1. INTENTIONAL HOMICIDE
1.1. COMMON LAW: MURDER
1.1.1. Killing another person unlawfully requires “malice of forethought,” which can be expressed in four different ways:
1.1.1.1. (1) If there is an intentional killing
1.1.1.1.1. (2) If there is an intent to do serious bodily injury, and someone dies as a result
1.1.2. (1) Intentional killing can be established by evidence of premeditation and deliberation.
1.1.2.1. “Premeditated and deliberated” means the defendant (i) gave their actions thought before they killed and (ii) decided to actually kill. This would involve the state proving that a defendant: (1) formed a plan to kill, (2) decided to kill, (3) thought about the plan again after an appreciable amount of time, (4) decided to actually kill, and… (5) killed.
1.1.2.2. Evidence of “premeditation and deliberation” can be derived from asking ourselves these questions:
1.1.2.2.1. (a) Were there threats of prior hostility?
1.1.3. FELONY MURDER - HOMICIDE IN THE COURSE OF ANOTHER CRIME
1.1.3.1. Proximate cause, felony murder per se
1.1.3.1.1. When there is an enumerated felony and someone dies during the course of the felony, all the felons that participated in the felony are guilty of the death that occurred.
1.1.3.2. Proximate cause, objective foreseeability
1.1.3.2.1. When the death was objectively foreseeable, or the probable consequence of the participants' conduct, during the underlying felony. The death cannot be too remote or accidental in its occurence (no intervening act or volitional act that has a bearing on the actors' liability).
1.1.3.3. Agency theory
1.1.3.3.1. This approach focuses on the identity of the killer – the felon has to kill another person.
1.1.3.4. Protected persons theory - anyone but felons (ABF)
1.1.3.4.1. Felons are responsible for innocent third parties and authorities that are killed during the felony.
1.2. MPC: MURDER
1.2.1. A person could be guilty of murder in two different ways under the MPC: (1) purposeful or knowing killing, or… (2) extreme recklessness.
1.3. COMMON LAW: VOLUNTARY MANSLAUGHTER
1.3.1. (1) Killing in "the heat of passion"
1.3.1.1. There must be legally adequate provocation.
1.3.1.1.1. CL has hard, fixed categories. i.e. mutual combat (battery) or injuries to one's child.
1.3.1.2. (2) Is there legally adequate provocation to reduce what would otherwise be a murder to a volutnary manslaughter charge?
1.3.1.2.1. If yes, continue
1.4. MPC: VOLUNTARY MANSLAUGHTER
1.4.1. (1) Killing in the "heat of passion"
1.4.1.1. Can include "mere words" as long as it leads to killing in the "heat of passion" and the provocation would have aroused in the reasonable person that heat of passion.
1.4.1.1.1. The MCP will accept anything that constitutes CL legally adequate provocation; however, the MPC ONLY requires "extreme mental or emotional disturbance" for which there is a "reasonable explanation or excuse."
1.4.1.2. (2) Is there legally adequate provocation to reduce what would otherwise be a murder to a volutnary manslaughter charge?
1.4.1.2.1. If yes, continue
1.5. MPC FELONY MURDER
1.5.1. § 210.1 (b)
1.5.1.1. when a defendant recklessly causes the death of another while committing or attempting to commit robbery, rape, arson, kidnapping, burglary, or felonious escape.
1.5.2. § 210.2
1.5.2.1. The MPC treats killings that occur during certain felonies as extreme-indifference (reckless) murder and creates a rebuttable presumption that the defendant acted with extreme indifference to human life.
2. UNINTENTIONAL HOMICIDE
2.1. RECKLESS MURDER
2.1.1. Reckless murder is also known as depraved-heart murder. They may not have specifically intended to kill but acted in a way that made death foreseeable and a highly probable result.
2.1.1.1. 1) Did the defendant's conduct involve a substantial and unjustifiable risk of death or serious harm?
2.1.1.1.1. 2) Did the defendant’s conduct demonstrate a extreme indifference for human life?
