any perception of the situation no matter
how unreasonable
i. Modern MPC trend: kick everything to the jury – even
if it’s a stretch, still let the jury decide
ii. Background factors = jury instruction
1. Why allow them? – fairness
2. Why not allow them? – hard to draw the line
iii. In California, culture as a background factor: People v.
Wu – conviction reversed because of bad jury
instructions
1. jury instruction 1: unconsciousness claim –
expert testimony that she was in a “fugue” state;
wanted jury instructed that if reasonable doubt
she was conscious, could not convict
a. defense arguing that should only focus on
the moment of killing, not what happened
prior, inquire into her state of mind at the
time of the crime (she says she woke up and
found boy dead, thinks she was just acting
unconsciously when strangled him)
2. *jury instruction #2 – jury may but is not
required to consider the D’s cultural background
in assessing mental states relevant to the crime
charged
a. TC did not give this instruction b/c did not
want to give stamp of approval to custom of
China
b. But provocation constitutes an excuse and
excuses are individualized
i. if we allow this jury instruction, then
the provocation constitutes an excuse
and explains the wrongdoing as
attributable to something other than
the D’s bad character
3. important to defense because it can negate
premeditation and malice
a. this evidence mitigates the killing, reduces
to voluntary manslaughter
i. 1. Explains the circumstances
surrounding the killing (could not
stay with father once he knew she
had no $, could not take him back
with her, did not want to leave her
under bad care, so despair, felt she
had no other option)
ii. 2. Identifies other emotions besides
revenge = diffuses prosecution’s
argument that she acted only to get
back at husband
iii. 3. Confirms temporal proximity of
the provocation (son just told her of
his suffering immediately before she
killed him)
f. People v. Walker – voluntary manslaughter conviction
i. The “affray was a continuous one”
1. “if a killing occurs during the course of a fight
and before the blood of the killer has had time
to cool, the offense is not murder but voluntary
manslaughter”
ii. Why not murder? – lots of witnesses who saw him kill
victim but not first degree murder because:
1. here, victim was the aggressor ~ Walker did not
start things like Watson did
2. here, victim had the weapon and Walker did not
3. everything happened quickly between
provocation and killing, not more than a few
minutes
a. surrounding circumstances very important
especially in voluntary manslaughter
because it is the thing that distinguishes
premeditation from provocation
b. under common law, need causal link
between passion, provocation and the
killing
iii. similarities to Watson
1. victims had the weapon originally
2. death resulting from a fight
3. but very different outcome:
a. Watson  first degree murder conviction
b. Walker  voluntary manslaughter
conviction
iv. Why not self defense if victim was aggressor?
1. Because threat must be imminent @ time of
killing
a. In both Walker and Watson, Ds had the
control and could have walked about =
unjustified killings
v.
4. Reprovocation – modern trend: courts may now consider
cumulative provocation as adequate ~ but fine line between
premeditation and provocation
a. Gounagias - D sodomized while unconscious, D snapped
and killed the sodomizer after much taunting over several
weeks
i. This was a capital case (murder conviction) but would
not be today
1. today probably voluntary manslaughter because
today we consider more subjective factors
a. courts used to view elements much more
narrowly
5. “cooling time” – use objective standard but consider subjective
view
a. Ex Parte Fraley – appealing conviction of first degree
murder, D arguing facts show only manslaughter
i. “when an unreasonable period of time has elapsed
between the provocation and the killing, then the
court is authorized to say as a matter of law that the
cooling time was sufficient”
ii. Provocation here: victim killed D’s son = adequate
1. But problem with time between provocation and
the killing – 9 months
a. Court says too long, reasonable person
would have cooled in that time
b. D arguing provocation was cumulative
culminating with heated killing but court
disagrees
c. If he had killed the victim immediately
after he killed the son, then no problem w/
provocation
d. Court concerned about possible
premeditation – did D seek him out or kill
him after suddenly seeing him?
i. But court notes how he had rational
conversations, business transactions,
evidence of preparation in time
between
e. Issue: when does cooling period begin? –
maybe an argument it should start at
victim’s acquittal rather than son’s death
2. 2 inquiries:
a. subjective: did D in fact cool off? – if so,
then timing question moot because could
then not claim heat of passion
b. objective: would reasonable person have
cooled?
