Category Archives: Criminal Law

Should you file for bankruptcy to get rid of debts, or can you sit back and wait?

 

If you’re struggling with debt, filing for bankruptcy can be a good way to get your finances back on track. But not everyone needs to start a bankruptcy case right away. Whether you should file for bankruptcy or do nothing will depend on whether you’re vulnerable to creditors. In some cases, doing nothing (at least for now) might be the best option.

Do You Have Anything Creditors Can Take?

Most creditors need to file and win a money judgment in court before they can take your property. If, however, you don’t have anything that a judgment creditor can collect, you’re “judgment proof.” You won’t need to file for bankruptcy.

In general, you are immune to prejudice if:

• You have no equity in actual property.
• There are no assets that you cannot shield from creditors. (State exemption regulations prohibit you from surrendering certain types of property to a creditor or in bankruptcy, including equity in a home or vehicle, food, and basic necessities of life.)
• You are unemployed or have a low-paying job.
• You obtain a source of income that is exempt from creditors, such as Social Security (and, in some states, unemployment other public entitlement benefits).

However, judgment immunity can be a transient condition. For example, being now unemployed but employable in the future is not equivalent to being permanently retired.

If you are reasonably certain that your financial condition will not significantly improve and collection pressure does not disturb you, there may be no cause to file for bankruptcy.

Will Bankruptcy Wipe Out Your Debt?

Not all debts get discharged in bankruptcy. If you will still be required to pay your most troublesome payments after filing for bankruptcy, you should probably avoid doing so. On the other hand, if filing for bankruptcy eliminates enough debt to free up additional funds for nondischargeable debt, it may still be beneficial.

The debts listed below are either difficult or impossible to discharge in bankruptcy. In addition, creditors with these sorts of debt can use wage garnishments and bank levies even without a court ruling.

The filing of Chapter 7 bankruptcy will neither eliminate or lower child support obligations. Therefore, filing for Chapter 7 bankruptcy will not help unless you can free up future income to pay child support through the discharge of other debt.

Chapter 13 bankruptcy, on the other hand, may be preferable. By engaging into a three- to five-year repayment plan to pay off your arrears in full, you can end collection actions. Be warned that if you have a substantial outstanding balance, your monthly payment can be high because you must pay off all of the arrearages in the plan. You’ll still have to continue making your ongoing child support payment, as well.

If you can catch up in Chapter 13 bankruptcy, you will avoid the following complications:

• Income garnishment
• loss of unemployment compensation
• jail time
• offsets of federal or state income tax refunds
• passport denial
• Compensations for state lottery wins
• driver’s license suspension
• diminution of workers’ comp benefits or
• Social security or disability benefits are reduced.
• Past Due Income Taxes
• Taxpayers with delinquent tax obligations are susceptible to a levy on their assets or other sources of income. A levy is a legal seizure of your property to satisfy a debt. Once a levy is in place, it normally remains until you pay off your tax burden.
• If you owe past-due income taxes and you do nothing, you could face the following:
• Losing federal or state tax refunds
• a reduction in social security benefits
• a wage garnishment (depending on the state in which you live), or
• a lien against your real estate.
• Understand that filing for bankruptcy will not reduce recent tax obligations. However, in a Chapter 13 case, you could be able to pay down the tax burden over a period of three to five years.
• Student Loans
• If you default on your student loans, the lender may take the following actions:
• Income garnishment (depending on the state in which you live)
• Federal and state income tax refunds are offset.
• loss of eligibility for government help, including Pell awards
• Loss of deferral and forbearance alternatives, or
• a decrease in Social Security benefits.
• Student loan debt is difficult to discharge in bankruptcy. You must prove that paying your loans will impose an undue hardship, which is a challenging threshold to fulfill, although not impossible in every scenario.

Are You in Danger of Losing Your Home or Automobile?

If filing for bankruptcy can save your home or vehicle, it may be a viable option for you.

Chapter 13 bankruptcy allows you to catch up on mortgage or auto loan payments if you’ve fallen behind. You may also be able to eliminate second mortgages or home equity lines of credit and decrease your auto loan to the car’s current market value. (See Your Car in Chapter 13 Bankruptcy and Your Home and Mortgage in Chapter 13 Bankruptcy.)

In Chapter 7 bankruptcy, you cannot bring a loan payment current, but it may be useful to file if you can eliminate other obligations to free up funds to pay your mortgage or auto loan. Keep in mind that in order to keep a property or vehicle under this chapter, you must be current on your payments at the time of filing. (See Chapter 7 Bankruptcy and Your Home and Chapter 7 Bankruptcy and Your Car.)

