CHAPTER TEN
HOMICIDE
Learning Objectives
After reading this chapter, students will be able to:
1. Know the meaning of corpus delicti and its role in criminal prosecutions.
3. State the elements of the “born alive” requirement.
5. List the homicides that do not require proof of intent to kill.
7. State the difference between voluntary and involuntary manslaughter.
9. Explain why the U.S. Supreme Court upheld the Oregon Death with Dignity Law.
Lesson Plan
Correlated to PowerPoints
Media Tool
Homicide: Life on the Street
http://www.youtube.com/watch?v=aAIGr1C4kxI
o YouTube video of an episode of the television show Homicide:
Life on the Street.
o Discussion: Have student watch this or another episode of the
television show. What features of the television show are
accurate, based on the information you have about homicide?
What features of the television show are inaccurate? How does
this affect what the average person knows about homicide and its
investigation and prosecution?
I. Homicide in General
Learning Objective 1: Know the meaning of corpus delicti and its role in criminal prosecutions.
A. Three kinds of homicide
1. Justifiable, excusable, and criminal (felonious)
B. The corpus delicti requirement
1. Body of the crime.
2. Proving corpus delicti in “no body” cases
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(1) that the missing person is dead, and (2) that the
defendant killed that person.
A. Body without proof of the cause of death cases
1. If doctors are not able to testify specifically that the cause of death was an
unlawful act, corpus delicti has not been proved.
2. Unexplained deaths are unusual but not rare in medical history.
B. The common law “born alive” requirement and the crime of feticide (fetal
murder)
1. Under the common law, most criminal homicide statutes prohibited only
2. In the leading case of Keeler v. Superior Court, the California Supreme
Court said the “born alive” rule prevented a conviction for the death of a
3. The federal “Protection of Unborn Children” statute makes it a crime
III. Proof That the Victim Was Alive at the Time of the Defendant’s Unlawful Act –
Assignment 3
Learning Objective 3: State the elements of the “born alive” requirement.
A. Because criminal homicide is the unlawful killing of a living human being, the
state has the burden of showing that the victim was alive at the time of the
unlawful act.
B. When is a person legally dead?
1. Until the 1950s and 1960s, the heart was considered the body’s most vital
2. When doctors became able to keep the heart and other organs alive for
4. End-of-life decisions
a. To stay within the law and to avoid criminal prosecution, the
decision to withhold treatment on persons in deep continuous
comas should be made only when the following can be shown:
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instruct that treatment or life-support systems be
withdrawn.
ii. Life-support systems or treatment may be withheld from
patients who are comatose or in a persistent vegetative state
if certain conditions can be clearly shown.
b. The population in the United States is growing older. The Census
IV. The Causation Requirement
Learning Objective 2: State the current status of the Year-and-a-Day Rule and why its
acceptance has waned.
A. Causation and proximate cause
1. Causation is an essential element of all crimes.
B. The Year-and-a-Day Rule
1. The common law rule stated that a person could not be convicted of a
3. A few courts have not abolished the rule.
4. Some states continue to use a variation of the rule.
V. Murder – Assignments 1, 2, and 4
Learning Objective 4: Explain the doctrine of transferred intent.
Learning Objective 5: List the homicides that do not require proof of intent to kill.
Learning Objective 6: Identify which deaths that occur during the commission of a felony
qualify as felony murder.
A. Only one degree of murder existed under the common law, and it was punishable by
death.
B. After the American Revolution, some state legislative bodies began creating other
degrees of murder.
C. The degree system is still meaningful today, when first-degree murder carries a
mandatory life imprisonment sentence or the death penalty.
D. The degree system is also used as part of plea bargaining.
E. State murder statutes vary in how they define first- and second-degree murder.
Class Discussion/Activity
Courts have held that “premeditation” for purposes of first-degree murder
may take place in a moment before the killing. How might a prosecutor
establish premeditation in a case where the defendant killed the victim
without a plan to kill and without deciding to commit the murder or
deliberating the issue “ahead of time?”
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F. Intent to kill and premeditated murder
1. The most serious criminal offense
3. Malice aforethought
G. The “deadly weapon” doctrine
Class Discussion/Activity
What should a list of deadly weapons or instrumentalities include? Can
there be a definitive list? How does your state statute define the term
“deadly weapon?”