c. *if court finds D did not cool off, then ask
whether reasonable person would have
iii. Facts against D:
1. Not adequately provoked at moment of killing
2. Seemed calm and rational, shot victim 7 times ~
sounds more like a “brooder” than sudden heat
of passion
iv. If jury finds he acted out of revenge, should be
punished and deterred to protect society
b. *note: People v. Tapia – held provocation applies to fear too,
not just anger
6. Adultery as provocation – “the honor defense”
a. Note: some early courts had strict standard that the adultery
itself had to be witnessed but then trend toward asking
“how did the matter reasonably appear to defendant?”
b. Rowland – D shot at paramour (caught in the actual act
here) but so dark he accidentally shot his wife – convicted
of murder but reversed for 2 reasons:
i. (1) In Mississippi law, court said the facts established
adequate provocation and did not warrant a murder
conviction
ii. (2) jury instruction problem
1. talked about “deliberate design” – sounds like
intent
2. judge essentially depriving D of provocation
defense
a. D’s argument: this was an accident and
even if jury does not believe it was, there
was adequate provocation with no cooling
time so manslaughter
i. No question he killed his wife,
problem though that jury instruction
implied the killing was necessarily by
design
ii. *On appeal, say D entitled to present
this defense
c. 2003 Clara Harris case (Texas) – cheating husband run
over 3 times in parking lot
i. Texas does not have voluntary manslaughter, only
murder (but mitigating factors allowed at sentencing
phase)
1. jury believed there was adequate provocation in
the heat of passion (a manslaughter-type
offense), so sentence from probation – 20 yrs.
a. Mitigating/extenuating circumstances
helped too
i. enraged, decedent’s parents testified on
her behalf
b. but also aggravating factors…
i. hit him 3 times!
ii. Stepdaughter in the car
c. So sentence ended up at the high end
ii. A rare case with female killer provoked in heat of
passion killing ~ harder for jury to understand
d. *historically, sexual infidelity treated as a broad license to
kill
i. even justifiable in some states!
1. Some even made exceptions to general rule that
mere words not adequate provocation by allowing
informing a D of sexual infidelity to reduce
offense
2. Under full justification view, sight of adultery is
a complete defense
a. Juries often eager to exercise power of
justification, may informally justify or
wholly excuse D - Commonwealth v.
Whitler – man killed paramour with an
ax, jury acquitted him even though judge
refused to instruct them that adultery was a
complete defense
7. blame the victim defense – sometimes evidence putting blame on
the victim inadmissible because too prejudicial and victim
cannot defend or rebut; often evoked in rape cases
a. People v. Berry – D convicted of murder, appealing and
arguing he was adequately provoked (similar argument to
Rowland)
i. about 20 min. to sit in apartment and wait for victim,
should have been enough to cool
ii. *focus here on victim’s acts – her own fault, suicidal
behavior and asking for it
1. court agrees, reverses conviction on appeal ~
a. expert testimony about his rage and
emotion
i. should this have been allowed?
ii. concern juries will give too much
weight – judges especially worry when
D has not been a patient before trial
2. would have been partial justification if judge
had allowed the provocation jury instruction
3. *but on appeal, defense focuses on partial excuse
and D’s mindset/emotions rather than any
wrongdoing by the victim
iii. *remember, AT COMMON LAW, WORDS WERE NEVER
ENOUGH – had no have sight of adultery or something
very close
a. so this case would not have exactly fit into
one of the 5 historical common law
categories of voluntary manslaughter
iv. *California case (more liberal than Texas)~ illustrates
the modern trend:
1. mere words, if bad enough, can constitute
provocation
2. greater inclination to follow MPC suggestion of
allowing jury to hear all of this and decide what
weight to give it
3. **limits on legal provocation in California:
a. (1) provocation or heat of passion must be
such as would be aroused in reasonable
person under the circumstances (Logan and
Valentine)
b. (2) passions must be aroused to such an
extent that reasonable person would act
rashly
c. (3) passion cannot be revenge (Logan,
Valentine)
d. (4) passion may be any intense emotion
e. (5) passion may be provoked by words,
including quarrels
f. (6) passion may be provoked over a long
period of time ~ “reprovocation” if no
cooling period involved (Gounagias,
Borchers)
UNINTENTIONAL HOMICIDE
Three Categories:
a. Involuntary manslaughter
b. Reckless murder
c. Felony murder
1. INVOLUNTARY MANSLAUGHTER – lowest level of mens rea ~
criminal negligence
a. Under other circumstances, would just be “accidents”
b. May open up the time frame and see blameworthiness:
i. Welansky – Coconut Grove nightclub fire
1. Gross negligence = convicted of involuntary
manslaughter
a. Doors blocked or locked
2. reckless disregard for the lives of others
a. jury instruction: may be reckless w/o
knowing it = objective!