Alternatives to Insolvency and Inaction

Before deciding to file for bankruptcy or do nothing, you should read Alternatives to Bankruptcy to learn about other debt relief choices.

Homicide refers to the intentional or accidental killing of a human being by another person.

Read on to discover the many types of killings that are typically categorized as second-degree murder, along with examples of each form of killing.

Without Premeditation Intentional Murders

These kind of murders require no strategy on the side of the perpetrator. At the time of the murder, the killer intended to kill the victim, whereas before to the murder, the perpetrator had no intention to commit murder.

For instance, Adam and Bill are neighbors, and they’ve been arguing about the fence separating their houses recently. Adam pays Bill a visit to discuss the issue, and while there, he suddenly grabs the shotgun hanging above the fireplace and fatally shoots Bill.

Adam did not intend to murder Bill when he went to Bill’s residence on that day, so there was no premeditation. Adam had every intention of murdering Bill at the time he squeezed the trigger. Prosecutors would likely prosecute him with second-degree murder under these conditions.

If, on the other hand, Adam murders Bill during a sudden argument that was provoked, he would likely be charged with manslaughter. The premise is that if Adam is motivated by “hot of passion,” the moral responsibility is less.

Intent to Inflict Only Serious Physical Harm

The second circumstance for second-degree murder is when the criminal wants to cause merely substantial bodily damage but is aware that death may ensue from the conduct. Adam grabs a shovel and whacks Bill in the head with all of his power instead of shooting him in the situation described above. Adam did not plan to murder Bill when he struck him with the shovel, but he was aware that a blow to the head carried a high risk of death. Adam’s killing of Bill in this manner would be categorized as second-degree murder.

Extreme Callousness Towards Human Life

The third major type of second-degree murder happens when a victim dies due to the perpetrator’s excessive disregard for human life. Extreme indifference typically entails a complete disregard for the chance that an action would harm someone.

Consider, returning to Adam and Bill, that instead of bashing Bill over the head with a shovel, Adam pulls a rifle and fires wildly at a throng of neighbors who have gathered to watch Adam and Bill argue. Adam didn’t necessarily intend to kill anyone, but he also didn’t consider the harm he could inflict to those in the crowd. This is evidence of Adam’s terrible disregard for human life. If one of Adam’s bullets impacted and killed a member of the crowd, Adam has likely committed second-degree murder.

Felony Murder

Some states additionally consider homicides that occur during the commission of another felony as second-degree murders, although other states classify such homicides as first-degree murders. It is also crucial to know that a person might be convicted of felony murder even if they did not kill somebody themselves.

For instance, if Adam and Bill enter a convenience store with the intention of robbing it at gunpoint (which is a felony), and Adam ends up shooting the store owner, a jury could find Bill (who did not shoot anyone) guilty of murder on the grounds that he was involved in the original felony when the killing occurred.

Murders are the most severe homicides because they carry the harshest penalties. Other types of homicide have diminished levels of intent. These include manslaughter, reckless homicide, negligent homicide, and vehicular homicide. Rarely, a homicide is deemed legally justifiable for self-defense or other reasons and is not prosecuted as a crime.

Families who have lost a loved one may pursue monetary compensation outside of the criminal court system. This takes place in civil court with a wrongful death claim.

This article examines homicide kinds, when a homicide is regarded legally justifiable, and when civil liability for wrongful death may be incurred.

• Murder
• Manslaughter
• Legal Homicide
• Illustrations of Homicide
• Related Claim: Unjustified Death

Murder

Murder is the most serious criminal homicide charge. State statutes typically classify different degrees of wrongfulness for murder. The standard definition of first-degree murder is a killing that is both intentional and premeditated.

The requirement for premeditation does not require proof of sophisticated or extensive planning. Courts have determined that premeditation may have occurred after only a few seconds of deliberation and thought.

Similarly, the requirement of intent can be flexible. In order to convict a defendant of first-degree murder, a jury need not determine that the accused intended to cause death. In lieu of this, the prosecution may demonstrate that the defendant intended to cause serious bodily injury or death while attempting to commit another felony.

Additionally, intent need not be directed at a particular individual. If someone planned to kill one person, but unintentionally killed someone else, the murder was still purposeful and premeditated. A killer who brings a poisoned lunch to his victim, only for it to be consumed by someone else, could still be convicted on a first-degree murder conviction.

Depending on the state’s laws, the defendant may be prosecuted with second-degree murder or voluntary manslaughter in the absence of premeditation.

Manslaughter

Manslaughter is classified as either voluntary or involuntary. The main distinction between manslaughter and murder is the killer’s mental state, or mens rea. Some states characterize this state of mind as “under the impact of intense emotional discomfort” resulting from provocation. The state of Texas defines manslaughter as the “reckless” killing of another person.

