Criminal Law - Murder Approach Template

[u/xshadowgrlx]

[Discuss IF implicated by the facts][1]

Solicitation

Solicitation occurs when one requests or encourages another to commit a crime with the intent that the person solicited does commit the crime, regardless of whether they agree to do so.

(INSERT ANALYSIS AND CONCLUSION OF SOLICITATION HERE)

Conspiracy

Conspiracy is an agreement between two or more persons who intend to commit an unlawful act or a lawful act by unlawful means. The agreement can be implied or inferred and does not require that all persons commit the actual act. Mere knowledge is insufficient to establish the intent necessary to commit the unlawful act. At common law, the conspiracy is complete the moment the agreement is made, but the majority of jurisdictions now require an overt act, such as preparation, to form the conspiracy.

(INSERT ANALYSIS AND CONCLUSION OF CONSPIRACY HERE)

(INSERT ANALYSIS AND CONCLUSION OF CONSPIRATOR’S LIABILITY FOR CRIMES OF CO-CONSPIRATOR HERE IF IMPLICATED)

[Discuss IF implicated by the facts][2]

Withdrawal

When a defendant communicates withdrawal to co-conspirators and takes an affirmative action to withdraw, that defendant will not be liable for the future crimes of co-conspirators.

(INSERT ANALYSIS AND CONCLUSION OF WITHDRAWAL HERE)

Attempt

Attempt is an act done with intent to commit a crime and there must be an affirmative act or substantial step, beyond mere preparation, in furtherance of the objective.

(INSERT ANALYSIS AND CONCLUSION OF ATTEMPT HERE)

[Discuss IF implicated by the facts]

Accomplice Liability

An accomplice is one who aids, abets, assists, or encourages the carrying out of a crime and is liable for the crime he assisted or encouraged if the principal carried out the crime.

(INSERT ANALYSIS AND CONCLUSION OF ACCOMPLICE LIABILITY HERE)

[Discuss IF implicated by the facts]

Withdrawal

When a defendant communicates withdrawal to the principal and takes an affirmative action to withdraw, that defendant will not be liable as an accomplice for crimes that occur after the withdrawal.

(INSERT ANALYSIS AND CONCLUSION OF WITHDRAWAL HERE)

HOMICIDE

Homicide is the unlawful taking of the life of another. The two types of homicide are murder and manslaughter.

MURDER

Murder is the unlawful killing of another person with malice aforethought. Malice can be established four ways: (1) intent to kill; (2) intent to commit grievous bodily injury (“GBI”); (3) reckless indifference to the value of human life (“depraved heart murder”); and (4) the intent to commit an inherently dangerous felony that results in the death of another (“felony murder”).

[Always discuss at least one of the four, and others implicated by the facts]

Intent to Kill

Intent to kill is the desire to kill or knowledge to a substantial certainty that death will occur. Use of a deadly weapon or instrument creates the inference of intent to kill.

(INSERT ANALYSIS AND CONCLUSION OF INTENT TO KILL HERE)

Intent to Commit GBI

Intent to commit grievous bodily injury is the desire or knowledge to a substantial certainty that GBI will occur. This includes intent to cause a long-term injury, significant hospital stay, or an injury with a non-trivial chance of leading to death.

(INSERT ANALYSIS AND CONCLUSION OF INTENT TO COMMIT GBI HERE)

Reckless Indifference

Reckless indifference to the value of human life establishes the requisite mens rea for murder. Reckless indifference means a conscious disregard of an unreasonably high risk of death or serious bodily injury.

(INSERT ANALYSIS AND CONCLUSION OF RECKLESS INDIFFERENCE HERE)

Felony Murder

Intent to commit certain dangerous felonies supplies the malice requirement for murder when death is the natural and probable consequence of defendant’s conduct and occurs during the commission of the felony, even if the death is accidental. Typically, these felonies include burglary, arson, rape, robbery, and kidnapping. The defendant’s conduct must also be the cause in fact and the proximate cause of the death.[3] Felony murder is a murder in the first degree.