i. *against MPC’s subjective
awareness and disregard of the
substantial risk
ii. maybe objective standard justified
here because encourages owners to
take better care = DETERRENCE
3. court uses a balancing test (BPL)
a. low likelihood
b. but catastrophic if it did
i. hard to get around the RESULT here
ii. 492 deaths
4. aggravating facts for D:
a. lawyer who basically bribed officials
b. took out some fire doors from blueprint
c. also violated decoration codes (highly
flammable)
d. emergency doors did not function right
e. # of people in club over capacity
5. note: probably no implied malice here
because jury could understand and gov. at
fault too
6. note: no such thing as criminal negligence
in Massachusetts
c. TREND: ordinary negligence (lower standard) enough –
need not be gross negligence:
i. State v. Williams – Washington case where parents
charged w/ involuntary manslaughter after their
baby died from illness
1. Did not bring him to doctor for fear he
would be taken away
2. Used objective standard of ordinary prudent
parent – “ordinary caution” test
3. Tort-level negligence used here (usually was
not enough for criminal liability)
4. *Washington is in minority of states that
use tort level negligence for criminal
offenses  trend toward this and away from
the Welansky standard requiring gross
negligence
a. but MPC opposed to imposing criminal
liability for ordinary negligence
5. *Washington was unwilling to look at the
subjective issues (parents’ culture,
poverty, lack of education) but California
court might have
6. *different from Twitchell because there
dealing w/ religious beliefs
**Murder 2 levels of malice**:
(1) express malice - intent to kill
(2) express malice – intent to inflict serious bodily injury
*(1) & (2) = malice aforethought for second degree intentional murder
(3) implied malice = extreme reckless disregard for the value of human life (something less
than intent but so bad that close enough to intent – just as bad as intent)
*reckless murder
(4) definition of malice for felony murder (most serious of unintentional homicide offenses).
**These 4 mental states have in common extreme indifference to the value of human life
w/o excuse, justification, or mitigating circumstances
2. RECKLESS MURDER – usually 2nd degree murder
a. *key inquiry is whether the recklessness rises to
level of “extreme indifference to the value of human
life”
i. MPC examples of reckless murder: shooting into
crowd, playing Russian roulette, throwing heavy
beer glass at woman w/ lighted oil lamp
b. Implied malice = extreme reckless disregard for the
value of human life ~ less than intent or express
malice but still bad enough to be Murder 2
i. Mayes v. People – D threw heavy beer mug at his
wife who was carrying oil lamp
1. Voluntary intoxication (no mitigation)
2. Arguably reckless even under MPC standard
because conscious disregard for known risk
3. *most reckless killings are manslaughter, so
why is this one murder?
a. *NO REDEEMING SOCIAL JUSTIFICATION ~ an
“abandoned and malignant heart” killing
(a.k.a. “depraved heart”) = grounds for
malice murder
b. *juries look for something as bad as
intent ~ implied malice = constructive
intent (D willing to take substantial
risk someone may die)
i. circumstances very important
c. when high probability of harm, D more blameworthy
i. Commonwealth v. Malone – Russian roulette case
1. *even though no intent to kill, no redeeming
social purpose here either
2. courts distinguish between deaths resulting
from unlawful acts (like here – pointing gun
in threatening way) and those from lawful
acts committed in an unlawful way (e.g.
self-defense w/ excessive force)
d. vehicular murder: more recent crime
i. used to be involuntary manslaughter at the worst
1. jurors could understand
2. but lobbying of MADD  stricter laws,
greater willingness to convict on murder
a. changing perception of the danger
b. MADD: often take retributivist view
c. Legislature: utilitarian purpose
(deter)
3. Can not get conviction even when low
probability…juries care about purpose more
than probability
ii. look for “abandoned and malignant heart”
1. Watson – DUI, murder conviction for 2 deaths
a. found implied malice
i. speeding, really drunk
ii. voluntary intoxication
iii. tried to brake but no mitigating
b. no redeeming purpose in drunk driving
3. FELONY MURDER – most serious unintentional homicide;
ALWAYS HEIGHTENS THE SERIOUSNESS OF THE OFFENSE!
