Differences Between First, Second, and Third Degree Murder

Murder is generally defined as the unlawful killing of a human being or a fetus with malice aforethought. There are different degrees of murder, with the most serious being first-degree murder. States define and punish murder differently. For example, Nevada provides that murder can be an unlawful killing of a human being caused by a controlled substance that was sold, given, traded or otherwise made available to a person in violation of the state’s uniform controlled substances act.

California provides that malice is express when the person primarily responsible for the killing manifests a deliberate intent to unlawfully take the life of another human being. Malice is implied when there is not a considerable provocation, or the circumstances attending the killing show an abandoned or malignant heart. Nevada adds on to California’s definition for express malice by stating that the deliberate intention to take the life is “manifested by external circumstances capable of proof.”

California law defines first-degree murder as a willful, deliberate and premeditated killing. It also holds that a murder perpetrated by certain means is first-degree murder. For example, murder committed by an explosive, armor, poison, lying in wait or torture is first-degree murder. Further, murder committed in the perpetration or attempt to perpetrate arson, rape, carjacking, robbery, burglary, mayhem or kidnapping is first-degree murder. The penalty for first-degree murder in California is death, life imprisonment without parole, or imprisonment for 25 years to life.

Nevada’s definition for first-degree murder is roughly the same as California's; it also defines first-degree murder as a willful, deliberate and premeditated killing. Nevada’s penalties for first-degree murder are: a death sentence; life imprisonment without parole; a life sentence with the possibility of parole; with eligibility for parole after a minimum of 20 years or a definite prison term of 50 years; with eligibility for parole beginning when the defendant has served a minimum of 20 years. In Nevada, it is not necessary to determine whether aggravating circumstances exist in order to fix the penalty at imprisonment for life without the possibility of parole.

California and Nevada laws both state that second-degree murder is all other acts of murder that do not fall under the definition of first-degree murder. California penalizes second-degree murder with a term of 15 years to life. If the victim was a peace officer killed in the engagement of their duties, and the defendant knew or reasonably should have known these facts, the term is life imprisonment without parole, or 25 years to life. Nevada penalizes second-degree murder with penalties of life imprisonment with the possibility of parole; with eligibility for parole beginning when 10 years minimum has been served or a definite term of 25 years; or with eligibility for parole beginning when a minimum of 10 years has been served.

California and Nevada do not have a third category of murder. Third-degree murder does not exist in these states and a number of other states. Minnesota has a category for third-degree murder, defined as an act that causes the death of another, is eminently dangerous to others, and evinces a depraved mind without regard for human life.

Minnesota punishes this offense by a maximum of 25 years' incarceration. Another offense that qualifies as third-degree murder in Minnesota is proximately causing the death of a person by unlawfully selling, giving away, bartering, delivery, exchanging, distributing or administering a controlled substance. This crime is punishable by a maximum of 25 years' incarceration and a fine up to $40,000.

California may enhance the penalty for murder if the victim is of a certain class of person. Certain classes include elderly adults, peace officers, federal law enforcement officers, firefighters and witnesses in criminal and juvenile cases killed expressly for the purpose of preventing their testimony in a proceeding. A person who is not the actual killer, but who has the intent to kill, aid, abet, counsel or assist an actor in the commission of a murder of one of the above-mentioned persons will be punished by the death penalty or life imprisonment without parole.

The court recognizes both aggravating and mitigating circumstances in the case of murder. In California, aggravating and mitigating circumstances include: the defendant’s prior felony convictions, particularly crimes of violence; the express or implied threat to use force or violence; and the defendant’s character, background, history, mental condition and physical condition.

In Nevada, aggravating and mitigating circumstances include: whether the defendant was imprisoned at the time of the crime; whether the murder was committed at random and without apparent motive; the fact that the defendant did not have a significant history of prior criminal activity; the fact that the murder was committed while the defendant was under the influence of extreme emotional or mental disturbance; and the fact that the victim was a participant in the defendant’s criminal conduct.

California defines an attempted crime as one where the person fails at actually completing the crime or is prevented or intercepted in its perpetration. If the crime attempted is first-degree murder, the person will be punished by imprisonment for life with the possibility of parole. If the crime attempted is any other crime in which the maximum sentence is life imprisonment or death, the person will be punished by imprisonment for five, seven or nine years.

