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92.7 Intentional Murder

    92.7.3 Intentional Murder: Premeditation And Deliberation Issues

    92.7.3.1 Premeditation And Deliberation As Individually Designated Elements
    92.7.3.2 Intentional Murder: Specification Of Prosecution's Burden As To Premeditation And Deliberation
    92.7.3.3 Intentional Murder: Impact Of Provocation And Heat Of Passion/Hot Blooded On Premeditation And Deliberation
    92.7.3.4 Honest Belief In Self Defense As Defense Theory To Premeditation, Deliberation Or Other Mental Elements Of Murder
    92.7.3.5 Killing Without Premeditation/Deliberation As Lesser Degree OF Murder
    92.7.3.6 Premeditation And Deliberation As Inconsistent With Impulsive Attack
    92.7.3.7 Premeditation And Deliberation Does Not Preclude Consideration Of Self Defense, Etc.
    92.7.3.8 Deliberation Requires Contemplation Of A Preconceived Design To Kill
    92.7.3.9 Premeditation And Deliberation Requirement Of A Conscious Decision To Kill
    92.7.3.10 Premeditation And Deliberation Requires A “Second Look”
    92.7.3.11 Premeditation Requires A Sufficient Time To Consider And Weigh The Choice
    92.7.3.12 Premeditation And Deliberation Requires More Than Specific Intent To Kill
    92.7.3.13 Premeditation And Deliberation: Consideration Of Planning, Motive And Manner
    92.7.3.14 Premeditation And Deliberation: Jury Consideration Of Lack Of Motive, Furtiveness Or Relationship Between Defendant And Victim
    92.7.3.15 Cultural Background As Relevant To Premeditation/Deliberation
    92.7.3.16 Premeditation/Deliberation: Consciousness Of Guilt Not Relevant
    92.7.3.17 Premeditation And Deliberation: Abuse Of Body After Victim Is Dead Not Relevant
    92.7.3.18 Absence of Premeditation As Relevant to Intent To Kill
    92.7.3.19 Premeditation And Deliberation: Killing With Deadly Weapon Not Sufficient
    92.7.3.20 Premeditation And Deliberation: Act Of Killing Insufficient
    92.7.3.21 Premeditation And Deliberation: Time Necessary To Form Cannot Be Arbitrarily Fixed
    92.7.3.22 Defense Theory That Defendant's Inability To Express His Or Her Emotions Negates Premeditation And Deliberation
    92.7.3.23 Premeditation: Improper To Define As An Opportunity To Reflect
    92.7.3.24 Premeditation: Improper To Inform Jury That "Actual Reflection" Is Not Required
    92.7.3.25 Passage Of Time Is Not A Proxy For Premeditation

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RATIONALE: Premeditation and deliberation are distinct mental states. However, unless they are each designated as separate elements the jury may tend to lump them together into a single mens reas rather than considering each individually.

POINTS AND AUTHORITIES: "[P]remeditation and deliberation [should be treated] as distinct and separate elements of premeditated murder." (State v. Brooks (TN 1993) 880 SW2d 390, 393; see also Byford v. State (NV 2000) 994 P2d 700; Polk v.Sandoval (9th Cir. 2007) 503 F3d 903.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    First degree murder requires proof beyond a reasonable doubt of the following:

    1.    The defendant caused the death of _______________ <name of alleged victim>;

    AND

    2.    The defendant did so with:

    3.    Specific intent to kill ________________ <name of alleged victim>;

    AND 

    4.    Prior to the killing the defendant premeditated; 

    AND

    5.    Prior to the killing the defendant deliberated.

    Specific intent to kill means purpose or conscious intention to cause death.

    Premeditation means forming an intent or design to kill. To premeditate is to give thought, before acting, to taking a human life, and then to reach a definite decision to kill.

    Deliberation means considering and reflecting on the preconceived design to kill, turning it over in the mind, giving it second thought.

[See generally Logan v. U.S. (D.C. Cir. 1984) 483 A2d 664, 671 [intent to kill]; Fisher v. U.S. (1946) 328 US 463, 469-70, fn 3 [66 SCt 1318; 90 LEd 1382] [premeditation and deliberation]; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.17 [Homicide-First Degree Premeditated Murder And Second Degree Murder (No Justification Or Mitigation Generated)] (Bar Association of the District of Columbia, 4th ed. 1993).]

