Murder

Murder is the unlawful killing of another human without justification or valid excuse committed with the necessary intention as defined by the law in a specific jurisdiction.^[1]^[2]^[3] This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is killing committed in the absence of malice,^{[note 1]} such as in the case of voluntary manslaughter brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.

Most societies consider murder to be an extremely serious crime, and thus believe that a person convicted of murder should receive harsh punishments for the purposes of retribution, deterrence, rehabilitation, or incapacitation. In most countries, a person convicted of murder generally receives a long-term prison sentence, a life sentence, or capital punishment.^[4]

Etymology

The modern English word "murder" descends from the Proto-Indo-European *mŕ̥-trom which meant "killing", a noun derived from *mer- "to die".^[5]

Proto-Germanic, in fact, had two nouns derived from this word, later merging into the modern English noun: *murþrą "death, killing, murder" (directly from Proto-Indo-European*mŕ̥-trom), whence Old English morðor "secret or unlawful killing of a person, murder; mortal sin, crime; punishment, torment, misery";^[6] and *murþrijô "murderer; homicide" (from the verb *murþrijaną "to murder"), giving Old English myrþra "homicide, murder; murderer". There was a third word for "murder" in Proto-Germanic, continuing Proto-Indo-European *mr̥tós "dead" (compare Latin mors), giving Proto-Germanic *murþą "death, killing, murder" and Old English morþ "death, crime, murder" (compare German Mord).

The -d- first attested in Middle English mordre, mourdre, murder, murdre could have been influenced by Old French murdre, itself derived from the Germanic noun via Frankish *murþra (compare Old High German murdreo, murdiro), though the same sound development can be seen with burden (from burthen). The alternative murther (attested up to the 19th century) springs directly from the Old English forms. Middle English mordre is a verb from Anglo-Saxon myrðrian from Proto-Germanic *murþrijaną, or, according to the Oxford English Dictionary, from the noun.^[7]

Use of the term

In many countries, out of concern for being accused of defamation,^[8] journalists are generally careful not to identify a suspect as a murderer until the suspect is convicted of murder in a court of law. After arrest, for example, journalists may instead write that the person was "arrested on suspicion of murder",^[9] or, after a prosecutor files charges, as an "accused murderer".^[10]

Opponents of abortion consider abortion a form of murder.^[11]^[12] In some countries, a fetus is a legal person who can be murdered, and killing a pregnant woman is considered a double homicide.^[13]^[14]

Definition

The eighteenth-century English jurist William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder, which by this definition occurs

when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.^[15]

At common law, murder was normally punishable by death.^[16]

The elements of common law murder are:

unlawful
killing
through criminal act or omission
of a human
by another human
intentional killing
with malice aforethought.^[17]
Unlawful – This distinguishes murder from killings that are done within the boundaries of law, such as capital punishment, justified self-defense, or the killing of enemy combatants by lawful combatants as well as causing collateral damage to non-combatants during a war.^[18]
Killing – At common law life ended with cardiopulmonary arrest^[17] – the total and irreversible cessation of blood circulation and respiration.^[17] With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life.^[17]
Criminal act or omission – Killing can be committed by an act or an omission.^[19]
Of a human – This element presents the issue of when life begins. At common law, a fetus was not a human being.^[20] Life began when the fetus passed through the vagina and took its first breath.^[17]
By another human – In early common law, suicide was considered murder.^[17] The requirement that the person killed be someone other than the perpetrator excluded suicide from the definition of murder.
With malice aforethought – Originally malice aforethought carried its everyday meaning – a deliberate and premeditated (prior intent) killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice".

In contrast with manslaughter, murder requires the mental element known as malice aforethought. Mitigating factors that weigh against a finding of intent to kill, such as "loss of control" or "diminished responsibility", may result in the reduction of a murder charge to voluntary manslaughter.^[16]

The four states of mind recognised as constituting "malice" are:^[21]

Intent to kill,
Intent to inflict grievous bodily harm short of death,
Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
Intent to commit a dangerous felony (the "felony murder" doctrine).

Under state of mind (i), intent to kill, the deadly weapon rule applies. Thus, if the defendant intentionally uses a deadly weapon or instrument against the victim, such use authorises a permissive inference of intent to kill. Examples of deadly weapons and instruments include but are not limited to guns, knives, deadly toxins or chemicals or gases and even vehicles when intentionally used to harm one or more victims.

Under state of mind (iii), an "abandoned and malignant heart", the killing must result from the defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury. In Australian jurisdictions, the unreasonable risk must amount to a foreseen probability of death (or grievous bodily harm in most states), as opposed to possibility.^[22]

Under state of mind (iv), the felony-murder doctrine, the felony committed must be an inherently dangerous felony, such as burglary, arson, rape, robbery or kidnapping. Importantly, the underlying felony cannot be a lesser included offense such as assault, otherwise all criminal homicides would be murder as all are felonies.

