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I. FIRST DEGREE MURDER First degree murder is common law murder, committed under aggravating circumstances. The jury can find Dan guilty of first degree murder only if each element of common law murder, plus one of the recognized aggravating circumstances, is proved beyond a reasonable doubt. A. COMMON LAW MURDER: Common law murder is homicide, committed with malice, without excuse, justification, or mitigation. 1. Homicide: Homicide is the killing of one person by another. The conduct of the accused, Dan, must have been the actual and proximate cause of the death of Vic. 2. Actual and Proximate Cause: Dan’s conduct is the actual cause of Vic’s death because but for Dan “ striking Vic with his fist” Vic would not have died. Dan’s conduct was also the proximate cause of Vic’s death because death was not the result of an unforeseeable intervening event, nor a highly improbable sequence of events following the Dan’s act. Thus, the homicide element is satisfied. Dan killed Vic. 3. Malice: Malice can be shown in only four ways: (1) Intent to kill (2) Intent to inflict great bodily harm (3) Wanton conduct in utter disregard of a high likelihood of great bodily harm or death (4) Felony Murder Rule. a. The first form of malice, intent to kill, cannot be proven beyond a reasonable doubt with the facts given. In support of the prosecution’s case, Dan did shout he would kill Vic as he was striking him. Also, Dan hit Vic hard enough to cause Vic to fall to the floor. On the other hand, Dan did not use a weapon, just his fist. He did not continue to attack Vic after he fell to the floor. On these facts, as a matter of law there is reasonable doubt as to whether or not Dan intended to kill Vic. b. The second form of malice, intent to inflict great bodily harm, may or may not be satisfied by the facts. Intent to cause great bodily harm is intent to cause harm beyond that ordinarily caused by a simple fist fight. It is intent to puncture, break, cause damage to internal organs, cut skin, etc. Here, Dan intended to inflict some degree of bodily harm to Vic. He did say he would kill Vic. He also hit Vic hard enough to cause Vic to fall. On the other hand, no weapons were used and Dan did not continue to attack Vic after he fell. A jury would most likely conclude that there was reasonable doubt as to whether or not Dan intended to inflict great bodily harm on Vic. c. The third form of malice, wanton conduct in conscious disregard of a high likelihood of great bodily harm or death, cannot be established beyond a reasonable doubt because there is not a high likelihood of great bodily harm or death from a simple strike with a fist. d. The fourth form of malice, Felony Murder Rule, is not applicable because Dan was not committing an independent felony which resulted in Vic’s death. Assaulting Vic with Dan’s fist is neither an independent nor inherently dangerous felony. It is not even a felony. Conclusion: A jury could not properly find Dan guilty of common law murder because the malice element cannot be established beyond a reasonable doubt. Since common law murder is an element of first degree murder, Dan cannot be convicted of first degree murder. B. AGGRAVATING CIRCUMSTANCES: Even if the prosecution could establish common law murder (second degree murder), notwithstanding the arguments against malice, the prosecution must also establish one of the recognized aggravating circumstances. The most common aggravating circumstances that elevate common law murder to first degree murder are premeditation, lying in wait, poison, bomb, torture, killing of police prison guards or politicians, felony murder, and the killing of a child involving a sex act. Here, the only aggravating circumstance which the prosecutor could rationally assert would be premeditation. However, according to the facts, Dan exploded in anger when told he was crazy. A jury could not find premeditation, beyond a reasonable doubt, based on this evidence. Conclusion: A jury cannot properly find Dan guilty of first degree murder because the prosecution cannot establish malice, and therefore cannot establish common law murder; and even if the state could prove common law murder, it cannot establish the aggravation required for first degree murder. II. SECOND DEGREE MURDER Second degree murder is the modern label for common law murder. Dan cannot be convicted of second degree murder because the prosecution cannot establish malice. III. VOLUNTARY MANSLAUGHTER Voluntary manslaughter requires malice. Assuming, for this part of the analysis, the prosecutor could establish malice, are there circumstances sufficient to mitigate the killing to voluntary manslaughter. The three basis for mitigation are (1) imperfect privilege, (2) diminished capacity and (3) heat of passion. A. IMPERFECT PRIVILEGE: Dan did not misjudge the existence of a privilege which he reasonably believed he had. His conduct is not almost self-defense, or defense of others, or prevention of crime. B. DIMINISHED CAPACITY: Diminished capacity is, by statute, in a minority of states, a mitigating factor. It usually only applies to homicide cases. When the defense is based on a statutory rule, it is an affirmative defense, which means the defendant must prove with the preponderance of evidence that he or she satisfies the terms of the statute. In states that recognize this defense, it can be used to reduce second degree murder to voluntary manslaughter. 