§ 31.01 Homicide

§31.01 Homicide1

[A] Definition of "Homicide"

At very early common law, "homicide" was defined as "the killing of a human being by a human being."2 This definition includes suicide within its compass. However, the later common law definition of "homicide," followed in modern statutes, is "the killing of a human being by another human being." Suicide, therefore, is no longer a form of homicide.3

"Homicide" is a legally neutral term. That is, a homicide may be innocent or criminal. The duly authorized execution of a convicted felon, for example, is no less a homicide than the most "cold-blooded" murder.

[B] Definition of "Human Being"

[1] The Beginning of Human Life4

At common law, a fetus must be born alive to constitute a "human being" within the meaning of that term in criminal homicide law.5

This rule is anomalous. Applying the common law approach, a homicide occurs when one causes the death of a being that is not considered human at the time of the death-producing act, as long as it is "human" when it dies. Thus, if D strikes V, a pregnant woman, in the abdomen causing lethal injury to the fetus, a homicide occurs if the fetus is expelled from the womb alive and dies from the pre-birth blow seconds after birth.6 Yet, if the same act is more efficient, in that it causes immediate death of the fetus in the womb, a homicide has not occurred.

Modern critics of the common law rule consider it outdated. One stated basis of the "born alive" rule was that a live birth was needed to prove that the "unborn child" was alive at the time of the accused's actions, and that these acts were the cause of its subsequent death.7 In light of advances in modern medical technology, it is now possible to determine whether a fetus is alive in the mother's womb, to determine with much greater likelihood of accuracy its chances of being born alive, and to identify the cause of its death if it is born dead. Therefore, it is reasoned, the definition of "human being" should include unborn fetuses.

According to one survey, at least 38 states have abandoned the "born alive" rule, some holding that criminal homicide liability attaches, despite the absence of a live birth, at the point of conception, others using quickening, and still others focusing on viability.8

[2] The End of Human Life9

When does a person cease to be a "human being" for purposes of homicide law, i.e., what constitutes the legal death of a human being? The traditional rule, based on then-prevailing medical standards, recognized a cardiopulmonary definition of "death": A human being was dead when there was a complete and permanent stoppage of the circulation of the blood and the "cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc."10

Since the development of life-support devices and procedures, this definition has proven unsatisfactory. It is now possible artificially to maintain the heart and lung activities of persons who have lost the spontaneous capacity to perform these "animal and vital functions." As one court put it, "human bodies can be made to breathe and blood to circulate even in the utter absence of brain function."11 The effect of the machinery, therefore, is to keep some people legally "alive" long after their capacity for independent life has ceased. Furthermore, in an era of sophisticated organ transplant technology, the traditional definition prevents medical personnel from "harvesting" healthy organs from "artificially alive" persons, resulting in the death of patients in desperate need of healthy organs.

In 1968, an influential Harvard Medical School committee reported that the medical conception of death was changing.12 It concluded that cessation of brain function is a more suitable measure of death, especially when a patient's respiration and circulation are being supported artificially. The committee set forth a multi-step test designed to identify "brain death syndrome."

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