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Malice Aforethought: Legal Definition & Examples

Instructor: Kenneth Poortvliet
Malice aforethought is the conscious, premeditated intent to kill another human. A prosecutor must prove this level of intent before someone can be convicted of first degree murder. This lesson will explore the meaning of malice aforethought and provide examples of how it is used.

A man kills another man. He planned for months, bought a weapon, trained and then executed his plan in a cold, heartless manner. Another man accidentally shoots his neighbor while cleaning his gun. Both men took another person's life. What if the judge gave them both the same sentence? If they both got a year? Life without parole? Death penalty? It this fair? Let's take a look.

Malice Aforethought must be proven in all death penalty cases.
Electric Chair Death Penalty

Is Homicide Always Wrong?

Homicide is one person taking the life of another, and doing so unlawfully is criminal homicide. There are times when taking a life is not a crime. A police officer in the line of duty, war, self-defense. This is called justification. Basically, you took a life but did so with a good and legal reason. For example: You come home and find someone in your home and he pulls a knife on you. You step between him and your spouse and child and pull your gun and shoot him. Since you have the right to self-defense, it's considered justified. It was still a homicide, but a justified one.

Just How Guilty is the Killer's Mind?

In our first example, we compared two killings. One accidental, the other premeditated. It's obvious that the two killers were in a much different mental state, so shouldn't that be taken into account? The answer is, of course, yes. The law requires that the court looks at the mind of the killer and determine the degree of his or her intent to kill. This is referred to as mens rea which is a Latin term that means 'guilty mind' or 'evil intent'. Thus the intent of the killer will determine his or her charge and punishment.

The law looks at four levels of a person's guilty mind to determine the seriousness of the charge. These are: negligently, recklessly, knowingly and purposefully.

  • Negligence means that the person should be aware that their actions could result in harm to another. If you light a bottle rocket, your intent is that it will fly up in the sky and explode like it's designed to do. However, you should know that it might not work as planned and it might harm or even kill someone.
  • Recklessly is when the person knew or should have known that their actions would result in harm to another. This is a higher level than negligence as the person knew, or should have known, that their action would cause harm. If a person lights a cherry bomb and throws it up into the air in a park, then even though they weren't specifically intending to harm someone, they knew or should have known that it might happen, and they disregarded that risk.
  • Knowingly means that the person is aware of the dangerous nature of the act and it's consequences and engages in the act anyway. It means that the person knew with some certainty that harm would come to someone. If you tell your friend that you can throw a cherry bomb into a crowded restaurant and make it into the sink behind the bar, but your shot goes horribly awry and someone gets hurt, you did so knowing that it was a reasonable certainty that harm would occur. The difference between this and purposefully is that the person is not trying to harm someone, but he or she knows that it is practically a certainty that harm will occur.
  • Purposefully is when the person intends to commit the act with the expressed intent to produce its harmful results. If you take a cherry bomb and duct tape it to the back of a sleeping person's head and light the fuse, then you did so purposefully.

Where Does Malice Aforethought Fit?

Malice aforethought is the conscious, premeditated intent to kill another human being. It means that the killer had the full intent to kill someone and planned the killing and carried it out. Typically it requires proof that the killer thought about it ahead of time, took the necessary steps in furtherance of the act and committed the act. For example, John his mad that his girlfriend has dumped him for is worst enemy, Cam. He buys a gun and ammunition, gets training and practices shooting, then waits for his enemy to come out of his place of work and then shoots him. The shooting was caught on video.

This is obviously murder, right? So what would we worry about in this case? If we have a video of him shooting Cam, then what's the problem? Remember the idea of mens rea, and that in our system we try to charge and punish people according to their level of evil intent? So let's break down the options when it comes to charging someone. Many states use the following distinctions between levels of intent, homicide charges, and subsequent sentences:

Level of Intent (Mens Rea) Homicide Charge Typical Sentencing Range
Purposefully (Malice aforethought) First Degree Murder 35 to Life, Death Penalty
Knowingly Second Degree Murder 20 to Life, No Death Penalty
Recklessly Voluntary Manslaughter 12 to 25 Years
Negligently Involuntary Manslaughter 3 to 8 years

You can see why John would want to say he didn't commit first-degree murder which is a capital offense. In most states and the federal system, a capital murder charge is required before the death penalty or life without parole can be sentenced. Thus, if he said he was just walking by, saw Cam and got enraged, and if the jury believed him, the most he could be convicted of would be second-degree murder. That shaves off decades of his prison sentence along with the death penalty. So as you can see from the above chart, malice aforethought is the same level of intent as purposefully, and typically it means that the person fully intended to kill the victim and thus had malice in his mind and heart well before the act.

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