Murder
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Murder is the illegal killing of one human being by another. Murder is generally distinguished from other forms of homicide by the elements of malice aforethought and the lack of justification. All jurisdictions, ancient and modern, consider it a most serious crime and impose a severe penalty for its commission.
Sometimes, murder is used to describe what is really a homicide. While the two terms are related, they are not synonymous. Relatively few homicides are murders in law. Also, police will often call their investigation into a murder a homicide investigation in order not to prejudice any findings of the investigation, possible charges that could be laid, or any conviction of an offender. However, the crime will normally be identified as a murder once there is sufficient evidence to indicate that a murder is the more likely crime than any other. In most jurisdictions, murder entails intent (e.g. planning), lack of a lawful excuse (e.g. self defense or insanity) and malice (e.g. not just surgery gone wrong).
The term murder may also be applied more colloquially, especially to describe an activity that was difficult, dangerous or unpleasant, or a particularly bad artistic or sporting performance.
Legal definition
As with most legal terms, the precise definition of murder varies between jurisdictions and is usually codified in some form of legislation.
In some jurisdictions, murder is a common law crime, considered so wrong that there is no need for any legislation to define it. In such jurisdictions precedent (case law or previous decisions of the Courts of Law), define what is considered murder.
It is often expressed as the unlawful killing of another human being with "malice aforethought." However, the element of malice may not be required in every jurisdiction, though intent normally is.
- The element of malice aforethought can be satisfied by an intentional killing, which is considered express malice.
- Malice can also be implied in deaths that occur by extreme recklessness or during certain serious crimes.
Exclusions
- Unlawful killings without malice or intent are considered manslaughter.
- Justified or accidental killings are considered homicides. Depending on the circumstances, these may or may not be considered criminal offenses.
- Suicide is not considered murder in most societies because the offender and the victim are one and the same. However, assisting a suicide may be considered murder in some circumstances.
- Capital punishment ordered by a legitimate court of law as the result of a conviction in a criminal trial with due process for a serious crime.
- Killing of enemy combatants in accordance with lawful orders in war, although illicit killings within a war may constitute murder or homicidal war crimes.
Victim
Most jurisdictions require that the victim be a natural person; that is a human being that has been born and was still alive at the time of being killed.
Some also consider killing a fetus or unborn child to be murder, though, legally, most jurisdictions distinguish this act as a different crime, such as illegal abortion of a fetus, or the unlawful killing of an unborn child. The distinction between a fetus and an unborn child often being that a child could survive if it had been born, while a fetus could not.
Offender
Almost all jurisdictions require that the offender be a natural person. Where a corporate legal entity, such as a business, is involved, each person involved is considered a separate offender, but the corporate entity is not considered an offender.
Mitigating circumstances
Most countries allow conditions that "affect the balance of the mind" to be regarded as mitigating circumstances. This means that a person may be found guilty of "manslaughter" on the basis of "diminished responsibility" rather than murder, if it can be proved that the killer was suffering from a condition that affected their judgment at the time. Depression, post-traumatic stress disorder and medication side-effects are examples of conditions that may be taken into account when assessing responsibility. Shooting someone below the waist is not considered attempted murder in some Jurisdictions
Insanity
Mental disorder may apply to a wide range of disorders including psychosis caused by schizophrenia, and excuse the person from the need to undergo the stress of a trial as to liability. In some jurisdictions, following the pre-trial hearing to determine the extent of the disorder, the verdict "not guilty by reason of insanity" may be used. Those who successfully argue a defense based on a mental disorder are usually referred to mandatory clinical treatment until they are certified safe to be released back into the community, rather than prison.
Provocation
Some jurisdictions permit the defense of provocation, reasoning that being provoked has diminished the offender's self-control and thus their balance of mind. Provocation may form part of a defense of temporary insanity, especially in jurisdictions that do not explicitly allow this defense.
Self defense
Acting in self defense or in defense of another person is generally accepted as legal justifications for killing a person in situations that would otherwise have been murder.
Unintentional
For a killing to be considered murder there normally needs to be an element of intent. For this argument to be successful the killer generally needs to demonstrate that they took precautions not to kill and that the death could not have been anticipated or was unavoidable, whatever action they took.
Year-and-a-day rule
In some common law jurisdictions, a defendant accused of murder is not guilty if the victim survives for longer than one year and one day after the attack. This reflects the likelihood that if the victim dies, other factors will have contributed to the cause of death, breaking the chain of causation. Subject to any statute of limitations, the accused can still be charged with an offense representing the seriousness of the initial assault. With advances in modern medicine, most countries have abandoned a fixed time period and test causation on the facts of the case.
