You’re staring at another MBE Criminal Law question about someone who died during a robbery, and you freeze. Was that murder? Manslaughter? Does the felony murder rule apply here? Homicide questions make up a significant chunk of the Criminal Law section, and if you can’t instantly distinguish between murder categories and manslaughter types, you’re leaving points on the table.
Let’s break down exactly what you need to know about homicide on the MBE, starting with the framework that organizes everything.
The Homicide Hierarchy: Murder vs. Manslaughter Bar Exam Framework
Here’s the mental map you need: all homicides require an unlawful killing of another human being. What separates murder from manslaughter is malice aforethought. If malice is present, you’re looking at murder. If malice is absent but there’s still culpability, you’re in manslaughter territory.
Malice aforethought exists in four situations: (1) intent to kill, (2) intent to inflict serious bodily harm, (3) depraved heart (extreme recklessness with awareness of the risk), or (4) felony murder. Memorize these four. They’re the foundation of every homicide analysis.
When you see a fact pattern, your first question should be: “Is there malice?” If yes, proceed to categorize the type of murder. If no, determine whether it’s voluntary or involuntary manslaughter.
Breaking Down Murder Categories
First Degree Murder: Premeditation Matters
First degree murder requires premeditation and deliberation with intent to kill. The MBE loves to test whether the defendant actually reflected on the decision to kill. Here’s what trips students up: premeditation can be formed in an instant. There’s no required cooling-off period or specific time frame. The key is that there must be some actual reflection, however brief, beyond a mere intent to kill.
Example: Defendant walks into a store, sees the clerk who testified against him last week, pulls out a gun, and shoots him dead. Even though this happened in seconds, if the defendant had that moment of “I’m going to kill this guy” followed by action, that’s sufficient premeditation for first degree murder.
Second Degree Murder: The Catch-All Category
Second degree murder is murder with malice aforethought but without premeditation and deliberation. This includes three scenarios: (1) intent-to-kill murders without premeditation (heat of the moment killings that don’t qualify for voluntary manslaughter), (2) intent to inflict serious bodily harm resulting in death, and (3) depraved heart murder.
Students often confuse categories two and three. If the defendant intended to seriously hurt someone and they died, that’s second degree murder based on intent to inflict serious bodily harm. But if the defendant didn’t intend to hurt anyone specifically and instead engaged in extremely reckless conduct showing conscious disregard of a substantial risk to human life, that’s depraved heart murder.
Classic depraved heart example: Defendant fires a gun into a crowded room “just to scare people” and kills someone. He didn’t intend to kill anyone specifically, but he was aware of and consciously disregarded an unjustifiably high risk to human life. That awareness and conscious disregard is what separates depraved heart murder from involuntary manslaughter based on criminal negligence.
Voluntary Manslaughter: The Heat of Passion Defense
Voluntary manslaughter is an intentional killing that would be murder except it was committed in the heat of passion upon adequate provocation. This is a partial defense that reduces murder to manslaughter.
Four elements must be present: (1) provocation that would arouse sudden and intense passion in a reasonable person, (2) the defendant was actually provoked, (3) insufficient time for a reasonable person to cool off, and (4) the defendant did not in fact cool off.
The MBE tests adequate provocation heavily. Recognized categories include: being subjected to a serious battery, threat of deadly force, discovering a spouse in the act of adultery, and in some jurisdictions, witnessing a serious crime against a close family member.
Critical rule: mere words alone are generally not adequate provocation at common law. The bar examiners love this exception.
Hypothetical: Victim taunts defendant about an affair with defendant’s wife. Defendant becomes enraged and kills victim. No voluntary manslaughter. Words alone don’t suffice. But if defendant walks in and actually sees his spouse in the act of adultery, then kills in that moment, voluntary manslaughter applies.
Involuntary Manslaughter: Unintended Killings
Involuntary manslaughter covers unintended killings from (1) criminal negligence or (2) commission of an unlawful act not amounting to a felony (misdemeanor manslaughter). There’s no intent to kill or cause serious harm.
Criminal negligence means a gross deviation from the standard of care a reasonable person would exercise. This is a higher standard than ordinary tort negligence. The conduct must be so reckless that it shows a complete disregard for human life, but without the awareness required for depraved heart murder.
