Malice Aforethought

Oftentimes when the MBE is testing the crime of murder, a statute is provided in the fact pattern and you'll be required to interpret that statute and draw a conclusion based upon your interpretation. You'll see terms like "first-degree murder," "second-degree murder," etc. But that's not the default rule on the MBE; rather, the default rule on the MBE is the common law, and common-law murder does not incorporate distinctions such as first-degree.

Murder under the common law is defined as the killing of another human being with malice aforethought. As with all legal rules, you'll want to parse the rule to ensure that all elements of the rule have been satisfied before drawing your conclusion. The first few elements are easy enough; you'll want to ensure that the victim has died and that the victim was a human being. The question will likely be testing the element of malice aforethought, so it's essential to understand what constitutes malice aforethought.

The 4 mindsets that will satisfy the malice aforethought requirement are:

(1): An intent to kill: If x intends to kill y (in other words, x actively desires the prescribed criminal consequences to follow his act), then murder is applicable.

(2): An intent to cause serious bodily injury: Note here that a person can be charged with murder under the common law even if it is not the desire of that person to kill another. Provided that x desires to cause y serious bodily injury, then if y dies as a result of the injury inflicted by x, x can be charged with murder.

(3): Reckless indifference for the life of another: This is sometimes referred to on the MBE as depraved heart murder. Even if there is no intent to kill, and there is no intent to cause serious bodily injury to another, one can be charged with murder if he acts recklessly, and the reckless act causes the death of another. An important distinction to note here is between recklessness and negligence. Causing the death of another through one's own negligence is not sufficient for a charge of murder (the more appropriate crime is involuntary manslaughter), but causing the death of another through one's own recklessness is sufficient. The key difference here is that a person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions whereas he acts negligently if he should have been aware (even if not actually aware) of a substantial and unjustifiable risk that a certain consequence would result from his actions.

(4): Felony Murder: You'll want to look for a situation in which a death occurs during the commission of an inherently dangerous felony. If a death occurs during the commission of an inherently dangerous felony, and there is no intent to kill, no intent to cause serious bodily injury, and no reckless disregard for the life of another, then consider felony murder, as it will provide a basis for a charge of murder even if the highest degree of fault on the part of the person committing the felony is negligence.