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RATIONALE: When the defense theory focuses on the failure of the evidence to prove premeditation and deliberation beyond a reasonable doubt, the defendant should have the right, on request, to a defense theory instruction which relates the defense theory to the prosecution's burden.

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    If you have a reasonable doubt as to whether the defendant formed a deliberate intent to kill which was the result of premeditation and deliberation formed upon preexisting reflection after weighing and considering the question of killing, the reasons for and against such a choice and the consequences of the choice, then you must give the defendant the benefit of that doubt and find [him] [her] not guilty of first degree murder [based on premeditation and deliberation].

[Source: NCJIC.]

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RATIONALE: Even if the evidence of provocation, heat of passion, or extreme mental and emotional disturbance is not sufficient to reduce murder to manslaughter, such evidence may still be relevant to negate premeditation and deliberation.

POINTS AND AUTHORITIES: In many jurisdictions, heat of passion or extreme emotional disturbance are available to reduce murder to manslaughter. However, even if such evidence is not sufficient to reduce the conviction to manslaughter, it may still be considered by the jury in determining whether the defendant formed the other required mental states such as premeditation and deliberation. (See e.g., Bush v. Stephenson (E.D.N.C. 1986) 669 FSupp 1322, 1331, 1339-40 [among the "circumstances to be considered in determining whether a killing was with premeditation and deliberation [is] ... want of provocation on the part of the deceased"]; State v. Hoyt (MN 1868) 13 Minn. 132 [killing committed in heat of passion upon sudden provocation or sudden combat is intentional but without premeditation]; State v Burr (NC 1995) 461 SE2d 602, 622; State v. Bush (NC 1982) 297 SE2d 563, 570 [the presence or absence of heat of passion is relevant to the question of premeditation and deliberation as well as malice].) For example, juries have long been instructed in California that heat of passion may negate the premeditation necessary for first degree murder -- thus reducing the offense to second degree murder -- even if the heat of passion was not sufficiently complete or reasonable to reduce the homicide to manslaughter. (See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.73 [Evidence Of Provocation May Be Considered In Determining Degree Of Murder] (Calif., 2000 Supp.) (West, 6th Ed. 1996) .)

    The same reasoning may apply in other jurisdictions. For example, where first degree murder is defined as a premeditated design to kill and second degree murder is defined in terms of "depraved heart" or "implied malice" then incomplete, imperfect or unreasonable heat of passion may reduce the homicide to second degree murder by negating the required premeditated design for first degree murder.

    The same principle also applies to the doctrine of extreme mental and emotional disturbance used to statutorily mitigate malice in some jurisdictions. "Like common law passion and provocation, the Model Penal Code notion of extreme mental and emotional disturbance is entirely at odds with premeditation and deliberation. It presupposes a degree of emotional agitation, akin to that presumed by passion and provocation, that is inconsistent with premeditation." (Guam v. Quichocho (9th Cir. 1992) 973 F2d 723, 725.)

    Accordingly, an instruction on such a defense theory should be given when appropriate.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

Annotation, Insulting Words As Provocation Of Homicide Or As Reducing The Degree Thereof, 2 ALR3d 1292.

Wharton’s Criminal Law (West, 15th ed. 1993) § 158, pp. 353-57.

See also generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat-of-passion.

[Source: REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 11.051 [First Degree Murder By Premeditation] (CLE State Bar of Arizona, 1996).]

    Provocation which played a part in inducing an unlawful killing of a human being, but which was not sufficient to reduce the homicide to manslaughter, is a factor to consider as to whether the defendant killed with deliberation and premeditation.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.73 [Evidence Of Provocation May Be Considered In Determining Degree Of Murder] (West, 6th Ed. 1996).]

