Students' Page > Criminal Law > Unit 9

Criminal Homicide

Crimes Against Persons

• Crimes against persons include a number of offenses that deprive people of their lives, their liberty, and their privacy.
• There are too many of these to comfortably fit into one text chapter.
• In this unit, we examine the most serious crimes against persons: Criminal Homicide.

Degrees of Homicide

• Because of the result, homicide is always a very serious crime.
• However, there are different types of homicide—murder and manslaughter.
• These can be divided into degrees as well—usually first and second degree.
• The degrees and types are determined according to
  • Mens rea
  • Actus reus
  • Special Circumstances

History of Criminal Homicide

• The modern law of criminal homicide took centuries to develop.
• In the beginning there was only one form of criminal homicide: all killings that were not justified or excused.
• Eventually, criminal homicide was divided into murder and manslaughter.
• This division depended entirely on mens rea.
• Murder was killing someone "with malice aforethought."
• "Malice" meant intentional killing without excuse or justification.
• Aforethought meant planning the killing in advance to kill, what we now call premeditation.
• The typical examples were poisoning and lying in wait to kill.
• Manslaughter was killing in the sudden heat of passion when the victim provoked the passion.
• As time went by, murder came to include not only premeditated killing but all intentional, "deliberate" killings, deliberate meaning not in the sudden heat of passion.
• Gradually added to the list of criminal homicides were some kinds of unintentional killings, like death during the commission of felonies, and extremely reckless and negligent killings (depraved heart killings).
• Last in this long history from its "malice aforethought" beginnings, the judges ruled that the intent to inflict "serious bodily harm" was enough to satisfy the mens rea of criminal homicide.
• So, in order to understand the modern law of criminal homicide, we need to consider at least the following separate crimes:

1. First Degree Murder
2. Second degree Murder
3. Voluntary Manslaughter
4. Involuntary Manslaughter

Elements of Criminal Homicide

• Homicide—killing another live human being—began as a common law crime, meaning that English and then American judges created it, not the legislatures of England and the United States.
• Now, as then, there were three types of common law homicide:

1. Justifiable Homicide, such as killing in self defense, capital punishment, and police use of deadly force.
2. Excusable homicides, such as an accidental killing and killing while insane
3. Criminal Homicide, all homicides that are neither justified nor excused.

Taking a Life

• Criminal Homicide requires taking the life of another live human being.
• The "Another" part is easy to understand—suicide doesn’t count.
• The "live human being" part is more complex.
• The definition depends on how the law defines when life begins and ends.
• According to the common law definition, life begins when babies are "born alive."
• But some states have pushed the definition of life back into the period before birth.
• Some statutes say that life begins at conception; others say that only "viable fetuses" such as those twenty-eight weeks past conception, are live human beings.

When does life Begin?

• Fetal death statutes (laws defining when life begins for purposes of the law of criminal homicide) have generated heated debate because they’ve gotten mixed up with the deep controversy over abortion.
• But fetal death statutes and definitions of abortion differ fundamentally.
• Abortion is the termination of pregnancy by a medical professional with the woman’s consent.
• Fetal death statutes deal with killing a fetus without the woman’s consent and outside normal medical practice.
• Many who oppose making abortion a from of criminal homicide support fetal death statutes because of these differences.
• As things stand now, it would be unconstitutional to make abortion illegal.
• In Roe v. Wade, the USSC upheld the right of women to terminate their pregnancies under some conditions.

Meadows v. State, 291 Ark. 105

When Does Life End?

• Determining when life ends has become increasingly complex as organ transplants and sophisticated artificial life support mechanisms make it possible to maintain vital life signs.
• To kill a dying person, to accelerate a person’s death, or to kill a "worthless" person are clearly homicides under current law.
• Example: Purposely disconnecting a respirator is criminal homicide.
• Historically, alive meant breathing and having a heartbeat.
• The concept of brain death has gained prominence over the past several years, with implication snot only for medicine and morals but also for criminal law.
• If artificial support alone maintains breathing and heartbeat while brain waves remain minimal or flat, brain death has occurred.
• The Uniform Brain Death Act provides that an individual who has suffered irreversible cessation of all brain functions, including those of the brain stem, is dead.
• More difficult are cases involving individuals with enough brain function to sustain breathing and heartbeat but nothing more, such as patients in a deep coma.
• They may breath and their hearts may beat, but are they alive according to the criminal law?
• Troubling cases arise in which patients in deep coma have been described by medical specialists as "vegetables" but regain consciousness and live for a considerable time afterward.
• Example: A Minneapolis police officer was shot and written off for dead after more than a year in a deep coma, but then regained consciousness and lived several years.
• As was true for defining when life begins, defining death need not be fastened to traditional legal doctrine or medical practice.
• Definitions that satisfy the purposes of the criminal law should rather depend on the underlying values that homicide statutes are meant to preserve.
• Resolving definition problems therefore requires policymakers and legislators to grapple with how to determine what worth they ultimately attribute to continuing life for the critically and hopelessly injured, the gravely mentally ill, and other victims of advanced diseases and life's vicissitudes.

