Download Criminal Law Outline 3 and more Study notes Law in PDF only on Docsity!
CRIMINAL LAW
Fall 2005 Section 1 Professor Siegel
Introduction (1-12)
- mainly a brief overview of the criminal justice system
- was not discussed in class
- topics covered include police, prosecutors, the judiciary, corrections, procedure
Purposes of Punishment (101-135)
- Siegel provided a handout summarizing this reading
- 4 purposes discussed: Retribution, Deterrence, Rehabilitation, Incapacitation
- Retribution:
- (^) Punishing because the defendant deserves it.
- “just desserts”
- Deontological argument
- Advocates: Kant, Stephen, Royal Commission, Durkheim
- Commentators: Moore (1), Morris, Moore (2)
- Critics: Bentham, Murphy, Mackie
- Deterrence
- Punishment is justified because it reduces (discourages) crime later primarily through fear of punishment in the future. Specific: this perpetrator, General: message sent to society
- (^) Advocates: Bentham, Posner ■ Argue that criminals are rational, they will commit crimes by using an equation - (Odds of getting caught) x (punishment) must be less than (benefit of the crime)
- Commentators: Andenaes, Robinson & Darley
- Critics ■ Kant: Shouldn’t use someone as a means to an end ■ Kant: Sending someone to jail who is innocent could still deter others from committing crime, but it is wrong to punish those who don’t deserve it ■ Also, another view as to why deterrence doesn’t work is that if someone knows they will get away with a crime and won’t have to face punishment, deterrence doesn’t work on those people
- One crime Deterrence seems to work for is white collar crime- usually a few prosecutions will deter others from committing those acts
- Rehabilitation
- Punishing or pursuing other alternatives to improve a criminal’s character and outlook so that he or she will function in society without committing future crimes
- Advocates: Von Hirsch & Maher
- Critic: Moore (3)
- General Criticisms mentioned in class ■ It doesn’t work, we don’t know how to implement it correctly ■ Pure rehabilitationism would allow to keep people in prison much longer than retribution or deterrence, keep them locked up until they are better, it may take the rest of their lives ■ Paternalistic ■ Giving resources to criminals, criminals are getting benefits from their crime (i.e. GED programs, college programs)
- Incapacitation
- Making it physically impossible for a person to commit a crime typically by incarceration
- Advocate: DiIulio
- Critics: Cohen, DiIulio ■ General criticisms mentioned in class
- (^) It is very expensive, especially if you aren’t good at putting away recidivists
- Possibly punishing people more than they deserve
Principles of Justice
- “Equal Justice”
- no special privileges (e.g. Bergmen, 140) ■ Bergmen was high up and “just having to plead guilty was punishment enough, in other words, some people have farther to fall than others, court did not buy this argument
- (^) Same crime, same time ■ Sometimes time you get depends on what judge you get, one guy gets probation, while another guy gets 10 years prison
- Same level (severity) of crime, same time
- Equal justice fits well with Retribution, it is at odds with Rehabilitation
Indeterminate vs. Determinate Sentencing
- In the 60’s and 70’s, a rehabilitative model was used for sentencing (indeterminate sentencing)
- Congress would pass a maximum sentence for the crime, and the judge could impose no punishment all the way up to the maximum
- Even if person sentenced, Parole used in this system, so person getting 15 years might be out in 5
- Crime rate rising steadily during this period
- 1984: Sentencing commission called for
- 1987: Sentencing guidelines enacted (determinate sentencing)
- most states have gone this way now
- There are offense levels and criminal history categories, in the chart, you see where these two meet, and there is a range of punishment
- No more parole, every sentence is cut by 15% ( called “good time” but you don’t have to be good
- Crime rate steadily decreasing since determinate sentencing started
- The Supreme Court felt that the guidelines system deprived the defendant of a jury trial
- Blameworthy?
- Conduct legislature intended to deter?
- What constitutes voluntary conduct?
- MPC §2.01(2)
- (^) The following are not voluntary acts under MPC ■ A reflex or convulsion ■ A bodily movement during unconsciousness or sleep ■ Conduct during hypnosis or resulting from hypnotic suggestion ■ A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
- Therefore, habitual actions are voluntary acts ■ 2.02(4): Possession is an act only if the person is aware of the thing possessed (Also MCL view)
- some courts hold that possession is a voluntary act even where defendant should have known
- A California example: ■ Newton (175)
- Involuntary unconsciousness is a complete defense to a charge of criminal homicide
- What about failure to act (omissions)?