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RATIONALE: In jurisdictions where imperfect self defense is not recognized, or in situations where the jury may not fully accept imperfect self defense on the evidence presented to negate malice, it may be appropriate to instruct the jury to consider the evidence of self defense on the question of premeditation, deliberation or other degree enhancing mental state.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

   Even if you find that the defendant should be criminally liable for [his] [her] conduct, notwithstanding the evidence of self defense, you must still consider that evidence in deciding whether the defendant formed the intent to ______________ (insert required intent, e.g., to kill) and the mental state of _______________ (insert required mental state, e.g., premeditation and deliberation).

[Source: NCJIC.]

    [Evidence has been presented] [It is a contention of the defendant] that the defendant's participation in the killing of ____________ was the result of defendant's honest belief that [his] [her] life was in danger and that [he] [she] would be killed unless [he] [she] participated in the killing of ____________.

    You must consider [this evidence] [the evidence relevant to this contention of the defendant] in deciding whether the following mental elements have been proven beyond a reasonable doubt:

    [Insert required mental elements of the murder charge.]

    If you have a reasonable doubt as to whether the defendant formed any of the above mental states, you must give the defendant the benefit of that doubt and find that such mental element was not been proven.

    The defendant's honest belief that [his] [her] life was in danger may, by itself, leave you with a reasonable doubt in your mind that defendant formed any of the above mental elements.

[Source: NCJIC.]

    Honest but unreasonable belief in the need to use self defense is not a defense in this case. However, you may consider such evidence on the question of whether the defendant acted with premeditation and deliberation.

[Source: Adapted from U.S. v. Madoch (7th Cir. 1998) 149 F3d 596, 599.]

    You may consider evidence of self defense for such bearing as it may have on the question of whether the murder was of the first or second degree.

    If you have a reasonable doubt that the killing was first degree murder, you must given the defendant the benefit of that doubt and find [him] [her] not guilty of first degree murder. Evidence that the defendant honestly believed in the necessity of acting in self defense may, by itself, raise a reasonable doubt in your mind that the killing was first degree murder.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 6:

    Even if you reject the evidence of self defense and find the killing to be unlawful, you must still consider the evidence of self defense in deciding whether the prosecution has proven that the defendant killed with [deliberation] [and] [premeditation].

[Source: NCJIC.]

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PRACTICE NOTE: "....[B]etween the forming of the intent to do the act and the act itself, an appreciable length of time must have elapsed to allow deliberation, reflection and judgment.... A premeditated act ... is never one which has been committed in a hasty or impulsive manner." (People v. Sneed (CO 1973) 514 P2d 776, 778.)

    Thus, defendant’s actions were not cold and calculating where defendant used "hastily obtained weapons of opportunity, carried out the attacks in a haphazard manner...and then fled in panic." (Mahn v. State (FL 1998) 714 So2d 391, 398; see also State v. Koho (ID 1967) 423 P2d 1004, 1006 ["deliberately" means done in a cool state of the blood, not in sudden passion engendered by lawful or some just cause or provocation; "premeditation" means thought of beforehand for any length of time however short].)

RESEARCH NOTES:

Wharton’s Criminal Law (West, 15th ed. 1993) § 142, pp. 257-70.

See also generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

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RATIONALE: Without an explanatory instruction the jury may improperly assume that the presence of premeditation and deliberation precludes consideration of a justification defense such as self defense.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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RATIONALE: Deliberation requires careful weighing of a proposed decision. Hence, in the context of homicide it requires careful consideration and reflection upon the design to kill. Without special instruction the jury may not understand these requirements.

POINTS AND AUTHORITIES: "...'[D]eliberation' is the process of carefully weighing such matters as the wisdom of going ahead with the proposed killing, the manner in which the killing will be accomplished, and the consequences if and when the killer is apprehended. ‘Deliberation’ means that the thinking, i.e., the ‘premeditation,’ is being done in such a mental state and for such a period of time as to permit a ‘careful weighing’ of the proposed decision." (Criminal Evidence (West, 14th ed. 1986) § 3:18, p. 211.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    Deliberation is consideration and reflection upon the preconceived design to kill; turning it over in the mind; giving it second thought.

    Although formation of a design to kill may be instantaneous, as quick as thought itself, the mental process of deliberating upon such a design does require that an appreciable time elapse between formation of the design and the fatal act within which there is, in fact deliberation.