In the
The United States
In the United States, the principle of dual sovereignty applies to homicide, as to other crimes. If murder is committed within the borders of a state, that state has jurisdiction. If the victim is a federal official, an ambassador, consul or other foreign official under the protection of the United States, or if the crime took place on federal property or involved crossing state borders, or in a manner that substantially affects interstate commerce or national security, then the Federal Government also has jurisdiction. If a crime is not committed within any state, then Federal jurisdiction is exclusive: examples include the District of Columbia, naval or U.S.-flagged merchant vessels in international waters, or a U.S. military base. In cases where a murder involves both state and federal jurisdiction, the offender can be tried and punished separately for each crime without raising issues of double jeopardy.
Modern codifications tend to create a genus of offenses, known collectively as homicide, of which murder is the most serious species, followed by manslaughter which is less serious and ending finally in justifiable homicide, which is not a crime at all. Because there are 51 jurisdictions, each with its own criminal code, this section treats only the crime of murder, and does not deal with state-by-state specifics.
At base, murder consists of an intentional unlawful act with a design to kill and fatal consequences. Generally, an intention to cause great bodily harm is considered indistinguishable from an intention to kill, as is an act so inherently dangerous that any reasonable person would realize the likelihood of fatality. Thus, if the defendant hurled the victim from a bridge, it is no defense to argue that harm was not contemplated, or that the defendant hoped only to break bones.
Murder is the killing of human being with malice pretense. Malice can be expressed (intent to kill) or implied. Implied malice is proven by acts that involve reckless indifference to human life or in a death that occurs during the commission of certain felonies (the felony murder rule). The exact terms of the felony murder vary tremendously from jurisdiction to jurisdiction. Sentencing for murder in the
Degrees of murder
Before the famous case of Furman v. Georgia in 1972, most states distinguished two degrees of murder. While the rules differed by state, a reasonably common scheme was that of Pennsylvania, passed in 1794: "Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree."[16] "Murder one", as the term was popularized by novels and television, carried a penalty of death, or life in prison, while the penalty for "murder two" was generally around 80 years in prison. After the Supreme Court placed new requirements on the imposition of the death penalty, most states adopted one of two schemes. In both, third degree murder became the catch-all, while first degree murder was split. The difference was whether some or all first degree murders should be eligible for the most serious penalty (generally death, but sometimes life in prison without the possibility of parole.).
- The first scheme, used by Pennsylvania among other states:
1. First Degree Murder: All premeditated murders, and (in some states) murders involving certain especially dangerous felonies, such as arson or rape, or committed by an inmate serving a life sentence.
2. Second Degree Murder: Non pre-meditated killing.
3. Third Degree Murder: Any other murder.
- The second scheme, used by New York among other states, as well as the Model Penal Code:
1. First Degree Murder: Murder involving special circumstances, such as murder of a police officer, judge, fireman or witness to a crime; multiple murders; and torture or especially heinous murders. Note that a "regular" premeditated murder, absent such special circumstances, is not a first-degree murder; murders by poison or "lying in wait" are not per se first-degree murders. First degree murder is pre-meditated.
2. Second Degree Murder: Any premeditated murder or felony murder that does not involve special circumstances.
Some states, such as California, simply preserved the old distinction between two degrees and have no offense called third degree murder. They simply have "first-degree murder" (leading to life in prison with a possibility of parole) and "first-degree murder with special circumstances" (leading to death or life without the possibility of parole), while second-degree murder continues to be the default category (punished by life in prison with a shorter term until parole eligibility).
Other states use the term "capital murder" for those offenses that merit death, and the term is often used even in states whose statutes do not include the term. As of 2006, 38 states and the federal government have laws allowing capital punishment for certain murders and related crimes (such as treason and terrorism). The penalty is rarely asked for and more rarely imposed, but it has generated tremendous public debate. See also capital punishment and capital punishment in the United States.
Murder of a fetus
Fetal homicide laws in the
Under the common law, if an assault on a pregnant woman resulted in a stillbirth, it was not considered murder; the child had to have breathed at least once to be murdered. Remedies were limited to criminal penalties for the assault on the woman, and a tort action for loss of the economic services of the eventual child and/or emotional pain and suffering. With the widespread adoption of laws against abortion, the assailant could of course be charged with that offense, but the penalty was often only a fine and a few days in jail.
When the Supreme Court greatly restricted laws prohibiting abortions in its notable Roe v. Wade decision (1973) even those sanctions became harder to use. This, among other factors, meant that a more brutal attack, ensuring that the baby died without breathing, would result in a lesser charge. Various states passed "fetal homicide" laws, making killing of an unborn child murder; the laws differ about the stage of development at which the child is protected. After several well-publicized cases, Congress passed the Unborn Victims of Violence Act, which specifically criminalizes harming a fetus, with the same penalties as for a similar attack upon a person, when the attack would be a federal offense. Most such attacks fall under state laws; for instance, Scott Peterson was convicted of murdering his unborn son as well as his wife under Californian pre-existing fetal homicide law.
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