1. Committing a crime by use of a “deadly weapon,” such as assault with a
deadly weapon, is commonly a separate and more serious crime.
3. The use of a deadly weapon creates an inference of the user’s intent.
4. Determining what constitutes a deadly weapon depends on the object used
and the circumstances that existed at the time of the homicide.
H. Transferred intent
1. The transferred intent doctrine rests on the sensible foundation that where
one has demonstrated the intent to take another person’s life, it should not
matter whose life is taken.
I. Intent to do serious bodily harm murder
1. English courts under the common law long ago decided that a death at the
3. State murder statutes vary on the inclusion of “serious bodily injury” as a
class or type of murder.
J. Depraved-mind or depraved-heart murder
1. “Depraved–heart” murder is similar in some aspects to intent to do serious
2. If the conduct of the defendant was so reckless as to create a high risk of
3. Since intent to kill is not an element of depraved-heart murder, the crime
can be proved by evidence of extremely reckless actions.
K. Felony murder
1. The rule initially stated that if a death occurs while a defendant is
committing or attempting to commit any felony, the defendant could be
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2. In the United States, courts and legislatures have limited the scope of the
felony murder rule.
What If Scenario
What if your state is considering eliminating the felony murder rule and you are asked to speak
to the legislature? Would you argue for or against its elimination? Why?
3. The most frequent method of limiting the rule is illustrated by federal
murder statute 18 U.S.C. § 1111.
4. Other methods of determining when the felony murder rule is appropriate
5. Many states also have a version of the “continuous transaction” doctrine.
6. In most states, it has been held that the death of a person, such as a person
7. Proximate cause theory of felony murder versus agency theory of felony
murder
a. Provocative act murder
VI. Manslaughter – Assignments 1 and 4
Learning Objective 7: State the difference between voluntary and involuntary manslaughter.
Learning Objective 8: List circumstances that could be sufficient to reduce a charge of murder
to manslaughter.
Media Tool
Brent charged with manslaughter
http://msn.foxsports.com/nfl/story/dallas-cowboys-josh-brent-charged-
intoxication-manslaughter-jerry-brown-dies-120812
o FOX Sports video on intoxicated manslaughter
o Discussion: Based on the information in the video and the article,
would you agree that the defendant is guilty of intoxicated
manslaughter?
A. Definition of manslaughter
1. Defined by common law as a classification of criminal homicide that is
2. Most U.S. jurisdictions follow the common law classifications, but a few
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states have created three categories.
a. Voluntary, involuntary, and vehicular manslaughter
3. Reasons for manslaughter rather than murder
a. The victim may have provoked the killing, or his or her unlawful
conduct set into motion a chain of events that resulted in the
killing.
b. The killings are not bad enough to be charged as murder, but the
criminal conduct should be punished.
c. The jury cannot unanimously agree on a finding of murder and
compromise on a manslaughter conviction.
B. Voluntary manslaughter
Class Discussion/Activity
The fascinating case of Mary Winkler is easy to find on the Internet.
Winkler killed her preacher husband in 2006 and was prosecuted by the
State of Tennessee for first-degree murder. She claimed that she was a
battered spouse and the killing was an accident. The jury found her guilty
of voluntary manslaughter, a lesser included offense to murder. After
students read about the case, they should write an essay applying your
state’s voluntary manslaughter statute to the facts of the Winkler case. Do
they believe the results would have been different in your state?
1. Requires proof of an intentional killing
2. Differs from murder in that the killing is not accompanied by
premeditation or malice
C. Heat of passion manslaughter
1. This crime is commonly charged when the actions of the victim cause the
2. Sufficient and adequate provocation
4. Cooling of the blood
5. Third-party provocation
What If Scenario
What if during an argument you hit a friend in the head and he falls and dies from the blow
when his head hits the concrete sidewalk? Should you be charged with manslaughter?
D. Imperfect or unlawful force in self-defense charged as manslaughter
2. An unnecessary killing in self-defense, in defense of another, or to prevent
or terminate a felony of violence could be imperfect self-defense.
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E. Involuntary manslaughter
1. Involuntary manslaughter is often charged when extreme negligence or
2. Extreme negligence and failure to act
3. Reckless conduct
What If Scenario
What if you are driving your car 5 miles an hour over the speed limit and you hit an icy patch on
the road, resulting in killing a five-year-old boy on the sidewalk? Should you be charged with a
crime? If so, what crime should you be charged with? If not, what is your argument against
charges?