    The law prescribes no particular period of time. It necessarily varies according to the peculiar circumstances of each case. Consideration of a matter may continue over a prolonged period -- hours, days or even longer. Then again, it may cover but a brief span of minutes. If one forming an intent to kill does not act instantly, but pauses and actually gives second thought and consideration to the intended act, [he] [she] has, in fact, deliberated. It is the fact of deliberation that is important, rather than the length of time it may have continued.

[Source: This definition was held to be "clear, definite, understandable and applicable to the facts developed by the testimony" in Fisher v. U.S. (1946) 328 US 463, 467 fn 3, and 470 [66 SCt 1318; 90 LEd 1382].)

    To deliberate is to weigh in one’s mind, to consider, to contemplate, or to reflect.

[See generally State v. Gramenz (IA 1964) 126 NW2d 285, 287-91; cf. IOWA CRIMINAL JURY INSTRUCTIONS 700.5 [Murder In The First Degree - Definition Of Elements] (Iowa State Bar Association, 1997).]

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RATIONALE: Without an explanatory instruction the jury may improperly find premeditation and/or deliberation without finding a conscious decision to kill.

POINTS AND AUTHORITIES:  The crux of the issue of premeditation and deliberation is not the particular time involved but whether the intent to kill was the product of a conscious decision as opposed to an impulsive or almost instinctive reaction. (See e.g., Willey v. State (MD 1992) 613 A2d 956, 960.) 

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    A premeditated design to kill means that there was a conscious decision to kill. The decision must be present in the mind at the time the act was committed.

[See generally Commonwealth v. Nickerson (MA 1983) 446 NE2d 68, 73; cf. FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES F.S. 782.04(1)(a) [Murder-First Degree]; 777.04, [Attempted Murder-First Degree (Premeditated)] (Florida Bar, 2000); Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 5.1 [Malice] (Lexis, 2nd ed. 1999).]

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RATIONALE: Defining deliberation in terms of a "second look" conveys the requirement of an interval between the initial thought and the ultimate act.

POINTS AND AUTHORITIES: "While the minimum time necessary to exercise [premeditation and deliberation] is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable [person] time to subject the nature of his response to a ‘second look.’" (People v. Vail (MI 1975) 227 NW2d 535, 538; see also Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 2, § 1, p. 132 ["the intent to kill must be turned over in the mind and given a 'second thought.' [Footnote omitted.]"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    There must have been real and substantial reflection for long enough to give a reasonable person a chance to think twice about the intent to kill.

[See generally Fisher v. U.S. (1946) 328 US 463, 467 fn 3, and 470 [66 SCt 1318; 90 LEd 1382]; People v. Vail (MI 1975) 227 NW2d 535, 538; Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 2, § 1, p. 132; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 16.1 [First Degree Premeditated Murder] ¶ 5, sent. 2 (ICLE, 2nd ed. 1999).]

    Deliberation means considering and reflecting on the preconceived design to kill, turning it over in the mind, giving it second thought.

[See generally Fisher v. U.S. (1946) 328 US 463, 467 fn 3, and 470 [66 SCt 1318; 90 LEd 1382]; Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 2, § 1, p. 132; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.17 [Homicide-First Degree Premeditated Murder And Second Degree Murder (No Justification Or Mitigation Generated)] (Bar Association of the District of Columbia, 4th ed. 1993).]

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RATIONALE: Without special instruction the jury may not understand that to establish premeditation there must be a distinct interval between the forming of the intent and the execution of the intent.

POINTS AND AUTHORITIES: An instruction on premeditation should "emphasize that in order for the jury to conclude that the defendant premeditated the killing it must find that the defendant had sufficient time to consider the decision whether or not to kill and weigh the reasons for or against such a choice." (See Willey v. State (MD 1992) 613 A2d 956, 961-62; see also People v. Plummer (MN 1998) 581 NW2d 753, 757 [same]; State v. Guthrie (WV 1995) 461 SE2d 163, 182 [requiring instruction that there must be an interval "between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended"]; Wharton’s Criminal Evidence (West, 15th ed. 1986) § 3:18, p. 211 ["...'Premeditation’ is simply thinking about a proposed killing before committing it...]; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:17 [Homicide-First Degree Premeditated Murder And Second Degree Specific Intent Murder (No Justification Or Mitigation Generated)] (Micpel, 1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

USE NOTE: As to the question of whether the instruction should state "a span of minutes [or less]" see the comment to CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.17 [Homicide-First Degree Premeditated Murder And Second Degree Murder (No Justification Or Mitigation Generated)] (Bar Association of the District of Columbia, 4th ed. 1993).

