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Useful Notes / Three Degrees of Murder

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The slaying of one human being by another. There are four kinds of homicide: felonious, excusable, justifiable, and praiseworthy, but it makes no great difference to the person slain whether he fell by one kind or another — the classification is for the advantage of the lawyers.

Homicide, in the American legal system, falls into a variety of categories. In the appropriate shows, you will hear references to first-degree murder very often, and second-degree murder quite often. "Third-degree" murder may come up or may be referred to as "manslaughter" (which can be "voluntary" or "involuntary"). Usually no relation to the Six Degrees of Kevin Bacon.

Mr. Bierce's definition above is outdated but still correct on one point: in all cases, the end result is that the victim died as the result of the actions of another (if there is no cause-and-effect link whatsoever between one's actions and another's demise, what you have on your hands is not a homicide). Where things get interesting is the state of mind (mens rea) that went into the actions of another.

The precise delineation of the degrees of murder is extremely dependent on where the case is set. In the US, for instance, each State has its own murder statute AND the Federal government has yet anothernote . Even with the limited number of places police procedurals are set, there will not be perfect consistency among the local definitions of the three degrees of murder. If the writers didn't do their research, or more forgivably, did their research for one state but not for their target setting, these may be even more inconsistent.

However, the basic grouping of definitions will be similar:

  • First-degree murder will either be the higher-degree murder or be the higher-degree murder with aggravating factors. Knowing the difference in your setting is life-or-death.
  • Second-degree murder is either the lower-degree murder, or the higher-degree murder without any aggravating factors. Second-degree murder, depending on the jurisdiction, could carry a huge array of penalties, from life in prison to just a few years, but never the death penalty.
  • "Third-degree" murder is either manslaughter or lower-degree murder in states that make the aforementioned distinction about aggravating factors. Depending on local laws, prosecutor zealousness, prison overcrowding, caseload, the notoriety of the case, and the victim, the penalties at this level might vary between very serious (forty years isn't life, but it's still a long time) and alarmingly non-existent (there are jurisdictions that give probation for these crimes).

Please note: these are traditional categories, based on varying codifications of The Common Law of crimes. Many states today apply the Model Penal Code (e.g. New Jersey) or a variation on it (e.g. New York), which is a bit more straightforward:

  • Murder is generally where the homicide was committed purposely or knowingly (with one exception), terms of art which mean (respectively):
    • That the death of the victim was the defendant's "conscious object" (i.e. they meant to kill the victim).
    • That the defendant was aware that their actions would almost certainly result in the death of the victim (i.e. they didn't necessarily mean to kill the victim, but meant to do the thing that killed the victim and knew that the victim would die).
    • There is also the possibility that someone who commits homicide "recklessly" (a crime normally considered manslaughter; see immediately below) may also be murder if committed "under circumstances manifesting extreme indifference to human life." This is distinguished from "knowingly" thusly: if, in trying to steal something from a building, you cut a cord that you know will drop a chandelier on a specific individual, it's "knowingly." If, on the other hand, you don't know if anyone is under the chandelier but you are aware that the room is crowded and likely to fall on and kill someone, that's "recklessness under circumstances manifesting extreme indifference to human life."
      • The felony-murder rule is subsumed into this by creating a statutory presumption that such indifference exists when death results during the commission of/attempt of/escape from one of a very narrowly defined list of crimes. This very narrow interpretation of the felony murder rule exists chiefly because the original drafters of the MPC would really rather have done away with it entirely, but decided that the Code wouldn't be accepted if they left felony murder out.
  • Manslaughter is generally when the homicide was committed recklessly, meaning that the defendant consciously ignored a "substantial and unjustifiable risk" that the victim's death would result from their actions. This is what in the traditional common law of crimes is called "involuntary manslaughter"; as the term implies, it is almost always accidental. MPC manslaughter also includes cases where it was committed "knowingly" but the defendant was severely disturbed mentally or emotionally; this is equivalent to the traditional, common-law crime of "voluntary manslaughter."
    • Different but sometimes overlapping the above is "vehicular manslaughter" which means that the fatality happened in an incident directly involving a (usually motorized) vehicle of some sort. (There have been people charged for vehicular manslaughter by bicycle in the US, such as this case from San Francisco in 2013, but not many.) Air crash and car crash fatalities are sometimes referred to as cases of vehicular manslaughter as a result, but the term's use admittedly is somewhat inconsistent.
  • Negligent homicide is where the homicide was committed negligently, meaning that the defendant should have known about a "substantial and unjustifiable risk" that the victim's death would result from their actions, but didn't. This is generally stuff like "you backed out of your driveway without looking in the rear-view mirror and now the kid playing in the street behind you is dead."

