Emely Almonte

Crim. Law
Fall 2020
Professor Dean Berman
Assignment #2

Prompt: Alex and his friend Jeff were on a hunting trip together. One evening while they were
watching television in their hunting cabin, Alex decided to scare Jeff who had fallen asleep in a
chair. Alex thought it would be amusing to see Jeff’s face when he awakened to a bullet. Alex
loaded his rifle and aimed it at a lamp that was on a table just behind the chair where Jeff was
sleeping. Just as Alex pulled the trigger to shoot the lamp, Jeff suddenly sat up and moved into
the line of fire. Alex’s bullet hit Jeff in the shoulder and seriously wounded him. Alex
immediately loaded Jeff into his car and sped off to the nearest hospital which was 15 minutes
away. On route, Alex hit a pothole, lost control of his car, and collided with a telephone pole.
Alex was seriously injured, and Jeff suffered further injuries. Alex was unable to continue the
drive to the hospital. The accident occurred on a lightly traveled county road and no other
vehicle passed by for 45 minutes. By the time help arrived Jeff was dead. An autopsy established
that Jeff bled to death as a result of the combined impact of the gunshot wound and the injury
suffered in the car crash. The coroner concluded that the gunshot wound alone would not have
been fatal had Jeff received medical treatment within 30 minutes of the shooting.

In this jurisdiction, all homicides are defined as at common law.

The prosecutor hears the hypo that you have responded to. The prosecutor is trying to decide
what homicide charge to present to the grand jury. She has decided that the charge should be
either: murder OR involuntary manslaughter. But she continues to will over which charges most
closely fits the actus reas and mens rea described in the above case. It is her job to bring the most
serious charge against the defendant but only if it is the proper charge. She has eliminated
voluntary manslaughter and criminally negligent homicide.

So, you have 2 choices: common law murder of some kind (“common law” meaning 2nd degree
murder—Malice of Forethought murders) OR involuntary manslaughter.

Assume you are the prosecutor for the questions, below you want to bring a proper charge
against this defendant one that is supported by homicide law as applied to the facts of this case.
And you can us NY homicide law which is what I have given you in the pattern jury instruction.
So, you already have the definitions of the law. Even if you want to use the common law, that’s
fine but you can also use the NY homicide law.

IRAC 1: (2.5 points) What is the proper charge for which the prosecutor can obtain an
indictment from a grand jury? Explain your reasoning fully. (DO NOT discuss “causation” in
this section.) Discuss homicide WITHOUT causation.

IRAC 2: (2.5 points) Did Alex cause Jeff’s death? (“causation” analysis)
Issue: WHETHER Alex could be convicted of depraved indifference murder WHEN he loaded
his rifle and aimed it at a lamp that was on a table just behind the chair where Jeff was sleeping,
and pulled the trigger meaning to amuse Jeff when he awoke to a bullet BUT instead hit Jeff as
he suddenly sat up and moved into the line of fire, hitting Jeff in the shoulder and seriously
wounding him?

Rule: Depraved heart (aka indifference) murder and involuntary manslaughter are forms of
homicide. Homicide is defined as an unlawful killing of a human being. Unlawful is defined as
not specifically authorized by law. There are 4 different types of homicides under the common
law, they are malice aforethought homicides which include: intent to kill, intent to cause serious
bodily harm, depraved heart murder, and intent to commit an inherently dangerous felony (aka
felony murder). They are all usually second-degree murder in most jurisdictions. All the malice
of forethought murders requires a mens rea of “intent” except for depraved heart murder which
requires a mens rea of “recklessness.”

