§ 31.03 Murder: Intent to Kill
[A] In General
One who intentionally kills another human being without justification (e.g., self-defense), excuse (e.g., insanity), or mitigating circumstance (e.g., sudden heat of passion) is guilty of killing with "malice aforethought"—"express malice"—and, therefore, is guilty of common law murder.41 Typically, a murder involving the specific intent to kill is first-degree murder in jurisdictions that grade the offense by degrees if the homicide was also "deliberate" and "premeditated," as these terms are defined in subsection [C].
[B] Proving the Intent to Kill
[1] In General
[a] Natural-and-Probable-Consequences Rule
An intentional killing involves subjective fault. That is, the prosecutor must prove beyond a reasonable doubt that the defendant formed the actual intent to kill another person, rather than, simply, that a reasonable person would have known that her conduct would result in death.
How is this subjective fault proved? Absent a properly obtained confession, how does the fact finder "get into the head" of the accused? Often "intent to kill" is proved by means of a syllogism: (1) ordinary people intend the natural and probable (or "foreseeable") consequences of their actions; (2) the defendant is an ordinary person; and (3) therefore, she intended the natural and probable consequences of her actions.
When the probable consequence of a defendant's conduct is that another person will die, the preceding syllogism invites the jury to infer the requisite specific intent. For example, if D savagely beats V over the head with a baseball bat, which actions cause V's death, the prosecution may seek to prove that D intended to kill V by demonstrating to the jury (and emphasizing in closing arguments) that the probable consequence of such a beating was V's death; therefore, in the absence of evidence that D was not an ordinary person with an ordinary understanding of cause-and-effect, the jury may infer that D intended the natural and probable consequence of her conduct, i.e., V's death. But, ultimately, the factfinders must determine that she subjectively intended to cause death to a human being.
[b] Deadly-Weapon Rule
When a person kills another with a deadly weapon, proof of intent-to-kill is buttressed further. The more general proposition that a person intends the natural and probable consequences of her actions is supported by the somewhat more specific proposition that when she intentionally uses a deadly weapon42 or, more precisely, intentionally uses a deadly weapon directed at a vital part of the human anatomy, an intention to kill may properly be inferred.43 This is sometimes called the "deadly-weapon rule."
[2] Constitutional Limitation
In the past, judges instructed juries on the rules described above, by stating that, in essence, "the law presumes that a person intends the natural and probable consequences of her voluntary acts," or that "the law presumes that a person intends to kill another if she intentionally uses a deadly weapon on another."
Although it is permissible, even desirable, for jurors to draw common sense inferences from objective circumstances, a jury instruction of the sort just described violates the Due Process Clause of the United States Constitution. It is violative because the instruction requires or might cause a reasonable juror to shift the burden of persuasion regarding an element of the offense—here, intent—to the defendant, notwithstanding the constitutional rule that the prosecutor must prove every element of the crime beyond a reasonable doubt.44
[C] "Willful, Deliberate, Premeditated" Killings45
[1] Overview of the Issue
Nearly all states that grade murder by degrees provide that a "wilful, deliberate, premeditated" killing is murder in the first degree. Unfortunately, courts do not agree on the meaning of this phrase. One matter, however, is fairly clear: Although the term "wilful" has various definitions in the criminal law,46 in this context it means, simply, "a specific intent to kill."47
But what do the other two words—"deliberate" and "premeditated"—add to this, if anything? Presumably they should add something, or else why are these terms included in the murder statute? There are discredited judicial opinions in which both terms are expressly treated as superfluous, i.e., the phrase "wilful, deliberate, and premeditated" is understood to constitute, simply, the intent to kill.48 There are also courts that "consolidate the elements of premeditation and deliberation into a single element of 'premeditation,' "49 or de-emphasize the "deliberation" element.50 If that were not enough, as is explained more fully in subsection [3], courts disagree on how much time must elapse in order for it to be said that a person has "premeditated."
Properly understood, the legislative division of murder into degrees—wherein an intentional, deliberate, and premeditated killing is first degree, but one that is merely intentional is second degree—is meant to separate the most heinous forms of murder, which deserve the most severe penalties, from "those which, although 'intentional' in some sense, lack the gravity associated with first degree murders."51 To the extent that these three elements—intent-to-kill, deliberation, and premeditation—are not treated as separate, significant elements, the legislative line between first- and second-degree murder is lost.52
Some judicial opinions treat the terms "wilful," "deliberate," and "premeditated" as genuinely independent elements of first-degree murder.53 In these states, a significant line is drawn between, on the one hand, a spur-of-the-moment, albeit intentional, killing, and what lay people might describe as a "cold-blooded" killing, i.e., a homicide committed after calm and careful reflection by the wrongdoer, on the other hand. The view of these jurisdictions is that one who acts "cold-bloodedly" is "more dangerous, more culpable[,] or less capable of reformation than one who kills on . . . impulse."54
But is it true that a person who intentionally kills upon careful reflection is more dangerous or more culpable than one who acts impulsively? Premeditation and deliberation might only reflect "the uncertainties of a tortured conscience rather than exceptional depravity."55 Compare, for example, on the one hand, a person who impulsively pushes a child sitting on a bridge into the river to, on the other hand, a loving adult daughter who kills her terminally ill parent after long and careful consideration in order to end her parent's suffering.56 Under current law, if "premeditation" means anything, the impulsive killer is guilty of second-degree murder, and the mercy killer might be guilty of first-degree...
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