Class #14: Common Law Approaches to Intentional Murder

The division of the course into the “general part” and the “specific part” is somewhat artificial. As we studied the general part, we learned about many specific crimes (battery, burglary, larceny, assault, etc.). But, we now turn to the study of two specific crimes: homicide and forcible rape. I chose these two crimes for specific reasons. First, they are the most serious of crimes. Second, they provide a clear doctrinal contrast. Homicide law is, in almost all respects, a law of mental states. In every homicide case, the harm is the same (someone died). What differs—and what makes the crime first-degree murder or second-degree murder or manslaughter or negligent homicide or no crime at all—is the mental state. By contrast, the doctrine of forcible rape is about actus reus. In every rape case, the harm is the same (the victim had sex without her consent). What differs—and what makes the crime rape or not—is the extent to which the defendant used “force.”

In our first homicide assignment, we will start with an overview, looking at the historical evolution of common law homicide doctrine. As you will see, the division of homicide into different offenses and different degrees was motivated in large part by an effort to reserve the death penalty for only those killings that reflected the highest moral culpability. We will then look at how the common law divided intentional killings into first-degree and second-degree murder and contrast that with how the MPC and NY differentiate among homicide crimes.