Introduction

Misdemeanor Manslaughter

Introduction

The result looks strange at first, because homicide law ordinarily measures a defendant by what was meant or risked about the death itself. Murder is the unlawful killing of a human being with malice aforethought¹, and nothing in the punch scenario supplies that malice. Manslaughter developed as the residual category of criminal homicides committed without malice and without justification or excuse.² Within that category, involuntary manslaughter, the unintended branch, arose historically in two ways: a killing caused by criminal negligence or recklessness, and a killing caused by an unlawful act.³ The defendant in the puzzle cannot be convicted by the first route, since nothing suggests awareness of a serious risk of death, so the whole question turns on the second. A number of jurisdictions still apply that second route today.⁴

That second route is the misdemeanor-manslaughter rule, also called the unlawful-act doctrine. At common law, an unintentional killing that occurred during the commission or attempted commission of an unlawful act, typically a misdemeanor or a non-felony offense outside the felony-murder rule, was involuntary manslaughter.⁵ The doctrine is the counterpart of felony murder: felony murder attaches the label of murder to deaths during felonies, while this rule attaches manslaughter to deaths during lesser unlawful acts.⁶ The lower grade follows from where the rule sits on the homicide map. Involuntary manslaughter works as the catch-all homicide, defined by what it is not, and a killing during an unlawful act not intended to cause great bodily injury fell into it because a killing during an act so intended was already murder.⁷ The light punch meant only to stun belongs on the manslaughter side of that line.

The unlawful act does distinctive work here. In ordinary involuntary manslaughter the prosecution must prove that the defendant killed recklessly or with gross negligence.⁸ Under this rule, proof that the defendant was committing the underlying unlawful act, and that the act caused the death, stands in for that showing about risk. Because it dispenses with the usual fault inquiry, the rule has drawn criticism parallel to that aimed at felony murder, and some jurisdictions have narrowed it while many have abolished it.⁹ This chapter follows the doctrine in this order: the basic rule, the kinds of unlawful acts that qualify, the limits courts place on the rule, the causation requirement, the rule's status today, and finally a method for working a bar problem. The starting point is the basic rule itself, where you will see what the prosecution must show and why the law lets an unlawful act replace the usual fault requirement.