Welcome

Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Tuesday, February 2, 2010

2 - Criminal Law - Death Crimes - Murder (Homicide)

2 - Death Crimes - Murder (Homicide)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

I always tell my students that the first clue for murder on an essay is a dead guy! I’ve had to add to that recently after I noticed on a final exam where one of the main issues was murder, the student quoted that statement. Now, I make sure that I tell them, quite emphatically, “Don’t put that on an exam.”

Make sure you look at the basic outline for death crimes that I have posted recently so that you will be able to follow the appropriate order.
There are many definitions for murder. Some define murder as “the unlawful killing of one human being by another with malice aforethought.” This is certainly a proper definition and it sounds cool to a new law student. Over my years of teaching, I have found that students become so enamored with words like “malice aforethought” that they forget there is more to an exam than the cool words. Obviously, if a student’s professor says to do it that way, it is a good idea to comply.

I think the most concise and the best definition was taught to me by my mentor where I teach law school, and that is how I teach it. “Murder requires homicide with malice.” It is equally as simple to say “… Homicide plus Malice.” Do you see how simple that is? So, dealing with murder on an exam, there are two parts: Homicide and Malice.

To this simple definition, I add a fairly typical addition and tell my students that if they can remember this sentence as well, it may not earn additional credit on an exam, but it will impress the grader and set the tone for the rest of the exam. Here’s the statement: “Murder liability requires proof that the defendant committed a homicide (physical act – actus reus) and that the homicide was committed with malice (mental state- mens rea). It is okay to use those two new and nifty terms, actus reus and mens rea, but they really don’t add much to the essay. So after you state this definition and the addition, above, I tell my students to skip them and save the time.

Obviously, once you have stated the definition for murder, you can move on to the first element of murder, homicide. Remember from a previous post in my “Succeeding in Law School” tag on this blog, you are not to start your analysis just yet. Since your definition or rules statement for the main rule (Murder) has two or more elements (1 – Homicide and 2 – Malice) you should treat those two elements as sub-issues under murder. So after you have recognized the main issue of murder and then stated the rule for murder, you will need an issue statement for the first element of murder – homicide. Remember that all we mean by “sub-issue” is that it is an issue that is a part of a main rule. In a law exam, every issue should be the subject of IRAC. Meaning for homicide, you should state an issue, a rule, an analysis and a conclusion. The same will be true for the second element of murder (thus the second sub-issue under murder) – malice.


NOTE THAT EVEN IF THE CALL OF THE QUESTION ASKS SOMETHING LIKE “CAN A BE CONVICTED OF FIRST DEGREE MURDER OF B,” YOU CAN’T LEAD WITH A DISCUSSION OF THE DEGREES OF MURDER. THIS IS TRUE BECAUSE YOU CAN’T HAVE DEGREES OF MURDER UNTIL YOU FIRST HAVE MURDER.


Go back and read that again. This is a major mistake students make on crimes exams in law school. You’ve got the ole cart leading the horse down the hill. Deal with murder first, and then talk about the degrees of murder. We’ll see degrees later.

So, homicide is your first sub-issue under murder, because it is the first element of murder. Once you make your issue statement for homicide (the “I” of IRAC), give your rule statement (the “R” of IRAC). Again, a rules statement is just a definition.

There are a lot of definitions for homicide. I like the following: “Homicide is the (unlawful) killing of a person by defendant’s act.” Let me tell you why. First, it is short and sweet. Second, it has everything in it that you need to adequately deal with the homicide issue.

The reason “unlawful” is put in parentheses is because of the controversy of whether or not the killing has to be unlawful. To be murder, it does, but to be a homicide it doesn’t. This is true because some homicides do not carry with it any criminal liability, for instance, a killing of another that is justified; more on that later. The point of all of this is to jog the memory when the parenthetical is seen, to remember that there are certain justifications and excuses that should be discussed. We’ll see that when we look at defenses.

You should also note that the definition I use, also from my mentor, does not say “killing of a person by another person,” but rather “killing of a person by defendant’s act.” The reason I prefer the use of “by defendant’s act” is to jog the memory to look for the situation where the defendant’s act did not actually cause the victim’s death. For instance, there could be a situation where A and B are robbing a store and B kills the clerk of the store. When you consider the question of whether A is guilty of murder of the clerk, it should cause you to consider whether or not A’s act, as the defendant, qualifies as a homicide of the clerk. Is that “Defendant’s act?” If the definition is merely “killing of a person by another person,” you would probably conclude that it is, of course, a homicide. But if the definition is killing of a person by Defendant’s act,” you should hopefully ask the question, if B killing the clerk is Defendant A’s act. This is all a matter of causation, vicarious liability or omission to act. Did A’s act CAUSE the clerk’s death?

The point is this: D's act can be an apparent, direct cause act – B shot the clerk and the clerk died. It can be an actual and proximate cause act – B shot at the clerk, but hit a sign that fell on the clerk and the clerk died. It can be an act by which D is criminally, vicariously liable – where one person is held legally responsible for another’s act – where A may be criminally liable for B’s act. It can be by an omission to act where there is an affirmative duty to act – a police officer, seeing B about to kill the clerk, runs away and hides.

So ask the following questions:

1. Causation – Is the victim dead as a result of D's act?
     a) Actual – Is the victim’s death a but for cause or a substantial factor of D's act?
     b) Proximate - Is the victim’s death a foreseeable result of D's act?

2. Vicarious liability – Is the victim dead as a result of a third party act? If so, why should this Defendant be liable? (e.g. Accomplice or Felony Murder Rule)

3. Omission to Act – Is the victim dead as a result of D's omission to act where there is an affirmative duty to act?

Regarding the felony murder rule (FMR) - # 2, above, the question is asked, where should this be discussed on a law essay? The truth is, it can be discussed here or later, when you are discussing felony murder, malice. Probably the best bet is to at least mention the FMR here. If you do not fully discuss it here, make sure that you tell your grader that you will discuss it later. You can discuss it under homicide, because the discussion is about “defendant’s act.” If you discuss it here, make sure, when you get to felony murder- malice, that you refer back to the rules and summarize what you did earlier.

Next, we’ll look at malice for murder.

Professor Doug Holden
© Douglas S. Holden. All Rights Reserved.

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