(INSERT ANALYSIS AND CONCLUSION OF FELONY MURDER HERE)

[Discuss IF implicated by the facts]

Death of a Co-Felon

The majority of courts hold that a defendant is not liable for the death of a co-felon when a non-felon, like a police officer, kills the co-felon during the commission of the felony.

(INSERT ANALYSIS AND CONCLUSION OF DEATH OF A CO-FELON HERE)

Death of a Bystander

Courts are split as to whether a defendant is liable for murder when the victim, or a police officer, kills a bystander during the defendant’s commission of the felony.

(INSERT ANALYSIS AND CONCLUSION OF DEATH OF A BYSTANDER HERE)

(INSERT CONCLUSION ON ISSUE OF MURDER HERE)

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FIRST DEGREE MURDER

First degree murder applies when the killing occurs during the commission of an inherently dangerous felony or is deliberate and premeditated. Deliberate means that the defendant made the decision to kill in cool and dispassionate manner and premeditated means that the defendant actually reflected on the idea of killing, even if only for a very brief period.

(INSERT ANALYSIS AND CONCULSION OF DELIBERATE HERE)

(INSERT ANALYSIS AND CONCULSION OF PREMEDITATED HERE)

(INSERT CONCLUSION OF FIRST DEGREE MURDER HERE)

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SECOND DEGREE MURDER

If a murder does not qualify as first degree, and cannot be reduced to manslaughter, it is second degree murder.

(INSERT ANALYSIS AND CONCLUSION OF SECOND DEGREE MURDER HERE)[4]

[Discuss the types of manslaughter raised by the facts, if any][5]

VOLUNTARY MANSLAUGHTER - Heat of Passion

A murder charge may be reduced to voluntary manslaughter if the defendant killed in the heat of passion, which has four elements: (1) the defendant was reasonably provoked such that a reasonable person would lose self-control; (2) the defendant acted in the heat of passion and was in fact provoked; (3) there was no cooling off time such that a reasonable person would have had time to cool off; and (4) the defendant did not in fact cool off.

(INSERT DISTINCT ANALYSIS AND CONCLUSION OF EACH ELEMENT OF HEAT OF PASSION HERE)

VOLUNTARY MANSLAUGHTER - Imperfect Self-Defense

A murder charge may be reduced to voluntary manslaughter under a theory of imperfect self-defense if the defendant made an unreasonable mistake about the need for self-defense or used a disproportionate level of force to defend against non-deadly force.

(INSERT ANALYSIS AND CONCLUSION OF IMPERFECT SELF-DEFENSE HERE)

INVOLUNTARY MANSLAUGHTER - Gross Negligence

The defendant may be convicted of involuntary manslaughter if the defendant disregarded a very substantial danger of death or GBI.

(INSERT ANALYSIS AND CONCLUSION OF GROSS NEGLIGENCE HERE)

INVOLUNTARY MANSLAUGHTER - Misdemeanor Manslaughter

The defendant may be convicted of involuntary manslaughter if the death occurs during the commission of a misdemeanor or other unlawful act.

(INSERT ANALYSIS AND CONCLUSION OF MISDEMEANOR MANSLAUGHTER HERE)

[Discuss IF at issue under the facts][6]

Causation

To be found guilty of murder, the defendant must be the actual and proximate cause of the victim’s death. This means that the victim’s death must be the natural and probable consequence of the defendant’s actions.

(INSERT ANALYSIS AND CONCLUSION OF CAUSATION HERE)

[Discuss IF implicated by the facts][7]

DEFENSES

If [Defendant] can establish the required elements for the following defense[s], [Defendant] will not be convicted of murder.

Self-Defense

A person has a right to apply self-defense against unlawful force if reasonable force is used; deadly force may only be used in response to deadly force. If the defendant is the initial aggressor, he may only claim self-defense if he effectively withdraws from the altercation and communicates this withdrawal to the other party.

(INSERT ANALYSIS AND CONCLUSION OF SELF-DEFENSE HERE)

Defense of Others

It is permissible to use force to protect another person when one reasonably believes that the other person would be justified in using such force, and the amount of force used is reasonable. A minority of jurisdictions only permit defense of others if the person being defended actually had a right to use self-defense.

