Causation

Common Law

Cause-in-fact + Proximate cause

MPC

Actual + Proximate + Culpability

Murder

Common law

Murder: the unlawful killing of another human being with "malice aforethought"

- Express malice involved what would today be called intentional killing—an unlawful killing in
which the actor desired the death of the victim.
- Implied malice involved reckless killings that demonstrated a depraved indifference to human
life

Provocation defense: Common-law requirements for mitigation from intentional murder to voluntary
manslaughter:

(1)adequate provocation;
(2)killing was committed in the heat of passion;
(3)the heat of passion was sudden, with no opportunity to cool off;
(4)there was a causal connection between the provocation, the passion, and the killing.

Manslaughter

- Voluntary (heat of passion)

MPC Homicide

•§ 210.1(2) defines murder as a homicide committed:–purposely or knowingly; or–with recklessness

•Section 210.3 defines manslaughter as:–homicide committed recklessly; or–any murder, as defined in
210.2, “committed under the influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse.”

•Section 210.4 defines negligent homicide as homicide committed negligently.

First degree murder

For First Degree Murder, the prosecution would need to prove that ___ intended to kill. Under the
common law, intent includes both purpose and knowledge. The defendant must either have had a
“conscious objective” to kill or be consciously aware that death was practically certain to result from the
conduct.

Second degree murder

In People v. Knoller, the court held that depraved heart murder is “an act, the natural consequences of
which are dangerous to life, deliberately performed by a person who knows that his conduct endangers
the life of another and acts with conscious disregard of life.”

Felony Murder

Felony murder imposes criminal liability for murder based on the mens rea of the predicate offense
without any additional proof of a mens rea related to the actual homicide. Many jurisdictions impose
limitations on the felonies that can count as triggering felonies for the purposes of felony murder. One
limitation is that the predicate offense must be an “inherently dangerous felony.” Another limitation is
that the felony must be sufficiently independent from the killing (a merger limitation). Finally,
sometimes courts will narrowly interpret phrases like “in the commission or attempted commission of a
felony” or “in furtherance of the felony.”

One version, called the abstract or per se test, says that a felony is inherently dangerous only if there is
no way to commit it without causing a substantial risk of death.

The second version of the test, which looks at the manner of commission, says that a felony is inherently
dangerous if it was committed in a dangerous manner that created a substantial risk of death.

Third degree murder requires that the felony proximately cause the death. Proximate cause is
established when the conduct is not too far removed from the result. It is at heart a question of fairness,
and as part of the analysis courts often look at whether the result was foreseeable and expected (State
v. Smith). For the 4 common law approach to proximate causation, courts often consider six factors:
foreseeability, apparent safety, voluntary intervention, de minimus causation, intended consequences
and omissions. Proximate causation is most often an issue when there is an intervening cause that could
break the causation chain and make it unfair to hold the defendant responsible for the result.

Causation

Lastly, there must be causation. Causation has two parts: factual causation and proximate causation. In
regards to factual causation, courts will apply the “but for” test. Proximate causation, as mentioned
earlier, is fundamentally a question of fairness, and issues of foreseeability and remoteness will often by
important.

Conspiracy
. Often in conspiracies, the agreement will be proved through circumstantial evidence, like
communication that occurs without words. This can be things like looks, gestures, or other indicators of
agreement based on the circumstances

Pinkerton

Pinkerton liability says that defendants may be liable for their co-conspirator’s criminal conduct when
that conduct was in furtherance of the conspiracy and was reasonably foreseeable as a necessary or
natural consequence of the unlawful agreement.

Accomplice

Mere presence is not enough to constitute the actus reus of aiding and abetting (State v. VT), but willful
and intentional presence at the commission of an illegal act may be used as evidence in aiding and
abetting the crime (Wilcox v. Jeffery)

the common law test for accomplice liability says that accomplice liability is established when the
defendant intends to assist and in fact assists in the commission of the crimes (State v. VT). Intends to
assist means they have (a) the intent to assist the primary party to engage in the conduct that forms the
basis of the offense and (b) intends that the crime be committed. The actual assistance given can be
quite minimal, but it has to be more than mere presence.

Policy

At sentencing, a judge is likely to try to balance multiple purposes of punishment, including the
utilitarian goals of deterrence, incapacitation, and rehabilitation, and the retributivist goal of imposing
just deserts.

Retributivists believe that punishment that gives the offender what he or she deserves is a valuable end
in and of itself that needs no additional justification. Retributivists believe that when society punishes
those who commit crimes, it reinforces the social contract, and upholds the concept of free will, and
respects victims and their families. According to the US Sentencing Guidelines retribution, or just
deserts, is one of the four basic principles of criminal punishment, and is important because if there is a
public perception that courts have failed to sensibly sanction the perpetrator, respect for the law may
be reduced and vigilantism may result. Whereas retributivism is backward looking and focuses on what
has happened, utilitarian is more forward-looking and more concerned about the future. Utilitarians will
want to see punishments that factor in the importance of deterrence both for the specific offender and
for society more broadly. They will also want to see whether the offender needs to be incapacitated,
and what the options for rehabilitation back into society are.

As the judge in United State v. Blarek noted, it is sometimes difficult to balance the competing goals of
punishment and sentencing. Nevertheless, a judge would likely try to balance the fact that they have
already endured some suffering as a result of their crime, with the reality that their crime was
senseless…

judge may also consider the approach advocated for in the Krasner memo, that “ultimately, the highest
goal of sentencing must be to seek justice for society as a whole (the Commonwealth includes victims,
witnesses, defendants, and those not directly involved in an individual case) while effectively preventing
crimes in the future via methods that work.”