Criminal Law Class Notes
We’ve
looked at the tools of criminal law and the basic elements of any crime, and
now we’re going to look at specific crimes in greater detail.
Criminal
homicide
The
distinctions that exist at common law and in the Model Penal Code as well as
the various non-Model Penal Code homicide statutes between murder and
manslaughter as well as between degrees of these crimes are all functions of mens
rea. The act is always the same:
killing somebody. It’s just the mental
state that changes. Everything that
we’ll be covering in the remainder of this chapter will deal with mens rea.
What’s
murder at common law? It’s “the unlawful
killing of another human being with ‘malice aforethought’”. But what the heck is unlawful? Killing a human being with malice
aforethought is most certainly unlawful.
So what do we take this to mean?
What’s
the common law definition of manslaughter? It’s
the unlawful killing of another human being without “malice
aforethought”. Notice that in this case,
there are lawful killings of other human beings without malice
aforethought, such as killing in self-defense.
At American
common law, there are really two kinds of manslaughter: so-called voluntary
and involuntary manslaughter.
These distinctions existed in
What
is “malice aforethought” at common law? It is either
(1) the intent to kill, (2) intent to cause grave bodily harm, (3)
recklessness, or (4) the intent to commit a felony.
How
did we define acting with “malice” earlier in the semester? It means acting “intentionally [purposefully
or knowingly] or recklessly”.
Note
that the word “aforethought” has no independent “value or vitality” anymore.
Schrader
was convicted of first degree murder.
What
is the issue on appeal? He says that there is no
evidence that the murder was premeditated. In
What
does Schrader claim was not proven in this case? He claims that it wasn’t proven that his act
was premeditated. He in turn claims that
the jury instruction in regard to premeditation was incorrect.
There are no degrees of
murder at common law! Know this for the
exam!
“Degrees”
of murder are purely statutory.
At common law, all felonies carried the death penalty. States decided that not all felonies deserve
the death penalty.
When
we’re talking about degrees of a felony, we’re talking about statutes.
In
many states, the formula for first degree murder is “willful plus deliberate
plus premeditated”.
This
was promulgated by the so-called “
In
homicide statutes, willful equals intentional.
Thus, “willful, deliberate and premeditated” equals “intentional,
deliberate and premeditated”. What do
deliberate and premeditated mean?
What
if an intentional killing is not “premeditated and deliberate”? Wouldn’t this be second degree murder? Yup.
This
is the worst-drafted penal code in the book.
It’s not the legislature’s fault, but rather it’s the fault of public
ballot initiatives.
§
187 is the basic common law definition of murder plus
the Keeler addition of “fetus”.
If we see a statute that comes from common law, we must use the common
law definition of all terms unless we get some other explicit definition from
the statute.
Back
on the case
What’s
wrong with giving the jury in this case Cardozo’s
explanation? Should we give the jury the
opportunity to show mercy?
How
can we tell the difference between first and second degree murder? How will juries draw the line? What about prejudice against the defendant?
Human
nature is to tend to be more merciful to people who are more like you. It could be race-based, gender-based or class-based
or many other factors that we should not let jurors use.
Juries
mustn’t be given unbridled discretion in determining who should live and who
should die. We’re concerned that juries
impose the death penalty disproportionally in many
ways.
Using
the instruction of the court in this case, when is an intentional killing
second degree? Never! Every intentional killing is premeditated and
deliberate because the premeditation time is zero.
Dressler
suggests that this isn’t a policy argument but rather a problem of statutory
interpretation and legislative history.
Model
Penal Code on criminal homicide
Of
which degree of murder would Schrader be guilty based on the Model Penal Code? In the Model Penal Code, there are no degrees
of murder, but there are degrees of felonies. Murder is a felony of the first degree in the
Model Penal Code. That’s not the same
thing as murder in the first degree.
Murder
is of the first degree, just like rape and some other crimes. At common law, murder is murder and that’s
how it is in the Model Penal Code.
The
Model Penal Code doesn’t contain a requirement of “malice aforethought” or the
word “unlawful”. We just have PKRN.
The
Model Penal Code is, in a sense, a return to the common law.
Schrader in
Let’s
say the Schrader case occurred in the state of
The
standard for determining premeditation is whether the defendant had time to
take a “second look” before acting.
In Morrin, can one deliberate without
premeditating? How about deliberating
without premeditating? What about
killing willfully but without deliberation or premeditation?
Think
of deliberation as qualitative and premeditation as quantitative. Deliberation involves “weighing” the issue.
Dressler
suggests that a person who stabs someone 51 times is the antithesis of
deliberation. It sounds like a “hot-blooded”
killing.
Premeditation
is how long you think about your act.
You could premeditate without meeting the deliberation requirement.
Both
are important because the statute requires an “and” and not an “or”.
Schrader has since been rethought by
Midgett and Forrest
If
these two cases are rightly decided, we find that Midgett
committed second degree murder, while Forrest committed first degree murder.
Have
we come up with a meaningful way to distinguish first and second degree
murder? Does the “willful, deliberate
and premeditated” distinction do the work we want it to do? Is the Model Penal Code right that we shouldn’t
have degrees of murder?
The
Model Penal Code drops the distinction because the drafters believed that the statutory
line between degrees didn’t do the job.