a. Definition: “any rule reducing the culpability with
respect to death required for a particular grade of
murder when committed in the course of certain
felonies”
b. exception to the general rule that unintentional
homicide have lesser punishment than intentional
i. Another definition of malice here
ii. Some jurisdictions have 2nd degree felony murder
but most only have 1st degree
iii. Common law approach: automatically guilty of
murder if someone died in commission of the
felony (which provided the malice)
iv. Why it’s so messy:
1. Morality issue: sense of unfairness –
accidental killings that would otherwise be
involuntary manslaughter (or even no
criminal liability) elevated to capital
offense
2. Legality issue: courts have trouble saying
whether strict liability or need causal
connection between felony & killing
a. Some jurisdictions have abolished it
altogether but others keep it and put
limitations
c. Easy part is the actus reus (dead body)
d. *prosecution does not need to prove any mens rea with
respect to the killing ~ culpability presumed
4. LIMITATIONS ON FELONY MURDER RULE V. STRICT LIABILITY
~ depends on the state
a. MAJORITY VIEW: death must be foreseeable or probable
(causation limitation)
i. State v. Martin (New Jersey)– D committed arson,
victim inside died
1. Mens rea w/ respect to the death:
negligence, maybe recklessness ~ depends on
which version of the facts you use
2. w/o felony murder rule would be guilty of
negligent homicide or involuntary
manslaughter
3. TC: convicted of felony murder
a. didn’t matter if he knew someone in the
building or not
b. predicate felony: arson
4. on appeal, reversed because cause too remote
a. NJ hesitant to make it a strict
liability crime ~ say you need
proximate causation, more than but-for
b. MINORITY VIEW: BUT-FOR CAUSATION - D strictly liable
for the death, do not need a causal connection between
felony and death = PURE FELONY MURDER RULE
i. People v. Stamp (California)– D’s armed robbery
resulted in death from heart attack
1. Held strictly liable
2. w/o felony murder, probably not guilty of
any homicide! ~ perceived unfairness
3. If this had been in NJ, question would be
whether death was foreseeable from the
robbery (probably there would not be guilty)
4. Delay between immaterial b/c 1 transaction
c. Variations between states
i. Why put limitations on felony murder? - if no
limitation, everything is 1st degree felony
murder, no possibility for lesser homicide
offense => back to old common law view where
every homicide a capital offense
1. Limit unjust 1st degree convictions
2. examples of limitations:
a. causal limitation (must be proximate
cause, not too remote or accidental to
impose criminal murder liability)
b. felon must actually do the killing
c. death must be caused in furtherance of
the felony
d. person killed must be an innocent (nonfelon/non-participant) in the felony
e. killing must be in commission or
attempt of the felony (res gestae)
ii. New Jersey limitations on felony murder rule
(pretty liberal in allowing escape from felony
murder liability):
1. Predicate felonies (may trigger) – arson,
robbery, sexual assault, burglary,
kidnapping, carjacking, criminal escape
a. Most common limitation
b. The type of offenses where people tend
to be killed/injured
c. So inherently dangerous that death
automatically a foreseeable result
d. RATIONALE: transferred intent
i. Predicate felonies as a proxy for
mens rea
2. Causal limitation – must be the probable
consequence of the unlawful act (what saved
Martin)
3. Also allows some affirmative defenses
a. Ex: if D unarmed and no reason to
believe his co-felons armed or intended
to kill
iii. California – 1st and 2nd degree felony murder
1. Res gestae - require nexus between the
killing and the felony (Cavitt)
2. *2nd degree FM limited only to felonies that
are “inherently dangerous to human life” and
that have a HIGH PROBABILITY OF DEATH
a. reason for high standard: look for
indication of blameworthiness since
this is still very serious offense
b. Patterson – D furnished cocaine to
victim, violating statute
i. *issue: underlying felony not
usually inherently dangerous but
here, specific drug very dangerous
even though in reality probably
not high likelihood of death
c. felonies that have been held inherently
dangerous: poisoning food/drink, sale
of heroin, kidnapping, etc.