Nevada defines an attempted crime as an act done with the intent to commit a crime and tending, but failing, to accomplish it. A person who attempts to commit first- or second-degree murder is punishable by between two and 20 years in jail.

Murder is typically charged as a state crime in state courts, but federal prosecutors can also charge the offense in federal courts. U.S. Code defines murder as the unlawful killing of a human being with malice aforethought.

The federal government uses some of the same language as California, stating that a willful, deliberate, malicious or premeditated killing is murder in the first degree. Any other murder is murder in the second degree. The federal penalty for first-degree murder is death or life imprisonment; the federal penalty for second-degree murder is for life or “for any term of years.”

During the course of a crime like a robbery or a carjacking, a murder can occur. If multiple parties are engaged in the offense, a principal may be charged with murder. The accessory may be charged with a lesser degree of murder or just for the other crime in which they were engaged.

California holds that a person committing a crime who directly commits the act constituting the offense, aids or abets in its commission, or not being present but advising and encouraging in its commission, or threatens or menaces the first person to commit the crime, is considered a principal. A person who, after a felony has been committed, harbors or aids the principal in the felony, is an accessory to the felony.

An individual charged with murder can have a defense to the crime. California provides in its Criminal Jury Instructions that self-defense or defense of another is a defense to murder. In order to assert these defenses, the defendant must have reasonably believed they were in imminent danger of being killed or suffering great bodily injury, they reasonably believed the immediate use of deadly force was necessary to defend against the danger and they used no more force than was reasonably necessary to defend against the danger. It is not sufficient that the defendant believed in a future harm.

In line with the self-defense jury instructions, California holds that homicide may be justifiable when a person is resisting an attempt to murder another person, an attempt to commit a felony or do a great bodily injury upon any person. Homicide is further justifiable when committed in defense of habitation, property or person against an individual to intends to commit a felony or intends and endeavors to enter another person’s home to commit violence to any person in the home. For example, homicide is justifiable if an individual is defending their home and occupants in it in the course of a robbery. Homicide is also justifiable under certain other circumstances, such as when committed in the lawful defense of a spouse, parent or child of a person, or to lawfully suppress a riot.

California provides that the killing of a person may be excusable under certain circumstances, including when the killing is committed by accident and misfortune or in the commission of any other lawful act by lawful means, with usual and ordinary caution and without any unlawful intent. Homicide is also excusable when a person commits it by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation or upon a sudden combat. The person who kills another must not take undue advantage, use a dangerous weapon and not commit the killing in a cruel or unusual manner.

Manslaughter is the unlawful killing of another human being without malice. California recognizes three types of manslaughter: voluntary, involuntary and vehicular. Voluntary manslaughter occurs upon a sudden quarrel or in the heat of passion.

Involuntary manslaughter occurs in the commission of an unlawful act not amounting to a felony or the commission of a lawful act that could produce death, that occurred in an unlawful manner or without due caution and circumspection (being wary of the risks). Vehicular manslaughter occurs in a wide variety of circumstances, including driving a vehicle in the commission of an unlawful act not amounting to a felony and with gross negligence, or driving a vehicle in the commission of a lawful act, which might produce death, in an unlawful manner and with gross negligence. The penalties for manslaughter in California are three, six or 11 year prison sentences for voluntary manslaughter,; two, three or four years for involuntary manslaughter; and between one and 10 years for vehicular manslaughter.

Nevada defines manslaughter as the unlawful killing of a human being without malice and without any “mixture of deliberation.” In Nevada, manslaughter can be voluntary upon sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, or involuntary, in the commission of an unlawful act or a lawful act without due caution or circumspection.

Nevada does not include vehicular manslaughter in its definition of manslaughter. The penalty for voluntary manslaughter in Nevada is between one and 10 years' incarceration and a fine up to $10,000. The penalty for involuntary manslaughter in Nevada is between one and four years' incarceration and a fine up to $5,000, unless a statute authorizes or requires a greater fine.

A defendant who has been accused of murder or manslaughter should seek the legal advice of an experienced criminal defense attorney. The legal issues in such a case are high level. A defendant should not attempt to represent themselves. It is especially important that a defendant in a murder case speak to their attorney about whether they should testify in their own defense. The greatest concern is how the defendant will withstand cross-examination or questions from the prosecutor.