Reducing the Degree of Murder

Posted By Bill Nimmo & Raymond Gomez, Attorneys at Law || 31-May-2014

This sounds like a bleak topic for anyone charged with murder, but it is important to recognize and deal with all options. In a murder defense case the prosecutor usually tries to prove the highest mental state. They typically want to show that the killing was in cold blood and was premeditated and deliberate. Classically, a premeditated and deliberated murder is a “first-degree” murder. Different states have differing terms, categories, and definitions of the various types and degrees of homicide. Regardless of those state and jurisdictional differences, the mental states involved in homicides are universal. Was the killing cold-blooded and planned, or was it a rash impulse? These are all questions that a muder defense attorney will have to address in any case in San Diego.

Those type of questions are involved in every murder case regardless of where it is being prosecuted. This article is intended to cover the general principles involved. You must look to your own state’s laws for the specific elements or requirements. The prosecutor will argue that a killing doesn’t have to be thought about very long in advance to be a premeditated murder. They will argue that the element of premeditation and deliberation can be formed in a heartbeat. A good prosecutor will argue that every killing was premeditated.

The law, however, usually requires a higher quality thought than simply making a decision in advance. The killer must “deliberate.” They must weigh the consequences of killing and proceed anyway. In reality that can be difficult for a prosecutor to demonstrate. In any sort of heated event it can be argued that the intent to kill was formed quickly while the defendant was in the heat of some form of agitated mental state. Those types of mental states are not conducive to weighing the consequences of action. They are more likely to produce a rash “impulse killing.”

Many times a good psychologist or psychiatrist can help explain the defendant and his or her mental state and show factors that are not conducive to the “deliberating” required for first degree murder. In fact, the defendant may have mental or emotional difficulties that further support agitation and rash impulse. Some defendants have such serious mental issues that they lack the “capacity” to deliberate or at the time they did not “actually” deliberate because of a mental disease or defect. Most states allow some form of testimony to show that the defendant’s mental problems could seriously impact their forming the required mental state for premeditated murder.

In California this evidence has to go to whether or not the defendant “actually” had the mental state. The concept of whether or not the defendant had the “capacity”(diminished capacity defense) has been abolished. The surrounding facts and circumstances also need to be explored to show that the killing was not a planned or premeditated act.

By a careful examination of the entire event and the events preceding the killing, your defense lawyer might be able to produce convincing facts that show a rash impulse rather than a planned act. This involves the layout of the scene, any percipient witness accounts, the activities of the alleged victim and the defendant prior to the main incident, statements made in the hours or days earlier that might shed light on the situation, and an understanding of what the body shows happened. In an actual case, a woman was charged with killing her boyfriend by intentionally ramming him with a vehicle. She had threatened to kill him multiple times. The prosecution produced a tape recording of a lengthy phone message the night before the killing where the defendant repeatedly and credibly threatened to kill him and his family. The defense was able to persuade the jury, however, that despite the taped threats, the defendant did not premeditate and deliberate the killing. The jury believed it was a rash impulse borne out of an argument the following morning and convicted on second degree murder rather than first degree.

A lot can be determined by examining the marks on the body and any injuries to the defendant and comparing it to the account of the defendant. A qualified pathologist or medical examiner can explain volumes about what happened by seeing the marks on the body, the wound tracks, and comparing it with the surrounding evidence, such as blood spatter or blood drops. This is a part of crime scene reconstruction. While a reconstruction can’t always determine exactly what happened, it can educate enough to make the defendant’s theory plausible, even probable, and create a reasonable doubt for a jury.