d. offenses held not dangerous enough to
trigger 2nd degree felony murder
:possession of concealed gun by felon,
escape from county jail, grand theft
under false pretenses
e. *Cal. in Patterson chose to look at
danger of death from the felony in the
abstract w/o conceiving of specific
case
3. often use agency theory: killing
constructively authorized, done in
perpetration of the felony - like in
Washington and so if killing done to stop,
not further the felony, no liability
4. Progression of California cases: Cabaltero
(but for causation) - Stamp (but for
causation, victim an innocent person so
felony murder liability under general rule
regardless of underlying rationale) 
Washington (agency vicarious liability
constructive authorization rationale, victim
a felon & shooter an innocent party so no
felony murder)  Taylor (accomplice
liability for third felon sitting in the
car)  Antick (victim felon A and shooter an
IP so felon B liable)  Gladman (res gestae)
 Cavitt (res gestae, accomplice liability)
a. *regardless of underlying rationale,
results consistent and reconcilable
with IL general rule EXCEPT Taylor
i. problems arise when limitations
and exceptions made to the rule 
deterrent effect diminished
iv. Georgia – PURE FELONY MURDER RULE - unusual rules
– NO LIMITATIONS
1. No predicate felonies – do not even need
transferred intent, just intent to commit
the felony
2. 1st degree felony murder conviction – life
or death penalty
v. Illinois – (general rule - Hickman) focuses on
who victim is and less on who the shooter is
1. victim = Innocent Person, then Felony Murder
(regardless who shooter is)
2. Vitim = Felon…
a. If Shooter = Innocent Person, then NO
Felony Murder
b. If Shooter = Felon, then Felony Murder
3. GENERAL RULE: if the victim an innocent
party, then use but for causation = felony
murder liability regardless of who the
shooter is
4. but if victim a felon, then no felony murder
liability PROVIDED THE SHOOTER IS AN
INNOCENT PARTY
a. Washington (Cal.)- armed robbery where
D’s accomplice shot by gas station
owner being robbed = no felony murder
liability
i. *consistent w/ IL general rule but
maybe not with Stamp
ii. *Cal. using agency theory (felony
murder when killing done in
furtherance of the felony)~
different rationale, same result
b. EXCEPTION: Taylor v. Superior Court
(Cal.)– 2 felons armed, hold up liquor
store, innocent person (clerk of store)
shot 1 of the felons while the third
felon (Taylor) in the car in parking
lot unarmed, had no clue
i. under general rule, no felony
murder because victim a felon and
shooter an innocent party so under
IL Rule, no felony murder
ii. but Cal. says Taylor guilty of
felony murder – accomplice
(vicarious) liability theory
(underlying rationale of FM)–
felon B provoked felon’s A’s death
and so felon C (Taylor) held
liable
c. Antick (Cal.)- A & B felons resisting
arrest, B fires at police officer who
fires back and kills felon
i. under IL general rule, victim a
felon and shooter an IP, so no
felony murder
ii. but in GA, would have felony
murder liability because but-for
causation
iii. *Cal. follows majority and
overturns the conviction
1. *distinguishes Taylor saying
there A liable for B’s death
because of A’s own conduct
and liability imputed to C by
virtue of being an accomplice
2. under Ferlin, cannot be
liable for his own death
5. if shooter is a felon, then automatic
transferred intent regardless of who victim
is then = felony murder liability
a. Cabaltero (early Cal.) - both killer
and victim felons so felony murder rule
applies
i. consistent with IL general rule
ii. Inconsistent with agency rationale
of Washington but consistent with
its result
b. Odd case - Ferlin - killer a felon but
no felony murder liability for the
other felon because killed himself
trying to commit arson = no criminal
liability for surviving felon, use
transferred intent
vi. MPC limitations on felony murder
1. § 2.10 predicate felonies (arson, rape,
burglary…) – “aggravating circumstances”
2. look at reasonable foreseeability
a. if foreseeable, commission of the
felony creates presumption of gross
recklessness
3. *rejects the idea of felony murder as strict
liability!
5. RATIONALES behind felony murder rules:
a. Utilitarian view: a super-deterrent! - warning
i. At least be more careful in commission of the
felony
b. A proxy for culpability typically associated w/ murder
~ transferred intent
i. Underlying felony carries the mens rea
1. Idea that people immoral enough to commit
violent felonies do not deserve traditional
mens rea so state need not prove it
ii. **Illinois (general) rule: Liability can only be
transferred where the victim is a protected
person
1. Hickman (IL)- police officer killed by
mistake, D charged w/ felony murder
a. JNOV appealed by state; conviction
upheld on appeal
b. w/o felony murder, would be guilty of
burglary and resisting arrest but not
homicide
c. death not very foreseeable
d. here, the burglary was at warehouse
unarmed
i. here, NOT inherently dangerous so
underlying rationale not served
e. Court here uses but-for causation
i. Not a limitation at all
f. D tries to argue that death must be
caused by the felon and since here
victim was the killer should not be
liable under Morris - but court points
out that in that case, victim was not
an innocent third party~ there,
justifiable killing (felon shot by
victim)!
g. Court uses a retributivist rationale
h. In NJ, Ds could have used affirmative
defense that underlying felony not
dangerous
2. Critique: criminal law should protect
innocent and guilty alike, should not depend
on marksmanship! (does not serve general
deterrence)
c. Retributivist view: send the message that results
count! ~ death requires atonement
i. *retributivist critique: problem of
proportionality
ii. another critique: redundancy ~ only need this
rule when no murder offense to begin with!