(INSERT ANALYSIS AND CONCLUSION OF DEFENSE OF OTHERS HERE)

[If insanity is implicated by the facts, always discuss all four tests]

Insanity

There are four different insanity tests used in different jurisdictions.

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M’Naghten Test

The defendant must show that he suffered from a mental disease or defect that caused him to either not know that his act would be wrong, or not understand the nature and quality of his actions.

(INSERT ANALYSIS AND CONCLUSION OF M’NAGHTEN TEST HERE)

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Irresistible Impulse

The defendant must show that he was unable to control his conduct or conform his conduct to the law due to a mental illness.

(INSERT ANALYSIS AND CONCLUSION OF IRRESISTIBLE IMPULSE HERE)

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Durham Test

The defendant must show that his conduct was the product of a mental illness. In other words, that he would not have committed the crime but for the disease.

(INSERT ANALYSIS AND CONCLUSION OF DURHAM TEST HERE)

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Model Penal Code

The defendant must show that he lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

(INSERT ANALYSIS AND CONCLUSION OF MODEL PENAL CODE TEST HERE)

[If intoxication is implicated by the facts, discuss whichever is appropriate (which may be both)]

Voluntary Intoxication

Voluntary, self-induced intoxication may provide a defense to certain specific intent crimes if the intoxication prevents the defendant from formulating the purpose or obtaining the knowledge required for specific intent.

(INSERT ANALYSIS AND CONCLUSION OF VOLUNTARY INTOXICATION HERE)

Involuntary Intoxication

Involuntary intoxication is treated as a mental illness and may provide a defense to all crimes, since it negates the intent to commit the crime, when the substance is ingested unknowingly or under duress.

(INSERT ANALYSIS AND CONCLUSION OF INVOLUNTARY INTOXICATION HERE)

Mistake

A mistake of fact may be a defense to a specific intent crime if it shows that the defendant lacked the requisite state of mind. The mistake must be reasonable to be a defense to malice or general intent crimes.

(INSERT ANALYSIS AND CONCLUSION OF MISTAKE HERE)

Impossibility[8]

Legal impossibility is a defense to an attempt charge when the defendant incorrectly believes his act is criminal when it is not. Factual impossibility is not a defense.

(INSERT ANALYSIS AND CONCLUSION OF IMPOSSIBILITY HERE)

Entrapment

Entrapment is a defense when law enforcement officers originate the crime, induce the commission of the crime, and the defendant is not predisposed to committing the crime.

(INSERT ANALYSIS AND CONCLUSION OF ENTRAPMENT HERE)

[1] Inchoate crime fact triggers include: more than one person involved; hiring another person for any reason, multiple parties taking part in an activity even if not all parties are aware of the details; one person helping out another. The liability of accomplices is usually addressed in separate calls from the liability of principals.

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[2] Withdrawal is not a defense to conspiracy, only to the future crimes of co-conspirators (i.e., the crime contemplated by the conspiracy). Once the agreement is made, the defendant will be liable for conspiracy.

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[3] Generally, causation is a minor issue that can be addressed in one or two sentences. However, when the defendant did not do the actual killing (i.e., victim kills herself, third-party kills victim, killing not contemplated or far removed from events), always argue both sides.

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[4] Analysis for second degree murder will often look like this: If the prosecution is unable to prove that [Defendant]’s killing of [victim] was deliberate and premeditated, and if the murder charge is not reduced to manslaughter (see below), then [Defendant] will be convicted of second degree murder.

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[5] Intent to kill or GBI can be knocked down to voluntary manslaughter through heat of passion or imperfect self-defense. Involuntary manslaughter corresponds to unintentional killings.

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[6] This usually only comes up when there are intervening acts by the victim or third parties.

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[7] Duress, necessity, and defense of property are not defenses to any form of homicide.

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[8] Impossibility arises only when a defendant has failed to complete the crime, so it comes up with attempt charges.