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    Criminal Defense Division

    Lying in Wait Murder – Definition, Examples, and Defenses

    What is murder by lying in wait?

    Lying in wait refers to a type of murder where a person waits for his/her victim and then kills in an ambush-style attack. Most states have adopted a statute that says this kind of murder is a form of first-degree murder. Further, most jurisdictions have laws that make lying in wait an “aggravating circumstance.” An aggravating circumstance is a factor that makes the penalty for a crime harsher.

    An example of this offense is when a husband and wife are sitting at their dining table having dinner. The wife has a secret design to kill her husband by dropping poison in his wine glass. After waiting patiently for much of the meal, she slips a powder into his drink as he momentarily leaves the table. The man soon returns, takes a sip of his wine, and later dies from the poison.

    A prosecutor must prove the following to convict a defendant of lying in wait murder:

    1. he or she concealed his or her purpose from the person killed,
    2. he or she waited and watched for an opportunity to act,
    3. the defendant made a surprise attack on the person killed, and
    4. the accused acted with specific intent.

    A defendant can raise a legal defense to challenge a lying in wait murder charge. Some defenses include that:

    1. the prosecutor cannot prove all of the elements beyond a reasonable doubt,
    2. the defendant was legally insane at the time of the murder, and/or
    3. the accused was arrested after a coerced confession.

    California law recognizes the murder of lying in wait. According to Penal Code 189 PC, lying in wait is a type of first-degree murder in the State. The law also says that this type of murder may constitute grounds for capital punishment.

    Our California criminal defense attorneys will highlight the following in this article:

    masked man in bushed pointing a pistol as an example of lying in wait murder

    “Lying in wait” refers to a type of murder where a person waits for his/her victim and then kills in a type of sudden attack.

    1. What are some examples of lying in wait?

    Murder by lying and waiting often includes the defendant committing the following acts:

    1. watching and waiting on the victim,
    2. concealing his/her design or purpose from the victim, and
    3. killing in a surprise manner.

    The following are/are not examples:

    Example: A victim of domestic violence wants to call the police. Her abuser husband tells her that he will kill them if she calls. The wife calls anyway. When the officers respond to the call, the husband is waiting outside behind a garage. He shoots at the police when they arrive, killing them both.

    Example: An addict needs drug money. He knows of a certain alley way by a condo building that is home to many affluent professionals. He hides in the alley one night with a knife. He watches his intended victim leave the building, turn and walk towards the alley, and then he quickly stabs him several times, killing him. The addict takes the victim’s money and belongings.

    Example: A drug dealer is not pleased with “an associate.” He hides a loaded gun in a garbage can where he knows he will meet him the next day. When the associate arrives at the location, the dealer accuses him of stealing. He then walks and gets the gun, shoots at the associate, and kills him.

    Not an example: A man suspects that his wife is cheating. He leaves for work one morning but returns after a couple of hours. He goes home and hears his wife talking with a friend in the kitchen. He listens in on the conversation. At the mention of a man’s name, the husband enters the kitchen. He begins arguing with the wife. He pushes her out of the house, and she tries to run off. The husband grabs a gun, though, and shoots her. The woman dies.

    Note that the above example does not rise to a lying in wait murder. While the killer eavesdropped on his wife, he never formulated a secret plan on how to kill her. Granted, he concealed the fact that he was listening. But he did not conceal his attack.

    2. Is this similar to concealment of purpose?

    “Concealment of purpose” is a term frequently used in lying in wait cases.

    A prosecutor has to prove different elements to convict an accused of lying in wait murder. One of these elements is that the defendant concealed his/her purpose.

    A prosecutor proves this by showing that the accused:

    1. concealed his or her purpose of committing the murder, and
    2. he/she did so from the victim.1

    One court has described concealment of purpose as a “secrecy of design.”2

    A person can conceal his or her purpose even if the person killed is aware of the other person’s physical presence.3

    Note that concealment of purpose is necessary for lying in wait crime. However, the purpose, on its own, is not sufficient to establish this type of murder.

    judge presiding over a courtroom

    A prosecutor must prove that the defendant concealed his purpose, waited, and made a surprise attack.