1. Idea that in the cases where you need the
rule, it is inherently unfair
6. Res gestae – if the killing committed in, about, or is part
of the underlying felony, felony murder applies; another
limitation on the felony murder rule
a. 2 elements of res gestae:
i. temporal and geographic proximity - close in
terms of time, place, and distance between felony
and homicide
ii. causation (varies by jurisdiction)
b. “drawing a circle around the felony, determine whether
killing occurred inside or outside the circle”
c. Gladman (Cal.)– underlying felony a deli robbery
i. *Victim an IP so automatic felony murder
regardless of shooter
ii. problem: felony 15 min. before and ½ mile away
from killing
1. D arguing robbery complete, wants to
separate the 2 so that mens rea not presumed
– if separate events, prosecution would need
to prove the requisite intent mens rea to
get 1st degree conviction
2. Court finds D was still in “immediate
flight” so felony not ended yet
d. Cavitt (Cal. 2004) – accomplice liability for Ds when
stepdaughter accomplice smothered the victim
i. IP killed = FM liability (follows general rule)
ii. *even if victim alive when they reached place of
safety and would have lived but-for deliberate
acts of stepdaughter, still liable:
1. under felony murder rule, because made it
easy for stepdaughter, put victim in
helpless position
2. under accomplice/vicarious liability,
because co-conspirators plotting together
3. *either way, murder liability
iii. apply res gestae
7. Felony murder: danger in the abstract or danger in the
commission?
a. In the abstract – California’s rule (Patterson) – look
at whether the felony is “inherently dangerous to
human life” in the abstract w/o reference to the
particular facts of a killing
b. In the commission – Missouri’s rule (Chambers) – look
at the particular facts
i. *problem: collapses FM into grossly reckless
murder – could easily get abandoned heart charge
1. Morally attractive but erodes FM
ii. Chambers (Mo.)– stolen car, driving recklessly,
deaths resulting
1. Usually not an inherently dangerous felony
triggering FM but under these facts, say
dangerous enough to warrant 2nd degree FM!
8. Merger Doctrine & “independent felonious purpose” underlying felony must involve acting purposefully with
respect to some result other than causing the death of the
victim
a. Shock – D convicted for beating death of boy
i. Underlying felony of battery/aggravated assault
1. But not predicate felony because this is
direct violent felony, not a collateral one
like FM meant to deter
ii. *don’t need FM rule here – homicide law can deal
b. in Walker, mitigated killing because of provocation ~
if you could collapse this into FM, would be unjust
i. sufficiently addressed by voluntary manslaughter,
don’t need FM
ii. *impossible to commit voluntary manslaughter
carefully so FM deterrent effect not served by
collapsing
c. RULE: where homicide is the natural result of the
offense like manslaughter, the homicide merges into
the offense so felony murder should not apply
d. 5 typical predicate felonies: do they have independent
felonious purpose?
i. **the problem: have to squeeze 2nd degree felony
murder into narrow window: must be dangerous
enough but no so dangerous it merges into killing
(must meet Patterson standard)
ii. 1. Robbery: yes – larceny offense, purpose of
stealing
iii. 2. Rape: yes – controlled humiliation
iv. 3. Arson: yes – similar to larceny, a burning to
deprive the owner or defraud
v. 4. Burglary: if defined as entering dwelling at
night w/ intent to commit felony then yes
vi. *5. Battery: no – inflicting physical harm
(usually a lesser included offense of the
homicide)
vii. kidnapping: yes, independent felonious purpose
viii. aggravated assault: assault with a weapon (may be
your fists) – tricky because can be committed
with some control over danger to human life…also
usually a lesser included offense to homicide,
part of natural progression so in that sense
would merge into homicide w/o independent
felonious purpose so normally felony murder does
not apply to aggravated assault
1. majority view – too closely connected to
killing even if some deterrent aspects to
having it as a predicate felony)
2. minority view - in GA, aggravated assault is
a predicate felony
ix. child abuse: problem here that so many different
forms of child abuse (also talking about neglect,
emotional deprivation, etc.)
1. CA has held felony child abuse not
inherently dangerous so felony murder does
not apply (looking at offense in the
abstract, now how it’s been committed in
individual case)
2. But if assault type child abuse, hard to
deny felony not inherently dangerous in the
abstract
3. But is it so inherently dangerous so as to
merge into the homicide?
