Once you finish the malice discussion, the next step is to see if murder can be reduced to manslaughter. Some professors teach that before moving on to manslaughter, one should look at the degrees of murder. I prefer to wait until after manslaughter, but you can go either way in my opinion. At my law school, we generally teach to do manslaughter first, before the degrees of murder.
Many students have difficulty understanding how to get from murder to manslaughter. Here is the simplest way to figure it out. If you have malice (meaning one of the four types of malice for murder), then you have either murder OR voluntary manslaughter. If there is no murder malice, then you may have involuntary manslaughter. So there are two types of manslaughter – voluntary and involuntary. Voluntary manslaughter requires intent to cause serious bodily injury or depraved heart malice. Involuntary manslaughter will require a lesser degree of malice than is required for murder.
Here is the progression. (1) If you have murder, but the act is justified, there is no criminal liability. A homicide is justified as self-defense if (a) the victim engages in a deadly attack which is wrongful and (b) the defendant's response is reasonable. (2) If you have murder, but the act is excused, there is no criminal liability. But, if you have murder, but the act is mitigated, then you have voluntary manslaughter.
How do you find mitigation? Generally through the “Heat of Passion” doctrine. Mitigation, to reduce murder to voluntary manslaughter requires:
1. reasonable provocation;
2. the D was in fact, provoked;
3. a reasonable person would not have "cooled off" before the killing; and
4. the D must not, in fact, have cooled off.
In this area there is both a subjective test – the defendant must have been so overcome with emotion that s/he was angry enough to kill and an objective test – "a reasonable person" in defendant's position would also have been angry enough to kill.
Again, if you have no (murder) malice, then you may have involuntary manslaughter. This is determined by finding that the intent to injure is slight, there is an inherently dangerous activity or there is criminal (or gross) negligence.
Professor Doug Holden
© 2010 Douglas S. Holden. All Rights Reserved.