In Spanish criminal law,^[23] asesinato (literally 'assassination'): takes place when any of these requirements concur: Treachery (the use of means to avoid risk for the aggressor or to ensure that the crime goes unpunished), price or reward (financial gain) or viciousness (deliberately increasing the pain of the victim). After the last reform of the Spanish Criminal Code, in force since July 1, 2015, another circumstance that turns homicide (homicidio) into assassination is the desire to facilitate the commission of another crime or to prevent it from being discovered.^[24]

As with most legal terms, the precise definition of murder varies between jurisdictions and is usually codified in some form of legislation. Even when the legal distinction between murder and manslaughter is clear, it is not unknown for a jury to find a murder defendant guilty of the lesser offense. The jury might sympathize with the defendant (e.g. in a crime of passion, or in the case of a bullied victim who kills their tormentor), and the jury may wish to protect the defendant from a sentence of life imprisonment or execution.

Degrees

Some jurisdictions divide murder by degrees. The distinction between first- and second-degree murder exists, for example, in Canadian murder law and U.S. murder law. Some US states maintain the offense of capital murder.

The most common division is between first- and second-degree murder. Generally, second-degree murder is common law murder, and first-degree is an aggravated form. The aggravating factors of first-degree murder depend on the jurisdiction, but may include a specific intent to kill, premeditation, or deliberation. In some, murders committed by acts such as strangulation, poisoning, or lying in wait are also treated as first-degree murder.^[25] A few states in the U.S. further distinguish third-degree murder, but they differ significantly in which kinds of murders they classify as second-degree versus third-degree. For example, Minnesota defines third-degree murder as depraved-heart murder, whereas Florida defines third-degree murder as felony murder (except when the underlying felony is specifically listed in the definition of first-degree murder).^[26]^[27]

Some jurisdictions also distinguish premeditated murder. This is the crime of wrongfully and intentionally causing the death of another human being (also known as murder) after rationally considering the timing or method of doing so, in order to either increase the likelihood of success, or to evade detection or apprehension.^[28] State laws in the United States vary as to definitions of "premeditation". In some states, premeditation may be construed as taking place mere seconds before the murder. Premeditated murder is one of the most serious forms of homicide, and is punished more severely than manslaughter or other types of homicide, often with a life sentence without the possibility of parole, or in some countries, the death penalty. In the U.S., federal law (18 U.S.C. § 1111(a)) criminalizes premeditated murder, felony murder and second-degree murder committed under situations where federal jurisdiction applies.^[29] In Canada, the criminal code classifies murder as either first- or second-degree. The former type of murder is often called premeditated murder, although premeditation is not the only way murder can be classified as first-degree. In the Netherlands, the traditional strict distinction between premeditated intentional killing (classed as murder, moord) and non-premeditated intentional killing (manslaughter, doodslag) is maintained; when differentiating between murder and manslaughter, the only relevant factor is the existence or not of premeditation (rather than the existence or not of mitigating or aggravated factors). Manslaughter (non-premeditated intentional killing) with aggravating factors is punished more severely, but it is not classified as murder, because murder is an offense which always requires premeditation.^[30]

Common law

According to Blackstone, English common law identified murder as a public wrong.^[31] According to common law, murder is considered to be malum in se, that is, an act which is evil within itself. An act such as murder is wrong or evil by its very nature, and it is the very nature of the act which does not require any specific detailing or definition in the law to consider murder a crime.^[32]

Some jurisdictions still take a common law view of murder. In such jurisdictions, what is considered to be murder is defined by precedent case law or previous decisions of the courts of law. However, although the common law is by nature flexible and adaptable, in the interests both of certainty and of securing convictions, most common law jurisdictions have codified their criminal law and now have statutory definitions of murder.

Exclusions

General

Although laws vary by country, there are circumstances of exclusion that are common in many legal systems.

The killing of enemy combatants who have not surrendered, when committed by lawful combatants in accordance with lawful orders in war, is generally not considered murder. Illicit killings within a war may constitute murder or homicidal war crimes; see Laws of war.
Self-defense: acting in self-defense or in defense of another person is generally accepted as legal justification for killing a person in situations that would otherwise have been murder. However, a self-defense killing might be considered manslaughter if the killer established control of the situation before the killing took place, such as imperfect self-defense. In the case of self-defense, it is called a "justifiable homicide".^[33]
Unlawful killings without malice or intent are considered manslaughter.
In many common law countries, provocation is a partial defense to a charge of murder which acts by converting what would otherwise have been murder into manslaughter (this is voluntary manslaughter, which is more severe than involuntary manslaughter).
Accidental killings are considered homicides. Depending on the circumstances, these may or may not be considered criminal offenses; they are often considered manslaughter.
Suicide does not constitute murder in most societies. Assisting a suicide, however, may be considered murder in some circumstances.

