Malice Aforethought

Again, in the old days, when there was just one degree of murder, the mens rea was "malice aforethought." In many states, that has become the mens rea for second degree murder. The term might once have meant a killing done will actual ill-will developed in advance. It no longer has this plain meaning. Instead, it is almost like a placeholder label that has come to collect a few different mental states. 

First, it includes a purposeful or knowing killing, sometimes simply called an intentional killing. If a woman puts a bomb on a plane, seeking to kill her husband, and succeeds in killing him and the other 100 people on board, she is guilty of 101 counts of second degree murder. She acted with malice aforethought because, with respect to her husband, she acted with purpose, and for the others, knowledge they would die. This is the simplest example of second degree murder. Of course, the murder of her husband could be bumped up to first degree murder since she planned it in cold blood.

Second, malice aforethought can include an act done with the intent to cause serious bodily injury, meaning the kind of injury likely to lead to death. If the defendant shoots the victim in the chest, it is enough to prove the defendant intended to cause serious bodily injury and not death. True, in some sense the defendant might not know the injury is likely to lead to death, but almost always does. Cutting off a person's arm or leg also fits into this category. This category too is usually straightforward. 

Third, malice aforethought can include what is often called "depraved heart murder" or "reckless killing with extreme indifference to the value of human life." These two mental states, which we will treat as equivalent, are above reckless but below knowing. Where they fall and what they mean can be very challenging, as the next two cases explore. 

(Just as an aside, Colorado defines first and second degree murder unusually in some respects. First degree murder includes the normal premeditation kind, but for some reason, Colorado also includes the third category above, extreme indifference kililng, as first degree murder. It defines second degree murder an a knowing killing. For this class, ignore Colorado's definitions. They are too different from the norm).