Question 1

This homicide was not intentional as his mens rea is not purpose, knowing or intent to

cause substantial bodily injury resulting in death. Dean threw one punch after being offended

that Victor was talking offensively to his wife. Although it could be argued that by Dean saying

“Its all over for you buddy” there is purpose to kill, it seems highly unlikely that Dean thought

that one punch would kill Victor. Furthermore, Dean called a lifeguard after Victor was

unresponsive, showing that he was not intentionally trying to kill Victor. As a result, this would

be unintentional murder.

First, I will wear the hat of a Defense Attorney (DA). Considering depraved Heart

murder, I would consider whether this is an extremely reckless act whether there is a higher

probability of the risk as a result of one punch that death would occur. As this likelihood was not

high that death would result from the punch, Dean would not meet the standard for Depraved

Heart Murder. Next, I would consider involuntary manslaughter. Here first, looking at a

jurisdiction that uses a reckless standard such that Dean was consciously aware of the risk. A DA

would argue that this standard would not hold, and neither would he be charged with the lesser

criminally negligent homicide due to the fact that Dean would not have been consciously aware

of a risk that Victor could die from him one punch and the failure to perceive the risk is not a

gross deviation as that of a reasonable person because a reasonable person would not realize that

there is a risk of death from punching someone in the face. This would render Dean ineligible for

either criminal or civil negligence. The Model Penal Code appraoch would use for unintentional

murder, first, an extreme indifference to human life to rise to the level of depraved heart murder.

Here a DA would argue that Dean did not have an extreme indifference to human life, he

summoned a lifeguard and also only threw one punch. Under the reckless standard for
involuntary manslaughter, DA would argue that Dean was not consciously aware of the risk of

death to Victor. A DA could argue that Dean should not be charged with any level of homicide

either under the common law appraoch or the Model Penal Code approach.

It is worth noting that a DA would also bring up a cultural defense that Dean did not

know any better. The DA would cite as evidence what Dean told the police after that if you were

from Northerland, you would expect to fight to ensue after making that statement.

A prosecutor could potentially make a case for civil negligence under Involuntary

Manslaughter because Dean is from a tougher town where he could know that he is more skilled

in fighting, and a reaosnable person would have known that there is a risk of death in throwing a

punch (given that this is a dangerous punch). A prosecutor would likely not argue criminal

negligence as it is tough to prove that the failure to perceive a substantial and unjustifiable risk is

not a gross deviation from what a reasonable person would, since this is still just one punch we

are talking about. Under the Model Penal Code approach, I do not think a prosecutor would

successfully argue either the extreme indifference to human life nor a reckless standard since he

was not consciously aware of the risk. Therefore, the most a prosecutor would be able to charge

Dean with is involuntary manslaughter under a common law jurisdiction that uses civil

negligence as its standard.

Question 2

A prosecutor trying to argue Felony-Murder would likely be successful. According to that

statute, the means rea for an aggravated assault felony is purpose, knowing, or reckless. The

prosecutor could easily prove a purposeful mens rea as it was Dean’s conscious object to engage
in the conduct to cause or attempt to cause serious bodily injury. Even after Victor said he did

not mean much by it and was simply appreciating his wife, Dean went back to him and punched

his face. It was his conscious object to engage in this type of harm. If not purpose, it is also easy

to argue that knowing standard is met given that punching someone in the fact is practically

certain that serious bodily injury will result. Reckless would be even easier to prove as Dean had

to have been consciously aware of the risk of serious bodily injury to Victor by punching him in

the face. Given that a murder has occurred as a result of the felony, Dean could be considered for

felony-murder. However, it is important to go through the limitations of Felony-Murder to see if

there is a potential to avoid this conviction.

The first limitation is enumeration, such that felony-murder would be limited to a

particular type of felonies. Typically a jurisdiction that has this limitation would restrict these

felonies to kidnapping, arson, rape, burglary, larceny, and robbery. Since aggravated assault is

not in this enumeration it would be jurisdiction dependent on whether all felonies are a basis for

felony-murder or a select few.

The next limitation is whether the felony is on that is inherently dangerous to human life.

There are two appraoches to this limitation. The majority rule is whether the felony is inherently

dangerous on the facts and the minority rule is if the felony is inherently dangerous in the

abstract such that if there is a way to do this felony that is not inherently dangerous there is no

basis for felony-murder. Given that aggravated assault is on the facts of this case inherently

dangerous in this case and also in the abstract as this type of felony where there is not a way to

commit it such that its not inherently dangerous.

The next limitation is the merger limitation such that the felony is part of one continuous

transaction into the killing. This is usually the case with felonies like assault which is the case
here and could pose a problem for a prosecutor trying to convict Dean of felony-murder. Here

the assault felony would merge with the murder and cannot be a basis for felony murder.

The last limitation is whether the killing is in furtherance of the felony. In examining this

limitation, factors are considered. The first factor is whether the felony has terminated before the

murder. The felony did not terminate here and does not apply. The second factor is whether the

felon went off on a frolic on his own which only applies for co-felons or accomplices and is not

implicated here. The third factor is considering who was killed. The agency appraoch tells us that

the actual person who does the killing has to be a felon – here that is the case. The proximate

cause appraoch tells us that in a motion of a chain of events if it is set off by a felon, they may

still be guilty of felony-murder. This factor is not implicated here. The fourth factor is who was

killed such that if the person killed is a felon it cannot be in furtherance of the felony. This factor

is also not implicated as Victor is not a felon. This limitation as a whole does not apply here. The

concept of attempted felony does not apply here as Dean has actually committed the felony of

aggravated assault not just attempted it.

In conclusion, given the common law limitation of merger, Dean is not likely to be

charged with Felony-Murder.

The Model Penal Code approach for felony-murder lists specific felonies such as arson,

rape, burglary, larceny, robbery and kidnapping. It does not mention aggravated assault and

therefore there is no basis for felony-murder using this approach. The general presumption is that

those listed felonies would meet the extreme indifference to human life or an extreme reckless

standard. However, that is not the case here and felony-murder will not be found here either.