Top Approach to 1st Degree Murder

Most criminal law exams will require you to write analysis on five types of common law homicide. First-degree murder, felony murder, second-degree murder, voluntary manslaughter and involuntary manslaughter.

To perform well you must know how all of the several pieces to homicide fit together and relate to one another in an analysis. To get us started, here is the big picture on first-degree murder.

Broadly, homicide can be analyzed either under the common law or under the MPC. Like second-degree murder, first-degree murder falls under the common law. First-degree murder is a common law concept. It is defined as an unlawful killing with malice aforethought.

Step 1: Actus Reus

The first step is to simply determine the actus reus or act of killing. The issue is simply whether the defendant’s action caused someone to die.

Step 2: Malice

Now on to first-degree mens rea. Let’s focus on the key terms which are malice and aforethought. Let’s look at malice. Malice is the first mens rea element for first degree murder. Malice takes on different definitions for the five different types of common law homicides. But for first-degree murder, malice is satisfied by establishing either that the defendant intended to kill or was substantially certain that death would occur. You will closely examine facts about the defendant to make arguments about whether they purposefully killed someone or had a pretty good idea that their actions would lead to someone’s death. If so then malice is established.

Step 3: Aforethought

The next mens rea element for first-degree murder is aforethought. Aforethought is an old English word meaning premeditation. You see, it is the prosecution’s burden to show that the murder was willful, deliberate and premeditated. The policy consideration behind premeditation is that defendants who act in cold blood are more dangerous, more deserving of punishment, and more easily deterred by tougher sentencing because they consider their acts and the consequences of them before killing. Aside from merely addressing black letter law on the exam, remember to quickly insert a bit of policy like this into your exam analysis to earn more points.

When analyzing first-degree murder, premeditation is a wide open door to earning a lot of points because there are important arguments on both sides and each argument has a seminal case to reference. Here’s how it works.

The prosecution has the burden to prove that the defendant premeditated the murder in order to convince the jury to convict the defendant of first-degree murder which carries the toughest sentencing. On the other hand the defendant makes arguments to show that the prosecution has failed to meet its burden and that they did not plan or premeditate the killing.

As you can see these arguments are on two polar ends. But when making these arguments it’s best to reference the two most defining or seminal cases on either end of premeditation. The first case is Common Wealth v. Carrol and the second case is State v. Guthrie.

Step 4: Carrol Approach

Under the Carrol approach no time is too short for a wicked man to frame his mind on the scheme of murder. This is a prosecutor’s dream case because is sets such a low bar for premeditation that even if a defendant had only a split second to reflect on their act while immediately pulling the trigger that brief moment still amounts to sufficient premeditation under the Carrol approach.

Step 5: Guthrie

Then there is Guthrie. Under the Guthrie approach a decent amount of reflection is actually required. The defendant must have had some period of time between the development of the intent to kill and the actual killing. The increase in the span of time required is to help assure that the act or homicide was premeditated and deliberate rather than impulsive.

Essentially premeditation is easy to satisfy under Carrol but more rigorous to satisfy under Guthrie.

So in your analysis, use Guthrie as a counter argument to Carrol and to support that the Defendant may not have had enough time to premeditate the murder.

Step 6: Anderson

Also to help strengthen your counterargument use a case called Anderson. Under Anderson, the court went even further than Guthrie and looked at facts regarding whether the defendant’s behavior prior to the killing might indicate a more deliberate design or plan. Anderson considers three factors.

The first part of the analysis is where you discuss whether or not an activity was planned.

Another factor examined under Anderson is whether the defendant’s prior relationship with the victim might indicate a reason or motive to kill. This is the motive factor in the Anderson analysis so be sure to be on the look out for facts where this analysis can be made.

The last factor considered under Anderson is any evidence of the manner of killing being so particular and exacting that there is no way the defendant could have committed the murder without a preconceived design.

So that’s first-degree murder under the Common Law. Start with whether there was an act of killing. Discuss whether there was malice. Argue both sides of premeditation from the perspective of the prosecution versus the defendant and referencing important cases like Carrol, Guthrie and Anderson.