Law of Murder for Writers

criminal-law

Something I’ve noticed in TV shows lately are they really don’t like to do their homework.  I’m sure this happens in every show depicting a complicated profession (Yeah, my mind went to Grey’s Anatomy too 🙂 but where I notice it the most is obviously in the legal profession since I’m in it.

So here’s a crash course on the (very general!) differences between the levels of murder, manslaughter and justifiable homicide.

(First up, the usual disclaimer: Nothing in here is meant to be taken as legal advice and it is all general statements of complex and often fact specific laws.  I can not stress that enough, especially in a post like this where the laws vary wildly by state and the lines between homicide, manslaughter and murder rely so heavily not only on the exact facts of the situation but the perception of those.)

Justifiable Homicide:

Homicide is the killing of another human being.  It’s justified when it’s something like self defense or defense of others.  It gets complicated, as everything in law always does.

Self Defense laws vary wildly by state so take this with a grain of salt and google the state laws of where your book is set.  The general idea is if you reasonably believe you are in danger of life or limb, or someone else is, then you can use deadly force as a defense.

Now, the exact wording differs by state, some states say stuff about proportional force, yada yada yada.  But if you’re writing about a five foot nothing woman shooting a linebacker, she’s probably going to be found to have used reasonable force, because she’s outsized and outweighed by such an extreme amount.

Whether the person actually had to use deadly force is not the question, whether that person reasonably believed they had to use deadly force is the question.  Because self defense homicide is not about the now dead supposed bad guy’s mentality, it’s about the person’s who is now on trial for killing them mentality.

Self Defense is about the would be victim’s and the now defendant’s mental state.  If she perceived she was in danger, if it was danger of life, limb, or whatever legal babble the statute says, and if it was reasonable.  Some guy comes up to you in broad daylight in a crowd with a smile on his face, probably not reasonable to kill him.  But what if he had a knife held down by his side and he’s been stalking you for months?  Reasonable now?

That’s why I say it’s so fact specific.  The jury has to hear everything and decide if they believe the defendant was in reasonable fear of life and limb.  Or if she had reasonable fear that someone else was.

A TV Show I usually love had a really stupid episode around this issue.  A guy and a teenager are in a bad area and get into an argument, it gets bad and the guy is in fear for his life and has his gun out, the kid reaches behind his back while the guy has his gun on him and has told him not to move, and the guy shoots him.  It looks on camera like the kid is reaching for the small of his back, like for a gun.  In the TV Show, the guy panics and plants a knife on the kid, saying the kid pulled a knife so it was a justified shooting, and then the MCs find the security tape that shows what happened and the guy’s arrested.

Wellllll, yeah, you might get charged and go to trial and let the jury sort it out, but whether or not the kid actually had a knife is irrelevant.  And that was the whole point of the episode, whether or not he really had a knife.

Nope, what’s relevant was the guy’s mindset when he shot the kid.

You want even more complicated?  Try writing somebody charged with murder during a bar brawl and the guy claiming self defense.  Then you get into who started it, who escalated it to deadly force, if the defendant tried to deescalate it or leave.  Don’t look at me, I can’t help you cut through that mess.  That would be so fact heavy and the tiny details would make such a huge difference, it really would depend on the jury.  It’d be interesting to write though 🙂

Manslaughter:

There are two types, voluntary and involuntary.

Voluntary is when there was no previous intent to kill, but the person did mean to attack, maybe even kill in the moment, someone else.  Usually states will have something in the statute saying there was intent in the moment to attack, but it was in the “heat of passion.”

Like a man walks in on somebody having sex with his wife and he launches himself at the guy, drags him off her and beats him over the head with the table lamp, causing death from the head trauma.

This doesn’t mean he won’t get charged with something higher, like Murder 2, or even Murder 1.  It just means his defense attorney will be arguing the lesser charge of Manslaughter is more appropriate due to the extreme circumstances that would reasonably lead to a heat of passion killing.

Why is it we think attacking the wife’s lover is reasonable heat of passion?  No clue.  But it’s the typical example.

Involuntary is an unintentional killing that results from recklessness or criminal negligence, or from an unlawful act that is a misdemeanor or low-level felony.  This is where you’d stick your perp if he hit someone with his car accidentally and killed them.  There was no intention to do the person any harm, there was just somebody not paying attention.