- General Rule: no obligation to be a good Samaritan
- Exceptions: ■ If the law provides otherwise ■ Contract (babysitter) ■ (^) If you are the cause of harm, even if unintentional (if you accidentally bump a child into a swimming pool)
Elements of a Crime
- Every crime has certain categories of ingredients
- The elements are everything the prosecutor must prove beyond a reasonable doubt
- “element” defined in MPC §1.13 (9)
- Two types: material and non-material elements
- Material elements ■ (^) Conduct (Actus Reus) (every crime must have this) ■ Culpability (Mens Rea) ■ Attendant Circumstances ( not every crime has this) ■ Result (homicide must have someone die) (not every crime has this element) ■ Negate justification or excuse defenses
- Non-material elements ■ Negate statute of limitations defense ■ Jurisdiction and venue - Jurisdiction: State or federal government? - (^) Venue: within a given court, the right location in that court
- Mens Rea ■ The mental state ■ Different from other material elements
■ It actually attaches to the other material elements ■ “requisite” mens rea: mens rea required by a statute ■ Levels of Mens Rea
- MPC §2.02(2)
- (^) Purposely
- Basically, it is your conscious object to bring about that result
- Highest level of MR
- Treason is the only crime mentioned in the Constitution, it requires a MR of purposely
- Knowingly
- Basically, you know or have a high degree of probability that the result will take place
- Majority Common Law view-“willful blindness” (purposely avoiding knowledge that something exists even when you think it might or there is a chance it might) is something the prosecution uses to get around MR of knowledge (Jewell, 220) (MPC has no “willful blindness” provision) ■ An “ostrich” instruction is sometimes given to a jury in these situations
- For an ostrich instruction to be given, the defendant must act to avoid learning the truth, not simply fail to inquire about the truth (Giovannetti, 223)
- Recklessly
- You are aware of the risk, but you do it anyway, you consciously disregard the risk
- Example: If the professor suddenly yelled “fire”, he is aware of the risk that everyone would panic and cause someone to get hurt, it might not happen, but there is a risk, and he does it anyway
- Negligently
- Unaware of the risk, but a reasonable person would have to know about the risk (you should have known)
- Example: Professor locks the doors to the classroom because he wants everyone to stay in the room and not leave, and a fire breaks out, and the Professor didn’t realize the risk (this has to be second guessed), he would be negligent
- Criminal negligence = gross negligence
- Criminal negligence is higher on the scale than tort negligence
- Absence of Mens Rea (strict liability)
- (^) Lowest level ■ The MR applies to each material element of the crime, even if the statute only mentions the MR once (MPC §2.02(4))
- Mala prohibitum (it is a crime because a statute says it is a crime, not because it is necessarily an evil act) (may not know it is a crime) (As opposed to mala in se (a crime everyone knows is a crime)
- Usually new or modern laws
- (^) Regulatory
- Some other offenses that have strict liability components (MCL view)
- The age of the victim in sex offenses with minors
- Felony murder (converts accidental, negligent, or reckless homicide into murder)
Mistake of Law
- mistake of law or ignorance of the law is not a defense
- Slippery slope argument- if these were defenses, every defendant will claim ignorance and the whole system will fall apart
- (^) This is an area where MPC and common law differ
- MPC has mistake of law exceptions ■ MPC §2.04 (3) ■ If you rely on an official interpretation, and that interpretation is later determined to be false, you get the defense (see Marrero, 255) - Judicial opinions are held to be official interpretations of the law (Albertini, 268) - Advice from State Attorney’s office has been held not be an official interpretation of the law (Hopkins, N.2, 270) ■ You don’t know about the law and it hasn’t been published or reasonably made available
- Usually when a mistake of law defense is allowed, it is really a mistake of fact
- Reason for this is that to be a defense, a mistake of fact or mistake of law defense is usually valid only if it negates a material element of the crime
- Usually the existence of the law or statute is not a material element of the statute or law
- If the statute expressly makes knowledge of the existence of the law a material element, then a mistake of law defense would be allowed.
- This is expressed in MPC §2.02(9) (basically says you don’t need to have a MR about the existence/meaning of the law itself)
- (^) Sometimes mistake of law defense allowed if it is a mistake of a type of law other than criminal law
- Smith, 261 (defendant’s conviction for destroying property belonging to another overturned because defendant thought he was destroying his own property, defendant had an honest but mistaken belief the property was his, this was a mistake in property law.
