Attempted Murder: Intent, Charges, Sentences and Defenses

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 What Is Attempted Murder?


Attempted murder, also referred to as attempted homicide, is essentially the incomplete or unsuccessful act of killing someone. Although it may seem obvious, the criminal act of attempted murder, unlike the criminal act of murder, does not result in the death of another person. Similar to the crime of murder, attempted murder is a serious criminal offense that carries significant criminal penalties, including substantial prison time.

In order to be convicted of attempted murder, the prosecution must prove the elements of attempted murder beyond a reasonable doubt. Although the specific elements and definition for attempted murder differs by state, the general elements of the crime of attempted murder are outlined below. In addition, the criminal penalties and legal defenses for attempted murder are also discussed below.

What Is Attempted Homicide? Is it the Same as Attempted Murder?

As previously mentioned, attempted murder may also be referred to as attempted homicide. Homicide refers to a specific crime in which another human being unlawfully killed. Homicides are considered to be violent felonies, and can result in considerably harsh penalties. Charges brought against a person involving homicide include intentional killings, such as murder, and non-intentional killings, such as manslaughter.

Other examples of homicide crimes include but may not be limited to:

  • Serial murders or killings;
  • Infant deaths, such as those resulting from shaken baby syndrome; and
  • Assisted suicide.

If attempted murder can be defined as the incomplete or unsuccessful act of killing someone, attempted homicide can be defined as the failed attempt of a human being trying to physically kill another. The two terms are very similar and have very few differences. Attempted homicide, as a crime, is what happens when a person deliberately acts with extreme disregard for human life.

What Elements Are Required to Prove Attempted Murder?

Once again, the specific elements required to prove attempted murder vary from state to state. However, in general the prosecution must prove the following two elements beyond a reasonable doubt to charge an individual with attempted murder:

  • Intent: Criminal intent to kill is a required element for an attempted murder charge. In order to prove a criminal defendant acted with intent to kill, the prosecution must prove that the defendant made the decision to kill another person, or acted in such a reckless indifference for human life that killing a person was a real possibility. It is important to note that a person may not be convicted of attempted murder if their intent was to frighten or hurt someone.
    • For example, brandishing a gun to scare an individual or stabbing an individual in the arm would likely not result in an attempted murder charge. However, using a gun to shoot an individual or stabbing someone in the chest or throat would likely provide enough evidence to prove the intent to kill; and
  • Action or “Direct Step”: In addition to having the intent to kill another individual, the prosecution must also prove that the defendant took a substantial or direct step towards committing a murder. What qualfies as a substantial or direct steps towards committing a murder varies on a case by case basis.
    • For example, casually talking about murdering another individual or purchasing a gun is often not enough of a direct step towards committing a murder. However, using the weapon against the individual, significant planning in relation to murdering someone, or soliciting another individual to kill an individual is often enough of a direct step towards committing murder. In short, mere preparation for murder is not enough, but actions past the preparation stage generally are enough.

In Texas, an individual that intentionally and willfully causes physical harm to another individual couple with the intent of ending that person’s life can be charged with attempted murder. Additionally, a person who harms others as a result of reckless acts that demonstrate a blatant disregard for human lives, may also be charged with attempted murder.

For instance, firing a gun into a crowd or a building, would be a reckless act that demonstrates a blatant disregard for human lives. In Texas, attempted murder is a second degree felony with punishments including criminal fines of up to $10,000, up to 20 years imprisonment, or both. Once again, the specific definition for attempted murder and the criminal penalties vary by state.

Are There Different Degrees of Attempted Murder?

As mentioned above, attempted murder may be classified in different degrees. Attempted murder may be classified as a first or second degree felony, depending on your state’s criminal statutes concerning attempted murder.

Typically, first degree attempted murder charges require significant evidence demonstrating premeditation. As mentioned above, the criminal intent to kill is a specific element of attempted murder. Premeditation is the conscious and deliberate decision to kill a specified person. Evidence of premeditation may include a written plan to kill someone, lying in wait outside a targeted individual’s home or workplace, or a plan to hire another individual to murder a specific individual.

