Bar Exam: Quick Homicide/Murder Approach Video

Here is quick shorthand approach for handling a homicide/murder question. (Also, see here for a short video on this same approach)

Homicide/Common Law Murder Approach

Homicide is the killing of one human being by another person. This does not require malice and can even result from a negligent act, accident or recklessness. There is no requirement that the defendant intended any harm.

Note: Homicide should only be addressed if causation is at issue. If causation is not posed as an issue, then you should start with common law murder. How do you know if causation is at issue?

Here is an example: On January 1, 2021, Deft shot Vic in the head. As a result, Vic was hospitalized and placed on life support. He remained unconscious and on life support until July 11, 2021, when Vic’s doctor, Doc, having determined Vic was “brain-dead,” removed him from life support. Vic drew his last breath on July 11, 2021

In this example, there is a causation issue because Doc pulled the plug which ended Vic’s life. However, It is easy to establish that Deft is liable for Vic’s death. In this scenario, you must establish that Deft was the proximate cause of Vic’s death. This can, and should be, addressed quickly. Then move onto Common Law Murder. Example: But for Deft aiming his gone at Vic and shooting him in the head, Vic would not have gone to the hospital, would not have been in a coma or declared “brain dead” by Doc.

Only discuss Homicide if there is a need to address causation. It can even come up when the defendant has caused an injury to the victim that would normally not result in death. For example, defendant may have struck the victim and broken the nose requiring hospitalisation and surgery. If the victim gets an infection while in the hospital that causes victim’s death, this presents an issue with causation and requires a discussion of Homicide. So, here, even though the defendant did not intend to kill the victim, the defendant’s actions caused the victim to be hospitalised and required surgery. Therefore, the defendant is both the actual and proximate cause of victim’s death because the defendant put the victim in the hospital where he ultimately succumbed to an infection.

Next, go onto Common Law Murder (or, if there is not a Homicide, start with Common Law Murder).

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). Then move on to: Statutory Degrees of Murder.

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 quickly 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.” Then move on to:


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 had an insufficient 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.

Available Defenses

Address all possible defenses or mitigating factors Address (if applicable) any of the following defenses: Intoxication, Insanity (know the four tests as best you can), self defense, defense of others etc. These defenses can all work to possibly 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.