Voluntary Manslaughter

When a person commits voluntary manslaughter, he or she had no prior intent to kill. It is possible that the murder occurred “in the heat of passion” and without premeditation. An example would be a spouse who committed murder “in the heat of passion” after discovering their partner in bed with another person.

Various states have different laws. This crime could be considered second-degree murder in several places.

Unwillful Manslaughter

In some states, unintentional manslaughter is defined as involuntary manslaughter or negligent homicide. In these instances, the perpetrator killed the victim unintentionally as a result of engaging in risky or criminally negligent behavior. This applies to defendants who should have known that their actions were risky or negligent, as well as those who, like parents, owed the victim a special duty of care.

Examples of negligent homicide deaths that result from:

• Operating a hazardous amusement park attraction with faulty safety equipment
• Refusing to provide medical attention to a plainly ill and suffering child
• Leaving a loaded firearm unlocked and within reach of a youngster in the home is prohibited.
• Driving under the influence (in some states – other states create a specific definition for these crimes)

Reckless or Negligent Homicide

Because different states give equivalent criminal accusations different names. Reckless homicide and negligent homicide are the favored contemporary words since they define the killer’s mental state or mens rea. These accusations require either showing the defendant knew the lethal activities were dangerous and could cause harm, or that the defendant breached a duty of care or specific responsibility owed to the victim. These charges are regularly utilized in jurisdictions where voluntary and involuntary manslaughter charges have been removed from the penal code.

Vehicular Homicide

When the driver of a car, boat, jet ski, snowmobile, or ATV causes the death of another person, they may be charged with vehicular homicide. Different states define and subcategorize this offense in different ways.

In most cases, motor accidents are not charged as first- or second-degree murder since the driver did not intend to kill anyone. Many fatal car accidents are just that – accidents. These catastrophic situations are not followed by criminal charges. The majority of homicides that result in criminal prosecution are caused by reckless or irresponsible driving. As examples of vehicular homicide, consider the following:

• Committing a misdemeanor traffic infraction, such as failing to stop at a stop sign
• Driving at an excessive rate of speed, including street racing
• Operating a motor vehicle when impaired by drugs or alcohol
• Eluding law enforcement or triggering a high-speed pursuit
• Failing to stop and offer aid after a crash (a “hit and run”) (a “hit and run”)

Justifiable Homicide

Some killings that would be considered murder or manslaughter under the law are not prohibited. These are commonly referred to as “justifiable homicide,” and a classic example is killing in self-defense or in defense of another person.

A homicide is considered justifiable if state law permits the use of fatal force in self-defense. When confronted with a serious danger of bodily injury, such as rape, armed robbery, or murder, most state laws permit homicide in self-defense or in defense of another.

Justifiable homicide is a rare occurrence. In an examination of more than 4,500 handgun homicide cases from FBI files, just around 7 percent of murders were deemed justifiable. If the killer was white and the victim was black, and if they resided in a state with a Stand Your Ground statute, a murder is almost twice as likely to be deemed justifiable (13.6%), according to the report.

Killings committed by police officers in the line of duty are frequently viewed as justifiable. There have been a few high-profile incidents of police killings that have resulted in criminal charges, most notably the Derek Chauvin case, although these prosecutions represent a tiny percentage of the number of people killed by police each year. There were 1,021 fatal police shootings in 2020, with black and Hispanic victims being approximately twice as likely to be killed.

Related Wrongful Death Claims

Regardless of the form of homicide, wrongful death claims could be pursued in civil court. The suspected culprit may be sued by the victim’s family even if they were not convicted of murder in a criminal proceeding. The threshold of proof for a wrongful death case is substantially lower than the criminal standard of guilt beyond a reasonable doubt.

Wrongful death lawsuits result in awards of monetary damages rather than criminal punishment. This is exemplified in the famous case of O.J. Simpson was held civilly liable for the killings of his ex-wife Nicole Brown Simpson and her houseguest Ron Goldman. A Los Angeles criminal court had earlier acquitted Simpson of murder, but a civil court jury held him financially culpable and sentenced him to pay $33.5 million in damages.

Sometimes civil proceedings for wrongful death precede criminal trials. After the death in 2019 of Elijah McClain, who died in police custody following a disputed arrest in Aurora, Colorado, the phrase is used. Local prosecutors initially declined to file charges against any of the participating cops or paramedics. The parents of McClain filed a wrongful death lawsuit against the city, and the local administration agreed to a $15 million settlement. Much later, criminal charges were filed after political pressure prompted a new inquiry. A grand jury indicted three Aurora police officers and two paramedics in September 2021 on charges relating to McClain’s death.

