Applying the Framework

Applying the Framework

Every homicide problem drawn from this chapter can be run down one ladder, because the offenses on it share their physical elements and differ in the defendant's mental state. Murder and involuntary manslaughter both require an unlawful killing of another person, and the mental state for manslaughter is less demanding than the malice aforethought that murder requires.¹ Proof of murder therefore proves manslaughter as a lesser included offense, which is why a prosecutor can charge both and leave the grade to the factfinder. That structure dictates the order of analysis: start with the facts every grade needs, test the top charge next, and step down only as each higher rung fails. The unlawful-act theory is the one exception to a straight descent, because it does not depend on how the negligence inquiry comes out and must be checked on its own.

The steps do different jobs. Step two sorts murder from manslaughter, and it rarely yields a clean answer, because the line between the wanton recklessness that shows malice and the ordinary recklessness that yields manslaughter is ultimately left to the judgment of the factfinder.² A strong answer therefore sets out the facts pointing each way and says which grade they support instead of announcing a bright line. Step three depends on the jurisdiction: a subjective test requires proof that the defendant perceived the risk, while an objective test asks only whether a reasonable person would have, so identical conduct can satisfy one state's test and fail another's. Step four is its own route and must be run even after step three fails, because the unlawful-act theory draws its culpability from the offense itself and needs no perception of danger. Students lose points when they treat a failed malice inquiry as the end of the analysis, since the death still has to be tested against both manslaughter routes.

Two problems put the path to work, and each is built to turn at a different rung. The Adams problem involves poisoned candy and a death from exposure, and it shows the path ending in manslaughter by two independent routes after the malice question fails. The George problem begins with a charge of felony murder after a thrown briefcase kills a delivery man, and it shows how the same ladder brings a charge that looks like murder down to negligence.⁴ The Adams problem comes first, because it runs every step of the path in order.

Adams: The Abandoned Body

The Adams problem is built to run the homicide analysis path in the order that path prescribes: causation first, murder second, manslaughter third. Each rung produces a different result for a different reason. The facts are these.

Causation comes first because every homicide grade, murder and manslaughter alike, requires a death that the defendant's conduct brought about, so no mental-state question can be reached until some act is tied to the death. The act that matters here is the dumping. For actual cause, Cox was alive when Adams left him in the woods, and he would not have died of exposure had Adams not carried him there and abandoned him. For proximate cause, the death followed directly from that act with no independent force intervening, because exposure is exactly the danger that leaving a living, helpless person outdoors creates. Adams's mistaken belief that Cox was already dead does not interrupt this chain, since causation follows what physically happened rather than what the defendant believed.

A tempting additional theory runs through the candy. Leaving poisoned food where a stranger might eat it is a serious wrong and may well be grossly negligent, so a student might add a negligence-based manslaughter count built on it. That theory fails because negligence supports a homicide conviction only when the negligent conduct produces the death, and the poison did not. The risk that made leaving the candy culpable was poisoning, while the harm that killed Cox was exposure, which flowed from a later and different act. Students lose this issue when they attach negligence in leaving the candy out to a death it did not cause. Had the poison killed Cox, the candy would be the center of the case and the question would be whether leaving it was grossly negligent. On these facts the dumping carries the entire homicide analysis.

With causation fixed on the dumping, the second rung asks whether Adams acted with malice. Malice can be implied, and one implied form is reckless indifference to an unjustifiably high risk to human life, the so-called abandoned and malignant heart.⁵ Indifference to a danger presupposes awareness of it, because a person cannot disregard a risk the person never perceived, and the doctrine singles out defendants who know their conduct may well kill and proceed anyway. As the problem is framed, Adams had no intent to kill Cox when dumping the body. At that moment Adams believed there was no life left to endanger, so no risk to life, high or low, was in Adams's mind. That lack of awareness defeats malignant-heart murder.⁶

The pair shows that the only variable that moved the grade was awareness. The physical act, the setting, and the death are identical in both versions, but a defendant who perceives the danger has the malignant heart and one who does not lacks it. Because murder fails on the original facts, the analysis steps down to manslaughter instead of ending, and the facts then offer two routes to it.

The first is the unlawful-act route. Concealing what Adams took to be the evidence of a crime is wrongful in itself, so it is malum in se, which satisfies the limit most courts place on this form of manslaughter. The death grew directly out of that concealment, so the act proximately caused it. This route asks nothing about whether Adams perceived danger, which explains why the same lack of awareness that defeated murder does not defeat it. The route is available only in a jurisdiction that retains misdemeanor manslaughter. Where the doctrine has been abolished, as under the Model Penal Code, the answer must rest on the second route.