- Woods, 263 (mistake of family law)
- Marrero was a mistake of criminal law
- Courts reasoning for this: other types of law don’t show up very often in the courts, but criminal law shows up in every case, so if we allow mistake of law in criminal cases, it will clog up the courts (floodgates)
- In Lambert, 271, the Court allowed a mistake of law (ignorance) in reversing a conviction on a charge of failing to register as a convicted person, the defendant didn’t know she was supposed to register,
- The Court probably had public policy decisions on the mind when did this
- Rogue case, but good law, just exception to principles of mistake of law
Examples from Practice Exam to help with Mistake of Fact/Law
- (^) An honest, reasonable mistake is a defense when the requisite MR is:
- Purpose, Knowledge, Recklessness, Negligence
- An honest, unreasonable mistake, without awareness of the risk, is a defense when the requisite MR is:
- Purpose, Knowledge, Recklessness
- An honest, unreasonable mistake, with awareness of the risk, is a defense when the requisite MR is:
- An honest mistake, even if reasonable and without awareness of the risk, is not a defense when the requisite MR is:
RAPE
Actus Reus “Traditional” Rape Elements (Still MCL view)
- sexual intercourse
- by force risking serious bodily injury or death OR threat of force of serious bodily injury of death
- victim’s physical resistance to fend off force OR victim’s fear to explain lack of resistance
- This element usually not written into statutes, but under common law, it was a necessary element that prosecution had to prove, Courts felt that any decent woman would put up a fight
- Reflects the traditional view of rape being a crime of violence
- Against will and without consent of victim
List of California, New York, and Wisconsin statutes on rape 318- Model Penal Code Provisions on Rape, Article 213 (1082-1084)
Force, Nonconsent, Resistance State v. Rusk (323)
- Maryland case
- Elements of 2nd^ Degree rape (what Rusk was charge with)
- Intercourse (AR)
- (^) By force of threat of force (AR)
- Against the will/without consent (AC)
- The issue in this case dealt with force element
- 2 possibilities, force or threat of force
- serious bodily injury = force most of the time
- What evidence of force is there? ■ Taking the keys
State in the Interest of M.T.S., 338
- New Jersey
- Defendant is a juvenile
- New Jersey solicited the help of NOW to construct the state’s rape statutes, so they will be very liberally interpreted
- Did not endorse MPC approach
- The Court held that the act of sex by itself will satisfy the force element
- Thus, sexual assault in New Jersey = intercourse without consent
- What is consent? ■ Affirmative and freely given permission - Words or actions Note on Consent
- In 2005, “No means No” as to the consent element
- However, most states still require force or resistance. In these states you can say no all you want, but if you don’t resist, all elements have not been met, so defendant is not guilty
Deception
- Rape by fraud if:
- Fraud as to whether the act constitutes sexual intercourse
- Fraud as to whether D is victim’s husband
People v. Evans, 346
- New York
- (^) The defendant posed as a psychologist and told many lies to seduce young woman into sex
- Also said and did things that were borderline threats or force, but there was a reasonable doubt about these
- Also, no resistance once sex began
- Court held the fraud D used in this case did not constitute traditional form of rape
- This lines up with MCL view
- Court worried about floodgates problem: Lots of guys lie to get girls into bed, are they all rapists?
Boro v. Superior Court, 348
- California
- Defendant posed as doctor and basically told victim if she didn’t have sex with him she would die.
- State argued this was fraud in the factum
- Fraud in the factum = rape ■ Lying about the nature of the act ■ Classic example: impersonating the husband of victim
- Fraud in the inducement = not rape ■ Lying about who you are, what you’ve done, etc.
- (^) Really, the difference is that the lady was scared for her life
- Impersonating a doctor could be fraud in inducement, but he went further and made her scared of her life, that made it fraud in the factum
Mens Rea
Commonwealth v. Sherry, 351
- Massachusetts
- (^) An honest, unreasonable mistake as to consent not a defense (MR not recklessness)
- An honest, reasonable mistake as to consent is a defense (therefore, MR for consent is negligence) (Majority Common Law View)
- In Massachusetts, no resistance required, verbal resistance is enough
- Lack of consent must be “honest and real”
Commonwealth v. Ascolillo, 358
- Massachusetts goes to strict liability for consent element
- Honest, reasonable mistake no longer defense in Mass.