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    To be premeditated an intent to kill must have been formed sufficiently prior to the killing for the defendant to have considered the decision whether or not to kill and to weigh the reasons for or against such a choice.

[Source: Adapted from Willey v. State (MD 1992) 613 A2d 956, 961-62.]

    "Premeditate" is to think or ponder upon a matter before acting.

[See generally State v. Gramenz (IA 1964) 126 NW2d 285, 287-91; cf. IOWA CRIMINAL JURY INSTRUCTIONS 700.5 [Murder In The First Degree - Definition Of Elements] (Iowa State Bar Association, 1997).]

    Premeditation means forming an intent or design to kill. To premeditate is to give thought, before acting to take a human life, and then to reach a definite decision to kill.

[See generally Fisher v. U.S. (1946) 328 US 463, 467 fn 3, and 470 [66 SCt 1318; 90 LEd 1382]; see also Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 2, § 1, p. 132; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.17 [Homicide-First Degree Premeditated Murder And Second Degree Murder (No Justification Or Mitigation Generated)] (Bar Association of the District of Columbia, 4th ed. 1993).]

    Although premeditation -- the formation of a design to kill -- may be instantaneous, as quick as thought itself, it is necessary that an appreciable time elapse between formation of the design and the fatal act, within which there is, in fact, deliberation. The law requires no particular period of time. It necessarily varies according to the circumstances of each case. Consideration of the matter may continue over a prolonged period -- hours, days or even longer. Then again, it may cover a span of minutes [or less]. After forming an intent to kill, if one does not act instantly, but pauses and actually gives second thought and consideration to the intended act, s/he has, in fact, deliberated. It is the fact of deliberation that is essential, not the length of time it may have gone on.

[See See generally Fisher v. U.S. (1946) 328 US 463, 469-70, n 3 [66 SCt 1318; 90 LEd 1382]; see also Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 2, § 1, p. 132; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.17, [Homicide-First Degree Premeditated Murder And Second Degree Murder (No Justification Or Mitigation Generated)] para. 6 (Bar Association of the District of Columbia, 4th ed. 1993).]

    Premeditation means thought over beforehand. Premeditation requires more than a moment in time. The law requires some time, however long or short, in which a design to kill is deliberately formed.

[See generally State v. Rehak (WA 1992) 834 P2d 651, 655; State v. Rice (WA 1988) 757 P2d 889, 903; cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 26.01.01 [Premeditation-Definition] (West, 2nd ed. 1994).]

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RATIONALE: Since premeditation, deliberation and intent to kill are all phrased in terms of intent, the jury may blur the distinction unless given a specific explanatory instruction.

    Such an instruction protects against the jurors "‘blur[ring] the distinction’ between deliberate premeditation and malice aforethought." (Commonwealth v. Skinner (MA 1990) 556 NE2d 1014, 1016.) Since both premeditation/deliberation and intent to kill are phrased in terms of intent, the jury, unless cautioned, may not understand the distinction. (Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 5-3, comment [Murder Committed With Deliberately Premeditated Malice- Aforethought] (Lexis, 2nd ed. 1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    A finding of first-degree murder based on premeditation and deliberation requires more than a specific intent to kill. In all intentional killings, the murderer is motivated to kill the victim. Hence, to convict a defendant of first-degree murder there must be evidence that demonstrates not just an intent to kill but the additional mental state of premeditation and deliberation.

[Source: NCJIC.]

    Consider the distinction between deliberate premeditation and intent to kill. Even if you find beyond a reasonable doubt that the defendant intended to kill ______________ (name of victim), if you do not find beyond a reasonable doubt that the intent to kill was preceded by deliberation and reflection, then you may not find the defendant guilty of first degree murder.

