Malice Aforethought – Meaning, Proof and Defenses

Updated July 27, 2020

In many states, malice aforethought is the requisite mental state a killer must have in order to be found guilty of murder. A prosecutor must prove beyond a reasonable doubt that a defendant acted with this state. Whether or not a defendant acted with malice aforethought is a question of fact for the jury to decide.

There are two kinds of malice aforethought: express malice and implied malice. Express malice is when a defendant specifically intended to kill the victim. Implied malice is when the accused demonstrated a conscious disregard for human life.

Proof of either is sufficient to establish the state of mind required for murder. If an accused caused someone else’s death unlawfully but without this mental state, he or she may be liable for voluntary manslaughter or involuntary manslaughter – but not for murder.

Note that the definition of malice aforethought refers to a different mental state than premeditation or deliberation. Premeditation means a person decided to commit murder before the crime was done – in short, there was predetermination. Deliberation means that a person:

1. weighed the pros and cons of committing murder, and
2. then murdered someone knowing its consequences.

Both elements are often necessary for a federal or state conviction of first-degree murder.

There are a number of strategies a defense attorney can use to negate a finding of malice aforethought. Some common ones include showing that:

1. the defendant acted in self-defense or in the defense of another.
2. the accused’s accident or reckless behavior resulted in a killing.
3. the defendant was legally insane at the time of the murder.

Our criminal defense attorneys will highlight 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?

Malice aforethought is the requisite “mens rea” a killer must have to get a murder conviction.

1. How does the prosecutor prove malice aforethought?

In many states, a prosecutor must prove malice to convict a defendant of murder. Further, he or she 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.

Example: Victoria breaks up with Jose so that she can date Phillip. Outraged that Phil “took his girl,” Jose buys a gun and ammo. He takes a few courses to learn how to shoot it and he practices firing it at a shooting range. Jose also regularly watches Phillip leave work so that he knows where Phil goes afterwards. Jose learns that he always goes straight home on Wednesdays to take a nap. On one Wednesday, Jose waits outside Phillip’s home for him to arrive. As Phil walks to the door, Jose shoots him dead.

Here, a prosecutor can prove that Jose is guilty of murder. He/she can show malice by showing that Jose:

• purchased a gun and ammo,
• took courses and practiced shooting, and
• watched Phillip after work.

These all show express malice – an intent to kill.

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

Example: Gang members purposely shoot high-powered assault rifles into a crowd of rivals. This behavior is explicit and shows a direct intent to kill. The malice, therefore, is considered express malice.

A defendant acted with implied malice if:

1. he/she 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, he/she knew his/her act was dangerous to human life, and
4. he/she deliberately acted with conscious disregard for human life.³

Example: Bryan has 2 prior DUI convictions. He has attended DUI school and been advised that driving under the influence endangers the life of himself, other drivers and pedestrians. Bryan goes to a bar and consumers 9 beers. His BAC is a .16. He gets in his car to drive home. He strikes a child crossing the street, killing the child. The murder charge Bryan gets prosecuted for is  “Watson” DUI murder.

Bryan never intended to kill the child. But a prosecutor could probably show that:

• the natural consequences of Bryan’s behavior were dangerous to the victim’s life,
• he knew of these dangers, and
• he still continued to act and did so with a conscious disregard for human life.

Express malice is when a defendant unlawfully intended to kill.

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

Example: Alex is feuding with his girlfriend over her infidelity. At work he gets into arguments with coworkers about it. After one heated quarrel, he goes and buys a gun. He contemplates shooting the coworker. He weighs the pros and cons and understands a con could be life in prison. He decides to shoot the person anyway.

Alex returns to work the next day and shoots the co-worker dead.

Here Alex showed the “express” mental element of murder. His behavior demonstrated an intent to kill.

Additionally, a jury may find him guilty of first-degree murder. He acted with deliberation (weighing both the pros and cons of the murder), and the action was premeditated (deciding to kill on the day prior to the murder).

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

There are a number of strategies a defense attorney can use to negate a finding of malice. Some common ones include showing that:

1. the defendant acted in self-defense or in the defense of another.
2. the accused’s accident or reckless behavior resulted in a killing.
3. the defendant was legally insane at the time of the murder.

4.1. Self-defense or defense of others

Many jurisdictions say that a defendant is legally justified in using deadly force in self-defense in some circumstances.

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

1. the defendant reasonably believed that he/she, or someone else, was in imminent danger of:

• being killed,
• suffering great bodily injury, or
• being the victim of a forcible and atrocious crime,

1. he/she reasonably believed that using deadly force was necessary to prevent the danger, and
2. the accused used no more force than was reasonably necessary.⁶

Example: Isabelle walks home from a bar at night. Suddenly, a patron from the bar runs behind her, starts fondling her, and says she is going to “enjoy this.” It is likely justifiable self-defense if Isabelle grabs a nearby bottle, smashes it, and stabs the patron with it – killing him.

Isabelle reasonably feared she was going to be raped and she used appropriate force. The act of self-defense negates any notion that she had acted with malice aforethought.

But compare this with the scenario where Isabelle walks home from work during the day. She is in a crowded neighborhood and a man runs up to her and grabs her purse. Isabelle takes a knife from her jacket and stabs the man in the neck – killing him.

Here, Isabelle would fail in using self-defense as a legal defense. There was no real danger of her being killed or suffering great bodily harm. Further, she used more force than was necessary. A prosecutor could argue that she acted with malice aforethought.

4.2. Accident or reckless behavior

An accused can negate a finding of malice aforethought by showing that he/she:

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 he/she was insane. The law says a person is insane if:

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

Example: Eddie has a history of severe mental illness. His father takes him swimming in the ocean. Eddie does not have a clear understanding of death. He also does not know that it is legally and morally wrong to kill someone.

He sees a large plastic bag floating on the surface of the water. He hears a voice saying to put it over his dad’s head. He does and the father later drowns.

In this case, Eddie did not understand that putting a bag over a swimmer’s head might be detrimental. He also could not comprehend that this act could be wrong. The insanity defense would apply.

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.”

State law says that malice aforethought can be either express or implied. ⁸

A defendant acts with express malice if he/she unlawfully intended to kill. ⁹

A defendant acts with implied malice if:

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

Also see our article about the felony murder rule.

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