Under the MPC, all offenses are explicitly classified as felonies (punishable by over one year's incarceration), misdemeanors (punishable by not more than one year's incarceration), petty misdemeanors (punishable by not more than 30 days' incarceration), or violations (not punishable by incarceration).note  Felonies are themselves rated as being of the first (maximum life imprisonmentnote ), second (maximum 10 years), or third (maximum five years) degree. (Some jurisdictions, like New Jersey,note  add a fourth-degree, maximum 18 months). All these classifications deal strictly with the methods and limits of sentencing if convicted. By the MPC's terms, murder is a first-degree felony, manslaughter a second-degree felony, and negligent homicide a third-degree felony.

Higher-degree Murder

The higher-degree murder is based on the most criminally guilty state of mind, intent. In a classical definition, expect to hear phrases like "by poison" or "by lying in wait"; these phrases are at times buried deep within the law, but they are true classics. Many jurisdictions dating back to English common law require that this level of state of mind be demonstrated through premeditation, but this doesn't necessarily mean what you think: some appellate courts have the opinion that premeditation can be basically instantaneous (i.e., between the time you put your finger on the trigger and the time you pull it). Also, as far as the law is concerned, it does not matter who you intended to kill; if you intended to kill, and someone died, it still counts as first-degree murder.

Furthermore, asking someone else to commit the murder for you is no legal defense; soliciting a murder or paying for it is either the exact same crime as murder or carries the exact same penalties (assuming someone actually died; otherwise, it's the exact same crime as attempted murder or carries the exact same penalties).

Depending on the jurisdiction, the following would probably be the higher-degree murder:

  • Bob plans to kill Alice. Bob shoots Alice. Alice dies.
  • Bob plans to kill Charlie. Bob shoots at Charlie, Charlie ducks, Alice is shot instead. Alice dies.
  • Bob fires a pistol into a crowd of people. Alice is hit. Alice dies. If this happens, expect to hear something like "depraved indifference to human life".

More specifically, intent (dolus) can itself be classified into three degrees:

  • 1st. degree: Bob wants Alice dead, Bob kills Alice.
  • 2nd. degree: Bob wants Alice's life insurance. Bob kills Alice to get it.
  • 3rd. degree: This is the tricky one. In some jurisdictions, an act is considered to be intentional if the act could have resulted in harm (in this case, someone's death), the person in question knows this, and would have performed the action even if harm was certain.

Note that these degrees of intention play no role in sentencing: 3rd. degree of intention counts as much as 1st. degree when determining the degree of murder. Intent only matters in "Is this murder or manslaughter?" situations.

For extra credit, these count in some jurisdictions, too:

  • Bob testifies that Alice killed Charlie. Alice is executed for the murder of Charlie. It turns out that Alice was innocent and Bob perjured himself, and while Bob didn't kill Charlie eithernote , his testimony helped get Alice executed.

Highest-degree Murder: Aggravating Factors

Some US states employ the death penalty. Since the Supreme Court has ruled in a number of cases on exactly how the death penalty can not be applied, only a very few methods are left by the process of elimination. Formerly, any murder cases would be eligible for the death penalty, with the judge (or jury, depending on the jurisdiction) deciding whether a given case merited capital punishment. The Supreme Court noted that this tended to cause certain inconsistencies, and required that if states were going to have a death penalty, they would have to have clear guidelines on what sorts of murders qualified for the death penalty. Not every American state has a death penalty, and many which legally allow for a death penalty have not in fact ever used it since capital punishment was reinstated in America in 1976, but those that do must delineate between degree murders that cannot receive the death penalty and those that might. These are called "aggravating factors" and must come from a legally defined list; they are balanced by "mitigating factors", which state laws can suggest but can be open to anything the jury is willing to consider.

Again, depending on the state, a murder with these aggravating factors might be called "first degree", or "first degree with aggravating factors", or just "capital murder". However, the basic concept of these factors separating a premeditated murder that can get you executed and a pre-meditated murder that cannot remains the same.

Drawing as an example from Colorado's state law, which has executed people since 1972, but not many of themnote :

  • Bob murders Alice, who was a police officer, firefighter, judge, former judge, hearing officer, elected official, or federal agent, and Bob killed Alice knowing Alice was one of these and for reasons relating to Alice being one of these.
  • Bob murders Alice, who was Bob's hostage.
  • Bob murders Alice, by means of an ambush.
  • Bob murders Alice, using explosives or incendiary devices.
  • Bob murders Alice, while Bob was already in prison for another serious offense.
  • Bob murders Alice, and Bob had previously been convicted for murdering Charlie.
  • Bob murders Alice because there's money in it for him somehow.note 
  • Bob murders Alice, and in the process very nearly killed Charlie.
  • Bob murders Alice, and did so in such a way that local juries would consider "heinous, cruel, or depraved".
  • Bob murders Alice, who was a witness to a crime.
  • Bob murders Alice and Charlie in the same incident, and his mindset is otherwise like the higher-degree murder.
  • Bob murders Alice, who was under twelve years old.
  • Bob murders Alice, because Bob had an issue with Alice's race, color, ancestry, religion, national origin, or sexual orientation.
  • Bob murders Alice, using a weapon that is a felony in and of itself just for Bob to have in the first place.