[See generally Commonwealth v. Basch (MA 1982) 437 NE2d 200, 202; cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 5-3 [Murder Committed With Deliberately Premeditated Malice Aforethought] (Lexis, 2nd ed. 1999).]

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RATIONALE: Because premeditation and deliberation is typically manifested by planning, motive and/or manner evidence, instructions or these factors may help the jury to understand the legal concepts.

POINTS AND AUTHORITIES: Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.21a [Murder-First Degree: Willful, Deliberate And Premeditated Killing] ¶ 4, p. 252 (Lexis, 2nd ed. 1988); see also People v. Anderson (CA 1968) 70 C2d 26, 32-33; but see People v. Lucero (CA 1988) 44 C3d 1006, 1020 [no error to refuse instruction which "incorrectly suggest[ed] to the jury it must find evidence of planning, motive and manner..."].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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RATIONALE: When the defense contends that premeditation and deliberation was not proven, it may be appropriate to instruct the jury on specific factors which should be considered in deciding whether the killing was premeditated and deliberate.

POINTS AND AUTHORITIES: "Lack of motive is not only relevant on the issue of identification but also to the issue of premeditation and deliberation, and no reason appears why a defendant upon request should not be entitled to a specific instruction pointing out that lack of motive is a circumstance which may be considered by the jury in determining the issue of premeditation and deliberation. Similarly, lack of furtiveness and the relationship between the defendant and his victims are circumstances which may be considered in determining the issue of premeditation and deliberation." (People v. Sears (CA 1970) 2 C3d 180, 189 [84 CR 711].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    The defendant in this case has introduced evidence for the purpose of showing that [he] [she] [had no motive to commit the killing], [did not commit any furtive conduct prior to or after the killing], [had no prior relationship with the victim].  Consider such evidence, in addition to all of the other circumstances, in deciding whether the killing was willful, deliberate and premeditated. If from all the evidence you have a reasonable doubt whether the defendant willfully premeditated and deliberated, you must find that [he] [she] did not.

[Source: NCJIC.]

    The prosecution is not required to prove that the defendant had a motive for the killing. However, evidence of motive or lack of motive is a factor to consider in deciding whether the prosecution has proved beyond a reasonable doubt that the defendant killed with premeditation and deliberation.  Motive by itself does not prove premeditation and deliberation.

[See generally People v. Sears (CA 1970) 2 C3d 180, 189 [84 CR 711]; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 16.21 [Inferring State Of Mind] ¶ 6 (ICLE, 2nd ed. 1999).]

SAMPLE INSTRUCTION # 3:

"Premeditation" means that the defendant intended to kill another human being. [knew he/she would kill another human being], and that after forming that intent [knowledge], reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

[Source: State v. Thompson (AZ 2003) 65 P.3d 420, 428.]

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    92.7.3.15    Cultural Background As Relevant To Premeditation/Deliberation

    "Defendants in cultural defense cases often will have acted solely under the dictates of cultural norms, and not under a mistaken understanding of fact." (See e.g., People v. Kimura, No. A- 091133 (Super. Ct. L.A. County Apr. 24, 1985), cited in "Cultural" Defenses Draw Fire," R. Sherman, Nat'l L.J., Apr. 17, 1989, at 3, 28) [defendant learned of her husband's infidelity and followed the Japanese ritual of oya-ko-shinju (parent-child suicide) to rid herself and her children of shame]; People v. Wu DEPUBLISHED (CA 1991) 286 CR 868, 884-85 [defendant killed her illegitimate son to care for him in the afterlife rather than leave him to be ill-treated by his father]; also cited in "The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism," Chiu, 82 Calif. L. Rev. 1053, 1125.)

    Therefore, the defendant is entitled to have the jury instructed that it may consider such evidence in determining relevant mental states.

OPINION AVAILABLE: Click here. [Opinion Bank # O-117].

See Chiu, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism, 82 Calif. L. Rev. 1053 (July 1994).

See also generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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    92.7.3.16    Premeditation/Deliberation: Consciousness Of Guilt Not Relevant

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

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See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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RATIONALE: Even where premeditation is not at issue, its presence or absence may be relevant to the issue of whether the defendant intended to kill.