VII. Suicide, Assisting Suicide, and Euthanasia
Learning Objective 9: Explain why the U.S. Supreme Court upheld the Oregon Death with
Dignity Law – Assignment 5
Media Tool
The suicide plan
http://www.pbs.org/wgbh/pages/frontline/suicide-plan/
o Frontline video on assisted suicide
o Discussion: After watching the video, have students discuss the
issue of assisted suicide. Discuss the pros and cons of assisted
suicide. What factors should be considered on both sides of the
issue?
A. Assisting a suicide is a crime in most states
What If Scenario
What if your legislature plans to adopt an assisted suicide law similar to the “Death with
Dignity” law in Oregon? Would you support the passage of such a law? Why or why not?
B. Murder, assisted suicide, or neither?
2. It may not be a crime at all, depending on the degree of participation and
the laws of the state having jurisdiction over the acts.
4. In Washington v. Glucksberg and Vacco v. Quill, the U.S. Supreme Court
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5. The Internet has played a role in this controversy.
Class Discussion/Activity
Assisted suicide can be researched on any number of websites by typing in
the term “assisted suicide.” Students can read about the controversy that
surrounds physician-assisted suicide. Is it likely that other states will
follow the lead of Oregon, Washington, and Vermont and enact laws
similar to their Death with Dignity laws?
C. The Oregon “Death with Dignity” law
1. Enacted in 1997; Washington enacted a similar law in 2008
2. Must meet certain requirements to qualify under either state’s law
a. Be found to be terminally ill and have less than six months to live
b. Have the mental capacity to fully understand the situation that
4. The Bush administration moved to overturn it, contending that physicians
5. The Ninth Circuit Court of Appeals upheld the law, noting that the CSA
was designed to fight drug abuse, not to regulate medicine and physicians.
6. The U.S. Supreme Court upheld the Oregon law, reasoning that the CSA
was directed at drug abuse and that treating a physician writing a
prescription for a mercy killing as “drug abuse” was unreasonable.
Lecture Notes
In Chapters 1–9, students were introduced to the fundamental building blocks of criminal law.
Over the course of that study, they learned that all crimes are composed of essential elements
that must be proved beyond a reasonable doubt. Among other things, they learned about inchoate
crimes, accomplice liability, jurisdiction, constitutional issues, and the various criminal defenses.
Students are usually surprised at how much time in a Criminal Law class is dedicated to these
building blocks. Chapters 10 through 19 cover the elements of specific criminal offenses.
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deepen their understanding about the complexities of homicide statutes. Not all murders are
equal. Some are more egregious than others and should be punished more severely. Depending
on their experience and age, many students may have never analyzed the crime of murder in this
way. They tend to see this most fatal and serious of crimes as a homogenous category, with the
perpetrators all deserving the most severe penalties. Criminal law does not equate all murders as
the same, and criminal statutes divide the various levels of murder based on the offender’s mens
It is important for students to fully grasp the charge of attempted murder and to be able to
explain the necessary elements of that charge. How does it differ from aggravated assault?
Because homicide cases are likely to be the most-reported in the media and are the subject of so
many police dramas on television and the movies, it’s easy to discuss real or hypothetical
murders in class. Highlight the significant differences in a Hollywood version of murder vs. a
real-life murder investigation. Consider having a homicide detective come in as a guest speaker.
It’s easy to find examples of manslaughter cases and compare them to murder in the first or
second degree. It’s not difficult to get students to appreciate that determining an offender’s mens
rea isn’t a simple job and that reasonable minds often differ. The best cases to discuss are those
where the prosecution charged and sought to prove first-degree murder but the jury (or judge in a
bench trial) found the defendant guilty of manslaughter instead. Of course, if the murderer pleads
self-defense, the job of deciding mens rea is further complicated. This chapter forces students to
think critically; to break down a dramatic and tragic human interaction into its component parts
and then reassemble it to arrive at a “verdict.”
Corpus delicti means the body or substance of the crime. How does this differ from what the
students generally think of when they hear this term? What does this mean for the prosecution in
a homicide case? Why must a confession generally require additional evidence?
This chapter opens up several lines of classroom debate, as the death penalty and assisted suicide
are both major public policy issues. Is the death penalty the appropriate punishment for a felony
murder?