Intentional Murder Using a Vehicle

Despite the fact that vehicular homicides are typically inadvertent and are not charged as murder, some killers use their vehicles as their preferred weapon for purposeful kills.

In a number of high-profile incidents in recent years, cars purposely struck pedestrians on the sidewalk or protestors at a demonstration. Typically, the intentional use of a vehicle to cause bodily harm is prosecuted as murder.

Euthanasia or Suicide Assisted by a Physician

Physician-assisted suicide is the contentious practice of supplying terminally ill patients with a deadly dose of medication that enables them to end their lives without suffering. This method is frequently wrongly referred to as “euthanasia,” but it is not homicide because the deceased makes the ultimate decision to die.

In the 1990s, this subject was brought into the national forefront when Dr. Jack Kevorkian was tried four times in Michigan for helping suicides. None of these first four trials resulted in a conviction. In 1998, he delivered a lethal injection to a terminally ill ALS patient and permitted a video of the execution to be broadcast nationally.

Consequently, he was tried and found guilty of first-degree murder. In addition to the television broadcast, the televised death differed significantly from the 130 other instances in which he had presided over the death of a patient. In all other instances, the lethal dose was provided but not administered; the patients themselves pressed a button to receive the medications or donned a mask to breath lethal carbon monoxide.

Since then, eight states and the District of Columbia have approved physician-assisted suicide for persons with terminal illnesses who are mentally competent.

Get Legal Help Against Homicide Criminal Charges

Any crime that satisfies the legal threshold of homicide is a serious offense. Defenses in homicide trials are difficult and need much planning. Consult with an expert criminal defense attorney if you’ve been charged with a homicide-related crime, or any felony for that matter.

Involuntary manslaughter typically refers to an unintentional homicide caused by criminal carelessness or recklessness, or by committing an offense such as driving under the influence. Unintentional homicide differs from voluntary homicide in that the victim’s death is unintended. This section provides an outline of involuntary manslaughter and its distinction from voluntary manslaughter.

For instance, when Dan returns home, he discovers his wife in bed with Victor. In a fit of rage, Dan grabs a golf club from next to the bed and smacks Victor in the skull, instantly killing him.

On the spectrum of homicides, this offense falls midway between murder and the excusable, justifiable, or privileged taking of life that does not constitute a crime, such as self-defense. There are a variety of potential sentences and consequences for voluntary manslaughter, and the sentence is frequently determined by the judge.

Voluntary manslaughter is distinct from involuntary manslaughter and is defined differently depending on the state in which the crime is committed. Involuntary manslaughter, on the other hand, occurs when someone dies as a result of a non-felonious illegal conduct committed by the defendant, or as a result of the defendant’s negligence or recklessness.

A homicide attributed to “passion”

In accordance with federal law, voluntary manslaughter is the unlawful killing of a human without malice during a sudden quarrel or a fit of rage.

The precise meaning of the term “hot of passion” varies depending on the context, but it generally alludes to an irresistible emotion that a normally sensible person would feel under the same circumstances. This concept of an unstoppable drive contradicts with the concept of premeditation in first-degree murder, because demonstrating one necessarily eliminates the other.

For instance, if Adam witnesses a complete stranger, Bob, desecrate a holy monument and then kills Bob in a fit of rage, the state would likely charge Adam with voluntary manslaughter rather than murder. If, on the other hand, Adam harbored a long-standing, uncontrolled hatred for Bob due to Bob’s criticism of Adam’s faith, and he hid and waited for Bob to damage the monument with the goal to kill Bob, then Adam would likely be charged with murder.

Defenses to Voluntary Homicide

The potential defenses for voluntary manslaughter are comparable to those for other types of homicide. A defendant charged with voluntary manslaughter may attempt to demonstrate that they did not commit the crime, that their acts were justified, or that their conduct does not fulfill the criteria for voluntary manslaughter. There may be further defenses available, depending on the applicable state law. The state could conceivably charge the defendant with voluntary manslaughter if he or she kills in self-defense but was the first aggressor in the situation that led to the homicide. In addition, voluntary manslaughter might comprise homicides committed based on the defendant’s sincere but irrational assumption that deadly force is required.

State Mandatory Manslaughter Statutes

Different state statutes define voluntary manslaughter differently. A person is guilty of manslaughter in the first degree (voluntary manslaughter) in New York if they meant to cause the death of another, but did so while under the influence of significant emotional disturbance.

Some states, such as Texas, do not have a specific definition for voluntary manslaughter; rather, murder can be reduced to second-degree provided the defendant demonstrates the affirmative defense of sudden passion. as a homicide committed under the false impression that the killing was justifiable. Certain states define voluntary manslaughter based on a list of specified situations. For instance, the purposeful death of an unborn child is considered voluntary manslaughter in Illinois.