4. Often child abuse accompanied by various
other felonies that could have independent
felonious purpose (and then felony murder
would apply)
x. Human corporeal punishment: yes – cause
suffering, influence human behavior
9. Conclusions on felony murder:
a. Pure felony murder rule easier to use; limitations
just create a slippery slope
b. Courts often not committed to it – maybe better to
just abolish it and use as sentence enhancer
c. Rationale of transferred intent made more sense at
common law where the felonies were all capital
offenses but now limits on the doctrine
i. ALL jurisdictions have limitation of “inherently
dangerous offense” and MOST delineate predicate
felonies triggering felony murder
ii. A few states have 2nd degree FM, usually where no
delineated predicate offenses
Categories of DEFENSES: Justification and Excuse – where D admits to
committing the crime but X is why he should not be held responsible
1. JUSTIFICATION: focus on the act
a. Examples: self-defense, defense of others
b. An act that although may result in a killing is not as blameworthy
because good motive = reduces wrongness of killing
c. *if an act is justified, it is because the law implicitly recognizes that
some violations of criminal statutes may not be wrongful if greater
good achieve
i. praiseworthy even: war, law enforcement, self-defense,
defense of others, state-ordered executions
2. EXCUSE: focus on the person/D
a. Examples: insanity, duress, diminished capacity
b. *means D is saying there is some personal disability applying only to
this D, the result of which he should not be punished for the
otherwise wrongful act
c. *the act is still a crime, but D is excused for some reason
1. Self-Defense
a. A “perfect self-defense claim” (D will walk, act justified) where:
i. Actual and reasonable belief that deadly force is necessary to prevent
death or grievous bodily harm
1. Force must be proportionate
ii. Threat is imminent with no available alternatives
iii. *note: some states require D have no part in bringing about the
situation
iv. *some states also require duty to retreat
b. example: La Voie – D driving late at night, accosted by 4 drunk guys who had
just shoved his car, 1 approached in menacing way so D shot him
i. no mention of duty to retreat
ii. D was justified in his act – reasonable belief, threat imminent, no help
around, no culpability on his part
1. Had a right to be scared and unsure of their intentions
iii. Prosecution: killing not proportional, more reasonable to believe they
just wanted to harass, not harm, D = question for the jury….
iv. But judge grants and affirms directed verdict – why?
1. 4 possibilities:
a. (1) JUSTIFICATION - if D knew deadly force necessary to
protect himself from death or grievous bodily harm,
then homicide justified and constitutes perfect self
defense claim and act would not be a crime = D walks
b. (2) EXCUSE - what if deadly force was not necessary and
the guys were really only trying to scare him and took it
too far because drunk but D honestly and reasonably
believed they would inflict grievous bodily harm or kill
him = then homicide is excused and constitutes perfect
self-defense claim = D walks
c. (3) IMPERFECT SELF-DEFENSE CLAIM - if deadly force
not necessary and D objectively unreasonable in his
belief it was necessary but does honestly believe it was
necessary– not a complete defense so STILL A CRIME
and D still culpable but may mitigate the offense from
murder to manslaughter or reckless murder or even
negligent homicide = convicted of less than murder
d. (4) NO SELF-DEFENSE CLAIM - if D did not honestly and
sincerely believe deadly force necessary, then act neither
justified or excused in whole or in part = guilty of
intentional and knowing crime = convicted
2. judge’s perspectives:
a. D had right to drive home w/o interference so act
justified, must be acquitted, OR
b. Unfair to expect D to wait and see – could be too late
c. Reasonable jury could not say D unreasonable in his
belief ~ bumped his car, made verbal physical threat
d. *under any of these perspectives, jury would have to
excuse or justify D
c. MPC § 3.04 – valid self-defense claim where:
i. Honestly and reasonably believe force used was necessary to prevent
serious bodily harm or death
ii. Requires D truly believed in necessity of force (subjective element but
overall objective standard)
iii. Forbids use of force to resist arrest by officer even if unlawful
iv. No self-defense for deadly force aggressor
v. Requires duty to retreat
vi. No deadly force in defense of property
d. duty to retreat – minority but substantial # of states require that if you can
avoid the killing, you must do so
i. exception: no duty to retreat from your own home (right to feel secure
in your own home)
1. exception: for co-habitants
e. general rule: if you are the original aggressor, you do not have a right to selfdefense
i. Gleghorn – D entered dwelling/garage of Fairall at 3 am to avenge a
wrong, yelled for him, threatened to burn him out, victim shot him
with an arrow, then D beat victim hard and now arguing self-defense
1. No self-defense claim here –victim acted reasonably assuming
his life at risk so had a right to respond with deadly force
a. *victim has a perfect self-defense claim whether
excused (focus on his perception) or justified (acts)
ii. 2 Exceptions – initial aggressor has right to self-defense where:
1. initial aggressor clearly announces intent to withdraw but other
person persists in counter-attack
2. initial aggressor attacks victim with nondeadly force so that
victim’s right to defend limited to nondeadly force in response
but victim then responds with deadly force
a. *the exception Gleghorn D unsuccessfully tries to argue
~ for that D to have had a right, victim would have had to
have acted unreasonably (which he did not)
i. even if victim unreasonably in shooting the arrow
so that this exception would apply, D still loses
because beat him with disproportionate force,
long after disabled = retaliation, not self-defense
2. battered person defenses – applies to women, men, children, etc.