In order for the prosecutor to find a defendant guilty of the crime of depraved indifference
murder, he or she is required to prove, beyond a reasonable doubt, all three elements: (1) that
defendant caused the death of the victim, (2) that the defendant did so by recklessly engaging in
conduct which created a grave risk of death to the victim, and (3) that the defendant engaged in
such conduct under circumstances evincing a depraved indifference to human life. Pursuant to
NY Penal Law § 125.25(2) a person recklessly engages in conduct which creates a grave risk of
death to another person when he or she: (a) engages in conduct which creates a grave and
unjustifiable risk that another person’s death will occur, (b) and when he or she is aware of and
consciously disregards that risk, and (c) and when that grave and unjustifiable risk is of such
nature and degree that disregard of it constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation. Depraved indifference to human life
refers to a person’s state of mind in recklessly engaging in conduct which creates a grave risk of
death. A person has a depraved indifference to human life when that person has an utter
disregard for the value of human life – a willingness to act, not because he or she means to cause
grievous harm [to the person who is killed], but because he or she simply does not care whether
or not grievous harm will result. In other words, a person who is depravedly indifferent is not
just willing to take a grossly unreasonable risk to human life - - that person does not care how the
risk turns out. Depraved indifference to human life reflects a wicked, evil or inhuman state of
mind, as manifested by brutal, heinous and despicable acts. It is evinced by conduct that is
wanton, deficient in a moral sense of concern, devoid of regard for the life or lives of others, and
so blameworthy as to justify the same criminal liability that the law imposes on a person who
intentionally kills.

In order for the prosecutor to find a defendant guilty of the crime of involuntary manslaughter,
he or she is required to prove, beyond a reasonable doubt, all two elements: (1) that defendant
caused the death of the victim, and (2) that the defendant did so recklessly. Pursuant to NY Penal
Law § 125.15, a person acts “recklessly” with respect to a death when that person (a) engages in
conduct which creates or contributes to a substantial and unjustifiable risk that another person’s
death will occur, (b) and when he or she is aware of and consciously disregards that risk, and (c)
when that risk is of such nature and degree that disregard of it constitutes a gross deviation from
the standard of conduct that a reasonable person would observe in the situation.
Application: The prosecution may be able to charge the defendant, Alex, with depraved
indifference murder.

The defendant, Alex, on or about the date of the accident caused the death of Jeff. Alex pulled
the trigger to shoot and the bullet hit Jeff in the shoulder and seriously wounded him. The
coroner concluded that the gunshot wound killed him even though it would not have been fatal
had it been treated within 30 minutes of the shooting.

The defendant, Alex, caused the death of Jeff by recklessly engaging in conduct which created
a grave risk of death to Jeff. Alex did not just point a gun in Jeff’s direction. Alex pointed a
loaded gun in Jeff’s direction. Alex knew or at the very least must have known that a loaded gun
had the potential to be fatal as he wanted to shoot at the lamp next to the chair Jeff was sleeping
on and not at Jeff’s person. And although Alex he did not point it directly at Jeff but right behind
his chair, he should have known that Jeff having been sleeping could become startled and move
into the line of fire which was right behind the chair he was sleeping on. It was foreseeable that
Alex could miss his intended target and shoot Jeff. Jeff, even which sleeping, could move
himself or a body part into the line of fire. In any of these cases, Jeff could be substantially harm
by the bullet. A bullet is designed to pierce though meat. And a gun is manufactured to
incapacitate. So, at the very least, Alex knew his actions created a high degree of risk of death.
Thus, Alex’s conduct in loading the gun, pointing it near Jeff and shooting the gun, created a
grave and unjustified risk that another person’s death would occur. It can be argued that Alex
engaged in conduct that created a substantial risk that another person’s death will occur as
evidenced by his subsequent actions in rushing Jeff to the hospital.