Key Terms
homicide – The killing of one human being by another. There are three types of homicide:
justifiable, excusable, and felonious. (p. 268)
“born alive” requirement – To be able to charge homicide of a newborn baby, the prosecution
must be able to prove that the child was living at the time it was killed. (p. 273)
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transferred intent – A doctrine used when the intention to harm one individual inadvertently
causes a second person to be hurt instead. The individual causing the harm will be seen as having
“intended” the act by means of the “transferred intent” doctrine. (p. 281)
premeditation – Mental determination to unlawfully kill another person after planning or
reflection on actions causing death. (p. 281)
manslaughter – Criminal homicides other than murder. Most states provide for two degrees of
manslaughter: voluntary and involuntary. (p. 286)
perfect self-defense – A homicide in which the killer not only subjectively believes that his or
her conduct was necessary and reasonable and that, by objective standards, it was lawful and
complied with the requirements of the law. The homicide is either justifiable or excusable, and it
carries no criminal liability. (p. 291)
imperfect self-defense – A homicide in which the killer subjectively but unreasonably believes
that his or her conduct was necessary. It may be unlawful if the killing was done with excessive
or unnecessary force. An unnecessary killing in self-defense, in defense of another, or to prevent
or terminate a felony of violence could be imperfect self-defense. (p. 291)
Assignments
1. Have students research your state’s homicide statutes. Does your state rely on the
Model Penal Code’s mens rea requirements (purposely/intentionally, knowingly,
recklessly, or negligently) or does it refer to murder with “malice aforethought” or
“depraved heart”? Does it divide murder into first and second degree? Review the
2. Students should pay special attention to their state’s felony murder statute and find other
state felony murder statutes for comparison. What is the purpose of the felony murder
rule? Why has the rule been abolished in some states? [LO 6]
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3. Students can easily consult their state’s criminal code to find out the definition of a
“person” for purposes of the crime of homicide. Does their state use a “born alive”
4. Have students research their state’s criminal code in order to discuss the legal differences
5. Have students research the Oregon “Death with Dignity” law. What protections does the
Case Analysis and Writing Exercises
1. New York is a state that defines “person” as a human being who has been born alive. A fetus
in utero is thus not a” person”, and one cannot be guilty of a homicide by causing the death of the
fetus. However, the death of a fetus intentionally injured in utero, but who is born alive and
subsequently dies, can be classified as a homicide. Using this distinction, the state charged a
mother with second-degree manslaughter after the child she was carrying was injured by her
reckless driving and died a few days after an emergency cesarean operation. Under New York
law, second-degree manslaughter requires only that the death result from reckless conduct.
Should the mother be convicted? Do you see some problems with such a conviction? See People
2. The defendant, while not a member of the New York street gang “Latin Kings”, regularly
transported gang members and drugs in illegal drug transactions. In one incident, she was told to
be available to drive a gang member away from a crime after the gang member finished the job.
She was not told that the crime included killing a rival gang member. At the appointed spot, the
gang member got in her car, and she drove him away. The gang member was convicted of
murdering the rival gang member. Can the defendant be convicted of murder? If not, can she be
convicted of being an accessory after the fact to murder under the federal accessory after the fact
statute, 18 U.S.C. § 3? What must the prosecution prove for such a conviction? See United States
3. The defendant, an occasional drug dealer, kept a stash of cocaine hidden in a hole in a living
room couch. His one-year-old daughter found the cocaine, ingested it, and died. The defendant
has been charged with felony murder under the Georgia felony murder law, which includes as
predicate crimes intent to distribute illegal drugs and deprivation of a minor resulting in death.
Which felony, intent to distribute or deprivation of a minor, will be sufficient to invoke the felony
murder rule? If it is the former, what is the causal relationship between the felony of drug
distribution and the victim’s death? If it is the latter, deprivation of a minor, is the case different
from the Louisiana case discussed in the You Be the Judge box in this chapter? See Williams v.
4. The defendant fatally stabbed a woman. At his trial, he asked the court to instruct the jury on
manslaughter/imperfect self-defense, claiming he heard voices telling him to protect himself
from danger presented by the victim. No other defenses were raised by the defendant. Should the
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judge give the imperfect self-defense instruction? Did the defendant raise the wrong defense? See