A second degree attempted murder charge is a less severe criminal charge. In many states, second degree attempted murder does not require any premeditation. Second degree attempted murder charges may also be referred to as heat of passion attempted murder.

To illustratae, if an individual comes home to find their significant other cheating on them and then becomes so enraged that they immediately locate and shoot that person, such an act may be considered second degree attempted murder. There is no doubt that the aforementioned individual possessed the intent to murder and made a significant step to commit the murder, but the intent to kill was not premeditated enough to be considered first degree attempted murder.

How Many Years Do You Get for Attempted Murder?

Penalties for attempted murder will vary based on the degree, as well as the state in which the murder was attempted. An attempted murder is a serious charge, and as such, it carries serious criminal penalties. The most common criminal penalties for a second degree attempted murder include severe criminal fines, up to a lifetime spent in prison, or both.

Criminal penalties for a typical attempted murder charge sentence can be influenced by the following factors, although not limited to:

  • Whether a deadly weapon was used;
  • Whether the criminal defendant has previous criminal convictions;
  • Whether the criminal defendant is a repeat offender;
  • The number of people harmed by the defendant’s criminal act; and/or
  • The type of weapon used, if a weapon was used. Planting a bomb in a populated building would likely carry a more harsh sentence than if one individual was targeted with a less deadly weapon.

Are There Any Defenses to Attempted Murder?

There may be several legal defenses to attempted murder. Common legal defenses for attempted murder include:

  • Lack of Intent: The most common legal defense for attempted murder is that the prosecution cannot prove the defendant’s intent to kill beyond a reasonable doubt. For example, an intent to inflict harm or cause serious injury is not the intent to kill;
  • Lack of a Substantial Step: The other most common legal defense for attempted murder is that the prosecution cannot demonstrate that a substantial step was made to commit the murder;
  • Self-Defense: Self-defense is another common legal defense for attempted murder. For example, if someone pulls a gun on you and you pull a gun on them and shoot first, you will likely not be considered to have committed attempted murder;
  • Impossibility: Impossibility is a legal defense wherein even if the criminal defendant went through with their plan it would be impossible for the murder to have occured. For example a defendant that built a nonfunctional bomb; or
  • Renunciation: A criminal defendant that commits a step to commit murder, but later withdraws or abandons the act of committing the murder, may use such a renuncation as a legal defense to an attempted murder charge in some states.


Can You Remove Attempted Murder Charges From Your Criminal Record?

Expungement refers to the legal process in which a person, who has been convicted of specific crimes, may have the record of their conviction cleared (or sealed). It is important to note that there is no constitutional right to expungement; however, it is generally allowed in some form, in most states. The record is then off limits to all, with the exception of law enforcement personnel. This is to avoid some of the issues commonly associated with having a criminal record, such as difficulty finding employment.

As previously mentioned, attempted murder is a felony. Felony expungement refers to the process of having a felony charge removed from a person’s criminal record. Laws regarding felony expungement vary from state, with some states not allowing for any felony expungement and others allowing only specific felonies be expunged. Generally speaking, federal felonies may not be expunged. This includes attempted murder. The exception would be if a person was arrested for the crime of attempted murder, but was never actually prosecuted for the crime.

Again, expungement is not a right. It is not available in all states. As such, it is something that must be applied for; it is not automatically granted. A criminal defense attorney would be able to determine whether a person should apply for expungement.

Do I Need a Lawyer If I Am Charged with Attempted Murder?

If you are facing charges of attempted murder, you should immediately contact a well qualified and knowledgeable criminal defense attorney in your area. An experienced criminal defense attorney will be able to inform you of your legal rights, as well as ensure that your rights are protected through the entire criminal process.

Additionally, an attorney will be able to help you determine and assert any legal defenses to the charges brought against you. Finally, an attorney will be able to help you negotiate a favorable plea bargain, and/or represent you at any and all criminal hearings.

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