MBE Crim Question

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rationaljd

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MBE Crim Question

Postby rationaljd » Sat Dec 09, 2017 9:26 pm

Below are parts of 2 different questions. I get that (B) illustrates the depraved heart murder/reckless disregard for human life but how come (A) isn't?

(A) In celebration of the Fourth of July, the defendant discharges a pistol within the city limits in violation of a city ordinance. The bullet ricochets off the street and strikes and kills a pedestrian.

(B) In a jurisdiction that has abolished the felony murder rule, but otherwise follows the common law murder, a woman and a man, both armed with automatic weapons, went into a bank to rob it. The man ordered all the persons in the bank to lie on the floor. When some were slow to obey, the woman, not intending to hit anyone, fired about 15 rounds into the air. One of these ricocheted off a stone column and struck and killed a customer in the bank.

maxmartin

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Re: MBE Crim Question

Postby maxmartin » Sat Dec 09, 2017 9:46 pm

rationaljd wrote:Below are parts of 2 different questions. I get that (B) illustrates the depraved heart murder/reckless disregard for human life but how come (A) isn't?

(A) In celebration of the Fourth of July, the defendant discharges a pistol within the city limits in violation of a city ordinance. The bullet ricochets off the street and strikes and kills a pedestrian.

(B) In a jurisdiction that has abolished the felony murder rule, but otherwise follows the common law murder, a woman and a man, both armed with automatic weapons, went into a bank to rob it. The man ordered all the persons in the bank to lie on the floor. When some were slow to obey, the woman, not intending to hit anyone, fired about 15 rounds into the air. One of these ricocheted off a stone column and struck and killed a customer in the bank.


violation of a city ordinance=misdemeanor+death=involuntary manslaughter

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encore1101

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Re: MBE Crim Question

Postby encore1101 » Sat Dec 09, 2017 10:11 pm

A mentality I employed for these types of questions was assume that the question delivered all the relevant facts.

So while (a) could, under the right circumstances, constitute depraved indifference murder, the facts as given don't support it. If, for example, the fact scenario stated that the defendant went outside to shoot his firearm, that the streets were crowded with pedestrians and/or that the defendant shot multiple times, then a charge of depraved indifference would be more supported. But we don't know where he shot the firearm, nor how crowded the streets were, how far away the defendant and the pedestrian were from each other. We only know that he only shot once. We don't even know if the defendant saw the pedestrian that he ultimately shot.

Instead, we only know he shot once, it ricocheted off the street, and killed someone. Those facts don't really show a conscious disregard for human life.

In contrast, (b) shows a defendant who shot multiple times, in an enclosed location where she knew that several people were located. Those facts, unlike (a), supports a conclusion that she consciously disregarded an obvious risk of death.

edit: maxmartin is right that (a) is only involuntary manslaughter. If you think about it, the facts are not that dissimilar from a DUI-death (violation of law leading to unintentional death), the prototypical involuntary manslaughter example.

rationaljd

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Re: MBE Crim Question

Postby rationaljd » Sat Dec 09, 2017 11:44 pm

encore1101 wrote:A mentality I employed for these types of questions was assume that the question delivered all the relevant facts.

So while (a) could, under the right circumstances, constitute depraved indifference murder, the facts as given don't support it. If, for example, the fact scenario stated that the defendant went outside to shoot his firearm, that the streets were crowded with pedestrians and/or that the defendant shot multiple times, then a charge of depraved indifference would be more supported. But we don't know where he shot the firearm, nor how crowded the streets were, how far away the defendant and the pedestrian were from each other. We only know that he only shot once. We don't even know if the defendant saw the pedestrian that he ultimately shot.

Instead, we only know he shot once, it ricocheted off the street, and killed someone. Those facts don't really show a conscious disregard for human life.

In contrast, (b) shows a defendant who shot multiple times, in an enclosed location where she knew that several people were located. Those facts, unlike (a), supports a conclusion that she consciously disregarded an obvious risk of death.

edit: maxmartin is right that (a) is only involuntary manslaughter. If you think about it, the facts are not that dissimilar from a DUI-death (violation of law leading to unintentional death), the prototypical involuntary manslaughter example.


Good mentality to employ! Thanks!

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SilvermanBarPrep

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Re: MBE Crim Question

Postby SilvermanBarPrep » Sat Dec 16, 2017 2:49 pm

This distinction between involuntary manslaughter and depraved heart murder is always a tricky one. The key distinction is between criminal negligence and recklessness and there is a very fine line between the two.

Often on the MBE, it'll be asked what is the most serious crime for which the person can be charged and it's a good bet to go with the most serious crime listed since in such questions they are asking about charged and not convicted. If a person can be charged with criminal negligence, it's quite likely a charge of depraved heart murder is appropriate.

But under circumstances when you need to make this distinction, ask yourself whether the person knowingly performed the act for which the person is being charged. Criminal negligence requires not knowledge but acting in a way that a reasonable person would not have acted. In other words, others would have known that the act was wrong but the defendant did not know at the time that what he/she was doing was wrong. With recklessness, the knowledge is there but the defendant acts anyway. Recklessness is, essentially, a higher degree of fault.



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