What if someone’s killed by a drunk driver?  Now it gets interesting.  Because they didn’t mean to, but a lot of states don’t want to let them off with just an involuntary manslaughter charge, because the driver meant to drink and meant to drive when they knew they were drunk, so there’s some culpability there.

So a lot of states have come up with a third category called Vehicular Manslaughter.  I know, I said there were only 2, sue me 🙂  This one kind of goes under Involuntary, and in some states they’re basically interchangeable, but it gives the state more wiggle room to deal with cases that are more egregious than a mere accident, but don’t meet the elements of voluntary manslaughter.  Some states have killing someone while driving drunk as one of the possible versions of Murder 2.

Murder:

This is the unlawful killing of another human being.  (Note the term unlawful, it’s what distinguishes the murder definition from the homicide one.)

2nd degree: Depends on the state.  States usually have elements along the lines of intentional but not “pre-meditated,” but doesn’t count as the “heat of passion” killing.  I think of Murder 2 as the catch all.  It’s what you charge on every homicide case and then figure out if you need to have a lesser included offense like a manslaughter later, or if you can go for Murder 1 and have 2 be the lesser included offense.

Murder 2 is the basic charge and then you go from there on what the evidence says.

It’s what you could charge in all the scenarios above, and then see what the grand jury comes back with.  If they see enough evidence for Murder 2, okay, there it is.  If they see evidence that says Manslaughter, that’s it.  And that’s what the person’s charged with and either pleads out or goes to trial over and then the jury decided what the defendant’s mindset was.

1st degree: This is when it was pre-meditated, or had other factors that state deems relevant and puts in the statute to say it’s 1st degree.  Most states have stuff like killing a cop while he’s on duty or killing while committing another felony, or killing as a hate crime.  (Important aside, crimes are defined by statute so if the statute doesn’t say murder while in commission of a felony makes it 1st degree, then it isn’t 1st degree.)

1st degree is when there’s murder but there’s something extra.  Remember how I said Murder 2 was the basic one?  That’s your go to for charges, and then you see what the evidence supports.  If you find a plan mapped out on how to kill that person, you’re looking at Murder 1.  If you find out the person attacked the guy humping his wife, probably Manslaughter.

And all of this is just the beginning, it’s just what the person gets charged with.  And if it doesn’t get pled out (which most do) then it goes to the jury… and they’re your wild card.  Then you are all about trying to keep evidence that’d hurt your case out of the jury’s hands to try to get them to see things your way.  And the other side is doing the same thing.

Okay, there’s your basics.  Take them and write great (and hopefully more accurate than TV) things 🙂

Happy Writing!

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18 thoughts on “Law of Murder for Writers

  1. Very informative post. One pet peeve of mine that somehow seems to show up in a lot of contemporary murder mysteries: the myth of the “statute of limitations” for homicide. In the US, there’s no limit to when charges can be filed for murder.

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  2. Oh man, I haven’t seen that one yet. Who thinks there’s a SOL for murder! I thought even TV shows could manage to get that one right 🙂

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  3. First place to start is, Anatomy of a Murder when Jimmy Stewart talks to Ben Gazarra about murder. It’s also an excellent scene describing how an attorney lets his client make up the facts.
    Next, there are degrees of homicide which depend upon the thinking, preparation and intent of the perpetrator.
    Admittedly, entertainment mixes everything. You can’t blame them. Murder is boring and not dramatic.

