31 October 2004

Scott Peterson - The Jury Instructions

The judge in the Scott Peterson case has ruled to allow a second degree murder instruction but not a voluntary manslaughter instruction. Admittedly, I have not followed this case extremely closely but my understanding is that the physical evidence of anything happening is almost nil. In such a circumstance I do not understand how the judge can decide to exclude the manslaughter charge.

Second degree murder is defined in California's penal code sec. 189 by what it is not and this seems to mean that it is not premeditated. Voluntary manslaughter is defined in California penal code sec. 192 as "the unlawful killing of a human being without malice, upon a sudden quarrel or heat of passion." Both sections can be found here.

I could spend the next two hours researching California case law to see if I can find the exact difference between those two statutes in California but I'll leave that to California lawyers. So you're going to get my very basic understanding of the difference between these two statutes: not a whole heck of a lot. But, you say "malice" - there must be malice in order to convict of second degree murder!

Sure there must. But malice in a second degree murder is begging the question. To prove malice you are pretty much going to have to prove "aforethought." Or, in more modern language, in order to prove malice you are going to have to show premeditative acts.

As an example, let's assume a set of circumstances.
Husband comes home and confronts wife while she is washing the dishes: "You whore, I know you've been sleeping with my boss!" They start screaming at each other and she takes the knife she was drying and stabs him in the heart.
If she did this out of pure animal anger, with nary a thought until she is calling 911 in a panic, this is voluntary manslaughter. If she thinks to herself "I've got to do something. This can't get out." and then plunges the knife into his heart, that's first degree murder. At least it is if California follows the rule that premeditation can occur the second before the murder (which I understand to be the law in most places).

So what is 2d degree murder? Technically it's malicious homicide without forethought. If you cannot prove forethought through some sort of action how do you prove malice? If you convince people that malice exists they are going to be convinced that a second of forethought exists (if nothing more than "I'm going to kill you, you son of a buck!"). With that in mind, 2d degree murder becomes an option to offer a jury (or judge) which isn't all that comfortable with convicting someone of a crime which we all know would subject him to death or life in prison.

So basically, 2d degree is homicide without real proof of actions indicating a malicious intent to commit murder. This is pretty much the same evidence which would support voluntary manslaughter. Again, how do you not give these instructions simultaneously?

1 comment:

Mister DA said...

Taking a quick look at CA's homicide statutes, I think it tracks many of the older statues that define first degree murder and then say, blandly, all outher murder is second degree murder. (CA Penal Code sec. 189) A number of the older statutes stop there, leaving to the common law the definition of murder. California complicates the matter by defining murder in section 187 as "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." This is close to the black letter definition you can find in case law, with some variation, in almost every jurisdiction. In the states I am familiar with, "malice aforethought" and premeditation are not the same thing. Now, they try and define malice in section 188, but I don't think they do a very good job of it. The usual common law defintion is malice for 2nd degree murder can be supplied by an intent to kill, an intent to cause great bodily harm, or the intentional doing of an act the natural tendecy of which is to create a likilhood of death or gread bodily harm.

In section 192, CA defines voluntary manslaughter as, " Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
"(a) Voluntary--upon a sudden quarrel or heat of passion."

This is pretty much the common law defintion. What I think is going on (finally, everyone - he's getting to the point!) is that the trial judge is applying a form of the federal rule on lesser included offences.

Most jurisdictions that have considered the issue find manslaughter to be a necessarily included offense of murder. That is, if an unlawful, unjustified killing is done with "malice" it is murder. The question of 1st or 2nd degree is answered by the existance, or lack of one of the enumeraged aggravating factors. If the killing is without malice, it is manslaughter. The only difference between murder and manslaughter is the element of malice. So what, you may be asking?

Those states that follow the federal view of lesser incuded offense instructions typically phrase the rule something like, "if requested, instruction on the lesser offense must be given, if supported by a rational view of the evidence." Or, "instruction on an included offense need only be given if a rational trier of fact would be justified in convicting of the lesser rather than the greater."

Without spending a lot of time on the starange and wonderful world of California law, and more time than it maybe deserves on the proofs at trial, that's my best guess. There is clearly a Catch-22 at work in some jurisdictions. If the defendant flatly denies being responsible for the death (isn't this Peterson's defense?) There will be no issue of sudden heat of passion as a mitigating factor.

Just my 25 cents.