Note: Masoninblue wrote this article in response to some questions at another site. I am posting it here because it is informative. For those of you who do not know this, Masoninblue is my husband; I have his permission to publish his full-text articles at this site. Masoninblue is a former death penalty lawyer and law professor.

Although states vary in their definitions, the majority of states define homicide is the unlawful killing of a human being. Killing a person in self-defense is a lawful killing of another person. Therefore, it is not a homicide.

There are four degrees of homicide which vary according to the actor’s state of mind when he or she commits an act that causes the death of another person. The four degrees of homicide are:

1. Murder in the First Degree (premeditated intent to kill another person). Note that premeditation is defined as forming the specific intent to kill before committing the act that causes the death of another person. There is no established minimum amount of time, but the actor must have had an opportunity to reflect on the decision to kill before committing the act that causes death.

2. Murder in the Second Degree (intentional murder). In effect, the actor forms the specific intent to kill another person and acts immediately such that the formation of intent and the act occur simultaneously or so close together that there is no opportunity to reflect on the decision. Murder in the Second Degree typically involves killing another person in the heat of passion.

3. Manslaughter in the First Degree (reckless killing). The actor engages in conduct knowing that there is a substantial risk that the conduct will cause the death of another person. The typical example is playing Russian Roulette with another person. There is no intent to kill, but a death results nevertheless.

4. Manslaughter in the Second Degree (criminally negligent killing). The actor causes the death of another person while committing an act that he should have known would likely cause the death of another person and his failure to know that constitutes a gross deviation from the standard to act with due care to avoid injuring others.

Depending on whether a state has the death penalty, there is another category called Aggravated Murder, which is a premeditated murder with aggravating circumstances.

Aggravating circumstances are defined by statute and typically include the premeditated killing of another person to conceal the commission of another crime. For example, a rapist kills the victim to prevent her from reporting the crime and identifying him. Other examples include the premeditated murder of a cop or a judge. In each case the aggravating circumstance is the purpose behind the premeditated intent to kill.

The death penalty is not automatically imposed upon conviction of aggravated murder, no matter how heinous or depraved. Instead, a sentencing hearing is held after the jury convicts the defendant of aggravated murder in which the same jury that convicted him considers evidence submitted by the prosecution in aggravation of the offense and evidence offered by the defense in mitigation of the offense.

Author Masoninblue wrote this, in response to some questions at other sites. It is informative, so I am posting it here with permission. For those of you who do not know this, Masoninblue is my husband. I have permission to print his full-text articles and comments at this site.

Evidence in aggravation includes the evidence the jury already heard about the offense in the guilt phase, a statement from a friend of the victim or member of the victim’s family who testifies regarding the impact of the victim’s death on the witness or family, and evidence of the defendant’s prior record of criminal convictions, if any exists.

Evidence in mitigation is evidence about the defendant, such as organic brain disorder, limited intellectual functioning, mental illness, victim of childhood sexual abuse or assault, or the defendant’s role in committing the murder (e.g., an accomplice who assisted another person to commit the murder but who did not commit the murder and may not have even been present when it occurred) that in fairness or mercy warrants a sentence of life without possibility of parole instead of the death penalty.

In Washington State where I handled all of my death penalty cases, the final instruction given to the jury after both sides rest in the penalty phase is as follows:

Having in mind the crime of which the defendant has been convicted, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit a sentence of less than death?

The jury also is instructed that the law presumes that the appropriate sentence is life without possibility of parole unless the prosecution overcomes that presumption with proof beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit the life without parole sentence.

The jury must be unanimous to impose the death sentence.

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Comments
  1. Here is a question posed by a reader at another site:

    “Where does negligent homicide fall?”

  2. And here is the answer:

    “Masoninblue October 24th, 2011 at 6:18 am «

    Negligent homicide actually is what I referred to as criminally negligent homicide, or grossly negligent conduct that causes the death of another person. In other words, ordinary negligence (which is the basis for a civil claim for damages) that causes the death of another person is insufficient to constitute negligent homicide.

