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Second-degree murder is ordinarily defined as 1) an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion" or 2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life. Second-degree murder may best be viewed as the middle ground between first-degree murder and voluntary manslaughter.

For example, John comes home to find his wife in bed with Randy. At a stoplight the next day, John sees Randy riding in the passenger seat of a nearby car. John pulls out a gun and fires three shots into the car, missing Randy but killing the driver of the car.

Some jurisdictions make a distinction between different situations that constitute murder and prosecute the charges differently. These states usually break the crime of murder into first degree murder and second degree murder.

The exact definition of second degree murder can vary between jurisdictions, but there are a few common elements that second degree murder shares across jurisdictions. To find the second degree murder statute in your state, visit the Second Degree Murder Definition and Statutes page.

The essential elements of second-degree murder differ from those of first degree murder. The criminal act for both crimes is the same: both are killings of another person. What separates the two is the perpetrators mental state at the time of the killing.

First degree murder involves a premeditated killing. In other words, the killer made a plan to kill the victim and then carried that plan out. Second degree murder does not require premeditation, however. Instead, there are three typical situations that can constitute second degree murder:A killing done impulsively without premeditation, but with malice aforethoughtA killing that results from an act intended to cause serious bodily harmA killing that results from an act that demonstrates the perpetrators depraved indifference to human lifeImpulsive Killings with Malice Aforethought

These sorts of killings occur in the heat of the moment, and dont involve any premeditation on the part of the killer. At the moment the murder occurs, the killer definitely intends to kill the victim, but up to that moment, the killer had no intent or plan to commit murder.

For example, Adam and Bill are neighbors, and lately they've been having disagreements over the fence between their properties. Adam pays Bill a visit to discuss the matter, but gets angry in the process, pulls out a gun and shoots and kills Bill.

Adam didnt didnt have any plan to kill Bill when he went to Bill's house that day, so there was no premeditation. At the time of the murder, however, Adam fully intended to kill Bill because of his anger over the fence, so there was malice aforethought. Most states that distinguish between degrees of murder would consider that a second degree murder.Killings after an Act Intended to Cause Serious Bodily Harm

A second category of acts that constitute second degree murder are acts where the perpetrator intends to cause serious bodily harm with the full knowledge that death is a possible result of the act. The killer might not necessarily intend to kill the victim, but knows that death is a likely outcome.

For example, in the situation above, instead of shooting Bill, Adam grabs a shovel and hits Bill on the head with all his strength. Adam didnt explicitly intend to kill Bill when he hit him, but he did intend to hit him with the tire iron, and he knew that such a blow to the head carried with it a distinct possibility of death. Adams killing of Bill in this instance also constitutes second degree murder.Killings Resulting from a Depraved Indifference to Human Life

The third main type of second degree murder occurs when a victim dies as a result of the perpetrators depraved indifference to human life. Depraved indifference to human life can mean different things in different jurisdictions, but in general it signifies that the perpetrator had an utter disregard for the potential damage to human life that their actions could cause.

Going back to Adam and Bill, imagine that, instead of hitting Bill over the head with the tire iron, Adam grabbed his gun and fired in anger into a crowd of onlookers. Adam didnt necessarily mean to kill anyone, but also didnt give any thought to the harm that his actions could cause in the crowd. This demonstrates Adams depraved indifference to human life. If one of Adams bullets struck and killed anyone in the crowd, then Adam has probably committed second degree murder.Felony Murder

Some states also classify killings that occur during the commission of another felony as second degree murder, although other states characterize these felony-murders as murder in the first degree. An individual can be found guilty of a felony-murder even if they did not actually kill anyone and only intended to commit the original felony.

For example, if Adam and Bill went into a convenience store intending to rob it at gunpoint (which constitutes a felony), and Adam ended up shooting the store owner, a jury could find Bill guilty under the felony-murder rule since he was involved in the commission of the original felony when the killing took place.

Whether this felony murder would constitute a first or second degree murder, however, depends on the law in the state in which it took place.

There are several defenses that could apply to a second degree murder charge. Most defendants assert that they didnt actually commit the crime. Other defendants admit to killing the victim, but claim some sort of justification. Attorneys call these types of defenses affirmative defenses. As with most criminal cases, the result of a defense strategy will depend on the facts surrounding the charges and the laws of the jurisdiction. Here is a list to illustrate the most common defenses that could apply to an allegation of second degree murder.Actual Innocence

The most common defense that defendants raise is that they didnt perpetrate the crime. This defense can involve several elements, including the presentation of an alibi or challenges to the prosecutions evidence. The prosecution has the burden of proof, and must demonstrate beyond a reasonable doubt that the defendant committed the killing. Thus, if the defendant can raise a doubt about their guilt in the minds of the members of the jury, there is a good chance the jury will find them not guilty of the charge.Insanity

The insanity defense is not available in all jurisdictions, but most jurisdictions allow it. Even where its available, an insanity defense wont necessarily relieve a defendant of all responsibility for a second degree murder charge, though. Some jurisdictions recognize that a defendant has a mental illness, but still knew that their actions were wrong or prohibited at the time the crime took place. These jurisdictions often have a verdict of guilty but mentally ill, which means that, despite their mental illness, the defendant had control over their actions when the killing occurred.

In the jurisdictions that do accept the full insanity defense, if a defendant can show that they fit the legal definition of insanity at the time of the killing, the law will generally not hold them accountable for their actions. The legal definition of insanity varies between jurisdictions, and there are several different tests to show insanity. FindLaws Insanity Defense Section has more information on the various standards for an insanity defense.Self-Defense

When a slaying occurs as a result of actions taken to protect ones own life, it is possible that the killer can escape legal consequences for the killing. The requirements for a self-defense argument vary between cases and jurisdictions, but there are a few general rules applicable to most self-defense situations.