1. Minority of States: In a minority of states, the statutes allow this defense if Dan proves that he was not capable of forming the required intent because of his mental illness. In these states Dan will probably lose because his erratic behavior is not much evidence that Dan did not have the capacity to form malice. 2. Model Penal Code: The Model Penal Code has a diminished capacity provision. It applies if the defendant establishes that the killing was the result of an “extreme emotional disturbance.” Dan will contend he was in a state of “extreme emotional disturbance” when he “exploded in anger.” He will offer as evidence his history of mental illness, continued erratic behavior, testimony of witnesses and psychiatrists about his mental illness, and the trigger words “ he was crazy and should be locked up.” A jury would probably find this evidence does not meet the standard of preponderance of evidence. Conclusion: Dan has the burden of proof. Dan cannot establish the statutory defense of diminished capacity with the preponderance of evidence. C. HEAT OF PASSION: Dan must show, with the preponderance of the evidence, that (1) he was in fact provoked to such an extent that he lost self-control, (2) that a reasonable person would have been provoked to this extent, (3) that he subjectively did not cool down in the short time, and (4) that a reasonable person would not have cooled in the time available. 1. Actual Provocation: There is significant evidence that Dan was actually provoked: (1) Dan testified that he was provoked to violence by Vic’s crude remarks and could not stop himself. (2) A psychiatrist and several other witnesses testified that Dan continued to exhibit erratic behavior, despite treatment. (3) Dan has been in and out of mental institutions most of his life. A jury could believe that, more likely than not, he was actually provoked to this extent by the crude remarks. 2. Reasonableness of Provocation: A jury would probably find that the second element, reasonableness, is not satisfied. A reasonable person would not be provoked to this extent simply because he was accused of being crazy. Dan has mental problems. However, the standard which is usually applied is “reasonable person” not “reasonable crazy person.” 3 & 4. No Cooling Time: A jury could properly find that the third and forth requirements were satisfied because there was very little cooling time. According to the facts, Dan “exploded” and acted immediately. Finally, the common law policy is that words alone will never be sufficient provocation for mitigation to voluntary manslaughter. Here, Dan was provoked by words alone. An exception to this rule is often applied if the words alone carry provocative information. That exception does not apply here. Conclusion: Heat of passion mitigation probably fails because a reasonable person would not have lost self-control merely because someone said he was “ crazy and should be locked up.” Moreover, words alone are almost always insufficient to justify mitigating to voluntary manslaughter. IV. NOT GUILTY BY REASON OF INSANITY There are four views as to what constitutes legal insanity. They are (1) the M’Naughten Rule, (2) Irresistible impulse (3) Model Penal Code (4) Durham. Additionally, the states are divided as to whether the prosecution must prove sanity beyond a reasonable doubt, or the accused must prove insanity with the preponderance of the evidence. A. M’NAUGHTEN: M’Naughten provides a person is insane if because of a mental disease or defect, the person did not know what he was doing, or if he did, he did not know it was wrong. Dan testified he knew what he was doing but “ could not stop himself from striking Vic.” Dan is not insane under this test. B. IRRESISTIBLE IMPULSE: Irresistible impulse is a better theory for Dan. A person is insane under this test if because of a mental disease or defect he could not control his conduct. Here, Dan testified that he “ could not stop himself.” A jury could find that Dan’s testimony, along with the testimony of several witnesses and a psychiatrist, was sufficient to meet the preponderance of the evidence standard. C. MODEL PENAL CODE: Under the Model Penal Code, a person is insane if because of a mental disease or defect he lacks substantial capacity to appreciate the nature of his act, or to control it. Here, Dan has offered his own testimony, and that of several witnesses, and that of a psychiatrist, about his history of mental illness and continued erratic behavior. A jury might be persuaded that he lacked substantial capacity to control his behavior. Dan may be insane under the MPC standard. D. DURHAM: Durham was adopted by only one state, Maine. Under the Durham standards, Dan must establish that his conduct was the product of a mental disease or defect. A jury could conclude that the evidence cited next was sufficient to establish insanity under this test. CONCLUSION: Dan may or may not be found not guilty by reason of insanity, depending on the rule of insanity in the jurisdiction. This answer provided by Emerson’s Tutorial Bar Review, 415-864-4122, www.emersonstutorialbarreview.com.

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