Commonwealth v. Fischer, 354
- Pennsylvania
- No mistake of fact defense for consent because Pennsylvania has strict liability for consent in cases of forcible rape where defendant claims he reasonably believed he had consent (Williams, 356-357)
- In date rape cases, where there was a mutual misunderstanding, and no force or threat of force, mistake of fact defense available (Subcommittee Notes of the Pennsylvania Criminal Suggested Standard Jury Instructions, 357)
HOMICIDE
Criminal Homicide- taking of a human life that is a crime
- Murder
- Manslaughter
- Negligent homicide
- (^) Vehicular homicide
- Justified or Excused homicide In the beginning of the 19th^ Century, the U.S. made the criminal law statutory. Basically the legislatures took a snap shot of the common law crimes at that time.
California, Pennsylvania, and New York statutes on homicide (390-394) MPC provisions for homicide (§210.1-210.4, 1076-1079)
Murder
- killing of a person with “malice aforethought”
- to have this you need neither malice, nor aforethought
- What does it mean then? ■ Express: purpose or knowledge MR
The distinctions of premeditation the CL made through the years were not good at separating the
“worst of the worst” murderers
- This is why many states have followed Pennsylvania approach
- You can pretty much charge all murderers with 1st^ degree, and give a jury instruction for 2nd^ degree if premeditation not found
MPC approach
- rejects the notion of premeditation
- (^) deals with these issues at sentencing
- Murder is murder if it is done purposefully/knowingly
- Siegel agrees with this
Provocation Provocation Heat of Passion Reasonable Reaction = Voluntary Manslaughter
- Manslaughter is a partial defense, you still get sentenced, just fewer years
- Traditional Provocations: (“Legally Sufficient Provocations”)
- Battery
- Mutual combat
- (^) Illegal arrest
- Injury or abuse of close relative
- Sudden discovery of spouse’s adultery (i.e., you walk in on spouse committing adultery) ■ Not considered provocation in some states today, such as Maryland Girouard v. State, 405
- Maryland
- Court held words alone have never been enough to constitute legally sufficient provocation. (D killed wife during argument where wife was taunting him)
- Public policy concerns: cannot allow domestic fights to turn into killings
- (^) Court’s decision follows TRADITIONAL COMMON LAW VIEW OF VOLUNTARY MANSLAUGHTER (MAJORITY OF STATES):
- Legally sufficient provocation (decided by judge who acts as gatekeeper)
- Heat of passion (decided by jury)
- No cooling off as a matter of law (judge)
- Reasonableness of D’s loss of control (jury) ■ Not reasonableness of killing
Maher v. People, 407
- Michigan
- (^) Court held that if D presents some evidence of provocation, it should go to the jury
- Traditional CL view of adultery as provocation requires actually witnessing it, Maher did not witness it
- Supreme Court found that adultery by itself is evidence of sufficient provocation; court’s sympathetic because of frailty of human nature.
- Court’s decision follows MODERN COMMON LAW VIEW OF VOLUNTARY MANSLAUGHTER:
- Provocation (jury)
- Heat of Passion (jury)
- No cooling off (jury)
- Reasonableness (jury)
- In the modern view, the jury could decide that words are enough, so words alone could be a defense. Would still be very hard to win with.
- (^) Judges are out of touch with the average of ordinary human nature and it should be left to the jury to determine each issue of provocation, heat of passion, cooling off, and reasonableness. Another problem with premeditation:
- What if Maher waited two or three weeks and struggled with the decision but eventually succumbed to the anger and killed. Under Premeditation, probably guilty of 1st^ degree murder, but had he acted under heat of passion, he gets manslaughter. Just doesn’t seem right. Hypo: If D is provoked, and acts in the heat of passion, but accidentally kills an innocent bystander, much less likely to get manslaughter defense.
- You won’t get it for justification
- You could get it for excuse, but again probably not if you kill an innocent non- provoker
People v. Casassa, 415
- New York
- Court followed MPC VIEW OF VOLUNTARY MANSLAUGHTER
- (^) Judge decided that as a matter of law manslaughter defense was fine, but as a matter of fact this instance wasn’t reasonable, he is just a bad guy.