There are also mitigating factors, which lessen the severity.

  • Bob has no criminal record.
  • Alice was abusing Bob.
  • Bob's pretty young - like 18-25. note 

A mitigating factor can be anything the jury believes makes a murder less severe.

Additionally, since the abolition of the three-judge panel in Ring v. Arizona, the only constitutionally permissible method for imposition of the death penalty is in a bifurcated trial. This means that, after the jury has entered a verdict of "guilty" for a first-degree murder note , the trial moves to a second phase, where the elements of the murder are no longer on trial, but instead the aggravating and mitigating factors. The prosecution and defense usually pull out all the stops here, with emotional teary-eyed relatives of the murder victim and emotional teary-eyed relatives of the murderer, psychologists and sociologists offering expert testimony, and the closing remarks by attorneys ideally getting quite poignant. The jury then must enter a verdict of death or life.

As an aside note, with any trial that could be bifurcated, the prosecution must announce in advance whether they will seek the death penalty. That means, at the time of juror selection, the prosecution must account for the fact that any jurors selected to decide whether the defendant is guilty must also be able to "impartially" decide whether the defendant, if guilty, should die. A potential juror who is capable of being impartial about guilt, yet is opposed to the death penalty on principle, must therefore be disqualified. The resulting jury, consisting only of jurors willing to impose the death penalty if it comes up, is called "death-qualified"; and studies show that death-qualified juries are more willing to convict on the same evidence than non-"death-qualified" juries. Take from that what lesson you will.

The Felony Murder Rule

This one varies by jurisdiction. The basic "rule" is that, if while committing any other felony, someone dies as a result of the crime, everyone involved in the felony can be considered culpable for the death of that person as a murder. This is most often done by prosecutors as a way of having the easiest to prove case at trial: felony murder eliminates the requirement for the prosecution to prove the element of mens rea respecting the killing so long as the mens rea and other elements of the basic felony are proved—and the latter tends to be rather easier.

  • Bob and Charlie plan to rob a bank. Alice, the teller, sounds an alarm. Charlie panics and shoots Alice dead. Bob can be charged under the felony murder rule. If Bob doesn't want to risk life in prison or possibly lethal injection over Charlie's stupidity, his best option is to immediately turn on Charlie, abandon the crime, and surrender to the authorities at once, which may cover him from the felony murder but not from the robbery.
    • What is not certain is what degree of murder Bob and Charlie will go down for; it varies by jurisdiction, and the law may even provide for different degrees of murder based on the nature of the underlying felony. Some jurisdictions use the felony murder rule as a shortcut to a higher degree of murder, allowing Charlie to be charged with the higher degree of murder even if he apparently acted "in the heat of the moment", others use it to broaden the net, allowing Bob to be charged for a murder even if he did not commit the killing or ever intend for it to happen.

Under some interpretations of the law, the following scenario could occur:

  • In the aforementioned bank-robbery scenario, the police storm the bank in an effort to free the hostages. Charlie is standing in front of another teller, Joe. Charlie opens fire on the police, and their return fire kills both Charlie and Joe. Under these circumstances, it is possible for Bob to be charged with felony murder under US federal law. However, some states require that it is only felony murder if the person doing the killing was a co-felon—i.e. one of the accomplices.

Under the loosest definitions, any death for any reason counts if the crime made death at all foreseeable. Some states limit it to deaths somehow caused by the crime itself, or to only crimes that are inherently dangerous.

  • In the above bank robbery scenario, Joe gets scared and has a heart attack and dies. Bank Robbers Charlie and Bob can be charged with Felony Murder.
  • Bob and Charlie rob convenience store owner Joe. Joe manages to get to a gun and kills Charlie. Bob can now be charged with Felony Murder, because if he and Charlie had not tried to rob the convenience store, no one would have died. The fact that Joe is the actual killer is irrelevant. (Bob's and/or Charlie's lawyers can counter-sue, but heaven only knows if the charges will stick.)
    • This also only applies in certain states.

