Criminal Law Class Notes 9/23/03


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 England by statute, but here it’s a common law concept.


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.


State v. Schrader


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 West Virginia, the prosecutor must prove the killing of another human being was “willful, deliberate and premeditated”.


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 “Pennsylvania model” which was first passed in 1794.


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 notpremeditated and deliberate”?  Wouldn’t this be second degree murder?  Yup.


California Penal Code


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.


California statutes have diverged from common law by dividing murder into degrees.


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 Michigan


Let’s say the Schrader case occurred in the state of Michigan?  The Michigan statute came up in Morrin.  In Michigan, premeditation and deliberation have “independent meaning”.  A homicide must be intentional, premeditated, and deliberate in order to be first degree murder, and each of these words has a somewhat specific definition.


Michigan uses the words “hot blood” in contrast to the common sense concept of “cold blooded” killing.


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 West Virginia.


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.


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