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Murder is when one human being unlawfully kills another human being. See Homicide. The precise legal definition of murder varies by jurisdiction. Most states distinguish between different degrees of murder. Some other states base their murder laws on the Model Penal Code.



Background: Common Law Murder

At common law, murder was defined as killing another human being with malice aforethought. Malice aforethought is a legal term of art, that encompasses the following types of murder:

  • "Intent-to-kill murder"
  • "Grievous-bodily-harm murder" - Killing someone in an attack intended to cause them grievous bodily harm. For example, if the defendant fatally stabbed the victim, even if the defendant only intended to wound the victim, the defendant would still be liable for murder.
  • "Felony-murder" - Killing someone while in the process of committing a felony. Note that at common law, there were few felonies, and all carried the death penalty. For example, at common law, robbery was a felony. So if a robber accidentally killed someone during a robbery, the robber could be executed.
  • "Depraved heart murder" - Killing someone in a way that demonstrates a callous disregard for the value of human life. For example, if a person intentionally fires a gun into a crowded room, and someone dies, the person could be convicted of depraved heart murder.

These definitions are valuable because they inform subsequent reforms of American murder law.


The Pennsylvania Method

The Pennsylvania Method is a catch-all term for systems of classifying murder by degree. Certain, specified types of murder were first-degree murder, and carried the death penalty. All other types of murder were second-degree murder, which did not carry the death penalty.

First-Degree Murder includes:

  • Willful, deliberate, and premeditated murder.
  • Particularly heinous types of murder. For example, in the original Pennsylvania statute, this included poisoning and lying in wait to kill someone by ambush.
  • Felony-murder, but only for certain listed felonies. For example, in the original Pennsylvania statute, the only eligible felonies were arson, rape, robbery, and burglary.

 At present, most states either use the Pennsylvania Method or a similar method to categorize murder.


Defining "Premeditation": A Look at Several States

Most jurisdictions which still use the "First-Degree Murder" distinction will typically require premeditation as an essential element in order for the defendant to be held liable for murder. However, jurisdictions will differ as to how they describe "premeditated." 

In West Virginia and Virginia, their state legislatures have defined “premeditated” as “knowing and intentional.” This definition allows the premeditation standard to be met quite easily, without any prior planning. As such, this definition has been criticized by some legal analysts. State v Guthrie (1995) furthered this confusion, as the court in that case ruled that "premeditated" refers to any interval of time between the defendant's forming of intent and the defendant's execution. The court found that any amount of time which passes allows the defendant to be conscious of his actions, without a stated requisite amount of time prior to the murder.

Kansas had a similarly confusing definition for "premeditation," and the state legislature tried to remedy the confusion. Kansas now requires time between planning and, but there is no specification for how much time needs to pass. As such, juries may still face confusion as to what adequately constitutes premeditation.  

New York, possibly in observance of the confusion over "premeditation," has abandoned premeditation altogether as the test for first degree murder. Instead New York only charges the defendant with first degree murder when the defendant kills a police officer, kills a trial witness, or kills through terroristic acts.

Iowa uses an either-or approach. The state applies the New York rule for first degree murder, but it also allows courts to use a pre-meditation standard for first-degree murder if the court chooses to do so. 

Some state legislatures have looked at their courts’ uses of “pre-meditated,” and have elected to override those courts through legislation to clear up any confusion that juries may exhibit with regard to the term. For example, Ohio's first degree murder statute now uses “prior calculation and design” as the test for 1st degree murder instead of “pre-meditated,” although it is unclear as to whether this alleviates confusion caused by "premeditation." 

The Model Penal Code

The Model Penal Code moved away from the traditional common law approach to murder, which typically involved "malice." Under the Model Penal Code, the following constitute murder:

  • Purposefully or knowingly killing another human being. This functions much the same as the common law rule against intentional murder.
  • Killing another human being in circumstances showing extreme recklessness. This functions much the same as the common law's depraved heart murder rule.
  • Felony-murder. The Model Penal Code disfavors but does not eliminate applying the death penalty for killings that occur during the commission of a felony. Instead of framing the rule as a felony-murder rule, it creates a rebuttable presumption that killings which occur during the commission of listed dangerous felonies show extreme recklessness for purposes of the code's other murder provisions.



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