Murder

Background

Murder can be generally defined as 1) the taking of life, 2) by conduct of the defendant 3) with a requisite mens rea and 4) an absence of justification.

Taking of Life

In order for murder to have occurred, a life must exist. Two factual scenarios arise in which this element is in question.

First, when an individual kills a foetus, has the taking of life occured? The answer to this question may depend on the jurisidiction in which the murder takes place. Early courts refused to recognize a foetus as a life. In response to these cases several states either broadened the definition of murder to include a foetus or created a separate crime of foetal homicide. Interestingly, the viability of the foetus may not even be an issue in some of these jurisdictions. In some cases, this issue has been dealt with as one of transferred intent.

Second, is the defendant responsible for murder if the person is already dead when the defendant's conduct occured. Death is generally defined by either lack of heartbeat or lack of brain activity. This may be an issue in simultaneous death where the sequence of death changes the lines of inheritance. It should be noted here that the shooting of a corpse cannot be murder. However it could potentially be attempted murder or even abuse of corpse in some jurisdictions.