Here are the basic elements of a self-defense claim:The defendant was not in a place they were prohibited from entering.The defendant cannot be at fault in the situation.The defendant was not the aggressor or instigator.The defendant had a reasonable fear of death or great bodily harm that required the use of force.The defendant fulfilled the requirement to retreat from the threat or attempt to avoid danger.

First, the defendant must be in a place that they had a right to be in when the situation arose. A trespasser, for example, cannot enter someones property and then claim self-defense if they kill the property owner in a scuffle.

Second, the general rule is that the person claiming self-defense must not have provoked the slain party in any way. If the situation arose because of the actions of the eventual killer, the killer cannot argue that the slaying occurred in self-defense. It might lessen the severity of the charge, but provocation by the defendant negates the possibility of an acquittal because of self-defense.

In addition, the person acting in self-defense must have had a reasonable fear of death or great bodily harm that necessitated the use of force. If the situation would not result in death or great bodily harm, or if the killers fear was unreasonable, then the self-defense argument is not available.

Furthermore, a person can only justify self-defense if the situation requires immediate action in order to prevent bodily harm or loss of life. Once the situation has ceased to threaten bodily harm or loss of life, the self-defense justification is no longer available.

For example, if a person acting in self-defense fires a shot that knocks their assailant unconscious and the shooter has enough time to perceive that the threat has ceased, the shooter could not justify firing another shot as self-defense.

Many, but not all, states also require that the person claiming self-defense retreat from the danger or otherwise attempt to defuse the situation before using force to protect themselves. If the person claiming self defense does not attempt to retreat from the threat, the self-defense argument may not be available.Intoxication

When referring to criminal defenses, there are two basic kinds of intoxication: voluntary and involuntary.

Voluntary intoxication refers to intoxication that an individual has chosen to engage in. Getting drunk with friends at a bar is voluntary intoxication, even if you didnt mean to get as drunk as you actually did.

Involuntary intoxication occurs when a person becomes intoxicated for reasons outside of their control, usually after being drugged by someone else.

Voluntary Intoxication

People often claim that, because they were drunk or otherwise intoxicated when committing a crime, they shouldnt be punished for it. Generally, however, voluntary intoxication isnt an excuse for committing a crime, and second degree murder is no different.

In some states, intoxication becomes a factor when determining degrees of homicides, though, so it is possible that a second degree murder charge could be reduced on the basis of the defendants intoxication at the time of the slaying. This cuts both ways, however, and the defendants intoxication may also constitute an aggravating factor in the killing.

Involuntary Intoxication

Involuntary intoxication will relieve a defendant of responsibility for a killing in most instances. The difficulty lies in proving that intoxication was involuntary. If the defendant engaged in any voluntary intoxication, then the entire intoxication was voluntary.

Many people try to claim that alcoholism or drug addiction rendered their intoxication involuntary since they could not help but follow the compulsion to drink or do drugs. This argument is almost never successful.

If a person suffers from a mental defect as a result of their drug or alcohol addiction, however, they may be able to use the insanity defense discussed above.

After a jury has found a defendant guilty of second degree murder, the case moves on to the sentencing phase. During this phase, the defendant will learn what penalties the state or federal government will impose for their crime.

There are several factors that determine what sentence a person convicted of second degree murder will receive. First, there is the actual language of the law that sets the penalty. Second, there is a range of aggravating and mitigating factors that courts can consider when deciding on a sentence. All of these things taken together will determine what punishment a defendant receives.The Letter of the Law

The statutes that specifically outlaw second degree murder will generally contain some discussion of the appropriate punishments for the crime. Usually this takes the form of a general time period, such as 15 years to life. Oftentimes, however, the discussions dont contain much specific information about the sentences, and give courts wide latitude to determine penalties.

For example, the federal statute criminalizing second degree murder states that [w]hoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. This vague sentencing declaration compels federal judges to use the Federal Sentencing Guidelines in order to determine an appropriate punishment for a person convicted of second degree murder.

Other jurisdictions statutes give specific punishments for certain situations. For instance, Californias Penal Code sets out specific minimum punishments for second degree murder when committed against a peace officer or when resulting after shooting a firearm from a motor vehicle.Aggravating and Mitigating Factors

In addition to elements set out in the penal code, there are usually a number of aggravating and mitigating factors that courts examine to determine a defendants exact sentence.

Aggravating factors are aspects of the crime or the criminals behavior or history that increase the severity of the imposed sentence. Mitigating factors tend to demonstrate to the sentencing court that the defendant deserves a lighter sentence than they would normally receive without the presence of the mitigating factors.

These factors vary from jurisdiction to jurisdiction, but most jurisdictions will examine a few basic factors when deciding on punishments.

In the federal system, for example, under the Federal Sentencing Guidelines, a judge can increase a second degree murder sentence if the defendants conduct was exceptionally heinous, cruel, brutal, or degrading to the victim. Other aggravating factors include a defendants criminal history, whether the crime constituted a hate crime, and whether the defendant used a firearm in the commission of the crime.

Federal mitigating factors include whether or not the defendant has accepted responsibility for the crime, any mental or physical illnesses the defendant has, the defendants civic contributions and the nature of the defendants childhood.

States also examine similar aggravating and mitigating factors when determining the penalties for second degree murder. Sentencing Procedure

As with most aspects of the law, the exact procedure will depend on where the trial occurs. Generally, however, the court will hold a hearing at some point after the conviction to examine the nature of the offense and weigh the aggravating and mitigating factors. After deliberation, the court will hand down the defendants sentence.



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