- MPC §210.3(1)(b)
- EED w/ REE
- Extreme emotional disturbance with reasonable explanation or excuse ■ Extreme Emotional Disturbance (EED) - Purely subjective test (Defendants viewpoint) ■ Reasonable Explanation or Excuse (REE) - Reasonable is an objective test - Explanation or Excuse (calls for the jury to put themselves in the D’s situation)
- The whole rule is a combination of subjective and objective parts (Put yourself in actor’s position, would it be reasonable)
- What characteristics of the D should the jury take on to determine whether D acted properly? ■ What you have no control over - Example of person with huge birthmark on face that finally gets a date and a guy teases him in front of girl - Jury probably would consider this, inherent characteristic that explains nature of the provocation ok. Race also qualifies. Cultural background is a maybe. History of battery is a maybe, but Siegel think should qualify. After these qualify then jury must determine if it is then reasonable.
■ Not something society feels you should have control over
- Someone who has a very short temper
What factors play into “measurement of MR? OR What makes one D “worse” in MR terms than another?
- Awareness of risk created; risk consciously disregarded
- Probability of the harm (degree of the risk) – the higher the degree the more deviation from the standard of care, makes D worse
- Once the fire started in the club, the probability of harm went up due to locked doors, flammable materials, not abiding by fire code, etc. Wellansky created high degree of harm to people in event of fire
- Severity of the harm
- In Wellansky, not only risking one death, risking many deaths Justifiability of taking risk?
- Hypo of Dr. performing open heart surgery. Probability of harm (very possible patient could die, dangerous surgery) vs. Justifiability of taking the risk created (Possibly cure a disease or save patient’s life)
- (^) In purposeful killing, justification must be self-defense
- In risk created killing, justifiability weighed against the probability
How does MPC relate to these factors? Distinguishing between recklessness/negligence:
- Recklessness:
- Person consciously disregards risk
- “gross deviation from the standard of conduct ”
- Negligence
- Person not conscious of risk, but “should be aware of” risk
- (^) “gross deviation from the standard of care ”
- Basically, Recklessness has all three factors, negligence has last two factors
So, where is line drawn? Majority CL view: Line is drawn at either recklessness or criminal negligence MPC view: Separates these into two different crimes (manslaughter (recklessness) and negligent homicide (negligence))
People v Hall, 415
- Skier was flying down the slopes at a dangerous speed, went off of mogul and killed person below him
- Charged with involuntary manslaughter, dismissed at the preliminary hearing
- Issue: Whether there is probable cause for recklessness?
- Court looks at the degree of the risk of death. Trial court more likely than not (51%), is minimum standard for recklessness.
- Awareness of Risk – A reasonable, law-abiding, trained ski racer constituted “gross deviation”
- Convicted of negligent homicide (MPC 210.4) – Siegel believes it’s a compromised verdict
State v. Williams, 431
- Williams baby died due to tooth infection that developed into gangrene and parents failed to take baby to hospital in a critical 4 day window
- D’s conviction for manslaughter upheld on MR of “ordinary negligence” (failure to exercise “the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions)
- Washington repealed these laws later, it no longer imposes manslaughter liability in cases involving ordinary negligence Washington now has two degrees of manslaughter:
- Recklessness
- Criminal Negligence
Commonwealth v. Malone
- Pennsylvania
- 17 year old child, playing Russian roulette with his buddy. Pulled trigger three times, friend died.
- Acts of gross recklessness where D can reasonably anticipate that death to another is likely to result equals conduct done with malice (so can be bumped up from manslaughter to murder). D created such a high degree of risk, someone would be killed, gets moved back up to murder.
- No justifiability, unlike reckless skiing
- MPC uses “recklessness plus”
- Reckless plus “extreme indifference to human life” (MPC §210.2(1)(b))
- Other states call it “depraved indifference”, which shows malignant heart, which gives rise to malice of forth thought
- MPC and MCL are pretty much equal on this
- Extreme indifference test – 1. Pg. 430 – Have a shotgun with 50 shells, 49 dummies plus 1 with ammo. Dump shells in a bucket and pull one out and shoot at someone. NO Justification, so extreme indifference. 2. A defendant in a rural area. There is a vacant house is down the road, and for his birthday the defendant gets a gun and uses the house as target practice. Unbeknownst to him there is a bum inside, shot ricochets and kills bum. – Most likely manslaughter. If defendant knows bum inside sometimes – Maybe extreme indifference to human life. It’s all a matter of opinion.
