1. What is the difference between murder and manslaughter?
Murder is the greater offense and is far more severely prosecuted than manslaughter.
Murder is defined as the killing of a human being with malice aforethought.
Manslaughter is defined as the killing of a human being, but without malice.
Voluntary manslaughter, for example, is the killing of a human being in which the defendant had no prior intent to kill but acted during “the heat of passion” under circumstances that would cause a reasonable person to become emotionally or mentally disturbed.
The classic example of voluntary manslaughter is when a husband comes home to find his wife sleeping with another man and then kills the two of them in a jealous rage. What makes this different from murder is that the killing was provoked to the point where it can be argued a reasonable person would lose all self control.
2. What is “malice aforethought?”
“Malice aforethought” is a required element to prove the crime of murder. It is defined as either:
• The conscious intent to cause death or great bodily harm to another person before committing the crime, OR
• The intent to willfully act with callous and wanton disregard of the dangerous consequences to human life.
It is important to note that a defendant can be found to have acted with “malice aforethought” even if s/he did not harbor any ill will, spite, or hatred toward the victim.
3. If a person accidentally kills someone during another crime, such as while robbing a bank, can that person still be charged with murder?
Yes. Under California Penal Code Section 189, a killing, if committed while carrying out certain felonies, can qualify as first-degree felony murder regardless of whether it was intentional or not. These felonies include arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd or lascivious acts, oral copulation, or forcible acts of sexual penetration. You may also be charged with second-degree felony murder if you killed while engaged in felonies that are inherently dangerous to human life, but not among the listed felonies.
4. Under what circumstances might I be at risk of incurring the death penalty?
Under California Penal Code Section 190.2, a defendant facing murder charges can incur the death penalty if certain circumstances are present, such as:
• The killing of uniformed police or federal officers; judges; or magistrates,
• Murder resulting from the detonation of a destructive device or bomb,
• Murder carried out for anti-ethnic or anti-religious reasons,
• Murder carried out while in the commission of certain dangerous felonies,
• Murder carried out after stalking or “laying in wait” for a victim, AND
• A number of other such circumstances listed in Penal Code Section 190.2.
It is important to note that even if the state does not seek the death penalty the defendant is still subject to life without the possibility of parole.
5. If I am convicted for attempted murder, can I then be charged with murder if the victim later dies?
Yes. The doctrine of double jeopardy, which prevents a person from being tried more than once for the same crime, does not prevent the prosecution from also charging murder if the victim dies after you’ve been convicted of attempted murder.
6. If I intended to kill one person, but by mistake also killed someone else, will the criminal charge I face be the same for the unintended killing as it was for the intended killing?
Yes. You can still be charged and convicted of murder for any unintended killing of other persons stemming from your act of murdering your intended victim. This also applies in situations where you attempt to murder your victim, but only succeed in killing an unintended third party. The required element of “intent to kill” is applicable to any unintended victims.
Murder is an extremely serious charge. You must protect yourself with the best attorneys available.
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Authorities will pressure you into revealing damning information, making convicting statements, offering a guilty plea…even if you’re innocent. The sheer volume of cases motivates the entire court system to demand criminal defendants to plead guilty at the very earliest stage of a case in order to move cases along.
Protect your freedom and your record! Call NOW for a free consultation with Los Angeles Criminal Attorney Steve Brodsky before your arraignment. Your free consultation will give you strong advice into toward your case. Do not automatically plead guilty.
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