“Murder,” Not “Mukduk”

I’ll be honest here (aren’t I always?) – I’m multi-tasking in this post. It’s a little bit of knowledge for you and a lotttt of study time for me. Today, we’re going to talk about homicide. This can be a pretty heavy topic so I’m going to lighten it up through the only method I know….

bum bum badaduda dummmmmm.

First of all, the term “homicide” is VERY broad. It applies whenever a person is killed, whether it happens on purpose, is provoked, by accident, whatever. There are two parts to a homicide: the mindset of the perpetrator (mens rea) and the perpetrator’s action (actus reus). The actus reus requirement for homicide is easy – person A killed person B. Figuring out A’s mens rea, or mindset while killing B, is where things get weird.

I’ll make this as simple as possible – definitely not here to flex my legal prowess (can’t flaunt what you don’t have, am I right??*) Without getting into the different sources of law, there are basically four categories of mens rea for homicide. Those are:

  1. Purposefully/Intentionally – you meant to do this, dude.
  2. Knowingly – you knew that someone would likely die
  3. Recklessly – you realized death might result, said “eh….” and carried on.
  4. Negligently – you didn’t even realize you might kill someone, but a normal person definitely would have.

A’s mindset is largely what determines the type of homicide A is charged with – that’s why we have first degree murder, second degree murder, involuntary manslaughter, reckless homicide, etc. All those terms sound VERY confusing, but they’re just a ranking of “worst kind of murder” to “least bad (but still bad) murder.” I promise. Stay with me.


Like homicide, murder is a generic term that covers many different scenarios. You can use the term “murder” whenever person A intentionally, knowingly, or reeeeeeeeally recklessly killed person B. That’s a little confusing, but just know that “murder” = “you meant to do this.”

er…I can’t speak to this.


Both first degree and second degree murder fall under the heading of “intentional homicide,” which means person A definitely meant to kill person B. Again, each state treats intentional killing a little differently – some states have first and second degree murder, some have third degree murder, some don’t grade at all. But in GENERAL, first degree murder requires that there was some period of deliberation or premeditation before A killed B. That’s why first degree murder (or whatever it’s called where you live) is the worst kind – person A thought about killing B and then actually went through with it.

As you can imagine, premeditation is verrrrrrry hard to define. I mean, how long is long enough to show person A actually deliberated? A second? An hour? Ten minutes? Different states say different things. Some, like Pennsylvania, say “no time is too short” – in other words, A can premeditate in the split second before they act. Other states, like West Virginia, say there has to be some period of time between thinking about killing and actually doing it – but that “period of time” is undefined. The important thing here is that A absolutely CAN be charged/convicted for a murder even if they didn’t plan out the murder completely…as long as A considered doing it and then acted, that’s murder to some degree.

oof. You can’t charge for thoughts/words alone, but if Toby ends up dead….#premeditation


Depraved heart murders are a very interesting class of homicide. These happen when person A didn’t mean to kill person B, but acted with such extreme carelessness or indifference for human life that their actions caused person B’s death. Classic depraved heart scenarios include playing Russian roulette when you know there are bullets in the chamber, driving super fast on a sidewalk, and shooting into an “empty” building.

Compared with first and second degree murder, person A didn’t have the same mens rea of intent or knowledge to kill B. However, A’s super-reckless actions demonstrate that they don’t care about human life and therefore, the court treats B’s death as though A did intend it.


In this scenario, person A meant to seriously hurt person B, but not necessarily kill them – nonetheless, person B died. In this case person A can be held liable for murder (and then the actual type of murder, first or second degree, etc., depends on how much premeditation went into A’s action).

^SBI –> murder just WAITING to happen


This is definitely the most complicated & controversial of the intentional homicides, mostly because person A doesn’t set out to kill person B at all. Felony murder comes into play when person A wants to commit a totally different crime (called the predicate felony) and person B dies in the process.

Now, this might not sound too outlandish in certain situations. Take the case where person A goes on a cocaine binge, forgets to take care of their child, and the child dies. Here, the predicate felony is child neglect and the death of the child (via felony murder) is elevated to first or second degree murder. This appeals to us morally, because we want to punish person A for not taking care of their child.

But in other situations, felony murder creates scenarios that make you say “wait, that’s murder? HOW?!” Take this situation, for example: Person A decides to rob an office. They walk in with gun raised, execute the robbery, then leave without using the gun. Shortly after, an employee (person B) has a heart attack and dies. Person A IS liable for first or second degree murder of person B.

@ the Felony Murder doctrine

Wild, right?!!! If anything, person B’s heart is mostly to blame here! But there was a felony (the robbery) which directly caused B’s heart attack and resulting death, so A is responsible for that death.

