legal definition of murder

Murder: traditionally was defined as an unlawful killing w/malice aforethought, is now subject
to whatever statute governs it in a given jurisdiction. No malice, no M (instead, that’s MS).
- Malice aforethought: prerequisite for murder. Requires neither malice/hatred, nor
aforethought (some accidental killings count if they evidence D’s “depraved heart” aka are
particularly reckless, outrageous, or inexcusable). Can be supplied by intent.
- Premeditated: doesn’t really mean premeditated in the legal context. No time is too short.
- Some consider M, involuntary MS, and negligent H as shading gradually into each other on a
continuum from serious killings to relatively less blameworthy ones (a sliding scale of
seriousness). It goes (from most to least serious/punishable): 1st M Æ depraved heart 2nd M
Æ voluntary MS Æ involuntary MS Æ criminally negligent H Æ civilly negligent conduct
(no crime, but fine).
- Levels of liability for killing another:
o No liability
o Civil liability
o Manslaughter
ƒ Voluntary: intent to kill, but due to sudden provocation or heat of passion.
ƒ Involuntary: reckless accident
o Murder: intent to kill (only capital M 1st can get the death penalty).


Terms of art may vary in meaning with both the State and the ct and distinctions can produce
major differences in sentences.
- To jurors, the ancient terminology (ex. malice aforethought) can be confusing, esp. since the
judge will tell them that words have meanings other than what one might think. The MPC has
abandoned these ancient formulas, and uses more direct language.
- Different jurisdictions have different models for their homicide laws, each relying on terms of
art to define the various degrees of the crime:
o The Pennsylvania Pattern (used elsewhere too, WA uses simplified model): based on
the idea that more planning evidences a worse crime, impulsive crimes are less bad
ƒ 1st degree murder (malice aforethought & deliberate, willful, premeditated killing;
OR murder in attempts to commit another crime – like FM)
• Makes 1st degree murder depend on mens rea, reserving the most severe
category of crime for Ds w/most culpable mental states.
o The MPC: clearer language, simplified
o The TX Pattern (influenced by the MPC):
ƒ 2nd degree murder (malice aforethought only)
ƒ Voluntary manslaughter (passion killing)
ƒ Involuntary manslaughter (misdemeanor-manslaughter or gross negligence)
ƒ Vehicular manslaughter (grossly negligent unlawful driving, intoxication, etc…)
ƒ Murder (causing death intentional or knowingly, or w/recklessness and extreme
indifference). There are no degrees of murder under the MPC. Rather, differences
in severity of crime are taken into account in sentencing.
ƒ Manslaughter (includes both voluntary and involuntary)
ƒ Negligent homicide
ƒ Murder (only one degree, but three ways to commit it: intentional or knowing
killings, killing w/intent to cause serious bodily injury, felony murder)
ƒ Murder w/sentence-range reduction (passion killing, not a separate offense like
voluntary manslaughter)
ƒ Involuntary manslaughter (reckless killing)
ƒ Criminally negligent homicide (gross negligence)
- Why we have different degrees:
o Historically, originally unlawful killings were capital offenses, so jurisdictions looked for
o Now, these levels serve to grade the serious homicidal offenses.
a way to distinguish b/t the really bad ones and the not-so-bad ones.

6