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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.


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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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Wednesday, February 10, 2010

6 - Criminal Law - Death Crimes - Murder (Degrees of Murder)

6 - Murder – Degrees of Murder

I know that every student wants to talk about the degrees of murder ever since Jack Lord on the old TV show “Hawaii Five 0” said, “Book’em Dano.  Murder One!”    The problem is that you may not need to (or be expected to) talk about the degrees of murder.  A colleague of mine, Professor Steve Bracci, an expert in such issues as it relates to the California Bar Examiners, says the following:

Unless told otherwise, students should answer all questions according to majority rules.  So if an essay does not specifically ask for a discussion of degree, it is not necessary to include it, but strongly advised to do so.

Another colleague of mine, Professor Bob Hull, also an expert on such matters, indicates as follows:

At common law there were no degrees of murder; that is a modern development.  Therefore, if an essay specifically instructs to answer according to the common law there should not be a degree discussion.

Here’s how I teach my students to handle this situation:

1.     If question is silent, then answer based upon majority rules which would not require, but it is best to include, a discussion on degrees.
2.     If the call of the question asks you to determine if a defendant can be charged with or convicted of a degree of murder, then of course, discuss degrees.
3.     If a question says to answer based on C/L, then you should not discuss degrees (unless otherwise asked to consider degrees).
4.     As a final resort, if it is not clear to you, then, by all means, discuss degrees.

Now that we have looked at these guidelines, let me point out, most emphatically, that only at this point (after common law murder and manslaughter) should you discuss degrees of murder.

The common law did not have degrees of murder, but most states, by legislation, have developed degrees of murder.  

The first matter to consider here is that first degree murder is found if there is premeditation and deliberation.  You only get first degree murder by finding intent to kill or the FMR (though FMR does not require premeditation and deliberation).  If you don't have premeditation and deliberation, but you still have intent to kill murder, you cannot have first degree murder, but rather you may have a lesser degree of murder, usually second degree murder.  Intent to cause serious bodily injury murder and depraved heart murder will result in second degree murder.  Yes, I understand that modern statutes have varying categories regarding the degrees of murder, but academically, and for bar exam purposes, you need not be concerned about this unless your school and/or professor says that you are held responsible for this (usually your specific state’s law in this area).

Let’s talk about finding first degree murder where you have intent to kill malice.  In this case you must then find premeditation and deliberation.

Premeditation is the killing after thinking about the act.  Turning it over in one's mind or giving it a second thought, even if only briefly.   Note that the "intent to kill" needed for malice in the basic definition of murder requires no prior reflection about the act of killing.  "Prior reflection" is needed to show premeditation for first degree murder.

Deliberation is acting with a "cool mind," or calmly, as opposed to suddenly and impulsively.  But watch out for the situation where the immediate action is taken in anger if the state can also prove premeditation.  Sometimes first degree murder can still be established in this situation.

Felony murder is a form of vicarious liability – e.g. where A & B rob a store and A kills the clerk.  Is B criminally liable for the act of A?  (Make sure you refer back to a prior blog on this site where we discussed felony murder as one of the forms of malice to so murder.)

  1. The strict, traditional common law view.  This is the minority position.  Here,   felony murder is any death that was a proximate, foreseeable result of committing the felony.   If this is the case, B can be convicted of felony and perhaps first degree murder.  (See below)
  2. The modern (majority) rule:  Felony murder does not apply when a third party, such as a police officer, bystander or a victim of the felony, commits a justified homicide, that is, kills the felon.   What happens when a third party (non-felon) kills an innocent third party?  Here, a majority still holds that when a third party (non-felon) mistakenly kills another innocent third party, the death of the third party will be considered a foreseeable result of the felony.  A small minority does not allow the felony murder rule to apply anytime a non-felon is the killer.
  3. One other thing to note is that the FMR requires an “inherently dangerous” felony.  For purposes of 1st degree murder, this would be a felony described in the statute – in the abstract.  Generally a felony “dangerous in the manner of commission” would NOT qualify for 1st degree murder unless the actual felony is one that is normally described as inherently dangerous – robbery, burglary, rape, etc.  If that is not the case, then the felony that is dangerous by commission would not be available for 1st degree murder.

Make sure that you take some time to plot the foregoing out on a chart and/or outline it.  MEMORIZE it.  Explain it to anyone who will listen to you.  THIS IS A FAVORITE OF BAR EXAMINERS!

Let’s try an example:  Suppose two robbers have left the scene of a convenience store robbery and the clerk of the store follows the two robbers out of the store and shoots and kills one of them.  Using our A & B example above, the store clerk shoots and kills robber A.  Is robber B, the surviving co-felon, criminally liable for death of robber A, his co‑felon?

It might surprise you, so make sure you start with the strict, traditional common law view.  Then answer under the modern view.

You would conclude “Yes” under the strict, traditional common law view and “No” under the modern view ‑ since the killing of the other robber was caused by a third party (non‑felon).  This is an exception to the common law felony murder rule.  It is called the Redline Rule (from a case where the defendant’s name was Redline) or the 3rd Party Killer rule.  So, at common law, all felons are vicariously liable for a death caused during a felony.  The modern rule – the Redline rule or the 3rd party killer rule – is that there is no liability if a third party kills one of the felons, so here, the surviving felons are not liable.

Here are three other situations that are favorites of bar examiners:

1.               A killing by a police officer, or anyone resisting the crime or attempting to enforce the law, is not felony murder because the killing is justified.
2.               A killing of a co-felon by another co-felon is not felony murder because the co-felon willingly participated in the crime.
3.               A felon who accidentally kills himself is not felony murder as it applies to the surviving co-felon.

Professor Doug Holden
© 2010 Douglas S. Holden.  All Rights reserved.

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