POINTS AND AUTHORITIES: See Parks v. State (GA 1985) 330 SE2d 686, 696; Hubbert v. State (GA 1985) 330 SE2d 583.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "The act of killing or the use of a deadly weapon is not, of itself, a sufficient basis for a presumption of premeditation and deliberation." (Wharton’s Criminal Law (West, 15th ed. 1993) § 142, pp. 273-74.)

    State v. Jenkins (WV 1994) 443 SE2d 244, 252, held that it was error to instruct the jury that use of a deadly weapon permitted the jury to infer "the intent, the malice and willfulness, deliberation and premeditation...from the act."

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The act of killing alone is not sufficient, without evidence of the attendant circumstances, to prove premeditation and deliberation. (Wharton's Criminal Evidence (West, 14th ed. 1986) § 3:18, p. 211.)  Nor does killing with a deadly weapon, of itself, provide a sufficient basis to establish premeditation and deliberation. (Wharton’s Criminal Law (West, 15th ed. 1993) § 142, pp. 273-74.)

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder." (State v. Guthrie (WV 1995) 461 SE2d 163, 182-83; State v. Hatfield (WV 1982) 286 SE2d 402, 409.)

See generally, NCJIC 305.13.14 [Murder].

See also generally, NCJIC 305.16.9 [Premeditation/Deliberation].

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PRACTICE NOTE:  It is not uncommon for the prosecution to rely on the defendant's lack of remorse to show that the killing was premeditated.  (See e.g., NCJIC 303.7.5.4 [Death Penalty: Improper To Infer Lack Of Remorse From Failure Of Defendant To Confess].)  Such a prosecution theory can be used at the guilt phase to obtain a higher degree of guilt and at the penalty phase to argue for a sentence of death.  

    However, this prosecution theory may be specious in situations where, due to the defendant's inability to express his or her feelings, the apparent coldness and lack of remorse does not reflect the defendant's real feelings and, thus, does not provide a reliable basis for inferring premeditation.

    For example, Muhammad v. State (TX 2001) 46 SW3d 493, 502 held that exclusion of a psychologist’s testimony about a murder defendant’s shyness and inability to express emotions was an abuse of the trial court’s discretion. The prosecution’s theory was that the defendant committed a premeditated murder and showed no remorse for his actions. The defendant’s calm, apparently unremorseful demeanor was central to the prosecution's punishment case. The defense’s expert testimony was relevant to the jury's determination as to whether the defendant killed the victim as the result of a plan, which he did not regret, or whether he killed her during an emotionally charged fight, that he regretted what had happened, and was not able to openly express his sorrow and regret due to his own psychic makeup. The exclusion diminished the credibility of the defendant’s arguments at sentencing.

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RATIONALE: Actual reflection is an element of premeditation. The instruction defining premeditation should make this clear.

POINTS AND AUTHORITIES:  State v. Ramirez (AZ 1997) 945 P2d 376 held that the premeditation necessary to establish first degree murder requires that the defendant both had time to reflect and actually did reflect on a plan to kill. The legislature attempted to overturn Ramirez by modifying the definition of premeditation to only require an opportunity to reflect. However, elimination of the requirement of actual reflection effectively removed any meaningful distinction between first and second degree murder: "...[I]f the only difference between first and second degree murder is the mere passage of time, and that length of time can be ‘as instantaneous as successive thoughts of the mind,’ then there is no meaningful distinction between first and second degree murder. Such an interpretation would relieve the state of its burden to prove actual reflection and would render the first degree murder statute impermissibly vague and therefore unconstitutional under the United States and Arizona Constitutions." (State v. Thompson (AZ 2003) 65 P3d 420, 427.) The Thompson court ruled that the following instruction should be given in the future to assure that the jurors are required to find actual reflection:

SAMPLE INSTRUCTION:

    "Premeditation" means that the defendant intended to kill another human being. [knew he/she would kill another human being], and that after forming that intent [knowledge], reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

[Source: State v. Thompson (AZ 2003) 65 P3d 420, 428.]

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.1.]

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