Homicide is a neutral term. It describes an act with no moral
judgment. Murder is the term that is non-neutral. It describes an act with moral
judgment. The law of homicide has the most complex degree (grading) system of
any area in Criminal Law. This grading system is reproduced below. The first two
(2) fall in a category called "perfect" defenses. The last four (4) fall in a
category called "imperfect" defenses. Perfect defenses always involve
justifications and excuses.
(1) Justifiable Homicides -- these are "no fault" homicides. They
ordinarily involve the death of someone under circumstances of necessity or duty
(commanded or authorized by law). Examples would be self-defense, capital
punishment, and police shootings.(2) Excusable Homicides -- these are misadventures, accidents, or acts of insanity. They ordinarily involve acts of civil fault, error, or omission. There's not enough fault to be criminal negligence. There's a legal defense to this act.
(3) 1st Degree Criminal Homicide (Murder) -- These are acts involving the death of someone in "cold-blood" or by "lying in wait". They are distinguishable by the MPC mental state of "purposely" which is defined in Homicide Law as having three (3) elements: (a) premeditated -- meaning fixed or obsessed; (b) deliberate -- meaning "cool"; and (c) malicious -- meaning scheming or clever. Also, the crime of felony murder (someone dies during commission of a felony) is automatically 1st degree homicide.
(4) 2nd Degree Criminal Homicide (Murder) -- These are acts involving the death of someone in the "heat of passion". It's basically a catchall category today for acts such as shooting bullets up in the air, but historically, a number of older terms were associated with this grade; terms such as the "year and a day" rule (for when the death had to occur) and the idea of "malice aforethought" (which meant wicked, evil, depraved, spiteful, or with depraved heart). Of these terms, only the phrase "depraved heart murder" is still used. Heat of passion murder doesn't require provocation, but it still requires proof of intent.
(5) Voluntary Manslaughter -- Manslaughter, in general, involves acts involving the death of someone without thinking. It involves "sudden passion". There's no premeditated deliberation. The requirement is "adequate provocation" and there's three (3) tests: (a) the person loses the ability to reflect cooly; (b) there's no sufficient time to cool off; or (c) the provocation must have caused action. Voluntary manslaughter is often what the jury will return as a verdict when they are deadlocked on the homicide charges. Historically, there's some interesting concepts associated with this grade, such as the in flagrante or paramour rule (which is the only exception to the mere words rule, which rules out words as provocation, if the spouse taunts).
(6) Involuntary Manslaughter -- This is the crime of Criminal Negligence, sometimes called misdemeanor manslaughter. It's the least serious offense in the law of homicide. It typically involves acts related to public safety, such as operating a motor vehicle, railroad, or bus. Specifically, it involves the careless use of firearms, explosives, animals, medicine, trains, planes, ships, and automobiles. Many states have sorted out a separate category called Vehicular Manslaughter for cases involving automobiles. It's also interesting to know that, by tradition, most prosecutors will draw the line at this point (meaning it's all they'll prosecute for) for cases of corporate crime.
Premeditated Deliberation:
This is the idea of planned in advance, coolness. There's some inconsistency in definition, but the phrase generally refers to anything "cold-blooded". It's defined as "a careful thought and weighing of consequences, a judgment or plan, carried out cooly and steadily, according to a preconceived plan". "Planning" in the long-term is NOT required. A few seconds will suffice at law, as long as there's sufficient maturity and mental health. There's also something called the deadly weapon doctrine which allows the inference of intent if a deadly weapon is used.
Adequate Provocation:
This is the idea of extenuating circumstances. Only certain kinds of circumstances will reduce the crime in terms of degree. The reasonable person standard is used to determine if there's a reasonable belief in being of danger of losing one's life or suffering great bodily harm. The law on this point also recognizes the frailty of human nature (reacting without thinking). The following table might be instructive by giving examples of adequate provocation:
Adequate:
|
Inadequate:
|
| serious fights | scuffles |
| sudden passion with no time to cool off | slapping or shoving |
| pistol whipping, fists in face, staggering body blows | insulting gestures |
| waiving a gun around | abusive words |