In this week’s second installment of BarMax Bar Clips, we take a closer look at homicide with a little help from the disturbing ending to the film Se7en.
Spoiler Alert: This clip is the final scene of the movie and it will definitely ruin the film for you if you have not seen it.
WARNING: GRAPHIC CONTENT
So let’s review, but let’s proceed as though this scene was a fact pattern on an actual bar exam essay question and format our response accordingly:
Can Detective Mills be convicted of murder or of any lesser-included offense?
Elements of a Crime
The four elements of a crime consist of (1) a guilty act (i.e. actus reus), (2) a guilty mind (i.e. mens rea), (3) concurrence and (4) causation.
Murder in the 1st Degree
First degree murder is created by statute and typically consists of: (1) intentional killing of a human, (2) with time to reflect upon that killing, and (3) doing so in a cool and dispassionate manner.
In this case, however, we are not given a statute for first degree murder.
Therefore, Detective Mills cannot be found guilty of first degree murder.
Murder in the 2nd Degree
At common law, second degree murder is the intentional (1) killing of a person with (2) malice aforethought. It requires actus reus (i.e. killing of a person), mens rea (i.e. malice aforethought), concurrence and causation.
Actus Reus = Killing of a Person
The actus reus of murder in the 2nd degree is the killing of a person.
In this case, Detective Mills walked up to John Doe while he was on his knees with his hands handcuffed and shot him directly in the head at point blank range. Detective Mills then stood over John Doe’s lifeless body and shot him five more times.
Therefore, in this case, we clearly have the killing of a person.
Mens Rea = Malice Aforethought
Malice aforethought requires that the killing being committed with one of the following states of mind: (1) intent to kill, (2) intent to commit great bodily injury, (3) depraved heart (i.e. wanton and willful disregard for human life) or (4) intent to commit felony (i.e. “felony murder rule”).
Intent to Kill & Deadly Weapon Doctrine
The intent to kill can be satisfied by the deadly weapon doctrine: where the death is caused by the purposeful use of a deadly weapon, the intent to kill is implied.
In this case, Detective Mills purposefully used his standard issue police handgun to kill John Doe by shooting him six times.
Therefore, the intent to kill is implied under the deadly weapon doctrine.
The rule is that the actus reus and the mens rea must occur concurrently.
In this case, Detective Mills’ actus reus (i.e. pulling the trigger of his standard issue police handgun) and his mens rea (i.e. intent to kill implied under the deadly weapon doctrine) occurred concurrently.
As such, the element of concurrence is satisfied.
The rule is that the physical act or failure to act must be the actual cause and proximate cause of the harm.
Actual Cause = But For Test
The “but for” test asks whether the harm would not have occurred “but for” the defendant’s act or failure to act.
In this case, John Doe would not have died if Detective Mills had not shot him multiple times at point blank range.
Therefore, Detective Mills’ act is clearly the actual cause of John Doe’s death.
Proximate Cause = Natural & Probable Consequences
Proximate cause is the philosophical connection, which limits liability to consequences that bear some reasonable relationship to the actor’s conduct so as to not offend notions of common sense, justice and logic.
In this case, John Doe’s death has more than some reasonable relationship to the Detective Mills’ conduct of shooting him six times at point blank range.
Therefore, Detective Mills’ act is also the proximate cause of John Doe’s death.
Adequate Provocation (aka “Heat of Passion”)
It clearly seems that all of the elements needed to find Detective Mills guilty of second degree murder have been satisfied, but malice aforethought exists only if no adequate provocation can be found.
The defense of adequate provocation is a mitigating defense that reduces an intentional killing from murder to voluntary manslaughter where: (1) defendant in fact provoked by the victim, (2) the provocation was of the type that would arouse sudden and intense passion in the mind of an ordinary, reasonable person, and (3) there was no reasonable time to cool off and the defendant in fact did not cool off.
Defendant In Fact Provoked by the Victim
In order for adequate provocation to apply, the victim must have in fact provoked the defendant.
In this case, John Doe had just murdered Detective Mills’ pregnant wife, Tracy Mills. He then decapitated her, put her head in a box and mailed it to a remote location where he had personally escorted Detective Mills and Detective Summerset. Only making matters worse, John Doe personally recounted his deed to Detective Mills by stating, “…so I took a souvenir, her pretty head.” A few moments later, when Mills franticly asked Summerset, “What’s in the box?” John Doe responded with, “I just told you.” Finally, John Doe tells Mills, “She begged for her life Detective. She begged for her life and the life of the baby inside her.”
Therefore, John Doe in fact provoked Detective Mills.
Sudden & Intense Passion in Reasonable Person
The provocation must be of the type that would arouse sudden and intense passion in the mind of an ordinary, reasonable person.
In this case, Detective Mills discovered that the serial killer he had been investigating just murdered his wife and mailed her head in a box to him. Detective Mills was also unaware that his wife was pregnant until the moment John Doe coldly relayed to Mills that she “begged for…the life of the baby inside of her.”
As such, John Doe’s provocation is clearly of the type that would arouse sudden and intense passion in the mind of an ordinary, reasonable person.
No Reasonable Time to Cool Off & Defendant In Fact Did Not Cool Off
For adequate provocation to apply there cannot have been a reasonable amount of time for the defendant to cool off between the provocation and the killing. It is also required that the defendant in fact did not cool off.
In this case, John Doe informed Detective Mills that he had decapitated his wife earlier that morning. A very short time later, Doe revealed to Detective Mills that his wife was also pregnant while encouraging Detective Mills to “become vengeance David…become wrath.” Moments later, Detective Mills killed John Doe. All of this occurred within the span of a few minutes, during which Detective Mills was visibly distraught.
Therefore, there was no reasonable time for Detective Mills to cool off and he did not in fact cool off before he killed John Doe.
Voluntary manslaughter is an intentional killing that would be murder but for the existence of adequate provocation.
In this case, we clearly have an intentional killing of John Doe by Detective Mills that would have been murder but for the existence of adequate provocation.
Therefore, Detective Mills can be found guilty of voluntary manslaughter, but not second degree murder, because he acted in the “heat of passion.”
There are a couple of very important bar exam tips in this example that we want to highlight.
First, at common law, all murder is murder in the second degree. To have murder in the first degree, you must be given a statute that defines this offense. Therefore, no statute, no first degree murder.
Second, adequate provocation is not a complete defense to murder—it is a mitigating defense that can reduce murder to voluntary manslaughter. Therefore, if you find that there is adequate provocation, the defendant will be guilty of voluntary manslaughter, but not murder because he acted in the “heat of passion.”
Stay tuned for our next installment of BarMax Bar Clips.