    3. How does the prosecutor prove lying in wait?

    A person commits murder by means of lying in wait if:

    1. he or she concealed his or her purpose from the person killed,
    2. he or she waited and watched for an opportunity to act, and
    3. he or she made a surprise attack on the person killed.

    Note that states often add a fourth element of proof, but it differs among jurisdictions.

    Some states say that a killer is only guilty if he/she intended to kill the victim.4 Other states, however, say that what matters is:

    • not the intent to kill the victim, but rather
    • the intent to wait and watch and take a victim by surprise.5

    The latter facilitates the crime itself.

    Under the law, the lying in wait does not need to continue for any particular period of time. But its duration must be substantial and must show a state of mind equivalent to:

    • 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. 6

    An act is done with premeditation if the decision to commit the act is made before the act is done.7

    jail inmate seated and speaking with attorney

    It is essential to work with a great attorney who can develop a strong defense strategy

    4. What are the best defense strategies?

    There are a number of strategies a defense attorney can use to challenge a lying in wait charge. Some common ones include showing that:

    1. the prosecution did not prove all of the elements beyond a reasonable doubt.
    2. the defendant was legally insane at the time of the murder.
    3. the accused was arrested after a coerced confession.

    4.1. Elements not proven beyond a reasonable doubt

    Recall that a prosecutor must prove certain elements to convict a person of this murder. For example, he/she must show that the killer waited and watched for an opportunity to act. A defense, then, is for the accused to say that the prosecutor could not prove these elements beyond a reasonable doubt.

    4.2. Insanity

    An accused can always assert an insanity defense to murder. The law says a person is insane if:

    1. he/she did not understand the nature of the act committed, and/or
    2. he/she could not distinguish between right and wrong.8

    If successful, the defense results in the accused being admitted to a state facility for treatment.

    4.3. Coerced confession

    State and federal laws state that police may not use overbearing measures to coerce a confession.

    If a party can show that the police coerced him into a confession, then:

    1. the judge may exclude the confession from evidence, or
    2. the case could get dropped altogether if the party confessed to a crime he did not commit.

    5. What is the law in California?

    California law recognizes and punishes the murder of lying in wait. The State also generally follows the laws outlined above.

    According to Penal Code 189, lying in wait is a type of first-degree murder in California.9 The law also says that this type of murder may constitute grounds for capital punishment.10

    A prosecutor must prove the following to convict a person in California of this offense:

    1. the defendant concealed his or her purpose from the person killed,
    2. he or she waited and watched for an opportunity to act,
    3. the accused made a surprise attack on the person killed, and
    4. he or she intended to kill the person by taking the person by surprise.11

    Given this last element, California is a state that requires a showing of:

    • not an intent to murder a victim, but
    • an intent to watch and wait in order to facilitate the act which constitutes murder.12

    For additional help…

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    Contact us for help.

    For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

    Legal References:

    1. Morales v. Woodford, 388 F.3d 1159 (2003). See also Calderon v. Prunty, 59 F.3d 1005 (1995).
    2. Webster v. Woodford, 361 F.3d 522 (2004).
    3. Morales v. Woodford, 388 F.3d 1159, supra.
    4. Calderon v. Prunty, 59 F.3d 1005 (1995).
    5. People v. Laws (1993) 12 Cal. App. 4th 786.
    6. United States v. Dixon (2016) 191 F. Supp. 3d 603. See also United States v. Bell (2016) 819 F.3d 310.
    7. See same.
    8. R v M’Naghten (1843) 8 E.R. 718. See also People v. Serravo, 823 P2d 128 (1992).
    9. California Penal Code 189 PC.
    10. California Penal Code 190.2a PC.
    11. CALCRIM No. 728 – Special Circumstances: Lying in Wait. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Poindexter (2006) 144 Cal. App. 4th 572.
    12. People v. Laws, supra.

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