The distinction between depraved heart murder and involuntary manslaughter based on criminal negligence turns on awareness. If the defendant was aware of and consciously disregarded the risk, that’s depraved heart murder. If the defendant should have been aware but wasn’t, that’s involuntary manslaughter.
Misdemeanor manslaughter applies when someone dies during the commission of a misdemeanor or unlawful act. Some jurisdictions limit this to misdemeanors that are malum in se (inherently wrong) rather than malum prohibitum (wrong only because prohibited by statute).
Felony Murder Rule: The MBE’s Favorite Trap
The felony murder rule creates murder liability for any death that occurs during the commission or attempted commission of an inherently dangerous felony. You don’t need intent to kill. The intent to commit the underlying felony supplies the malice.
The traditional enumerated felonies spell BARRK: Burglary, Arson, Rape, Robbery, and Kidnapping. Memorize this acronym. It appears on the MBE constantly.
But here’s where students lose points: the felony murder rule has significant limitations.
Felony Murder Limitations You Must Know
The merger doctrine: The felony must be independent of the killing. Felonies like aggravated assault or battery merge into the homicide and cannot serve as the predicate felony for felony murder. Otherwise, every murder would automatically be felony murder based on the assault that caused death.
Foreseeability: The death must be a foreseeable result of the felony. If a victim dies from a completely unforeseeable cause during a robbery, felony murder may not apply.
Temporal limitation: The killing must occur during the commission of the felony or during immediate flight therefrom. Once the defendant reaches a place of temporary safety, the felony has terminated and subsequent deaths don’t qualify.
Agency theory (majority rule): The defendant or an accomplice must be the one who caused the death. If a police officer or victim kills someone during the felony, the defendant is not liable for felony murder under the agency theory. Some jurisdictions follow the proximate cause theory instead, which allows broader liability.
MBE hypothetical: Defendant robs a bank. Police officer shoots at defendant but misses and kills a bystander. Under the majority agency theory, defendant is not liable for felony murder because the officer, not the defendant or accomplice, caused the death. But the defendant is still liable for the robbery and any other applicable crimes.
Causation: The Element Everyone Forgets
Don’t overlook causation in homicide. The defendant’s act must be both the actual cause (but-for cause) and the proximate cause (legal cause) of death.
An intervening cause breaks the chain of causation only if it’s both unforeseeable and independent of the defendant’s actions. Pre-existing conditions of the victim never break the chain. The eggshell skull rule applies in criminal law: you take your victim as you find them.
Example: Defendant stabs victim, who is a hemophiliac and bleeds to death from a wound that wouldn’t have killed a healthy person. Defendant is still liable for murder. The victim’s pre-existing condition doesn’t break causation.
Organizing Homicide for Active Recall
The biggest mistake students make with homicide MBE questions is trying to memorize rules in isolation. You need to see how the elements fit together and how each category relates to the others.
When you’re drilling practice questions, create a mental flowchart: unlawful killing → is there malice? → if yes, which type of murder? → if no, which type of manslaughter? Run through this sequence until it’s automatic.
The FlashTables Criminal Law & Procedure table organizes all homicide rules with their elements side-by-side, making it easy to spot the distinctions the MBE tests. When you’re comparing depraved heart murder to involuntary manslaughter or working through felony murder limitations, having all the rules in one structured view helps you build that instant recognition you need on test day.
What to Memorize for Homicide MBE Questions
Lock in these core rules:
Four types of malice: intent to kill, intent to inflict serious bodily harm, depraved heart, felony murder
First degree murder: premeditation and deliberation (can be formed instantly but requires reflection)
Voluntary manslaughter: adequate provocation (serious battery, deadly force threat, adultery, serious crime against family) + heat of passion + no cooling off. Words alone insufficient.
Depraved heart vs. criminal negligence: awareness and conscious disregard of risk (depraved heart) vs. should have been aware (criminal negligence)
BARRK felonies: Burglary, Arson, Rape, Robbery, Kidnapping
Felony murder limitations: merger doctrine, foreseeability, temporal requirement, agency theory
Causation: but-for and proximate cause; eggshull skull rule applies
Homicide questions are worth the memorization effort. Master the distinctions between murder categories and manslaughter types, understand when felony murder applies and when it doesn’t, and you’ll confidently handle some of the highest-value questions in the Criminal Law section.