We all think it can never happen to us. However, anyone who has ever been in a bar fight can go from defending their girlfriend to defending their freedom in the blink of an eye. One too many punches can result in your opponent falling to the ground, hitting his head on a hard floor, then the next thing you know, you’re charged with murder.
There are several different types of murder including First Degree Murder, Second Degree Murder, Manslaughter, Felony Murder and Vehicular Homicide. First degree murder is what most people think of when they hear the term ‘murder’; it’s the type of crime there are dozens of TV shows about. First degree murder occurs when someone makes a choice to take a life and devises, then carries out, their plan to do so.
In a first degree murder case, the prosecution has to prove three elements:
- the named victim is dead, and
- the death was caused by the criminal act of the defendant, and
- the killing was premeditated.
The Named Victim is Dead
Though proving that the named victim is dead may seem straight forward, sometimes this very small requirement can cause big problems for a prosecutor. In the usual case, the prosecution would call a witness to testify that the deceased pictured in a photograph from the autopsy is in fact the named victim. This is such a simple step that most defense attorneys will stipulate (agree) that this element is proven so the grieving family member is not put in front of the jury, which usually can only garner more sympathy for the deceased and more animosity for the defendant.
However, there are unusual cases. Take for instance a case where the entire body is not found. What if an arm and a leg were found? How would the prosecution prove who the arm and leg belong to? Maybe they get lucky and the deceased worked in a profession where their fingerprints are on file. Even then, the prosecution still has a problem; how do they prove the victim is actually dead? Clearly the victim has been severely injured but people can live without arms and legs. If the head or torso is not found, the prosecution has to rely on uncertain evidence such as the amount of blood found to try to prove the victim is not just injured and being held somewhere by captors. That the victim is dead, like every element of the case, must be proven beyond a reasonable doubt.
Caused by the Criminal Act of the Defendant
Proving that the victim’s death was caused by the criminal act of the defendant is where the prosecution will most likely concentrate their efforts. The prosecution has to call witnesses who saw the defendant actually do something. In many cases this comes in the form of eyewitnesses who saw the defendant stab or shoot the victim. However, many cases have no actual eyewitnesses. If that is the case, the prosecution has a very high hill to climb to prove circumstantially that it was the defendant who caused the victim’s death. Perhaps the defendant was heard threatening to kill the victim. Perhaps another witness saw the defendant go into the victim’s residence shortly before the victim’s body was found. Yet another witness may have seen the defendant running away from the victim’s residence. A fourth witness may have seen the defendant disposing of bloody clothing in a dumpster. A fifth witness may have heard the defendant bragging a few hours later at a neighborhood bar about taking care of his biggest problem. If the prosecution has all five of these witnesses, they will likely be able to sustain their burden but circumstantial cases that good are few and far between. More likely, only two or three of those witnesses exist and the holes can either be filled in by an experienced prosecutor or ripped open by a great defense attorney.
The Killing Was Premeditated
Proving the killing was premeditated is the most difficult part of any first degree murder case. The prosecution rarely has a confession where the defendant says ‘Yesterday, I decided to shoot him because I wanted him to die for sleeping with my girlfriend so I waited for him after work today and shot him’, or, just as rarely, has a witness who heard the defendant at a bar, a couple hours before the shooting, say ‘I’m going to kill Sam this afternoon because he slept with my girlfriend’. If either of those two scenarios exist, premeditation will likely be proven. However, absent that, how can you prove what someone intended? This is where a good defense attorney can truly help a client. The difference between first degree murder and second degree murder quite literally is the difference between life and death for someone facing a murder charge. Just because a defendant points a gun at someone and pulls a trigger does not mean the act was premeditated. Maybe the defendant was high on drugs or drunk. Maybe the defendant pulled a gun just to scare the victim but the victim reacted in anger and grabbed for the gun. Maybe the defendant pulled a gun out of a sudden burst of anger with no time to think. These are not circumstances were pre-meditation is present, and without premeditation, you cannot have first degree murder. There is no exact period of time that must pass between the forming of intent and the actual killing, but the law is clear that the time must be long enough for the defendant to have reflected on his or her decision.
Ashby Sorenson, San Diego criminal defense lawyer, defends the full range of violent crimes. He may be reached at (858) 999-6921.