Causing Another’s Death

• Causing another’s death is an element in criminal homicide that can create difficulties.
• Some killers never touch their victims by still cause their deaths.
• For example, if I invite my blind enemy to step over the edge of a cliff he can’t see and he dies from the fall, I’ve caused his death.
• If I expose my helpless child to freezing temperatures, I’ve caused his death.
• The more common problem cases are when several causes contribute to a death.
• This usually happens when the victim doesn’t die immediately.
• One man beaten almost to death was taken to a hospital, where in a delirious state, he pulled out his life support plugs and died.
• Another victim was so stunned from a beating that he stumbled in front of a speeding car and was killed.
• Factual cause exists in these cases because the assailants set in motion chains of events that eventually resulted in death.
• Whether the assailant legally caused the victims death depends on whether it is fair, just, and expedient to impose liability for criminal homicide.
• According to the ancient year and a day rule, which is still followed in some states, no act occurring more than one year and one day before death can be the legal cause of death.
• According to the year-and-a-day rule, the law conclusively presumes that death was due to "natural causes" not the defendant’s act.

Murder

Express or Implied Malice

• Intent to kill
• Intent to inflict serious bodily harm
• Intent to commit dangerous felonies
• Intent to resist arrest by force

First-degree Murder

• The common law didn’t recognize degrees of murder; all criminal homicides were capital felonies.
• Pennsylvania was the first state to depart from the common law, enacting a statute in 1794 that divided murder into first and second-degree.
• The reason for this change was the first wave of opposition to the death penalty in the US.
• First degree murder limited the death penalty to the worst killings.
• That remains the reason for today’s first degree murder statutes.
• Most states quickly adopted Pennsylvania’s example.
• In states that abolish the death penalty, first degree murder became a life imprisonment felony.

Premeditated and Deliberate

• First-degree murder depends on a narrow definition of the intent to kill.
• Most statutes define the mens rea of murder as the premeditated and deliberate killing of another person.
• Premeditated means that the murderer planned the murder in advance.
• Deliberate means that the murderer killed in "cold blood," not in a sudden burst of rage.
• Of course, you cant plan a killing in advance and kill deliberately unless you have the specific intent to kill.
• But you can specifically intent to kill without advanced planning and deliberation—the definition of second degree murder.
• The majority of courts today have virtually eliminated the element of advanced planning and cool deliberation by holding that premeditation includes killings that take place even instantly after forming the intent to kill.

Heinous or Atrocious Murder

5-10-101. Capital murder

§ 5-10-102. Murder in the first degree

Second Degree Murder

§ 5-10-103. Murder in the second degree

Felony Murder

• Killing someone you didn’t mean to kill while committing some felonies is called felony murder.
• Which felonies apply varies from state to state.
• The degree of murder also varies from state to state—in Arkansas, there are felony murder provisions in both the Capital Murder and Murder in the First Degree statutes.
• Felony murder doesn’t require the intent to kill or to inflict serious bodily harm.
• The intent to commit the felony substitutes for the intent to kill.
• Example: A robber fires a gun during a robbery and kills a convenience store clerk without the intent to kill—the intent to rob is blameworthy enough to satisfy the mens rea of the felony murder.

Three Policy Goals

• Deter offenders: The added threat of a murder conviction is supposed to prevent would-be felons from committing felonies that can lead to death.
• Reduce violence: The threat of a murder conviction is supposed to curtail the use of violence during the commission of felonies by inducing violent felons to act more carefully during robberies and other felonies fraught with the risk of injury or death.
• Punish Wrongdoers: People who intentionally commit felonies, creating high risk of death or injury while they do so, should suffer the most serious possible consequences for their actions.

Manslaughter

• Manslaughter, like murder, is an ancient common-law crime that was created by judges, not legislatures.
• At first, all manslaughters were treated alike.
• Later, courts and then legislatures divided manslaughter into two main categories: intentional or voluntary heat-of-passion manslaughters and unintentional or involuntary manslaughters.

Voluntary Manslaughter

• Voluntary manslaughter is the intentional killing of another live human being under extenuating circumstances.
• One extenuating circumstance is imperfect self defense, that is, the intentional killing of another in the honest—but not reasonable—belief that self-defense required the use of deadly force.
• Provocation is the most common extenuating circumstance that reduces murder to voluntary manslaughter.
• While the criminal law aims to bridle passions and build self-control, at the same time it doesn’t ignore the frailty of human nature.
• So, an intentional killing that the victim provoked, while still a serious felony, isn’t murder.
• The law of voluntary manslaughter doesn’t reward individuals who give in to their rages by letting them walk, but it does make what they did somewhat less serious.
• And it makes the killing less serious only under the severe limits of the adequate provocation rule.

Adequate Provocation Rule

According to this rule, the killing has to meet all of the following conditions. It was committed:

1. During the sudden "heat of passion"
2. Without time for the passion to "cool off"
3. Where the provocation caused the passion and killing
4. Because of a provocation that is specifically recognized by law.

Adequate Provocations

The law of manslaughter recognizes only adequate provocations—those recognized by law.

These include:

1. Mutual combat
2. Assault and battery
3. Trespass
4. Adultery

§ 5-10-104. Manslaughter

The Paramour Rule

This page available at: