Homicide - Unintended killings

Learning Outcomes

This article explains homicide liability for unintended killings, including:

• Identifying when an unintentional killing is classified as murder, voluntary manslaughter, or involuntary manslaughter under common-law and MBE approaches, based on the defendant’s mental state and the surrounding circumstances.
• Distinguishing ordinary negligence, criminal negligence, recklessness, and extreme recklessness (depraved heart), and determining which level of risk and awareness supports accident, involuntary manslaughter, or second-degree murder.
• Applying the elements, policy justifications, and major limits of the felony murder rule, including inherently dangerous felonies, the merger doctrine, timing (“during the commission”), and agency versus proximate cause theories.
• Recognizing unlawful-act (misdemeanor) manslaughter, identifying the types of malum in se misdemeanors that can serve as predicates, and contrasting this doctrine with felony murder on MBE-style questions.
• Evaluating whether facts suggesting provocation, heat of passion, or intent to cause serious bodily injury move a case from involuntary manslaughter analysis into voluntary manslaughter or murder classification.
• Practicing a structured approach to MBE fact patterns involving unintended deaths so you can quickly spot the relevant mental state, any predicate felony or misdemeanor, and the most likely charged offense.

MBE Syllabus

For the MBE, you are required to understand the legal framework for homicide where death results without intent to kill, with a focus on the following syllabus points:

• The distinction between murder and manslaughter when intent to kill is lacking.
• The elements and mental state for involuntary manslaughter.
• The doctrine of felony murder and its limits (e.g., inherently dangerous felonies, merger).
• The role of recklessness, criminal negligence, and unlawful acts in unintended homicides.
• The difference between voluntary and involuntary manslaughter in terms of mental state and circumstances.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is most likely involuntary manslaughter?
   1. A person intentionally poisons a rival.
   2. A driver falls asleep at the wheel and causes a fatal crash.
   3. A person shoots into a crowd intending to scare but kills someone.
   4. A person kills in the heat of passion after provocation.
2. Under the felony murder rule, which is required?
   1. The defendant must intend to kill.
   2. The death must occur during the commission or attempted commission of a felony.
   3. The felony must be a misdemeanor.
   4. The victim must be a co-felon.
3. Which mental state is sufficient for involuntary manslaughter?
   1. Purposeful intent to kill.
   2. Recklessness or criminal negligence.
   3. Premeditation.
   4. Malice aforethought.

Introduction

Homicide law covers a range of situations in which one person causes the death of another. Many exam questions involve clear intent to kill, but the MBE also frequently tests homicides where the defendant did not mean to kill anyone. The issue is whether the mental state and circumstances convert a tragic outcome into criminal homicide, and if so, which level of homicide applies.

The key task is to distinguish:

• Unintended killings that are still murder (e.g., felony murder, depraved-heart murder).
• Unintended killings that are manslaughter (typically involuntary).
• Killings that are non-criminal accidents.

Key Term: Malice Aforethought
The mental state required for common-law murder, satisfied by any of four states: intent to kill, intent to cause serious bodily harm, extreme recklessness showing a depraved heart, or intent to commit a felony during which a death occurs (felony murder).

Even when there is no specific intent to kill, malice aforethought may be present through extreme recklessness or the commission of a serious felony. Where malice is absent but the defendant’s conduct is still blameworthy (reckless or criminally negligent), the proper classification is usually involuntary manslaughter.

Types of Homicide Without Intent to Kill

Homicide is generally divided between murder (with malice aforethought) and manslaughter (without malice).

• Murder usually involves an intent to kill, but the law also treats certain unintentional deaths as murder if malice is implied (e.g., felony murder or depraved-heart murder).
• Manslaughter covers killings that are less blameworthy than murder, including intentional killings in the heat of passion (voluntary manslaughter) and unintentional killings due to reckless or criminally negligent conduct (involuntary manslaughter).

This article focuses on unintended killings that result in:

• Involuntary manslaughter, often based on recklessness, criminal negligence, or certain unlawful acts.
• Felony murder, where an unintended death during a felony is treated as murder.

Key Term: Voluntary Manslaughter
An intentional killing that would be murder but is mitigated because it occurs in the heat of passion after adequate provocation, before a reasonable cooling-off period.

Key Term: Involuntary Manslaughter
The unintentional killing of another caused by reckless or criminally negligent conduct, or during the commission of a non-felony unlawful act.

Key Term: Felony Murder
A rule treating a killing as murder when a death occurs during the commission or attempted commission of certain felonies, even if the defendant did not intend to kill.

Involuntary Manslaughter in Detail

At common law and on the MBE, involuntary manslaughter generally arises in two main ways:

• From reckless or criminally negligent conduct that causes death.
• From the commission of a non-felony unlawful act (sometimes called “misdemeanor manslaughter” or “unlawful-act manslaughter”).

1. Reckless or Criminally Negligent Killings

Key Term: Recklessness
A mental state in which the defendant is aware of and consciously disregards a substantial and unjustifiable risk that death or serious bodily injury will result.

Key Term: Criminal Negligence
A gross deviation from the standard of care a reasonable person would exercise, creating a substantial and unjustifiable risk of death or serious bodily injury that the defendant fails to perceive but should have.

Recklessness is subjective awareness of the risk; criminal negligence is a gross failure to perceive a risk that a reasonable person would see. Both are more blameworthy than ordinary civil negligence.

Common MBE examples of reckless or criminally negligent conduct include:

• Driving a car while extremely fatigued or under the influence of alcohol or drugs.
• Firing a gun in the air in a crowded urban area, believing “nothing bad will happen.”
• Ignoring serious safety regulations in a high-risk workplace.

If death results from such conduct, involuntary manslaughter is likely.

2. Unlawful-Act (Misdemeanor) Manslaughter

Some jurisdictions apply a misdemeanor manslaughter rule analogous to felony murder: an unintended killing during the commission of a malum in se misdemeanor (wrongful in itself, not just regulatory) may be involuntary manslaughter.

Key Term: Misdemeanor Manslaughter
A form of involuntary manslaughter where an unintentional killing occurs during the commission or attempted commission of a non-felony unlawful act, typically a malum in se misdemeanor.

On the MBE:

• If the predicate unlawful act is a felony, analyze felony murder.
• If it is a misdemeanor or low-level unlawful act, consider unlawful-act manslaughter instead.

Recklessness and Criminal Negligence

The exam often hinges on differentiating levels of risk:

• Ordinary negligence → usually no criminal liability for homicide.
• Criminal negligence → involuntary manslaughter.
• Extreme recklessness, showing a depraved heart → second-degree murder.

Key Term: Depraved-Heart Murder
A form of murder where the defendant causes death by engaging in extremely reckless conduct that shows a callous disregard for human life, sufficient to imply malice even without intent to kill.

Factors pointing to depraved-heart murder rather than involuntary manslaughter:

• The risk of death is very high, not just substantial.
• The conduct is gratuitous and unjustifiable (e.g., shooting into a crowded room, playing “Russian roulette”).
• The defendant’s awareness of the risk is especially clear (prior warnings, obvious danger).

By contrast, falling asleep at the wheel after a long shift may be criminally negligent but typically does not reach the level of depraved-heart murder unless the risk is extreme and obvious (e.g., driving while blacked-out drunk through a school zone).

Exam Warning

When a defendant engages in extremely dangerous conduct, consider depraved-heart murder first. Involuntary manslaughter is the fallback if the risk was substantial but not so extreme as to imply malice.

Worked Example 1.1

A construction supervisor ignores repeated warnings about a loose scaffolding. The scaffolding collapses, killing a worker. What is the most likely charge?

Answer:
Involuntary manslaughter. The supervisor’s disregard of known risks is reckless or criminally negligent conduct causing death, without intent to kill. The risk was substantial and unjustifiable but not so extreme as to necessarily imply depraved-heart murder.

Worked Example 1.2

During a bank robbery, an accomplice accidentally shoots and kills a security guard. The robber did not intend for anyone to die. Is the robber guilty of murder?

Answer:
Yes, under the felony murder rule. The death occurred during the commission of a qualifying felony (robbery). Malice is supplied by the felony, so intent to kill is not required, and the killing is classified as murder.

Felony Murder Doctrine

Felony murder elevates certain unintended killings to murder when they occur in connection with a felony.

Core elements on the MBE:

• The defendant (or co-felon) commits or attempts a qualifying felony.
• A death occurs during the felony or in immediate flight.
• The death is causally connected to the felony and is a foreseeable result.

Key Term: Inherently Dangerous Felony
A felony that, by its nature, involves a substantial risk that death will result (e.g., robbery, burglary, arson, rape, kidnapping). These are the typical predicate felonies for felony murder.

Most MBE questions assume a common-law or majority approach where inherently dangerous felonies such as robbery, burglary, rape, arson, and kidnapping qualify.

Timing: “During the Commission” of the Felony

Felony murder covers deaths during:

• The attempt to commit the felony.
• The commission of the felony.
• The immediate flight from the felony, until the felons reach a place of temporary safety.

If the felony is complete and the perpetrators have safely escaped, later killings are not felony murder (though they may be other forms of homicide).

Key Term: Res Gestae of the Felony
The continuous transaction encompassing the attempt, commission, and immediate flight from a felony, within which a death can qualify for felony murder.

Limits on Felony Murder

The felony murder rule is limited by several doctrines that are frequently tested.

1. Merger (Independent Felony) Requirement

The predicate felony must be independent of the killing.

Key Term: Merger Doctrine (Felony Murder)
A principle that bars felony murder when the predicate felony is an assaultive crime that merges into the homicide (e.g., aggravated battery), so that the felony cannot supply malice for felony murder.

If the predicate felony is essentially the same conduct as the killing (e.g., felony assault), many jurisdictions will not apply felony murder. The MBE often tests this by giving a felony like “felonious assault with a deadly weapon” as the only predicate felony. In that case, felony murder usually does not apply; instead, analyze traditional murder or manslaughter.

2. Agency vs. Proximate Cause Theories

Jurisdictions differ on who must do the killing.

Key Term: Agency Theory of Felony Murder
A majority rule under which felony murder applies only when the killing is committed by the defendant or a co-felon acting in furtherance of the felony.

Key Term: Proximate Cause Theory of Felony Murder
A minority rule under which felony murder can apply if the felon set in motion the events that proximately caused the death, even if a third party (e.g., police, victim) fired the fatal shot.

Under the agency theory, there is no felony murder when:

• A police officer kills a co-felon.
• A victim accidentally kills another victim while resisting.

Under the proximate cause theory, felony murder may still apply if the death is a foreseeable result of the felon’s actions.

On the MBE, unless a question clearly specifies a proximate cause jurisdiction, assume the agency theory.

3. Liability of Co-Felons

Each co-felon is typically liable for felony murder if:

• The death was caused by another co-felon, and
• The killing was in furtherance of the felony, and
• The death was a foreseeable result.

However, a co-felon who withdraws before the felony is committed (by giving timely notice and making reasonable efforts to stop it) may avoid liability, including felony murder.

Exam Warning​

If a co-felon is killed by a victim or police officer, many jurisdictions (the “redline” rule) do not treat that death as felony murder as to the remaining felons. The killing must be of a non-felon for felony murder to usually apply in agency jurisdictions.

Worked Example 1.3

Two burglars break into a home at night. The homeowner wakes up, grabs a gun, and shoots and kills one burglar. The surviving burglar is charged with felony murder for the death of his accomplice. The jurisdiction follows the agency theory and the redline rule. Is the surviving burglar guilty of felony murder?

Answer:
No. Under the agency theory and redline rule, felony murder does not apply when a non-felon (here, the homeowner) kills a co-felon. The killing is not “by” the burglar or a co-felon, so the felony murder rule does not extend to this death. The surviving burglar is guilty of burglary and possibly other offenses, but not felony murder for his accomplice’s death.

Worked Example 1.4

A driver, after working a 16-hour shift, decides to drive home despite feeling extremely drowsy. He falls asleep, runs a red light, and kills a pedestrian. He did not intend to hurt anyone. What is the most likely homicide charge?

Answer:
Involuntary manslaughter. Choosing to drive when extremely fatigued creates a substantial and unjustifiable risk to others, and falling asleep at the wheel is a foreseeable consequence. This is at least criminal negligence, and often recklessness, leading to an unintentional killing.

Worked Example 1.5

A man commits a misdemeanor battery by punching another person in the face during an argument. The victim falls, hits his head on the pavement, and dies from the head injury. There is no intent to kill. What is the most likely homicide offense?

Answer:
Involuntary manslaughter based on unlawful-act manslaughter. The man was committing a non-felony unlawful act (battery, a malum in se misdemeanor), and an unintended death resulted. That is classic misdemeanor manslaughter in many jurisdictions, treated as involuntary manslaughter on the MBE.

Distinguishing Voluntary and Involuntary Manslaughter

A common exam trap is confusing voluntary and involuntary manslaughter when the defendant did not want the victim to die.

• Voluntary manslaughter requires an intentional killing (or intent to cause serious bodily harm) but in the heat of passion after adequate provocation.

Key Term: Heat of Passion
An emotional state of intense anger, fear, or terror that can reduce an intentional killing from murder to voluntary manslaughter if a reasonable person would have lost self-control and there was no reasonable cooling-off period.

Key Term: Adequate Provocation
Conduct or events that would cause a reasonable person to lose self-control (e.g., serious assault, discovery of spouse in adultery). Mere words or minor property damage are usually insufficient.

• Involuntary manslaughter covers unintentional killings caused by recklessness, criminal negligence, or a non-felony unlawful act.

If the defendant meant to hit or shoot the victim, but not to kill, the homicide is usually intentional (possibly murder or voluntary manslaughter) rather than involuntary manslaughter. In contrast, when the defendant did not mean to injure or kill anyone but acted in a risky way, consider involuntary manslaughter.

Exam Warning‌

Do not label an intentional, angry blow as “involuntary” simply because the defendant “did not intend to kill.” If there is an intent to cause serious injury or to use deadly force, the killing is usually murder unless adequately provoked and mitigated to voluntary manslaughter.

Worked Example 1.6

Angry that his neighbor parked in “his” street spot, a man swings a baseball bat at the neighbor’s head intending only to “teach him a lesson, not kill him.” The neighbor dies from the blow. The jurisdiction follows common-law principles. What is the most serious crime of which the man can be convicted?

Answer:
Murder. Even though the man did not subjectively desire the neighbor’s death, he intentionally used deadly force aimed at the neighbor’s head, intending at least serious bodily harm. Under common law, an intent to cause serious bodily injury that results in death satisfies malice aforethought and supports a murder conviction, not involuntary manslaughter.

Revision Tip

When there is an intentional violent act directed at the victim, start your analysis with murder (and then consider heat of passion mitigation). Reserve involuntary manslaughter for unintentional killings based on risky or unlawful conduct.

Summary of Unintended Killings

Unintended killings can still produce serious criminal liability. The classification depends on:

• Mental state: extreme recklessness (depraved heart) versus recklessness/criminal negligence versus mere accident.
• Context: whether the death occurred during a felony (felony murder) or a non-felony unlawful act (misdemeanor manslaughter).
• Nature of the act: whether the defendant acted with intent to seriously injure (supporting murder or voluntary manslaughter) or merely engaged in risky behavior without intent to harm (involuntary manslaughter).

Key Point Checklist

This article has covered the following key knowledge points:

• Malice aforethought can be satisfied even when the defendant did not intend to kill, including through depraved-heart conduct or felony murder.
• Involuntary manslaughter is an unintentional killing caused by recklessness, criminal negligence, or during a non-felony unlawful act (misdemeanor manslaughter).
• Recklessness involves awareness and conscious disregard of a substantial risk; criminal negligence is a gross deviation from reasonable care in failing to perceive such a risk.
• Depraved-heart murder requires an extreme level of recklessness, showing callous indifference to human life; if the risk is lower, the offense is usually involuntary manslaughter rather than murder.
• Felony murder treats an unintended killing during a qualifying felony as murder, even without intent to kill, so long as the felony is inherently dangerous and independent of the homicide.
• The merger doctrine limits felony murder by excluding predicate felonies that are assaultive and merge into the homicide.
• Agency theory (the majority rule) restricts felony murder to killings committed by the defendant or co-felons in furtherance of the felony; deaths caused by victims or police often fall outside the rule.
• Co-felons are generally liable for felony murder if the death is in furtherance of the felony and is a foreseeable result, unless a co-felon effectively withdraws before the felony.
• Voluntary manslaughter involves an intentional killing mitigated by adequate provocation and heat of passion; involuntary manslaughter involves unintentional killing due to recklessness, criminal negligence, or an unlawful act.
• On MBE fact patterns, always identify the defendant’s intent, the level of risk, and any predicate felony or misdemeanor to classify an unintended killing correctly as murder, voluntary manslaughter, involuntary manslaughter, or no homicide.

Key Terms and Concepts

• Malice Aforethought
• Voluntary Manslaughter
• Involuntary Manslaughter
• Felony Murder
• Recklessness
• Criminal Negligence
• Misdemeanor Manslaughter
• Depraved-Heart Murder
• Heat of Passion
• Adequate Provocation
• Inherently Dangerous Felony
• Merger Doctrine (Felony Murder)
• Agency Theory of Felony Murder
• Proximate Cause Theory of Felony Murder
• Res Gestae of the Felony