Homicide
Start with malice—it splits murder from manslaughter. Four ways in, two ways down, and felony murder's limits doing most of the exam work.
Murder: four malice theories
| Theory | The mental state | 🐚 Example |
|---|---|---|
| Intent to kill | Purpose or knowledge death will result—deadly-weapon use lets the jury infer it | Liv aims at Noodle's chest and fires |
| Intent to inflict serious bodily injury | Meant grave harm; death results anyway | Rosa swings the bat to shatter kneecaps; Noodle dies |
| Depraved heart | Reckless indifference to an unjustifiably high risk to human life | Liv empties a pistol into a crowded bus |
| Felony murder | A killing during an inherently dangerous felony—the felony supplies the malice | Noodle's getaway crash kills a pedestrian mid-robbery |
Where a statute divides murder: first degree = premeditated and deliberate (a cool moment of reflection—an instant can suffice) or an enumerated-felony killing; everything else with malice is second degree. Common law has no degrees—read the question's statute.
Felony murder's limits
BARRK felonies: burglary, arson, rape, robbery, kidnapping—inherently dangerous. Merger: assault-type felonies merge into the killing and can't supply malice. Causation window: the death must occur during the felony or immediate flight—reaching “temporary safety” ends it. Foreseeability: the death must be a foreseeable result (most deaths during armed felonies are). Agency rule (majority): no felony murder when a police officer or victim does the killing; and under Redline, a co-felon's justified death doesn't count.
Liv and Noodle rob the bank; a guard shoots Noodle. Majority rule: Liv is NOT guilty of felony murder for Noodle's death—the killer wasn't a felon (agency), and a co-felon's justifiable killing is excluded anyway. Change it so Liv's stray shot kills a teller: felony murder, easily.
Stepping down: the two manslaughters
- Adequate provocation—would inflame a reasonable person (caught-in-the-act adultery, a violent battery; words alone almost never)
- Defendant actually provoked
- No cooling time—objectively or actually cooled = back to murder
- Also: imperfect self-defense (honest but unreasonable belief) in many states
- Criminal negligence—gross deviation, more than tort negligence (MPC: recklessness)
- Misdemeanor-manslaughter: death during a malum in se misdemeanor or a felony that doesn't qualify for felony murder
Liv walks in on her spouse with Rosa and kills in the moment—voluntary manslaughter. She broods for three days first—cooling time, murder. Meanwhile, texting at 90 through a school zone, Noodle kills the crossing guard—involuntary manslaughter on criminal negligence.
Grading any killing
A death, caused by the defendant
Actual + proximate cause first, then grade it.
Malice—any of the four theories?
Manslaughter territory: criminal negligence → involuntary; otherwise no homicide liability.
Adequate provocation without cooling time?
Voluntary manslaughter—the passion discount.
Premeditated, or an enumerated felony (per the statute)?
First-degree murder.
Second-degree murder
Malice without the aggravators.
Causation check before grading: the defendant's act must be the but-for and proximate cause—victim's refusal of treatment and negligent medical care are foreseeable (chain holds); a truly independent intervening killing breaks it. Year-and-a-day rule is mostly abolished; don't rely on it.
Where the points are
The traps examiners actually set.
- Most tested
- Felony murder's limits (merger, agency, temporary safety); depraved heart vs. criminal negligence (degree of risk); provocation + cooling time; deadly-weapon inference.
- Classic traps
- Words alone as adequate provocation (no); assault merging yet “supplying” felony-murder malice (merger bars it); intent-to-injure graded as manslaughter (it's murder); premeditation requiring days (an instant suffices); grading before checking causation.
Keep going: Homicide flowchart Involuntary Manslaughter MEE guide Criminal Law Attack Sequences