February 2012 Bar Exam Tip: Shorthand Murder Approach

Okay all, this is likely the last post for the night (unless I think of something else).

Here is a quick murder approach – I am providing this because if you do end up with a Criminal Law(murder) cross over with Criminal Procedure (which certainly could happen), then you will need to make your way through your murder approach fairly quickly.

Here is quick shorthand approach for handling a murder question:

Address: Common Law Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought is proven four ways: 1) intent to kill, 2) intend to inflict great bodily injury, 3) depraved heart killings, and 4) felony murder.

(Address the above and then if you have a felony murder issue, prove up the underlying felony (BARRKS – Burglary, Arson, Robbery, Rape, Kidnapping or Sodomy – incidentally, I am not expecting the examiners to test one of the above common law inherently dangerous felonies, instead, IF they ware to test felony murder I would expect to see it in the context of a dangerous felony like drug trafficking or something like that – it forces you to reach a bit and explain that the prosecutor could charge the defendant for felony murder on the basis that it was an inherently dangerous felony, but not a c/l enumerated (BARRKS) felony)

Then move onto:

Statutory Degrees of Murder

First Degree Murder: First degree murder is the intentional killing with malice aforethought, premeditation and deliberation. (here do not spend all day on defining or explaining premeditation or deliberation – it either was premeditated and deliberate (lying in wait, planned, thought out etc.) or it wasn’t – address the issue and conclude and move on).

Second Degree Murder (here is the quick way: “all murders that are not first degree are second degree unless mitigated down to some form of manslaughter”).


There are two types of manslaughter (Voluntary and Involuntary). If you know right away that the facts support a heat of passion killing, then address that first under Manslaughter as: Voluntary Manslaughter. (By the way, anytime there is a fight that results in a death – you should address heat of passion/voluntary manslaughter.

Voluntary Manslaughter: is a killing that would be murder but for the existence of adequate provocation and insufficient cooling time. (there are elements here that you could develop, but, the reality is that if you have a cross over exam and it involves a full murder discussion – from common law murder to manslaughter, then you simply do not have a lot of time. So spend your time focusing on whether what happened would arouse the passions of reasonable person to kill AND whether or not the person did not have time to cool).

Involuntary Manslaughter: A killing is involuntary manslaughter if it was committed with criminal negligence or during the commission of an unlawful act.

There is also the concept of Misdemeanor Manslaughter Rule – it is simply an accidental killing that occurs while engaged in a non-dangerous felony or misdemeanor.

Obviously there are defenses like: Intoxication, Insanity (know the four tests as best you can), self defense, defense of others etc. that can all word to either relieve the defendant of liability for common law murder and reduce the crime down to some form of manslaughter. Keep in mind the above is a basic approach. But, sometimes that is really the best thing to have in your head on the day of the exam. You should have a framework or basic approach and then allow yourself the freedom to write your answer based on the particular fact pattern you face.

Best of luck to you all!


  1. Lisa
    Quick question as to malice aforethought; You suggest discussing each of the 4 types of malice prior to starting the discussion on 1st degree murder, then second degree? If so, then what is the discussion under second degree murder?
    Finally, would you discuss causation for murder or just stick with the 4 types of malice, degrees of murder, and manslaughter if it applies?

    • Hello Andrew,

      I hope my answer to your question is quick enough. Your comment ended up in the spam folder of my blog.

      Your question is good one. When dealing with Common Law Murder you should list out the four ways that malice aforethought is proven. You do not necessarily need to address all four. Most examinees prove up one or two (at the most) and then move on.

      When you move onto degrees of murder – first degree murder comes first (as I know you understand) and then have a quick mention of second degree murder – do it like this:

      Second Degree Murder
      All murders that are not First Degree are considered Second Degree murder unless mitigated down to some form of manslaughter

      That will be all you need to say about second degree murder (typically). There is nothing to analyze there – just state the fact that “all murders that are not first degree are second degree unless mitigated down to some form of manslaughter”

      This is something you will see in most of the released answers on common law murder essays.

      I hope this helps.

      All the best to you,