Where Is The Body?
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Where Is The Body?

Where Is The Body?

It took me a very long time to realize that before I began discussing Murder I had to start with Homicide.  I guess I was just too eager to get into murder!  This may sound funny to many, but to the 1L student this is just another familiar statement.  It is too easy to jump into murder before finding the homicide and I think this is due to how we are taught the subject matter or maybe it is just that we are so excited when we start 1L and begin Criminal Law we have murder on the mind!

Remember, every murder begins with a homicide; without a homicide you have no murder.  A homicide is the unlawful killing of another human being.  It is important to start with your discussion on homicide because this is where murder begins.  If you don’t have a homicide, a dead body, you don’t have a murder.  Put more simply, you can’t get to 2nd base without running through 1st base and 1st base is homicide.

The Butler Did It With A Candlestick

It is vital to start with homicide because after identifying your dead body you may not be able to jump right into your murder analysis.  Between your homicide and your murder you may have serious causation issues that must be discussed.  These causation issues arise when the person you are doing the analysis on isn’t the one who pulled the trigger or because there was an omission to act, or some other variation.

Causation in homicide is often one of the most simplistic issue analysis areas but also one of the most incorrectly placed discussable issues.  By misplaced I mean, it is often discussed after murder, after malice, and sometimes even in defenses.  If you have a dead body, a homicide, but the dead body was due to another or the act of a third party, or omission to act, etc. you must discuss causation next before moving on to homicide.

If you find that you have a fact pattern where the dead body was due to a third party you should automatically begin thinking about vicarious liability, accomplice liability, and all those inchoate crimes.   If you find that you have some type of vicarious liability issue then you will need to keep this nugget in your mind because it will clearly be a discussable issue in your malice analysis for Felony Murder.

Causation for homicide is a very detailed discussion that you must clearly analyze and show analysis for.  For more information on the element of causation in homicide see our article on causation.  Once you have completed your analysis on causation then its time to move into your murder discussion.  I generally prefer a simple one sentence transition in the form of:  Murder is a homicide, the unlawful killing of another human being, with malice aforethought which is not justified, excused, or mitigated.


The malice required for murder shows in four forms: 1.) Intent to Kill 2.) Intent to Seriously Injure 3.)  Willful and Wanton sometimes called Depraved Heart and 4.) Felony Murder.  Based on the fact pattern you are looking at will depend the forms of malice you will want to discuss.

Intent to Kill

I think the Intent To Kill Malice is the easiest to spot and do analysis on.  Intent to kill requires a showing of the desire to kill the victim or acting with substantial certainty the defendants actions will result in death of the victim.  Often in fact patterns we are clearly directed at an intent to kill malice when the defendant makes statements before, during, and/or while doing the act.  “I hate you, die!” “I am going to make you pay with your life!”

One important factor to remember with your intent to kill malice is the Deadly Weapon Doctrine.  The deadly weapon doctrine states that if a weapon like a gun, knife, or chainsaw is used in a lethal manner and the victim dies as a result, the use of the weapon is sufficient to show intent to kill.

Some students briefly read about the deadly weapon doctrine and move on without firmly planting this in their memories.  This can be a fatal flaw!  If you take words and couple those with the deadly weapon doctrine you have a slam dunk analysis for intent to kill!

Intent to Seriously Injure

Intent to inflict serious bodily injury arises when a defendant desires or acts with substantial certainty that his actions will result in the victims death.  The element of intent to seriously injure requires more analysis than a simple intent to kill.  You must use the facts given to you in the fact pattern to build your analysis and show the grader how you came to the conclusion that the defendant acted with an intent to seriously injure.  Often times the fact pattern will specifically tell you the defendant acted with “no intent to harm” but these should be words that peak your brain into beginning the analysis on intent to seriously injure.

Willful Wanton Disregard

Willful and wanton disregard for human life malice is conduct that the defendant knows creates an extremely serious risk of death or serious bodily injury.  Willful wanton disregard malice is also often called Depraved Heart malice.

Willful and wanton disregard for human life often shows up in fact patterns when the defendant begins firing into a crowded area, firing into a residential area, or generally acting with a serious disregard for human life.

Felony Murder Rule

A homicide committed during the perpetration of a felony is murder (this includes murder committed during the perpetration aka attempt of a felony).  It is important to remember that when writing for the FYLSE to base everything on Common Law unless told otherwise; this means remember your BARRK acronym.

B = Burglary A = Arson R = Robbery R = Rape K = Kidnapping  These are Common Law felonies.

Not only must the homicide be in the commission of the felony but the felony must be inherently dangerous. Often we are given fact patterns where we are not told if the underlying crime is a felony and it doesn’t fit into the BARRK category.  This means that you must identify it eh underlying crime is inherently dangerous in nature because it places individuals in peril just by being committed.

hooded robber with a gun and a bag of money

Finally, the last element of a homicide committed during an inherently dangerous felony that must be discussed is the perpetration aspect.  If the homicide occurs after the crime has been committed it hasn’t happened in the commission of a felony.  This means that you have to provide analysis on when the commission of the crime begins and when it ends.  The commission begins when the defendant could be found guilty of attempting the underlying felony and it ends when the defendant(s) reach a place of safety.


Finish Him

After discussing the malice elements you move into your discussion on justification, excuse, and mitigation.   This analysis will help ensure that your degree of murder analysis is spot on.  Too often it is easy to identify the elements of a Heat Of Passion homicide and begin discussing mitigating factors in the malice analysis and finding that there is nothing to discuss in the mitigation analysis section.  For more information on justification, excuse and mitigation, see our article!  Until then remember kids, find those bodies!

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