Involuntary Homicide: The Basics

In the aftermath of a fatal car accident caused by a driver under the influence of alcohol or drugs, involuntary manslaughter (also known as “criminally negligent murder”) charges are frequently filed. Although the driver never intended to murder anyone, his or her negligence in driving while drunk is sufficient to meet the elements of the offense. Some states define vehicular manslaughter as a distinct category of manslaughter.

Manslaughter is not required to involve a motor vehicle. For instance, if the operator of a dangerous carnival ride fails to guarantee that all riders are secured, and as a result, people die, the operator could be charged with involuntary manslaughter. A building management who recklessly fails to install smoke detectors prior to a fatal fire may also be prosecuted with involuntary manslaughter.

Manslaughter is penalized less harshly than other forms of homicide, but it is still a serious offense. Under Pennsylvania law, for instance, involuntary manslaughter is a misdemeanor of the first degree. This is punishable by up to five years in prison, but it is a second-degree felony if committed by a caregiver of a kid under the age of 12. (with a possible prison sentence of up to 10 years upon conviction).

Manslaughter Can Be Involuntary Or Voluntary

While both are known as manslaughter, they are vastly distinct. Typically, involuntary manslaughter is committed in the heat of the moment. For example, if Adam grabs a fire iron and fatally strikes Bill during a sudden argument, he would likely be charged with voluntary manslaughter. Adam shouldn’t be charged with murder, not even in the second degree, if he was motivated by “hot of passion,” according to the argument.

In contrast, involuntary manslaughter refers to unintentional deaths, such as those caused by intoxicated motorists. Also, killing someone accidently while performing a robbery, kidnapping, or other “inherently dangerous” act is typically considered murder, not manslaughter.

As an illustration, consider criminals fleeing the scene of a crime who run over a pedestrian while being followed by police officers at high speeds. Even though the pedestrian’s death was accidental, he or she would likely be charged with murder because it occurred during a heist. However, the majority of culpable unintentional homicides are voluntary manslaughter.

Obtain legal assistance for your voluntary manslaughter case.

If you are facing allegations as serious as voluntary manslaughter, it is probable that you have already consulted with an experienced criminal defense counsel. If you haven’t already, you should do so quickly in order to grasp the penalties associated with the charges you’re facing and the viable defenses moving forward. Even for less serious crimes or analyses of family members’ convictions and plea deals, the best course of action is to contact a local criminal defense attorney.

Voluntary manslaughter is commonly defined as an intentional killing in which the offender had no prior intent to kill, such as a killing that occurs in the “heat of passion.” The circumstances leading up to the killing must have caused a reasonable person to become emotionally or mentally disturbed; otherwise, the killing may be charged as first- or second-degree murder.

For instance, when Dan returns home, he discovers his wife in bed with Victor. In a fit of rage, Dan grabs a golf club from next to the bed and smacks Victor in the skull, instantly killing him.

On the spectrum of homicides, this offense falls midway between murder and the excusable, justifiable, or privileged taking of life that does not constitute a crime, such as self-defense. There are a variety of potential sentences and consequences for voluntary manslaughter, and the sentence is frequently determined by the judge.

Voluntary manslaughter is distinct from involuntary manslaughter and is defined differently depending on the state in which the crime is committed. Involuntary manslaughter, on the other hand, occurs when someone dies as a result of a non-felonious illegal conduct committed by the defendant, or as a result of the defendant’s negligence or recklessness.

A homicide attributed to “passion”

In accordance with federal law, voluntary manslaughter is the unlawful killing of a human without malice during a sudden quarrel or a fit of rage.

The precise meaning of the term “hot of passion” varies depending on the context, but it generally alludes to an irresistible emotion that a normally sensible person would feel under the same circumstances. This concept of an unstoppable drive contradicts with the concept of premeditation in first-degree murder, because demonstrating one necessarily eliminates the other.

For instance, if Adam witnesses a complete stranger, Bob, desecrate a holy monument and then kills Bob in a fit of rage, the state would likely charge Adam with voluntary manslaughter rather than murder. If, on the other hand, Adam harbored a long-standing, uncontrolled hatred for Bob due to Bob’s criticism of Adam’s faith, and he hid and waited for Bob to damage the monument with the goal to kill Bob, then Adam would likely be charged with murder.

Defenses to Voluntary Homicide

The potential defenses for voluntary manslaughter are comparable to those for other types of homicide. A defendant charged with voluntary manslaughter may attempt to demonstrate that they did not commit the crime, that their acts were justified, or that their conduct does not fulfill the criteria for voluntary manslaughter. There may be further defenses available, depending on the applicable state law. The state could conceivably charge the defendant with voluntary manslaughter if he or she kills in self-defense but was the first aggressor in the situation that led to the homicide. In addition, voluntary manslaughter might comprise homicides committed based on the defendant’s sincere but irrational assumption that deadly force is required.

