Analyzing Homicide

Most criminal law rules are straightforward and easy to apply. Most crimes are element-driven, so it is just a matter of stating, defining, and applying the elements of whichever crimes the facts suggest. Homicide, on the other hand, often gives students fits, because it is a multi-layered analysis and the elements of murder themselves multifaceted. There are a number of moving parts, and so students often do not know where to begin when attempting to write the analysis. What should the framework be? Where to begin?

Here are some initial points to keep in mind when faced with a homicide problem:

First, there are actually two crimes that you need to analyze whenever the facts trigger homicide (i.e., whenever the fact pattern ends with a dead body): (1) murder; and (2) manslaughter. Make sure you analyze both.

Second, when analyzing murder, there are two basic elements that you need to address: (1) malice aforethought; and (2) causation. The most basic element, the killing of a living human being, is virtually always a given; you wouldn’t know to discuss homicide at all unless the hypothetical ended with a dead body. Therefore, this element can be disposed of very quickly, usually in a sentence or two.

Third, you usually need to analyze the malice aforethought element twice: (1) first, under common law principles; and (2) second, under modern statutory law that typically divides homicide into first- and second-degree murder.

Fourth, understand that the outcome of your analysis of malice aforethought under common law will dictate the outcome of your analysis of that element under modern statutory law. First-degree murder is normally defined as an intentional killing with premeditation and deliberation (and sometimes, depending on jurisdiction, felony murder). Second-degree murder is any murder that does not qualify as first-degree. Therefore, any unintentional killing (depraved heart murder, felony murder, intent to inflict great bodily injury murder)is  second-degree murder, and even an intentional killing will not qualify as first-degree if there is no premeditation or deliberation. This means you want to analyze murder under common law principles first, before moving on to modern statutory law.

With all of this in mind, here is a basic structure for homicide. It is described below, with the analysis template following.

  1. Define homicide generally.
  2. Then, divide your essay into two main sections: one for murder and another for manslaughter.
  3. Under the first section, define murder.
  4. Then, below the definition, divide the murder analysis into three subsections, one for each element: (1) killing of a living human being; (2) causation; and (3) malice aforethought. The order is not important, but understand that in most cases you will spend the most time analyzing the malice aforethought element.
  5. Divide the malice aforethought section into two additional subsections, one for common law and the other for modern statutory law.
  6. Divide the modern statutory law section into two further subsections, one for first-degree murder and the other for second-degree murder.
  7. [There are various ways to divide the common law malice section. See the note in the outline below.]
  8. Under the second main section (manslaughter), define manslaughter generally, and the define the two varieties of manslaughter.
  9. If the killing is unintentional, you can quickly dispose of voluntary manslaughter and focus on involuntary manslaughter. To the opposite if the killing is intentional.

Here is an outline of the structure. You can use this as a template for your exams, or simply to learn the rules and how they fit together.


Homicide is the unlawful killing of a human being. There are two categories of homicide: murder and manslaughter. Each will be discussed in turn below.

I. Murder

Murder is the unlawful killing of a human being with malice aforethought. The prosecution must also show that the defendant’s act was the actual and proximate cause of the victim’s death.

A. Killing of a Human Being

The victim must be a living, born, human being.

[Analysis], [Conclusion]

B. Causation

The defendant’s actions must be both the actual and proximate cause of the killing. There is actual cause if, but for the defendant’s act, the victim would not have died. There is proximate cause if death was a foreseeable consequence of the killing.

[Analysis], [Conclusion]

C. Malice Aforethought

1. Common Law

At common law, the malice aforethought element is satisfied, at common law, by proof of the following: (1) intent to kill; (2) intent to inflict serious bodily injury; (3) wanton indifference to the value of human life (depraved heart); or (4) felony murder.

[Analysis], [Conclusion]

[NOTE: There are a few ways you could structure this subsection. You could break this section down into four distinct subsections with headings (one for each category of malice). Alternatively, you could state the rule up front and discuss each category in its own distinct paragraph. You also do not need to discuss all four categories. For example, if the killing is clearly unintentional, you do not need to fully discuss intent to kill – you can just say in a quick sentence that there is no evidence of intent. You have to be flexible about how you structure a homicide analysis, because the facts will drive how much time you devote to each sub-issue.]

2. Modern Statutory Law

Most modern statutes divide murder into at least two categories: first-degree and second-degree.  First-degree murder requires proof that the killing was done intentionally and with both premeditation and deliberation.  Second-degree murder is murder with malice aforethought that does not qualify as first-degree murder.

[Analysis], [Conclusion]

II Manslaughter [Only discuss if applicable]

Manslaughter is the unlawful killing of a human being, without malice aforethought.

Voluntary Manslaughter [There is usually no need to number the subheadings here. You will almost never talk about both voluntary and involuntary manslaughter with respect to the same killing. That is because one type of manslaughter is intentional, and the other is unintentional.]

Manslaughter is the killing of a human being without malice aforethought.  There are two varieties of manslaughter: voluntary and involuntary.  Voluntary manslaughter is an intentional killing, made in the heat of passion, with adequate provocation and without a cooling off period.  Mere words are not sufficient to satisfy the “provocation” requirement.

[Analysis], [Conclusion]

Involuntary Manslaughter

Manslaughter is the killing of a human being without malice aforethought.  There are two varieties of manslaughter: voluntary and involuntary.  Involuntary manslaughter is an unintentional killing done with criminal negligence or recklessness. Usually, criminal negligence is defined as “gross” negligence, requiring proof that the defendant should have been aware of a substantial danger of serious bodily harm. Recklessness requires proof that the defendant was aware of, and ignored, a substantial risk of danger.

[Analysis], [Conclusion]