a. example: Liedholm – husband continuous abuser, wife stabs him in his sleep
i. argues it was error for TC not to allow battered spouse jury instruction
ii. *problem: threat not imminent
1. but often threatened her with more beatings when he awoke
2. perfect self-defense claim only if threat proven imminent
iii. North Dakota – takes liberal view of this defense, say question is
whether D actually and sincerely believed conditions existed that
would give perfect self-defense scenario = subjective standard ~ strike
down objective reasonable person standard
1. *allows her to get around the imminence issue!
2. * accused is the reasonable person under this standard!
a. Female, smaller than husband, physical and
psychological evidence of abuse allowed in
b. Jury must consider evidence in context of the
reasonable battered spouse
i. *but bottom line: do they believe her??
iv. Excuses the imminence requirement (but may still come up when
looking at necessity of action or feasibility of retreat)
v. Probably would not have been convicted under MPC either – §2.10.3(b)
provides for subjective defense of extreme emotional disturbance if
reasonable and resulted in homicide
vi. *note: she objected to manslaughter as lesser included offense to
murder = “noose or loose” – feared when jury deliberated there would
be holdouts and would compromise on manslaughter
1. (this strategy backfired for the Woodruff nanny but lucked out
in the end because judge let her out of the bad gamble)
b. Contrast with Norman – North Carolina prohibits battered spouse defense
when spouse is sleeping (viewed as a pre-emptive killing) – no defense here
no matter how subjectively reasonable!
i. *NC requires retreat
c. *rationale for this defense:
i. retreat often not feasible – 2 theories testified by experts:
1. “Cinderella complex” – wife convinced beatings are her fault
2. “learned helplessness” – believe no escape so submit to it
ii. may not have alternatives – could be financially tied, batterer may
threaten children
iii. inadequate protection from police/government
d. *summary: if battered spouse, justification where right to self-defense (killing
justified); as an excuse, in cases where there is a duty to retreat as
prerequisite to self-defense, battered spouse syndrome excuses duty to
retreat and imminence requirement
3. example: Goetz – the subway vigilante ~ only indicted for firearm charge at first but then later
for attempted murder, assault, and reckless endangerment too
a. issue: should an objective or subjective standard be used?
i. on appeal say “reasonable” implies objective but they consider subjective
factors like physical traits, prior experience, etc.
ii. an “objective” standard but tailored to this D
iii. careful about not making it totally subjective though – don’t want to sanction
this behavior for anyone w/ reasonable belief
1. but here, NY very dangerous in 1980s so reasonable
b. acquitted of all charge except weapons charge
i. 2 ways to view the acquittal: (1) legitimate because objective juror would
agree, see him as a hero or (2) illegitimate acquittal based on racist issues
(Goetz white, jurors mostly white, 4 youths black)
c. had a reasonable defense claim at first but not once he started shooting
i. admits it was disproportionate response but argues it should be excused! –
battered citizen defense
1. most jurisdictions accept battered spouse, but fewer allow battered
citizen (difference in personal knowledge – credibility different)
2. got a partial excuse in the criminal trial b/c of his sensitivity unique to
his experience
3. also got partial justification (based more on this) – seen as hero
making subways safer for everyone = jury willing to forgive
disproportionality
4. cannot use deadly force to protect property – Ceballos ~ spring guns set on garage after
house break-ins; convicted of assault w/ a deadly weapon
a. arguing his act was justified because if he had been there, would have had a perfect
self-defense claim…but here cannot use deadly force when you are not home! – no
imminence, not proportional
b. spring guns generally held unreasonable – no room for rule of lenity ~ justifiable only
when deadly force factually correct, not ok where D makes a reasonable mistake!!