As you might have guessed, felony murder isn’t extremely popular, and is subject to a lot of confusing criteria (also, the robbery case represents a minority way in which FM is applied). But it’s still around, and I’d bet all the murders in the world that it’ll show up on my final.


Alright, we’re on slightly less culpable grounds now. Under manslaughter, person A was either provoked and meant to kill B, or was reckless and did not mean to kill B. Usually, this difference divides “manslaughter” into the categories of “voluntary” and “involuntary” respectively.


Voluntary manslaughter is often charged when person A was provoked into killing person B. The idea here is that, even though A DID mean to kill B, A never would have done so if not for their heightened emotional state (if you’ve ever heard the term “seeing red,” that’s what vol. manslaughter is getting at). Sometimes this is called “provocation” and sometimes it’s called “extreme emotional distress” – either way, the manslaughter inquiry has two parts. First, was A actually provoked and experiencing emotional distress? Second, would a reasonable person have been provoked/experienced emotional distress under the circumstances?

yea…that’s not gonna hold up in court.

Some states let the matter of provocation go to a jury; others limit provocation to very specific categories like assault & battery, mutual combat, illegal arrest, injury of relatives, and discovery of adultery. Some say the homicide has to happen at the time of provocation, but a few states allow person A to stew over their discovery and then act later. It’s a sticky doctrine all around.


Person A unintentionally killed person B, but was acting recklessly when doing so. This is similar to the Depraved Heart murder, but lacks the “super recklessness” and disregard for human life that would elevate the crime. In a case we read, a ski instructor and racer went way too fast down a slope, flew off a ridge, and collided with another skiier, who subsequently died from his injuries. In that case, the ski instructor was charged with involuntary manslaughter – his skiing was reckless, but he certainly didn’t intend to kill the other skiier.


This is the least severe form of homicide, reserved for situations where person A negligently (but not intentionally or maliciously), caused person B’s death. Negligence just means A didn’t take the same care that a reasonable person would have taken in the situation. Negligent homicides are your car accident cases, when person A is driving negligently and person B dies as a result.

..negligent homicide if Meredith had died. BUT since no one died, no homicide!


With all types of homicide, there are various factors that can exacerbate or mitigate what person A is charged with. As discussed above, this is totally jurisdiction-dependent; some allow for broad defenses, others do not. One of these is the classic self-defense, or A’s honest and reasonable belief that they needed to use deadly force for protection. This can ALWAYS be used to defend against intruders in your own home, but has more limits when defending yourself elsewhere – also, there are threshold requirements of an imminent threat, necessity, and proportionality for a self-defense claim to hold up.

Of course, sometimes A’s belief that they needed to use self-defense against B is honest, but unreasonable – that is, a reasonable person in their shoes should NOT have reacted with deadly force. In that case, self-defense becomes a partial defense; A will still be charged for B’s death, but the charge can be brought down from murder to manslaughter.

Another affirmative defense is insanity, where person A is deemed “legally insane” during the commission of the crime. (This is different than being clinically or medically insane, which can be a bit confusing). Usually, a successful insanity defense will lower the type of murder charge or result in a verdict of “not guilty by reason of insanity.” I will say, this defense is MUCH harder to successfully use than the media makes it seem.

If you REALLY thought you were Beyonce…then maybe.

Finally, voluntary action is always a requirement for a successful homicide charge. If person A is unconscious, asleep, hypnotized, or convulsing when they kill person B, they cannot be held liable for that action. This makes sense because you can’t punish someone for an action they can’t control! However, just like with insanity defenses, courts are ALWAYS wary of people faking these conditions.

There are a few other scenarios, like duress (A tells B, “kill C OR ELSE” and B does) and necessity (the age-old, A can either kill B or 5 others will die), but they generally don’t excuse a homicide. And with that, I’ve pretty much told you all I know about it! I hope it provided a little insight to why so many confusing legal terms are used to describe the same event. PLUS, I feel totally ready for my exam now!!!

….just kidding. See below for how the exam will actually go. Wish me luck!

*I’m totally serious, I am NOT a legal professional and this is not legal advice.

3 thoughts on ““Murder,” Not “Mukduk””

  1. Love this! This is one of my favorite sections to teach in class. And I always tell my kids the word they’ll hear more in my class than anything else is…reasonable.

  2. Wow – great information. Now I can watch crime shows and know what the hell they are talking about. Waiting for your next issue on using the “Insanity” defense.

  3. Thanks for the refresher course. I was on a jury in the late 70’s and we had to decide between voluntary and involuntary manslaughter. One of the most interesting (and sad) experiences I have ever had. Enjoy what I am learning from you.💕

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