Different Types of Homicide in Criminal Law

Whether you watch the news or the latest episode of Law & Order, you have probably heard the terms first-degree murder, felony murder and manslaughter, among others. But what are the differences between the types of homicides? This brief essay, the first in a series about criminal law, will answer this question.

First, it should be explained that the terms and definitions herein discussed are following the "common law" definitions. Many states' statutes codify the old common law definitions of crimes, especially homicides. However, some states have adopted, in whole or part, the Model Penal Code (MPC). The MPC represents an effort by lawyers, judges, and legal academics to modernize criminal law. While some parts of the MPC have been more influential than others, this essay will use the terms and definitions at use in states following the common law definitions of the various types of homicides.

The first type of homicide is "first degree murder." First-degree murder is intentional and premeditated. "Intentional" is the mens rea of the crime, or the requisite intent to commit the crime. "Intentional" means purposely or knowingly. First-degree murder is almost always punished by at least "life in prison," often "life without the possibility of parole," and in some jurisdictions by death.

Felony murder is the old doctrine adopted by every jurisdiction in the U.S. that if a death results (even unintentionally) during the commission of a felony, the perpetrating felon is liable for first-degree murder. For example, if during a bank robbery the teller has a heart attack and dies, and the heart attack was brought about by the stress of the robbery, then the bank robber(s) will be liable for felony murder because a death resulted during the commission of a felony (the bank robbery). There are some exceptions and important caveats, but this basic definition of felony murder will suffice. The important thing to note about felony murder is that it is a "strict liability" crime; no mens rea is required.

The next type of homicide is second-degree murder, of which there are two types: intentional and unintentional. Intentional second-degree homicide differs from first-degree homicide in that it is not premeditated. For example: two people, A and B are at a restaurant. A says highly offensive and inappropriate things to B, and B "just snaps" and kills A. B is guilty of second-degree murder because the killing was intentional, but it was not premeditated-it happened in the moment. (We will learn below that certain conduct can serve as "provocation," which mitigates the severity of the homicide to a lesser charge. However, in most jurisdictions, words alone cannot serve as provocation, hence the example above.) The second type of second-degree murder is unintentional. This is the case when the defendant's conduct that led to the homicide was reckless as to a high probability of death. An example of this would be someone shooting wildly in a room full of people. The defendant was not trying to kill anyone (or even hit anyone with the bullets), but the shooter's conduct was clearly reckless as to a high probability of someone being killed.

The crime of manslaughter can also be committed intentionally (voluntary manslaughter) or unintentionally (involuntary manslaughter). As alluded to above, voluntary manslaughter occurs when there is an intentional killing, but there was "adequate provocation" that led the defendant to "snap." Again, words in most jurisdictions do not suffice as provocation. The classic example of adequate provocation is when a spouse discovers his or her spouse in an affair. If the defendant snaps and kills one of them, he or she will likely be guilty of voluntary manslaughter because witnessing adultery is provocation that courts have long recognized. In addition to the adequate provocation, the defendant must have also acted in the heat of passion (caused by the provocation) and before a reasonable person could have cooled down. Involuntary manslaughter occurs when the defendant acts in a reckless manner and it results in a death. Reckless in this sense is defined as acting in a manner that creates a substantial risk of death. As described above, if the defendant acts in a manner that is reckless as to a high probability of death, it is second-degree murder, not involuntary manslaughter. The prosecutor elects which crime to charge the defendant with, but then the jury determines whether the defendant was actually guilty of second-degree murder or involuntary manslaughter.

This concludes the brief synopsis of the basic types of homicide in American criminal law.