Note that this rule is the subject of great controversy. Because any felony can serve as the basis for a felony-murder conviction, it can have some odd consequences. The drafters of the Model Penal Code noted that because it is a felony in most states to sell a visibly drunk individual alcohol, if the drunk drinks himself to death or crashes his car and kills himself or other people, the liquor store shopkeeper or bartender who gave the drunk the booze might be criminally liable for murder under the traditional felony-murder rule. Obviously such a result is repulsive; it becomes more so when you realize that the cases that this is supposed to cover—such as the classic armed-robbery scenario — could easily get murder convictions on the grounds of "depraved indifference." Opponents of the rule describe it as a prosecutor's easy way out, and even legal scholars who don't advocate for its abolition are quite wary of it. As a result of this wariness, the MPC includes a very narrow version of the rule that makes it a species of "depraved indifference"; one state (New Mexico) has modified it in a manner that makes it more or less useless; and three states have abolished it entirely (Hawaii and Kentucky by legislative enactment, Michigan by judicial decisionnote ).

Lower-Degree Murder

Something along the lines of intent is missing. In jurisdictions where the "instantaneous premeditation" reasoning is not acceptable, the murder may have been in "the heat of the moment" (which will mean different things in different jurisdictions to different judges). Alternatively, the murderer may only have intended injury, but was a little too successful. It is not uncommon for people to be convicted of this degree of murder where the facts would seem to support a higher degree; this may be as a result of a plea bargain or because a jury chose to convict on a lesser offense (feeling that the killing, while wrong, wasn't that wrong, for instance).
  • Bob becomes enraged at Alice, and shoots her dead on the spot. The court may find Bob guilty of this degree of murder.
    • The court may also find that Bob, while perhaps subjectively angry, acted beyond what any reasonable person would do in that level of provocation. Bob may get the stronger degree of murder instead.
    • Or the court may find that, while wrong, the provocation was severe enough that a reasonable person would be induced to kill, and bump it down to voluntary manslaughter (below).
    • Or the court may find that the provocation was so severe that a reasonable person would not find Bob to be in the wrong in acting this way, and Bob gets off altogether. In fiction and potentially in life, this may be a good thing or a bad thing where justice is concerned.
  • Bob strikes Alice in the back with a baseball bat, intending to injure her. Alice's spine is broken and she dies. Bob will probably get this degree of murder.
  • Bob shoots Alice in the face with a shotgun, intending to injure her. She dies. Bob will probably get the higher degree of murder, because the level of force Bob uses gives the lie to his true intent.
  • Bob kills Alice with the intent to kill. However, the opinion of her fellow human beings in that jurisdiction is that Alice kind of had it coming.
    • Legally, Bob should get the higher-degree of murder.
    • However, in real life and fiction, a plea deal may be offered, and Bob may plead guilty to this degree of murder.
    • Or, in real life and fiction, the jury may choose to only convict on a lower degree of murder, because they feel that what Bob did to Alice was wrong, but not as wrong as if he had done it to Charlie, by all accounts a much better person.
      • Legally, the jury is not allowed to consider what might have happened to other people, only the facts in evidence. Realistically, juries do try the victim, all the time. Prosecutors, defense attorneys, and judges all know this, though.
  • Bob kills Alice with the intent to kill, but in such a way that intent cannot be proven beyond a reasonable doubt according to the facts in evidence. As with the point immediately above, cases like these tend to be controversial, though the jury is on a much stronger legal ground.


Someone died as a result of another's actions, but either there was no intent to kill/injure (not even "heat-of-the-moment" intent) or the prosecution doesn't think they can prove that intent (for example, being at fault in a car accident which ended up killing someone). This may be called "voluntary" and "involuntary" manslaughter, or less classical terms such as "criminally negligent homicide". The fine points get very specific and technical, but for troper purposes, a manslaughter case will not usually come up in your average crime show because they are usually dramatically uninteresting (except for those directly impacted). Manslaughter will frequently show up in a Procedural, however, generally as part of a plea bargain (though sometimes the prosecutor will go for manslaughter if he doesn't think he can get the murder conviction).

Voluntary Manslaughter:

  • Bob hits Alice with a baseball bat in the head, not intending to kill her. Alice dies of a blood clot.
  • Bob becomes enraged at Alice, and shoots her dead on the spot. But, the provocation was severe enough that a reasonable person would have been driven into a killing rage.note 
  • Bob believes that Alice is pointing a gun at him, and shoots her. Alice was just getting her phone out of her purse, and the court finds that a reasonable person would have checked before shooting. (This one varies a lot by jurisdiction.)

Involuntary Manslaughter

  • Alice attempts to fix Bob's heating system to save money. Bob dies of carbon monoxide poisoning because of a mistake she made.

Misdemeanor Murder Rule, usually a form of involuntary manslaughter combined with felony murder. Essentially a death happens during the commission of a misdemeanor or as the result of a misdemeanor.

  • Alice vandalizes Bob's car. Bob chases after her and trips, hitting his head and dying.