State Mandatory Manslaughter Statutes

Different state statutes define voluntary manslaughter differently. A person is guilty of manslaughter in the first degree (voluntary manslaughter) in New York if they meant to cause the death of another, but did so while under the influence of significant emotional disturbance.

Some states, such as Texas, do not have a specific definition for voluntary manslaughter; rather, murder can be reduced to second-degree provided the defendant demonstrates the affirmative defense of sudden passion. as a homicide committed under the false impression that the killing was justifiable. Certain states define voluntary manslaughter based on a list of specified situations. For instance, the purposeful death of an unborn child is considered voluntary manslaughter in Illinois.

Obtain legal assistance for your voluntary manslaughter case.

If you are facing allegations as serious as voluntary manslaughter, it is probable that you have already consulted with an experienced criminal defense counsel. If you haven’t already, you should do so quickly in order to grasp the penalties associated with the charges you’re facing and the viable defenses moving forward. Even for less serious crimes or analyses of family members’ convictions and plea deals, the best course of action is to contact a local criminal defense attorney.

Second-degree murder is typically characterized by a lack of premeditation, the aim to do only bodily injury, and a severe disregard for human life. The precise legal definition of this offense varies by jurisdiction. Some states may not use the word “second-degree murder,” but they likely still divide murder into two degrees and inflict less punishments for the lesser offense.

Read on to discover the many types of killings that are typically categorized as second-degree murder, along with examples of each form of killing.

Without Premeditation Intentional Murders

These kind of murders require no strategy on the side of the perpetrator. At the time of the murder, the killer intended to kill the victim, whereas before to the murder, the perpetrator had no intention to commit murder.

For instance, Adam and Bill are neighbors, and they’ve been arguing about the fence separating their houses recently. Adam pays Bill a visit to discuss the issue, and while there, he suddenly grabs the shotgun hanging above the fireplace and fatally shoots Bill.

Adam did not intend to murder Bill when he went to Bill’s residence on that day, so there was no premeditation. Adam had every intention of murdering Bill at the time he squeezed the trigger. Prosecutors would likely prosecute him with second-degree murder under these conditions.

If, on the other hand, Adam murders Bill during a sudden argument that was provoked, he would likely be charged with manslaughter. The premise is that if Adam is motivated by “hot of passion,” the moral responsibility is less.

Intent to Inflict Only Serious Physical Harm

The second circumstance for second-degree murder is when the criminal wants to cause merely substantial bodily damage but is aware that death may ensue from the conduct. Adam grabs a shovel and whacks Bill in the head with all of his power instead of shooting him in the situation described above. Adam did not plan to murder Bill when he struck him with the shovel, but he was aware that a blow to the head carried a high risk of death. Adam’s killing of Bill in this manner would be categorized as second-degree murder.

Extreme Callousness Towards Human Life

The third major type of second-degree murder happens when a victim dies due to the perpetrator’s excessive disregard for human life. Extreme indifference typically entails a complete disregard for the chance that an action would harm someone.

Consider, returning to Adam and Bill, that instead of bashing Bill over the head with a shovel, Adam pulls a rifle and fires wildly at a throng of neighbors who have gathered to watch Adam and Bill argue. Adam didn’t necessarily intend to kill anyone, but he also didn’t consider the harm he could inflict to those in the crowd. This is evidence of Adam’s terrible disregard for human life. If one of Adam’s bullets impacted and killed a member of the crowd, Adam has likely committed second-degree murder.

Felony Murder

Some states additionally consider homicides that occur during the commission of another felony as second-degree murders, although other states classify such homicides as first-degree murders. It is also crucial to know that a person might be convicted of felony murder even if they did not kill somebody themselves.

For instance, if Adam and Bill enter a convenience store with the intention of robbing it at gunpoint (which is a felony), and Adam ends up shooting the store owner, a jury could find Bill (who did not shoot anyone) guilty of murder on the grounds that he was involved in the original felony when the killing occurred.

What If You Are Charged with Second-Degree Murder? Call a Lawyer

If you have been accused of any form of murder or other crime, hire a competent attorney immediately to safeguard your legal rights, assist you in establishing a defense, and preserve evidence that may be helpful to your case. Contact a local criminal defense attorney immediately to get started.

A plea deal is a negotiated agreement in a criminal case. The defendant and prosecution agree to settle the charges without a trial. There can be many benefits of taking the deal, but pleading guilty means giving up your rights in court. Read on to learn more.