    In a civil case for damages, for example, a plaintiff must prove that the defendant:

    1. Committed an act;

    2. That but for the the act, the plaintiff would not have been injured;

    3. The defendant owed the plaintiff a duty to exercise reasonable care to avoid injuring the plaintiff (i.e., the injury was reasonably foreseeable);

    4. The defendant’s act constituted a breach of that duty;

    5. The plaintiff incurred damages because of the injury.

    To get to criminal or gross negligence, the prosecution must prove an additional element: That the defendant failed to be aware that his act created a substantial risk of serious injury or death to the plaintiff and his failure to be aware of that risk constituted a gross violation of his duty to exercise due care.”

  3. Here is an additional question that I asked at another site:

    “Crane-Station October 24th, 2011 at 4:36 am «

    I have read that execution is listed on the death certificate as state homicide. Is this true? If so, which category would it be?

    Also, what is conspiracy to commit murder?

    Plus, let’s say a guy sits in his rocking chair thinking of killing his ex-wife. Finally, he goes to the kitchen and gets a butcher knife, gets in the car and drives by her house, fully intending to kill her. But then, he notices that she is holding hands with their daughter, and so he returns home. Attempted murder?

  4. And here is the answer:

    Masoninblue October 24th, 2011 at 6:48 am

    “I have read that execution is listed on the death certificate as state homicide. Is this true? If so, which category would it be?”

    I do not know what the standard practice is with respect to the cause of death listed on a death certificate following an execution. Since a homicide is defined as the unlawful killing of a human being and the execution was by definition “lawful”, I assume the entry would not be “state homicide”.

    “Also, what is conspiracy to commit murder?”

    I am going to post an article on conspiracy today, so please read it for information. Briefly, however, the answer is that it is an agreement between two or more people to commit a murder and one of them commits an act, whether lawful or unlawful, in furtherance of the objective of the conspiracy. For example, acquiring a gun.

    “Plus, let’s say a guy sits in his rocking chair thinking of killing his ex-wife. Finally, he goes to the kitchen and gets a butcher knife, gets in the car and drives by her house, fully intending to kill her. But then, he notices that she is holding hands with their daughter, and so he returns home. Attempted murder?”

    Your question concerns what constitutes an attempt to commit a crime. The elements of the crime of attempt are:

    1. The defendant specifically intends to commit a particular act that constitutes a crime (in your example the crime is murder); and

    2. The defendant commits an act that constitutes a “substantial step” toward committing the crime.

    The issue you raise is whether the defendant’s conduct in acquiring a butcher knife and driving to her house constitutes a “substantial step.”

    Keeping in mind that, as a general matter, abandoning one’s effort to commit the intended crime is not a defense to the crime of attempt, which is completed upon the commission of the “substantial step”, I believe most jurisdictions would not charge the man in your example with attempted murder because of the difficulty in proving that he actually intended to kill his ex-wife. Now, if he had approached her with knife in hand and their daughter had stepped between them to protect her mother causing him to turn and leave, I think most jurisdictions would charge the crime of attempt.

    Note that an act committed in furtherance of a conspiracy may also constitute a substantial step to commit a crime that also happens to be the objective of the conspiracy. Generally, however, acts committed in furtherance of a conspiracy would not also constitute substantial steps because they are more innocuous.

  5. There is this additional comment:

    Masoninblue October 24th, 2011 at 11:15 am «

    I neglected to mention that the issue of what constitutes a substantial step, as opposed to mere preparation to commit a crime, is anything but simple and there is no bright line that separates the two. States have different rules.

    The issue comes up when police arrest someone who subsequently claims that they had changed their mind and decided not to commit the crime before the arrest. This is called the defense of abandonment, which is what the man in your example would have claimed if he had been arrested and charged with attempted murder.

    Proximity to the victim is one test that is applied. Another test is whether the defendant changed his mind due to an external circumstance that he did not foresee, such as the presence of a police officer, or due to an honest change of heart. The defendant would be not guilty in the latter situation, but guilty in the former.

    To illustrate how difficult these cases can be consider Ross v. State of Mississippi, 601 So.2d 872 (1992), in which the Court held that the trial judge should have granted the defendant’s motion for a directed verdict of acquittal in an attempted rape prosecution where the defendant desisted from attempting to rape the victim when she tearfully told him that her young daughter would be home from school “any time,” and that “I am all she has because her daddy is dead.”

    Contrast Ross with People v. Taylor, 598 N.E.2d 693 (1992), in which the defendant’s conviction for attempted rape was affirmed where the defendant desisted from raping the victim when she convinced him that “you could be my boyfriend, and you do not have to have it this way.”

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