Malice Aforethought – Meaning, Proof and Defenses

In many states, malice aforethought is the requisite mental state a killer must have in order to be found guilty of murder. Here are five key things to know about malice aforethought in murder cases:

1. There are two kinds of malice aforethought: Express malice is when a defendant had the specific intent to kill the victim. Implied malice is when the accused demonstrated a conscious disregard for human life (“depraved indifference”).
2. To get a murder conviction, the prosecutor must prove beyond a reasonable doubt that a defendant acted with malice aforethought.
3. Malice aforethought is a different mental state than premeditation or deliberation, which are elements specifically of first-degree murder.
4. Homicide without malice aforethought can be charged as the lesser offenses of voluntary manslaughter or involuntary manslaughter.
5. Common murder defenses include that the defendant acted in self-defense, that the killing was an accident, or that the defendant was legally insane.

Our criminal defense attorneys will explain the following in this article:

• 1. How does the prosecutor prove malice aforethought?
• 2. What’s the difference between express and implied malice?
• 3. How are deliberation and premeditation different from malice?
• 4. How can the defense negate a finding of malice aforethought?
  • 4.1. Self-defense and defense of others
  • 4.2. Accident or reckless behavior
  • 4.3. Insanity
• 5. What is the law in California?

1. How does the prosecutor prove malice aforethought?

In many states, a prosecutor must prove malice to convict a defendant of murder. Further, they must prove it beyond a reasonable doubt.

Whether a defendant acted with this mental state is a factual matter for the jury to decide. This means a prosecutor must prove malice by using the facts of a given case.

This proof often involves:

• showing that a killer thought about a murder before committing the crime, and
• demonstrating that the accused took certain steps to facilitate the murder.

2. What’s the difference between express and implied malice?

Under criminal law, malice can be either express or implied.¹

Express malice is when a defendant unlawfully intended to kill.²

A defendant acted with implied malice if:

1. they intentionally committed an act,
2. the natural and probable consequences of the act were dangerous to human life,
3. at the time the accused acted, they knew their act was dangerous to human life, and
4. they deliberately acted with conscious disregard for human life.³

3. How are deliberation and premeditation different from malice?

Killing someone with malice is not the same thing as when a person commits a murder with:

• deliberation, or
• premeditation.

Deliberation means a person:

1. carefully weighs the considerations for and against an act, and
2. commits the act knowing its consequences. ⁴

An act is done with premeditation if the decision to commit the act is made before the act is done.

In most states, first-degree murder is a murder that involves deliberation and premeditation.⁵

4. How can the defense negate a finding of malice aforethought?

4.1. Self-defense or defense of others

For self-defense to work as a legal defense, the accused must show that:

1. the defendant reasonably believed that they, or someone else, was in imminent danger of:
   • being killed,
   • suffering great bodily injury, or
   • being the victim of a forcible and atrocious crime,
2. they reasonably believed that using deadly force was necessary to prevent the danger, and
3. the accused used no more force than was reasonably necessary.⁶

4.2. Accident or reckless behavior

An accused can negate a finding of malice aforethought by showing that they:

1. committed some accident, and
2. it was that accident that caused a death.

If a death was accidental, there is no express or implied intent to kill. Similarly, there is no intent if a person’s reckless indifference caused a death. Note that recklessness:

• involves a disregard for the safety of others, and
• does not mean implied malice, or the disregard for someone’s life.

4.3. Insanity

A defense to an intent to kill is for the accused to show that they were insane. The law says a person is insane if:

1. they did not understand the nature of the act, and/or
2. they could not distinguish between right and wrong.⁷

Note that a finding of not guilty by reason of insanity often means:

1. the defendant is committed to a state hospital, and
2. is committed because of a severe mental illness.

5. What is the law in California?

Under California law, malice aforethought is the mental state required for a person to be liable for the crime of first or second-degree murder. Specifically, Penal Code 187 PC defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.”⁸

A defendant acts with express malice if they unlawfully intended to kill.⁹ A defendant acts with implied malice if:

1. they intentionally committed an act,
2. the natural and probable consequences of the act were dangerous to human life,
3. at the time they acted, they knew their act was dangerous to human life, and
4. they deliberately acted with conscious disregard for human/fetal life.¹¹

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