Chapter 7 Offenses, Charges, Pleadings, and Defenses

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 7 Offenses, Charges, Pleadings, and Defenses

Under the original English law, murder was the unlawful and intentional killing of another human being. Not all intentional killings of another are unlawful. Exceptions were for "lawful" killings such as killing of the enemy during armed conflicts, self-defense, and the King's henchman hanging a guilty murderer pursuant to a death warrant. The intentionality element came to be called "malice aforethought," although "premeditation" was not an element under common law.

As with most crimes, the criminal statutes determine the definition and elements of "murder" in each jurisdiction. We often hear on television phrases such as "premeditated murder," "first-degree murder," or "second-degree murder." Even so, many jurisdictions do not use such terms and in some jurisdictions "premeditation" is simply not an element of murder nor mentioned in any homicide statute. In such jurisdictions, evidence of premeditation would still be admissible as motive evidence, even though premeditation is not an element of the homicide offense.¹ In the hierarchy of charges, whether the highest homicide offense is called "capital murder," "aggravated murder," "premeditated murder," "murder in the first degree," or simply "murder," the name of the principal murder offense and the elements are established by statute.²

Murder and Mens Rea

It is important to understand the mens rea, or state of mind, of the murder offense. In some jurisdictions the mens rea of murder may be "premeditation" or "malice" or some combination of those concepts.³ In others, it will be "knowing or intentional" or similar language.⁴ Another mens rea of murder (or of manslaughter depending on the jurisdiction's statutes) may be "extreme indifference to human life."⁵ "Extreme indifference" has, in some jurisdictions' cases, been referred to as "depraved heart." The nuances of what conduct constitutes "premeditation," "knowing," "intentional" or "extreme indifference to human life" may be found in case law. An Alaska case law explains extreme indifference to the value of human life as follows: "[A]n act 'performed under circumstances manifesting an extreme indifference to the value of human life' is an act which creates a very high degree of risk and which exhibits an extreme disregard of social duty. It must be more than a criminally negligent act and more than a reckless act. . . . [A]n example of conduct covered by this provision would be shooting through a tent under circumstances [where] the defendant did not know a person was inside or persuading a person to play [R]ussian roulette. . . . The defendant is only required to knowingly perform the act; there is no requirement that he intend[s] to cause death or that he knows that his conduct is substantially certain to cause death."⁶

Aggravated or Capital Murder Differentiated from Murder

In the jurisdictions that have the death penalty, the highest offense under the homicide laws is punishable by death. The highest murder offenses in these jurisdictions might be called "aggravated murder" or "capital murder" to differentiate the death-penalty offense from "murder" (the non-death penalty offense).⁷ Alternatively, there might simply be a separate statute listing the "aggravating factors" which, if proven in addition to the elements of murder, will increase the potential penalty to death.⁸ (The application of aggravating factors is discussed in Chapter 17, Sentencing.) In several of the death penalty jurisdictions, one or more of the aggravating factors listed in the statute must be pleaded and proven as an element of the offense before one proceeds to the penalty phase in order for the death penalty to be considered. If no aggravating factor is proven in the case-in-chief, but the murder is proven, then the finding is murder and no death penalty will be considered. In other jurisdictions, the aggravators must be proven during the bifurcated sentencing phase. In the federal system, there must be a finding of either premeditation or qualifying felony murder in the guilt phase. The aggravators are then addressed only in the sentencing phase. They are not elements of the offense or defined as such, and do not have to be established in the case-in-chief, although proof of them can usually be shown, if relevant.

Lesser Offenses: Manslaughter

The crime of manslaughter is usually classified immediately below the murder offenses. Under many manslaughter statutes, the crime is committed when an actor unlawfully kills another, but does not have the mens rea that would constitute murder. Manslaughter generally does require more than simple criminal negligence. Quite often, an attempt to inflict grievous bodily (or serious physical) injury that results in death will constitute manslaughter.⁹ In many statutory schemes, an offense is reduced from murder to manslaughter if the act of killing was committed while the actor was under the influence of "extreme emotional disturbance."¹⁰ If the jury finds that the killing was the result of "extreme indifference to human life," such will often constitute the criminal offense of manslaughter.¹¹

The defense of "extreme emotional disturbance" can cause interesting charging and burden of proof issues. That is because when the prosecution has filed a murder charge, the elements of murder do not include an element of "extreme emotional disturbance"—it is simply not an element that has been pleaded. Further, it is the defense in such a case that may set out to prove "extreme emotional disturbance" in order to establish that the offense is manslaughter and not a murder. Some statutes refer to "extreme emotional disturbance" as an affirmative defense, while others specifically provide that if "extreme emotional disturbance" is raised then the prosecution must disprove the existence beyond a reasonable doubt. "Extreme emotional disturbance" is more fully discussed in Chapter 11, Mental Defenses and Mental Health Issues.

Some manslaughter statutes differentiate between "voluntary" manslaughter and "involuntary manslaughter."¹² The differences are highly dependent upon the statutory provisions. Just because manslaughter is a lesser offense of murder, one must not assume that the manslaughter offenses are necessarily a lesser included offense of a charge of murder. It may depend upon the elements of the murder that has been charged and the elements of the manslaughter statute in the jurisdiction.¹³

Lesser Offenses: Criminally Negligent Homicide and Other Homicides

Usually, "criminally negligent homicide" is a lesser offense of manslaughter.¹⁴ Some states may call negligent homicide "reckless homicide."¹⁵ However, some states just lump in negligent homicides with the manslaughter statute.¹⁶

Some states classify causing the death of another while driving under the influence as a negligent homicide offense.¹⁷ Others have a separate statute specifically addressing vehicular homicide.¹⁸ A few states have statutes that cover very specific kinds of homicide that in most state schemes are absorbed into the general manslaughter or negligent homicide statutes. An example is Rhode Island's statute that provides life imprisonment for causing the death of a minor by providing illegal drugs.¹⁹ Another example is a statute criminalizing homicide that is the result of texting while driving.²⁰

Aiding, Abetting, Accessories, Coprincipals, and Felony Murder

Many states have laws addressing principles of culpability that criminalize the conduct of knowingly helping, procuring, commanding, or directing someone else to commit a crime. Examples include statutes concerning aiding or abetting, accessories (sometimes called "accessories before the fact"),²¹ or soliciting or requesting another to commit an offense. Sometimes the statute classifies those who assist the main criminal, and share the intent to commit the crime, as a "coprincipal" or a "party to the offense" or simply states that the assistant is guilty of the principle offense.²²

What happens, however, when the crime is inherently dangerous, such as armed robbery, and shooting of the bank guard is a spur-of-the moment act that was not planned—or was accidental? Jurisdictions often have statutes that address such a situation, codifying a common law rule known as the "felony homicide rule." Many felony murder statutes address the mens rea of the killer and do not require a mens rea of any intent to kill if the killer was intentionally engaged in an inherently dangerous felony at the time the killing occurred. Under a felony murder rule, two things typically happen: (1) what might have been manslaughter is escalated to a murder if the killer was engaged in an inherently dangerous felony, and (2) an accomplice is equally guilty of murder if the killing occurred during the felony. These "inherently dangerous felonies" are specifically listed in the felony murder statute of the jurisdiction. Take for example, the Pennsylvania statute that makes felony murder a murder of the second degree:

Chapter 25. Criminal Homicide (a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree.—A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony (emphasis added).
(c) Murder of the third degree.—All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
(d) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:

. . .
"Intentional killing." Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.
"Perpetration of a felony." The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt

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