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What Is Murder?

Many people think murder is any killing of another person. Under the law, though, murder must involve:

  • Direct action(s) which causes a person’s death. Some states include fetuses when defining “person”. Killing a pregnant woman will thus count as two murders.  
  • Malicious intent – the defendant must, at the time of the killing, wish to severely injury and/or end another person’s life. 
  • The killing was unlawful.

What Is Malice?

In order to be convicted of common law murder, the killing must require malice aforethought. Also known simply as malice, it does not mean that the defendant acted out of hate or spite toward the intended victim. Rather, malice aforethought exists when:

  • Defendant intended to kill
  • Defendant intends to inflict serious bodily injury that causes victims death
  • Behaves in a way that shows extreme, reckless disregard to human life that results in victims death

A defendant can be convicted of murder even if he or she did not intend to commit a killing, but rather was involved in a act or behaved in a way that had a high risk of death to human life. If that act result in a death of another, defendant could be liable for murder.

Gradations of Murder (vary by state)

  • First Degree Murder - generally, a killing which is deliberate and premeditated or in conjunction with a felony
    • Many states consider the killing a First Degree Murder where:
      • There is movement of the victim (kidnapping)
      • The defendant was lying in wait, usually with the intent to ambush the victim
      • There is a death of a police officer
      • The killing has taken place during an inherently dangerous felony (Felony Murder)
      • Torture has taken place
  • Second Degree Murder - a non-premeditated killing resulting from an assault where death was a distinct possibility
    • Second Degree Murder can be found where there was:
      • Heat of passion
      • A sudden fight or quarrel

What's the Difference between First Degree and Second Degree Murder?

Many states have statutory degrees for murder. The rules vary from state to state as to what circumstances make an intentional killing either first degree or second-degree murder, but the following circumstances are factored:

  • The killing was deliberate and premeditated: If the killer had formed intent to kill and has time no matter how brief or slight to reflect on the murder, the killing is said to be premeditated and planned. If the killer had a chance to think about alternatives, the killing is said to be deliberate. If these elements were present, the defendant would be liable for first degree murder.
  • The killing occurs during the course of a dangerous felony: Under the felony murder rule doctrine, a felon can be guilty of first degree murder of a death of a person other than a co-felon occurs during the course of a dangerous felony, even if the felon is not the killer. The death must be a foreseeable consequence of the initial felony. If this element is met, than the defendant would be liable for first degree murder.
  • Any other killings that involves malice: If the killing was not premeditated and deliberate and did not occur during a commission of a dangerous felony, then all other murders will be classified as second-degree murder.

What Is the Difference between Murder and Manslaughter?

Manslaughter is defined as the killing of another human being without malicious intent. However, states will often have different distinctions between the degrees of murder and manslaughter.

This means that a second degree murder in one state may be a voluntary manslaughter in another. California, for example, considers a killing through the heat of passion as manslaughter rather than murder.

The main difference between murder and manslaughter depends on the defendant’s state of mind. Typically, murder requires that the killing be done with malice aforethought, premeditation, and deliberation. However, both forms of homicide may count as culpable homicide depending on the circumstances.

Are There Any Legal Defenses to a Murder Charge?

The best way to defeat a murder charge is to negate one of the elements of murder: act and intent. Obviously, if a defendant can prove that there is no evidence he committed the act, then he would be clear of any murder or manslaughter charges.

If, however, the defendant is linked to the act, then it may still be possible to reduce a murder charge by proving that there was no intent. Lowering the crime would reduce the sentence. A list of possible defenses to reduce the intent element can be found here

What Is the Penalty for Murder?

The penalty for murder will differ based upon the degree and from state to state. Murder sentencing is subject to “enhancements” which may increase or decrease the punishment. Murder with a deadly weapon, for example, can increase the punishment while youth may work in the defendant’s favor.

In general, first degree murder sentencing ranges from death to life imprisonment without parole.

Second degree murder entails imprisonment with parole. The exact number of years will depend on the state, the judge and any enhancements included.

What Can You Do If Accused of Murder?

It is important to note that different states have different systems of gradation each with its own subtleties. Immediately consult a criminal defense lawyer familiar with your particular state's criminal laws regarding your rights and defenses.

What Can You Do If Someone You Know or a Loved One Has Been Murdered?

Contact the police immediately. If there is sufficient evidence, the police will forward the case to the District Attorney's office to prosecute the suspect who murdered the person. If you are interested in bringing a civil suit against the person, learn more at Wrongful Death.

Photo of page author Kourosh Akhbari

, LegalMatch Legal Writer

Last Modified: 11-09-2017 12:13 AM PST

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