Specific to certain countries

Capital punishment: some countries practice the death penalty. Capital punishment may be ordered by a legitimate court of law as the result of a conviction in a criminal trial with due process for a serious crime. All member states of the Council of Europe are prohibited from using the death penalty.
Euthanasia, doctor-assisted suicide: the administration of lethal drugs by a doctor to a terminally ill patient, if the intention is solely to alleviate pain, in many jurisdictions it is seen as a special case (see the doctrine of double effect and the case of Dr John Bodkin Adams).^[34]
Killing to prevent the theft of one's property may be legal under certain circumstances, depending on the jurisdiction.^[35]^[36] In 2013, a jury in south Texas acquitted a man who killed a sex worker who attempted to run away with his money.^[37]
Killing an intruder who is found by an owner to be in the owner's home (having entered unlawfully): legal in most US states (see Castle doctrine).^[38]
Killing to prevent specific forms of aggravated rape or sexual assault – killing of attacker by the potential victim or by witnesses to the scene; legal in parts of the US and in various other countries.^[39]
In some countries, the killing for what are considered reasons connected to family honor, usually involving killing due to sexual, religious or caste reasons (known as honor killing), committed frequently by a husband, father or male relative of the victim, is not considered murder; it may not be considered a criminal act or it may be considered a criminal offense other than murder.^[40]^[41] International law, including the Istanbul Convention (the first legally binding convention against domestic violence and violence against women) prohibits these types of killings (see Article 42 – Unacceptable justifications for crimes, including crimes committed in the name of so-called honor).^[42]
In the United States, in most states and in federal jurisdiction, a killing by a police officer is excluded from prosecution if the officer reasonably believes they are being threatened with deadly force by the victim. This may include such actions by the victim as reaching into a glove compartment or pocket for license and registration, if the officer reasonably believes that the victim might be reaching for a gun.^[43]

Victim

All jurisdictions require that the victim be a natural person; that is, a human being who was still alive before being murdered. In other words, under the law one cannot murder a corpse, a corporation, a non-human animal, or any other non-human organism such as a plant or bacterium.

California's murder statute, penal code section 187, expressly mentioned a fetus as being capable of being killed, and was interpreted by the Supreme Court of California in 1994 as not requiring any proof of the viability of the fetus as a prerequisite to a murder conviction.^[44] This holding has two implications. Firstly, a defendant in California can be convicted of murder for killing a fetus which the mother herself could have terminated without committing a crime.^[44] And secondly, as stated by Justice Stanley Mosk in his dissent, because women carrying nonviable fetuses may not be visibly pregnant, it may be possible for a defendant to be convicted of intentionally murdering a person they did not know existed.^[44]

Mitigating circumstances

Some 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 being found guilty of 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.

Insanity

Mental disorder may apply to a wide range of disorders including psychosis caused by schizophrenia and dementia, and excuse the person from the need to undergo the stress of a trial as to liability. Usually, sociopathy and other personality disorders are not legally considered insanity. In some jurisdictions, following the pre-trial hearing to determine the extent of the disorder, the defense of "not guilty by reason of insanity" may be used to get a not guilty verdict.^[45] This defense has two elements:

That the defendant had a serious mental illness, disease, or defect
That the defendant's mental condition, at the time of the killing, rendered the perpetrator unable to determine right from wrong, or that what they were doing was wrong

Under New York law, for example:

§ 40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defence that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.
— N.Y. Penal Law, § 40.15^[46]

Under the French Penal Code:

Article 122-1
A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions.

A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime.
— Penal Code §122-1 found at Legifrance web site

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.^[47]

Postpartum depression

Postpartum depression (also known as post-natal depression) is recognized in some countries as a mitigating factor in cases of infanticide. According to Susan Friedman, "Two dozen nations have infanticide laws that decrease the penalty for mothers who kill their children of up to one year of age. The United States does not have such a law, but mentally ill mothers may plead not guilty by reason of insanity."^[48] In the law of the Republic of Ireland, infanticide was made a separate crime from murder in 1949, applicable for the mother of a baby under one year old where "the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child".^[49] Since independence, death sentences for murder in such cases had always been commuted;^[50] the new act was intended "to eliminate all the terrible ritual of the black cap and the solemn words of the judge pronouncing sentence of death in those cases ... where it is clear to the Court and to everybody, except perhaps the unfortunate accused, that the sentence will never be carried out."^[51] In Russia, murder of a newborn child by the mother has been a separate crime since 1996.^[52]

Unintentional

For a killing to be considered murder in nine out of fifty states in the US, there normally needs to be an element of intent. A defendant may argue that they took precautions not to kill, that the death could not have been anticipated, or was unavoidable. As a general rule, manslaughter^[53] constitutes reckless killing, but manslaughter also includes criminally negligent (i.e. grossly negligent) homicide.^[54] Unintentional killing that results from an involuntary action generally cannot constitute murder.^[55] After examining the evidence, a judge or jury (depending on the jurisdiction) would determine whether the killing was intentional or unintentional.

Diminished capacity

Zdroj:https://en.wikipedia.org?pojem=Murder
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