northwood wrote:crim law question:
For second degree murder under common law- D mst prove that he lacked maclicious intent, correct? So would heat of passion, or attempt to only batter someone, but victim accidentally dies from injuries ( or does that bump it up to first degree), or uunjustified defense ( i.e defense of a fist fight, but takes out gun and shoots attacker- charged with murder 1, pleads self defense, can it get bumped down to murder 2?)
and for the MPC- would the second little hypo possibly get the charge negated to manslaughter???
edit: read your question wrong, my bad.
New answer: yeah, if the D can mitigate the malice by showing adequate provocation under the c/l (Heat of passion, provocation, lack of cooling time) then he can bump it down to manslaughter. Under the MPC the D can plead Extreme Emotional or Mental Disturbance, which is a little more liberal in proving the D was under an EEMD, but the catch is the disturbance has to be an objectively reasonable response to the provocation. See, the Casassa case from NY, if you had the Kadish casebook.
If you attempted to batter someone, the Prosecution would have a hard time proving mens rea to murder, so they would try and show a recklessly risked killing and if they can imply malice (deadly weapon pointed at a vital body part, for example) they could get you on murder, but manslaughter would be easier to prove.