Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.
The first thing you’ll want to do when analyzing either an essay question, or an MBE question dealing with homicide is to realize that there are 3 types of homicide. Understanding the “big picture” concepts is essential before attempting to learn the details of each of those concepts.
The three types of homicide are (1): Murder; (2): Voluntary Manslaughter; and (3): Involuntary Manslaughter. Let’s examine each.
Murder is the unlawful killing of a human being with malice aforethought. When analyzing murder, you should immediately break the crime down into four distinct categories: A: Intent to kill; B: Intent to inflict great bodily injury; C: Reckless indifference to an unjustifiable high risk to human life; and D: Intent to commit a felony. All four of these categories have one thing in common: they all satisfy the malice aforethought requirement essential for a finding of murder.
The first two are pretty straightforward, if you intend to kill someone, and you succeed, you can be guilty of murder. In addition, if you intend to inflict serious bodily harm on someone, and the person dies in the process, you can be guilty of murder. The third is a situation in which even though you might not have had the intent to kill, or the intent to seriously injure, your actions were extremely reckless, and that recklessness posed such a high risk to human life, that it, too, satisfies the requirement of malice aforethought.
Lastly, we have felony murder. You’ll want to look for a situation in which a death occurs during the commission of an inherently dangerous felony (ie,, burglary, rape, robbery kidnapping, etc.). Although the traditional concept of malice is not satisfied (the killing might not have risen to the level or either recklessness or intent to kill/injure); malice is implied from the intent to commit the underlying felony.
Next, let’s discuss voluntary manslaughter. All that is stated above in regards to the requirements for murder apply to voluntary manslaughter, with one additional element: adequate provocation. In other words, voluntary manslaughter is murder + adequate provocation. In analyzing adequate provocation, certain elements require a subjective mindset, and others, an objective mindset. Provocation is adequate only if an intense passion is aroused in the mind of an ordinary person (objective); the defendant was in fact provoked (subjective); there was not sufficient time for an ordinary person to calm down from the provocation (objective), and defendant did not, in fact, calm down (subjective). If all 4 of these elements are satisfied, a charge of murder might be reduced to voluntary manslaughter.
Lastly, let’s look at involuntary manslaughter. Involuntary manslaughter occurs when a killing results from criminal negligence on the part of defendant. Criminal negligence need not rise to the level of fault as discussed in our discussion of murder requiring recklessness. This is a fine distinction, but one that you should note carefully. Reckless indifference to the lives of others can result in murder, while criminal negligence can result in involuntary manslaughter.
Copyright 2011 Sean Silverman and http://www.mbetutorial.blogspot.com. Reprinted by permission.
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