The difference between depraved heart murder and involuntary manslaughter is that the
defendant, Alex, engaged in such conduct under circumstances evincing a depraved
indifference to human life. Alex showed utter disregard for the value of human life. Alex
showed a willing to act, not because he meant to cause grievous harm to Jeff (the descendent),
but because he simply did not care whether or not grievous harm will result. Alex was not just
willing to take a grossly unreasonable risk to human life, but he did not care how the risk turns
out because he did not even foresee such a risk. It can be argued that Alex did care how the risk
turned out because when he accidently shot Jeff, he rushed Jeff to the hospital in his van. Thus,
Alex, does not show a depraved indifference to human life and should be charged with the lesser
crime of involuntary manslaughter. It can be argued that we are examining Alex’s conduct up
until he shot Jeff. But the defendant may argue that we are examining Alex’s conduct up until the
car accident because Jeff was still alive up until shortly after the car hit a telephone pole. The
defendant may argue that depraved indifference to human life has to reflect a wicked, evil or
inhuman state of mind, as manifested by brutal, heinous and despicable acts and his conduct did
not manifest a brutal, heinous or despicable act. The prosecutor will also argue that Alex’s
conduct was wanton, deficient in a moral sense of concern, devoid of regard for the life or lives
of others, and so blameworthy as to justify the same criminal liability that the law imposes on a
person who intentionally kills. A reasonable person in Alex’s position would probably not have
acted in a similar fashion. They would not have used a gun as a prop in some joke or for
amusement. They would have not loaded a gun. They would not have pointed a gun anywhere
near a living person unless it is for self-defense. They would probably have used something else
such as a fake gun or a blank bullet. A reasonable person would probably also show some type of
hesitation or forethought which does not appear to be the case here.

Conclusion: Even though the defendant, Alex, may be charged with the depraved indifference
murder of Jeff, he may also be charged with involuntary manslaughter. Since the prosecutor
would like to convict the defendant, Alex, of the most serious charge, that would apply and fit
the actus reas and the mens rea in this scenario, I believe that he should be charged with murder
in the 2nd degree (“depraved heart murder”) and not involuntary manslaughter.

Issue: WHETHER the prosecution can establish causation WHEN defendant, Alex, shot Jeff in
the shoulder, seriously wounding him BUT immediately loaded Jeff into his car and sped off to
the nearest hospital which was 15 minutes away and while on route, hit a telephone pole, lost
control of his car, and collided with a telephone pole where Jeff suffered further injuries even
though the gunshot wound alone would not have been fatal had Jeff received medical treatment
within 30 minutes of the shooting.

Rule: In order to convict defendant, Alex, of a crime, the prosecution will have to show: (1)
actus reas, (2) mens rea, and (3) causation. A result crime is a crime which has a result element
and is where a required result must happen for the offence to be committed. (i.e. If you attempt
to murder someone but the person does not die then you cannot be liable for murder). As
depraved heart murder and manslaughter are both result crimes, the prosecutor does not have to
show “mens rea” as it is already established by the nature of the crime.

Pursuant to NY Model Penal Code § 2.03(1), “conduct is the cause of a result when (a) it is an
antecedent but for which the result in question would not have occurred; and (b) the relationship
between the conduct and result satisfies any additional causal requirements imposed by the Code
or by the law defining the offense.” In other words, a person’s conduct is a sufficiently direct
cause of death when: (1) the conduct is an actual contributory (but-for) cause of the death; and
(2) the death was a reasonably foreseeable result of the conduct.

The defendant must be the factual or but for cause of the victim’s harm. But for the defendant’s
act, the harm would not have occurred. The defendant does not need to be the only but-for cause
of the harm, but “a” but-for cause.

The defendant must also be the legal or proximate cause of the harm. The result cannot be too
remote or accidental in its occurrence to have a bearing on the actor’s liability. Even if the
defendant is a “but-for” cause, he may not be the proximate cause if the intervening cause of the
harm was unforeseeable. An intervening superseding cause cuts the defendant off from criminal
liability because it is much closer or proximate to the resulting harm.

Application:
There is no question that defendant, Alex, is a “but-for” cause of Jeff’s death. But-for Alex
pulling the trigger of his loaded rifle to shoot the lamp that was on a table just behind the chair
where Jeff was sleeping, the harm to Jeff would not have occurred, the bullet would not have hit
Jeff in the shoulder and seriously wounded him.
The defendant, Alex, is the legal and proximate cause of Jeff’s death. Although the car accident
was an intervening cause which contributed to Jeff’s death, it did not cut off criminal liability,
superseding Alex’s conduct because it was foreseeable that in rushing Jeff to the hospital, an
accident on the road could occur.

Conclusion: The prosecution may be able to show that defendant, Alex, is both a “but-for” cause
and the factual/ proximate cause. Thus, may be able to establish causation, a required element
necessary to charge a defendant with a crime.