Homicide (including felony murder) - Next Generation Bar Exam

1. What does premeditation require?

   Reflection on the decision to kill, which can occur in a brief time. Jurisdictions differ on how much time suffices.

2. Under the majority agency rule, when is a felon not liable for felony murder?

   When the killing is committed by someone other than a felon, such as a victim or police officer. Under the minority proximate-cause approach, felons may be liable for such killings.

3. How does transferred intent apply when a defendant tries to kill one person but kills another?

   The intent to kill the target transfers, making the killing of the actual victim murder. The defendant may also be liable for attempted murder of the intended victim.

4. Which provocations have traditionally been treated as adequate?

   A serious battery, mutual combat, or discovering a spouse in the act of adultery, but not words alone. Modern law increasingly treats adequacy as a question for the jury.

5. What is the merger limitation on felony murder?

   The predicate felony must be independent of the killing, so an assault resulting in death cannot serve as the felony. Otherwise nearly every homicide could be charged as felony murder.

6. Angry at a neighbor, a man fires several shots into the neighbor's lighted, occupied living room, intending only to frighten. One shot kills a guest. What crime has he committed?

   Depraved-heart murder. Firing into an occupied room shows extreme indifference to human life, which satisfies malice.

7. What causation must the prosecution prove for homicide?

   Both actual (but-for) causation and proximate causation. A foreseeable intervening act, such as negligent medical care, does not break the chain of causation.

8. What are the two forms of involuntary manslaughter?

   Killing through criminal negligence or recklessness, and killing during an unlawful act not amounting to a felony. The second form is often called misdemeanor manslaughter.

9. Which mental states satisfy malice aforethought?

   Intent to kill, intent to cause serious bodily harm, extreme recklessness, or intent to commit a felony. The last of these is the basis of felony murder.

10. What limit do many jurisdictions place on the felonies that can support felony murder?

    The felony must be inherently dangerous. Enumerated felonies such as burglary, arson, robbery, rape, and kidnapping are inherently dangerous.

11. Which killings do many statutes classify as first-degree murder?

    Premeditated and deliberate killings, and killings during enumerated felonies. Other murders are second-degree.

12. What is common-law murder?

    An unlawful killing of another human being with malice aforethought. Malice aforethought is a term of art that does not require ill will or planning.

13. What are the elements of voluntary manslaughter by heat of passion?

    Adequate provocation, actual passion, no reasonable time to cool, and no actual cooling. The killing would otherwise be murder.

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