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  4. Very interesting to actually see in black & white what is often portrayed in US TV & movies; there are a lot of similarities in the UK but your Murder 2 is our basic Murder offence. This can have the sentence topped up in extreme cases by looking at factors such as hate crime, killing a cop, etc., effectively bringing it up to a Murder 1 post-verdict. I can’t remember whether we make a distinction in relation to involuntary or voluntary Manslaughter as specific offences – I think either way they are regarded as Manslaughter. We also have Corporate Manslaughter where a culpable business can be tried for failing to prevent the deaths of others (resulting in unlimited fines rather than a custodial sentence). And our equivalent of Vehicular Manslaughter would be either “Death by Careless or Inconsiderate Driving” (maximum of 5 yrs) or, depending on circumstance, “Death by Dangerous Driving” (maximum of 14 yrs). Mind you, I’m not a lawyer (studied general Law for a year in an evening class and worked for 12 years with EU legislation & another 12 years as a Police Analyst).
    I’ve been impressed with a lot of UK police dramas that have shown very good representations of actual police computer software and what it can do. The show that entertained me most as a fantastic action-packed drama was Spooks (I think called MI5 in the US) which I loved (it had intel analysts as main characters!) but which stretched credulity a fair bit.
    We, as police intel analysts, used to struggle to find out basic info on criminals and their associates but on TV they would somehow miraculously know everything about a person of interest, their wife, her lover, his inside leg measurements etc. in about 5 minutes flat. Um, nope.
    And yes, we can roughly track a mobile (cell) phone (I don’t think that’s a secret anymore) but it takes time to get approved and even then, even if you’ve got a lot of mast triangulation, you can’t focus it down to a few square metres: in rural areas it could be a few square miles. Smartphones and GPS locators are a different kettle of fish and I’d moved away from CID & homicides by the time they were coming in so I’m a bit out of the loop, technically speaking. But still…

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  5. If I were defending myself against a voluntary manslaughter charge for pulling somebody off my wife and hitting him hard enough to kill, I would consider saying I thought he was raping her, trying to shift the issue to legitimate defense of another. (And indeed, as your question suggests, the issue of why it’s reasonable otherwise, and why my anger is directed at *him* rather than *her* in that case, is interesting; it does kind of sound like people treat it as a property crime, with my wife being my property.)

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    1. “I would consider saying I thought he was raping her.”

      This brings up two other issues: 1. No matter what the law says, people do try to lie to get around it, but you have to know the law to know what a good lie would be. In the courtroom, the jury can only go off of the evidence presented there, mostly in the form of witness testimony, so if you’re swearing that’s what you thought, then all they really have is your word. 2. The wife crying rape when the husband walks in apparently happens enough times that the courts have allowed evidence that the woman was in a relationship into rape trials as evidence it was a consensual encounter and the woman was lying (when usually all evidence of the woman’s sex life is not allowed), meaning, if the person uses this in defense of killing the guy, the jury might buy it.

      A lot of manslaughter charges are also the husband going after the cheating wife too. I’m honestly wondering if the guys usually just grab whoever happens to be on top.

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      1. Yeah, starting with whoever was on top might indeed explain some of it.

        Obviously, lying in a criminal investigation is tactically dangerous, plus there are ethical concerns to most of us as well :-). I phrased it that way as an example of a story one could tell about the situation, and not advice! (Since I’m not a lawyer I’m not so constrained against giving advice as Amie is, but on the other hand one would be a fool to follow it.)

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    1. Oh yeah, always happy to inform 🙂 I do have to reiterate though, this is just talking about murder laws in the US in very general terms. I’ve been told the laws (especially for stuff like self defense) are very different in some European countries.

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      1. Oh, absolutely. I was reading about self-defense law in Greece (where I live) the other day. If someone breaks into your home and does not attack you, you have no right to attack them. If you do and you injure them, they can sue you for damages. The same if they prove you could have locked yourself in a room instead of swinging a bat at them.

        I thought legislation in the US also differs among States, right?

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      2. It really differs between states, which is why I always say this is generalized. But most states (take with grain of salt and not as legal advice) have some kind of castle doctrine. Basically, if someone broke into your house, you get to shoot them. Some are strong castle doctrines which say if they’re there, you can shoot, and some are more wishy washy like if they rush you or are presenting more danger than just breaking in. I think we have 4 states that basically say you have to try to leave the situation first. In short, it’s complicated, and people have to look their character’s state’s laws up 🙂

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      3. As I doubt the intruder will respect your right to study the laws at that moment (“just a moment, my Internet is just crawling today”), it’s probably best if you just run away 😀

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      4. Hahaha. I meant writers will have to look at their state’s laws for their characters in this sitch. You can definitely tell you’re not in the US though. We take that same sentence and say It’s probably best just to kill them and get a good lawyer. You always have the right to self defense here, you just may have to prove the facts around it in court later.

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