Some of the benefits of plea deals for defendants include:

• Reduced criminal charges
• Predictable outcomes
• Reduced sentencing
• Probation or deferred prosecution
• Faster resolution

In a plea bargain hearing, the judge will explain the charges to you and make sure you understand what will happen when you plead guilty or no contest. If the judge accepts the plea bargain, the judge will instruct you to admit guilt under oath. When this occurs, you are waiving your rights, including:

• The right to a jury trial
• The right to the assistance of counsel
• The right to a speedy trial
• The right to confront witnesses
• The right to remain silent and avoid self-incrimination

Other consequences of accepting a plea deal may include: 

• Immigration consequences, such as deportation
• Registering as a sex-offender
• Civil confinement, such as being confined to a psychiatric hospital
• The loss or suspension of a professional license
• Gun ownership restrictions
• Loss of benefits

Although once you agree to a plea deal you cannot usually retract your agreement if you meet the following: 

• Ineffective assistance of counsel
• Coercion to accept the agreement
• Ignorance of the consequences

First-degree murder is typically described as a willful and premeditated killing that was carried out after careful preparation or “lying in wait” for the victim. As an illustration, Dan returns home to see his wife sleeping with Victor. Dan stands behind a tree close to Victor’s front door three days later. Dan shoots and murders Victor as soon as he leaves his home.

Elements Of First Degree Murder

These elements are willfulness, deliberation and premeditation. However federal law and some states also include malice afterthought as an element. The amount of malice differs from state to state. Most states decide based on certain kinds of killings. However, not all states divide murders into degrees. For example, in some states the top level of murder is known as “capital murder.”

Intent

There must be a specified intent to kill with a first degree murder. Even if the eventual victim was not the original intention. Many state laws sat killing with a depraved indifference to human life qualifies as first degree murder.

Deliberation And Premeditation

This can only be decided on an individual case basis. Having time enough to make the decision to kill and then act on it following enough time for a reasonable person to think of the consequences usually is enough. Deliberation and preparation must always happen prior to the killing.

Malice Aforethought

Certain killings are categorized as first degree murder, for example:

• The killing of a child by means of unreasonable force
• Certain killings when in a pattern of domestic abuse
• The murder of a member of law enforcement
• Homicides as part of another crime such as robbery, arson or rape
• Intentional Poisonings
• Murders as a result of being imprisoned
• Murders where the killer waited for and/or ambushed the victim

Most states also follow a legal principle known as the “felony murder rule,” which stipulates that anyone who kills anyone (even unintentionally) as a result of committing certain violent felonies, like:

• Arson;
• Burglary;
• Kidnapping;
• abuse; and
• Robbery.

For instance, when Dan and Connie rob Victor’s liquor shop, Victor shoots Dan as he runs away, killing him. Even if neither of the thieves actually killed Dan, Connie can be prosecuted with first-degree murder under the felony murder rule.

The Components of First-Class Murder

In general, state laws that divide homicides into first, second, and possibly third degrees demand that first degree murders contain three essential characteristics.

• Willfulness;
• decision-making; and
• Premeditation.

In addition, “malice aforethought” is a requirement under federal law and in several states. States, however, have different standards for what constitutes malice and whether it is a prerequisite for the intentional, premeditated, and willful murder of human life. The majority of states additionally list specific types of murder as first degree murders without requiring proof of intention, deliberate action, or premeditation.

Not all states categorize different types of murder. The most serious murder offense is sometimes referred to by a different word, such as “capital murder.”

Intent

First degree murderers must have the precise purpose to kill a human life in order to be considered willfully guilty. This intention need not be related to the victim in question. First-degree murder is still committed if the victim was the intended victim but the murderer ended up killing a random person or the wrong person. Furthermore, murder in the first degree can be charged under the laws of several states when the act of killing demonstrates a callous disregard for human life.

Premeditation and Deliberation

Only a case-by-case analysis can determine whether a murderer behaved with the forethought and premeditation necessary for first degree murder. The need for deliberate action and premeditation does not imply that the murderer had to think about the crime deeply or make extensive preparations before committing it. Usually enough time is allowed to acquire the conscious intent to kill, and then enough time to act on it after a reasonable individual has had a chance to reconsider their choice. Even though it might happen very rapidly, planning and preparation must come before, not during, the act of killing.

“Malice Ahead of Time”

First-degree murderers are required by several state statutes to have acted with malice or “malice aforethought.” Malice is typically characterized by a wicked nature or goal as well as a disregard for human life. States have varied laws on how to define “malice.” Malice aforethought is defined in certain legal systems as behaving with a planned intent to kill or severe disregard for human life. Other states demand proof of malice in addition to the usual elements of first degree murder, such as willfulness, deliberation, and premeditation.

