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Whether the Jury Can Find Dan Guilty of First Degree Murder


Paul Pfau has supplied model answers to the Daily Journal Corporation for over 30 years. Here is a sampling of model answers for past bar questions, in order to give bar applicants a sense of the fundamental writing skills necessary to succeed. Although the Daily Journal may have edited the articles for space purposes, there are specific writing style methodologies that are incorporated into each of the examples. These are methods that bar applicants will learn in order to develop skills sufficient to produce passing standards under exacting timed conditions.

Whether the Jury can find Dan Guilty of First Degree Murder

Traditionally, murder is proved when the defendant is the actual and proximate cause of the homicide of another with malice aforethought. Statutorily, first degree murder occurs as the result of premeditation and deliberation or if the murder occurred during the commission of an inherently dangerous felony.

When Dan “struck Vic with his fist” and “knocked him down” he was both the actual and direct proximate cause of Vic’s death due to the resulting skull fracture.

The prosecution would contend that malice aforethought was established through Dan’s intent to inflict serious bodily injury when he struck Vic with his fist, knocking him to the floor. Alternatively, the prosecution could also argue that Dan’s act evidenced malice through a reckless indifference – and created an unjustifiably high risk to Vic’s life given the severity of the punch in knocking him to the hard floor causing the fatal skull fracture. The prosecutor could additionally argue that Dan’s act of striking Vic constituted a felonious assault for the purpose of establishing malice through the felony murder rule. Dan would counter, however, that the homicide was not the collateral but rather direct result of the assault so that the felony murder rule would be inapplicable.

Dan would also argue, however, that he was justified through self-defense in striking Vic – although this seems implausible under either the objective or subjective views of this defense given the likely unreasonableness of Dan’s action in striking a grocery store customer in response to Vic’s comment that he was crazy.

Presuming malice is not excused or mitigated through one of the mental defenses discussed, below, at issue is whether Vic’s murder is first degree. While only an instant of reflection is necessary to establish premeditation and deliberation as the basis for proving first degree murder, Dan’s “explosion in anger” over Vic’s “crude remark” that he was “crazy and should be locked up” – and that he “could not stop himself from striking Vic” as a result – seems to argue against the idea Dan reflected upon killing Vic before he struck him. Again, felony murder also seems inapplicable as a means to establish first degree murder given the fact Vic’s death was not collateral to the underlying felonious assault.

Whether the Jury can find Dan Guilty of Second Degree Murder

In those jurisdictions allowing statutory first degree murder, any murder that does not qualify through premeditation and deliberation or felony murder is second degree.

A stronger case can therefore be made that Dan be found guilty of Vic’s second degree murder given the difficulty s previously discussed in establishing premeditation and deliberation or that Vic’s death was the result of felony murder. In contrast, if the prosecution can prove malice through reckless indifference to Vic’s life or through Dan’s intent to inflict at least serious bodily injury when he struck Vic with his fist, then a solid case can be established for statutory second degree murder. As noted, below, however, the prosecutor may have greater difficulty in sustaining his burden of proving the case for any degree of murder beyond a reasonable doubt given the substantial issues involving Dan’s mental state. Further, Dan’s potential justification for second degree murder through the same self-defense argument as discussed, above, would also seem implausible.

Whether the Jury can find Dan Guilty of Voluntary Manslaughter

Voluntary manslaughter is a homicide that would be murder but for the existence of adequate provocation. Provocation must arouse a sudden and intense passion that was provoked by the victim and where the defendant did not have sufficient time between the provocation and homicide to cool off. In contrast, involuntary manslaughter is established if the homicide was committed with criminal negligence or during the commission of an unlawful act.

Absent any defense attributable to his potential mental incapacity, Dan would contend that the fact he “could not stop himself from striking Vic” when he “exploded in anger” striking Vic, demonstrated the sudden and intense passion necessary for this crime. Dan would also argue that his act in striking Vic was immediate – and that as a result there was insufficient time between the provocation and homicide for him to cool off. It is unclear, however, whether Vic’s assertion that Dan “was crazy” when Dan “swore at Vic and threatened to kick Vic out of the store” was adequate provocation. A stronger case may be made that Dan’s reaction was inadequate and objectively unreasonable – especially given the fact Dan was working in a public place at the grocery store and presumably encountering customers with varying degrees of daily complaints on a routine basis.

Imperfect Self-Defense

As discussed, above, Dan could argue that voluntary manslaughter is more appropriate than either first or second degree murder because of the Imperfect Self-Defense doctrine.

Here, Dan would argue that even though he may have been at fault in starting the physical altercation by striking Vic, he nonetheless unreasonably but honestly believed in responding with the use of potentially deadly force. This would probably be a more effective argument than self-defense – although Dan would still have difficulty in justifying the degree of force he used in response to Vic’s words that he was crazy.

Alternatively, Dan might also argue that his act was at most criminal negligence in grossly failing to exercise due care in striking Vic with such force as to knock him to the hard floor. If so, Dan would be culpable for involuntary manslaughter.

Whether the Jury can find Dan Not Guilty by Reason of Insanity

There are various views of the insanity defense to determine whether, at the time of the crime, Dan was mentally incapable of forming the requisite intent for any of the crimes for which he may be charged.


Here, a defendant is entitled to acquittal only if he had a mental disease or defect that either caused him to not know that his act would be wrong or not understand the nature and quality of his actions.

The psychiatrist’s and witnesses testimony regarding Dan’s history of mental illness combined with “his continued erratic behavior despite treatment” would serve as the basis for this view of his insanity defense. Further, Dan’s “explosion in anger” in striking Vic would seem to reasonably infer that Dan did not know his action would be wrong or to even understand what he was doing when he reflexively reacted to Vic’s statement in striking him.

Irresistible Impulse

Under this view, a defendant is entitled to an acquittal if, because of his mental illness, he was unable to control his actions or conform his conduct to the law.

The evidence would strongly support an acquittal for Dan on the basis of this view given the evident history of his mental illness and his obvious inability to control his actions in an “explosive” fit of anger.


Here, a defendant is entitled to an acquittal if the crime was the product of his mental illness. Again, Dan can make a valid case for this defense in broadly asserting that his history of mental illness – in spite of treatment – and continued erratic behavior was most certainly the product of his mental disease.

Modern Penal Code

This modern trend test supports the view that a defendant is entitled to acquittal if he had a mental disease or defect and that as a result he lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Embracing both the M’Naughten and Irresistible Impulse views, Dan would also have a strong argument for this insanity defense for the same reasons as discussed with these previous views.

Diminished Capacity

Although short of an insanity defense, some states allow this view for those crimes requiring a specific intent mens rea. In these jurisdictions, Dan might contend that if any of the insanity defenses were inapplicable, he could nonetheless assert this more limited defense for either of the first or second degree murder charges – or even voluntary manslaughter.

While Dan may raise an insanity defense as early as his arraignment, he may also assert the defense at any stage of his jury trial. In addition, many jurisdictions would require him to bear the burden of proof in establishing insanity as a legitimate defense.


This answer is supplied by Paul Pfau and Cal Bar Tutorial Review who, for nearly 30 years, have customized bar review programs for the individual applicant. Cal Bar Tutorial & Review may be reached through 800-783-6168 or 800-348-2401. You may also visit the website at



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