2.2. MCP NEGLIGENT HOMICIDE
2.2.1. Negligence must show that he disregarded a risk he should’ve been aware of (a reasonable person would’ve been aware of the risk)
2.2.1.1. The defendant’s good intentions, good faith, or ignorance are irrelevant.
2.3. INVOLUNTARY MANSLAUGHTER
2.3.1. Involuntary manslaughter occurs when a person causes, by either gross negligence or reckless disregard for the safety of others, the death of another without intent to kill or cause serious bodily harm.
2.3.1.1. Death caused by failing to exercise reasonable care, amounting to gross negligence.
3. CL: Homicide is the killing of one human being by another human being.
4. MPC: homicide is a result element with a varying level of culpability: purposefully, knowingly, recklessly, or negligently.
5. CRIMINAL LAW HOMICIDE OUTLINE
6. DEFENSES
6.1. Justification
6.1.1. Justification exists when a person has advanced some important social interest.
6.1.1.1. We want other people in the same situation to do the same thing.
6.2. Excuse
6.2.1. Excuses exist when a person is not morally blameworthy to begin with or could not be deterred from committing the act.
6.2.1.1. We would not want other people in the same situation to do the same thing, but courts are willing to recognize that circumstances have limited the voluntariness of someone’s conduct.
6.3. There is no justification or excuse when:
6.3.1. The victim communicates their intent to withdraw
6.3.1.1. The actor was provoked
6.3.1.1.1. If there is no reasonable and sincere belief
7. STEP 1: ARE THE PARTIES FORMER, CURRENT, AND/OR PROSPECTIVE?
7.1. FORMER CLIENTS
7.1.1. Someone the lawyer previously represented, and the representation has ended. (look for a disengagement letter) Duties of loyalty are narrower, but duties of confidentiality continue indefinitely.
7.1.1.1. IS THE NEW MATTER THE SAME OR SUBSTSANTIALLY RELATED?
7.1.1.1.1. ARE THE INTERESTS MATERIALLY ADVERSE?
7.1.1.2. Same document, same negotiations, same factual dispute. Lawyer likely has confidential info about the former client's priorities, weaknesses, financials, and negotiation positions.
7.1.1.2.1. Representation of one client will necessarily harm the other.
7.2. CURRENT CLIENTS
7.2.1. Someone the lawyer is presently representing in any matter. Includes anyone the lawyer or firm owes ongoing duties of loyalty, communication, and diligence.
7.2.1.1. STEP 2: IS THERE A CONFLICT?
7.2.1.1.1. IF YES TO EITHER:
7.2.1.1.2. 1) IS THERE A MATERIAL LIMITATION?
7.2.1.1.3. IF NO TO BOTH:
7.3. PROSPECTIVE CLIENTS
7.3.1. Someone who consults the lawyer about the possibility of forming a lawyer-client relationship, even if no relationship forms. Lawyer owes duties of confidentiality and limited conflict protection if the person shared significantly harmful information.
7.3.1.1. DID THE LAWYER RECEIVE SIGNIFICANTLY HARMFUL INFORMATION?
7.3.1.1.1. (e.g., admission of guilt/liability) disqualified unless:
7.4. STEP 5: OTHER CONFLICT CATEGORIES
7.4.1. 1. BUSINESS TRANSACTONS/PROPERTY AS FEES
7.4.1.1. 2. USING INFO TO DISADVANTAGE CLIENT
7.4.1.1.1. 3. GIFTS/DRAFTING INSTRUMENTS NAMING LAWYER
7.4.2. The lawyer must meet all of these three steps in writing: 1) Terms must be fair, reasonable, and disclosed understandably to the client 2) The lawyer must advise and give client a reasonable chance to seek independent legal counsel 3) The client must give informed consent to all essential terms
7.4.2.1. A lawyer may not use information relating to representation to the client’s disadvantage unless the client gives informed consent.
7.4.2.1.1. Lawyer cannot 1) solicit a substantial gift, or 2) draft an instrument that gives the lawyer (or the lawyer’s relative) a substantial gift - unless the client is related to the lawyer.