United States v. Fleming, 443
- U.S Court of Appeals, 4th^ Circuit
- D is convicted of 2nd^ degree murder, affirmed
- MR was “recklessness plus”
- Court held that defendant was not excused because he was drunk
- MPC view
- (^) Voluntary drunkenness is not a defense to a crime with recklessness (MPC §2.08(2), 1086)
- Drunkenss only substitutes recklessness or negligence
- Could be a defense for knowledge or purpose
- Court in this case didn’t think there was an additional mental element besides recklessness in MR of recklessness plus for murder
- Mental element = recklessness (drunkenness)
- The “plus” can be additional conduct (speeding, driving on wrong side of road)
Regina v. Serne, 448
- England
- Arson is the felony committed in this case
- Two ways the jury could convict D for murder in this case:
- (^) By setting the fire the D was “reckless plus”, or
- The arson caused the death
- There is no MR requirement for murder in felony murder, the only MR necessary is the one attached to the felony
- Not all felonies are candidates for felony-murder, only inherently dangerous felonies
- Basically, felons are held strictly liable for the murders they commit during their felonies, if the felony is inherently dangerous
Arguments against Felony Murder Rule:
- (^) many opponents in academics because it encroaches upon the uniform grading of homicide and negates it somewhat (does away with MR grading)
- more arguments on 452-
- Ease the burden of proof on the prosecution
- Michigan – FML is unconstitutional
Arguments for Felony Murder Rule:
- Deterrence of committing felonies, and makes felons commit crimes more carefully
- D has so many procedural rights, need to give prosecutors a substantive hammer to weigh it out
People v. Stamp, 450
- California
- D burglarized a business and shortly after the victim, who had been required to lie on the floor for about ten minutes after D left, died of a heart attack. The victim had a history of heart disease.
- The Court affirmed the conviction: “the [felony-murder] doctrine is not limited to those deaths which are foreseeable. Rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony.” “[T]he robber takes his victim as he finds him.”
People v. Phillips, 459
- California case of chiropractor treating young child with cancer
- Felony in this case- grand theft – deception that chiro can treat cancer, must show that he didn’t believe he could either, theft by deception
- Only felonies that are themselves “inherently dangerous to human life” can support the application of the felony-murder rule
- How do you find out if a felony is “inherently dangerous?”
- Look at the statute for murder and it may list felonies that are included in felony murder (California statute §189, page 390) ■ Grand theft is not on the list, so we have to decide if it is inherently dangerous using the test
- 2 ways to determine if felony is inherently dangerous (Every state is different, some will use one way, some will use the other ■ view the crime in the abstract (How its defined in the statute) - Is there any way of committing the crime that is not dangerous to human life? If not, it is inherently dangerous in the abstract, if there is, it is not inherently dangerous ■ View the crime as applied in the case (using the facts of the case)
- In this case, California used viewing crime in the abstract ■ Grand Theft by false pretenses can be committed w/o danger to human life, so it is not inherently dangerous. ■ If California used viewing the crime as applied in the case, it would probably be inherently dangerous, but California did not use this way ■ Using the abstract view is pro-defendant because it will wipe out a lot of crimes because there is almost always a way to commit a felony without being a danger to human life People v. Henderson, 448
- California
- False imprisonment effected by violence, menance, fraud or deceit
- Fraud can be non-dangerous and therefore not a felony murder rule
- In the abstract is the test in Cali to get around FMR.
People v. Stewart, 464
- Rhode Island
- Felony: child neglect
- (^) Rhode Island views the crime as applied in the case
- Rhode Island more pro-prosecution
- Under 2 nd^ view- Court determines this crime is inherently dangerous and can be used for felony murder
The Merger Doctrine States that are hostile to the felony-murder rule but have it in effect, adopt the “in the abstract”
view of inherently dangerous crimes. They also use other ways to try to limit the number of felony murder cases. Sometimes, in order to limit it, they use ways that seem illogical.
The Merger Rule
- If the underlying felony merges into the homicide, it cannot be used in the felony- murder rule
- Are the felony and the homicide a single course of conduct with a single purpose? If so, they merge
- Was the felony an integral part of and included in fact with the homicide?
- Example: How often is a homicide by use of a deadly weapon preceded by assault with a deadly weapon? Probably 100% of the time. Manslaughter and negligent homicide would be gone. Felony-murder is supposed to be the exception to MR based homicide, not the rule.
- In Ireland put forth a test of “integral part of the homicide or not” – practically useless
- Just about every homicide is preceded by some type of felonious assault