The second route is criminal negligence, and it is arguable rather than certain because it depends on the jurisdiction's test. Under the objective test, the question is whether a reasonable person would have perceived the risk and whether failing to do so was a gross deviation from reasonable care. A reasonable person who believes a stranger lies lifeless would take a moment to check for breathing or a pulse before abandoning the body, since checking costs almost nothing and the risk of leaving a living person is death. Adams's only purpose was to avoid detection, an end with no social value to set against that risk, so the deviation looks gross. Under the subjective test, the route fails, because Adams never appreciated a risk to life and so could not have consciously disregarded one. A strong answer therefore leads with the unlawful-act route, which succeeds on its own, and presents the negligence route with the jurisdictional caveat.

George: The Thrown Briefcase

The George problem runs the homicide path from the opposite direction. Adams began as a murder charge that failed at malice, while George begins as a felony-murder charge that fails at its predicate felony, and the work of the answer is to find where the charge lands once that support is gone. The facts are these.

Causation, the first rung of the path, is not in doubt. The briefcase struck the delivery man in the head and he died of the injuries, so the throw was the actual cause of the death, and the death followed directly from it with no independent force intervening.⁸ The felony-murder theory is the weak point. At common law that doctrine raises an unintended killing to murder only when it occurs during a dangerous felony, and the only candidate here is burglary, which requires breaking and entering a dwelling at night with intent to commit a crime inside.⁹ Whether George committed a breaking at all is doubtful, since he passed through a closed but unlocked door inside a building open to the public. The decisive gap is intent. George came in to escape the rain and did not know the upstairs was an apartment, so his anger at the delivery man had no connection to his entry.¹⁰

What George did after entering, eating the food and cutting up the newspaper, amounts to larceny, but larceny is not dangerous enough to support felony murder at common law.¹¹ The unlawful-act route in step four does not fill the gap either, because the death must be a foreseeable consequence of the felony, and making a sandwich and clipping coupons did nothing to make a later killing foreseeable. With no qualifying predicate, the felony-murder charge falls, and the analysis returns to the ladder, where the question is what George's own mind supports.

The second rung asks whether George acted with malice on some other theory. Implied malice from reckless indifference requires awareness of an unjustifiably high risk to life, because a person cannot disregard a danger that never registered. George threw the briefcase in a panic, without looking and without aiming, so nothing suggests he perceived any risk to the man's life at that moment.¹² The prosecution will point to the threat from the day before and to the scissors in the briefcase. Those facts show ill will and a readiness to cause harm, but the threat was vague about whether it meant the man or his belongings, it came a day earlier, and the facts do not say George thought of the scissors when he threw. They leave his mental state at the critical moment as panic, which falls short of the conscious indifference that implied malice requires. The facts as given therefore do not support murder, and the analysis steps down to manslaughter.

At the third rung, the jurisdiction's test decides the outcome. Under a subjective test, manslaughter by recklessness requires that George personally appreciated a substantial risk of death and consciously disregarded it, and for the same reason malice failed, recklessness fails here. Under an objective test, perception is unnecessary. The question becomes whether a reasonable person would have perceived a substantial risk of death and whether failing to perceive it was a gross deviation from the care a reasonable person would use, creating a high risk of death or serious bodily harm.¹³ The gross-deviation limit exists because, without it, every careless act that happens to end in a death would become a homicide, and the law reserves that label for carelessness serious enough to deserve condemnation. A common-law jurisdiction that treats negligent homicide as involuntary manslaughter supplies the objective test, and the problem calls for that answer.¹⁴ An answer that adopted the subjective test would have to say that George escapes manslaughter altogether, unless the jurisdiction has a separate negligent-homicide offense below manslaughter, which is why the answer must name the test it applies.

The contested step is whether George's failure to perceive the risk was a gross deviation or only ordinary negligence. Students lose this issue when they stop at failure to perceive and never argue gross deviation, because ordinary negligence carries no criminal liability. The argument for gross deviation is strong. Throwing a solid object at another person's body from close range is a deliberate act directed at a human being, a blow to the head risks serious injury, avoiding the risk cost nothing, and George had no purpose that could justify it beyond getting away. The defense will answer that the throw was a reflex of panic and that a thrown briefcase ordinarily bruises rather than kills. The conventional resolution of this problem treats the failure to perceive as manslaughter-level negligence and reduces the charge to involuntary manslaughter.¹⁵

The three versions differ in a single variable, what George perceived and how reasonably he behaved. Aimed, the throw is reckless or malicious. Unaimed and panicked, it is grossly negligent in the way the sourced reasoning concludes. Slipped, it is ordinary negligence. The original facts sit in the middle rung, which is why the answer ends in manslaughter and not in murder or in acquittal.