Florida’s homicide statutes are a mess

July 18, 2013

Thursday, July 18, 2013

Good morning:

Florida’s homicide statutes are a mess and the legislature needs to fix them. Fortunately, a model exists for them to follow. Produced by the American Law Institute, it’s called the Model Penal Code.

The American Law Institute is a non-profit independent organization composed of prominent judges, lawyers and legal scholars who comprehensively developed and redesigned criminal statutes to simplify and unify existing criminal codes so that everyone would be on the same page, so to speak, operating with a uniform set of understandable concepts and statutes. The Model Penal Code was published in 1962 and updated in 1985.

A crime consists of a prohibited act (actus reus) committed with a particular mental state (mens rea). The Model Penal Code established four mental states.

Here’s Wiki:

One of the major innovations of the MPC is its use of standardized mens rea terms (criminal mind, or in MPC terms, culpability) to determine levels of mental states, just as homicide is considered more severe if done intentionally rather than accidentally. These terms are (in descending order) “purposely”, “knowingly,” “recklessly”, and “negligently”, with a fifth state of “strict liability”, which is highly disfavored. Each material element of every crime has an associated culpability state that the prosecution must prove beyond a reasonable doubt.

Purposely. If the element involves the nature of the conduct or the result thereof, it is his conscious object to engage in that conduct or cause the result. If the element involves attendant circumstances, he is aware of the circumstances or believes or hopes that they exist.

Knowingly. If the element involves the nature of the conduct or the attendant circumstances, he is aware that his conduct is of that nature or that the circumstances exist. If the element involves a result, he is practically certain that the result will occur. Further, if the element involves knowledge of the existence of a particular fact, it is satisfied if he is aware of a high probability of the existence of that fact, unless he actually believes that it does not exist.
Recklessly. A person consciously disregards a substantial and unjustifiable risk that the element exists or will result, such that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe.
Negligently. A person should be aware of a substantial and unjustifiable risk that the element exists or will result, such that the failure to perceive it involves a gross deviation from the standard of conduct that a reasonable person would observe.

If an offense requires a specific kind of culpability, then any more severe culpability will suffice. Thus if an offense is defined in the form, “It is illegal to knowingly do X,” then it is illegal to do X knowingly or purposely (a more severe state), but not to do so recklessly or negligently (the two less severe states). Strict liability means that it is illegal to do something, regardless of one’s mental state. If a statute provides only a single kind of culpability for a crime, that kind of culpability is assumed to apply to all elements. If no culpability is stated by statute, a minimum of recklessness is assumed to be required. The MPC declines to use the common terms “intentional” or “willful” in its specification of crimes, in part because of the complex interpretive history of these terms. However, it defines that any (non-MPC) statute in the jurisdiction’s criminal code that uses the term “intentionally” shall mean “purposely,” and any use of “willfully” shall mean “with knowledge.” If a law makes an actor absolutely liable for an offense, MPC sections 2.05 and 1.04 state that the actor can only be guilty of what the MPC calls violations (essentially meaning civil infractions), which only carry fines or other monetary penalties, and no jail time.

The actus reus for homicide is to cause the death of another person.

In Washington State where I practiced law for 30 years, the legislature defined four degrees of homicide, according to the mens rea:

(1) Murder in the First Degree: premeditation;

(2) Murder in the Second Degree: intentional;

(3) Manslaughter in the First Degree: reckless; and

(4) Manslaughter in the Second Degree: gross negligence.

The difference between premeditated and intentional murder is a reflection on intent to kill and a decision to go ahead and kill.

Recklessness is best exemplified by the game Russian Roulette. It is state of mind in which the actor is aware of a substantial risk of harm to another person if he commits a particular act, but he goes ahead and does it anyway.

Criminal negligence is a failure to be aware of a substantial risk of harm to another person where that failure constitutes a gross deviation from the standard to exercise due care to avoid injuring or killing other people.

Each crime is a lesser included offense of the more serious degrees of homicide. Therefore, Murder in the Second Degree is a lesser included offense of Murder in the First Degree and Manslaughter in the First Degree and Manslaughter in the Second Degree are lesser included offenses of Murder in the Second Degree.

Murder in the Second Degree in Florida does not require proof of intent to kill and it is easy to confuse with Aggravated Manslaughter because the mens rea for both is recklessness. That is, evincing a depraved mind is defined as acting with extreme or reckless indifference that a particular act will cause the death of another. That’s recklessness and Aggravated Manslaughter is defined as reckless homicide.

Intent creeps into the Florida instruction on Murder in the Second Degree requiring proof that the defendant intended to commit the act that caused the death of another, as opposed to proof that the defendant intended to kill the victim. See Haygood v. State, No. SC11-294 (February 14, 2013)

The mental state for Manslaughter in Florida is defined as “culpable” or gross negligence, which is the same as Manslaughter in the Second Degree in Washington State.

Given the evidence introduced at trial and using the Washington statutes as an example, I would have instructed on Murder in the Second Degree (intentional murder), Manslaughter in the First Degree (reckless homicide), and Manslaughter in the Second Degree (criminally negligent homicide).

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