First-degree Murders Listed

State laws frequently designate certain sorts of homicides as first degree. In some situations, it may not be necessary to prove the traditional requirements of explicit intent to murder, deliberate action, and premeditation. These often include:

• the use of excessive force to murder a kid;
• certain murders carried out amid a pattern of domestic violence;
• a law enforcement officer was killed, and
• murders committed while other crimes, such arson, rape, robbery, or other violent crimes, are being committed.

This list just serves to highlight a few of the first-degree murders mentioned. Consult the relevant state legislation for an exhaustive list.

Additionally, many states define particular killing techniques as first-degree murder. These include homicides committed with the purpose to poison, those brought on by torture or incarceration, and those committed while the victim was being “lay in wait” for or ambushed.

Obtaining Legal Assistance in a First-Degree Murder Case

First degree murder is one of the most serious accusations you might be charged with in the criminal justice system, and it carries the worst punishments. So that you may understand your rights and protections and create a moving legal strategy, it’s crucial to get in touch with a skilled criminal defense lawyer as soon as you can.

When a police officer says, “You are under arrest,” a journey through the criminal justice system begins. An individual is no longer free to leave at that point because they are in police custody. For the safety of the officers, physical restraints or handcuffs may be used, but they are not always necessary.

An arrest is when a person is formally placed under police restraint until they are released. The circumstances in which a police officer may make an arrest are covered in this article.

The Police Officer Observes a Crime Firsthand

A police officer has the authority to arrest someone they witness committing a crime. For instance, a police officer on foot patrol witnesses a theft involving a stolen purse. The purse thief can be promptly apprehended.

Personal observation arrests frequently take place in connection with traffic offenses. Speeding is observed by a patrol officer using radar or laser speed detection equipment. They can chase after the car and stop the driver. In the majority of states, the officer has the option of either arresting the suspect or issuing a citation. The use of arrests for minor misdemeanor crimes is constrained in some states. Instead of taking the suspect to the police station or sheriff’s office, they mandate that officers issue citations or court summonses.

The criminal charge would be based on the arresting officer’s personal observations, regardless of whether the traffic stop ended in an arrest or citation.

The police officer has reason to believe that a crime has been committed.

Law enforcement can take someone into custody if they have reason to believe that they have committed a crime. “Probable cause” is the term for this reasonable assumption. Police must have an objectively reasonable basis for their belief, based on facts and circumstances, in order to make an arrest; they cannot do so on a whim or a guess.

For instance, a police officer hears a report that a man wearing a yellow shirt just committed a gun-wielding robbery at a liquor store. Then he sees a man running near the store wearing a yellow shirt. The man may be stopped and searched by the officer. The officer has the right to make an arrest if the suspect is armed and has a large amount of cash in his pocket. He is likely responsible for the robbery, according to the evidence.

Probable cause arrest restrictions may be imposed by state law. On the basis of probable cause, police officers typically have less discretion when making an arrest for a misdemeanor crime.

The arrest warrant was obtained by the police officer.

The majority of arrests do not result from recent crimes or intense pursuits. They typically come about as a result of police inquiries. Evidence gathering must take into account the probable cause.

Police may request a search warrant from a judge if they have reason to believe a person committed a crime and they believe there is evidence at the scene.

If there is reason to believe someone committed a crime and the police want to question or charge the suspect, they can apply for an arrest warrant to place the suspect in custody.

Usually, an arrest warrant

• determines the crimes committed and the relevant laws
• identifies the person who is thought to have committed the crimes
• specifies the times and places where the offenses occurred
• identifies any criminal activity victims
• directs any policeman to apprehend and detain that individual

Any police officer or law enforcement organization may arrest the suspect thanks to the arrest warrant. The officers do not necessarily have to be the ones looking into the crime. Through police databases, this information is typically disseminated across the state or even the country. The individual will be made aware of the warrant when an officer checks their identification and criminal history, at which point they can take them into custody.

A warrant check is a standard part of police procedure because there are other types of warrants that the court can issue.

Miranda Alert

People have certain rights when they are in custody thanks to the Fifth and Sixth Amendments of the United States Constitution. A person in custody must be informed of their Miranda Rights before the police can question them. On television, the police are frequently shown reading the Miranda warnings to suspects as soon as they are detained. That is not required, and it is frequently not how events take place in reality.

The Miranda warning does not need to be read right away after an arrest by the police. When transporting a suspect to jail, the Miranda warnings are not necessary. The Miranda warning is only required when a detained suspect is about to be interrogated.

Expungement, also known as “expunction,” is a court-ordered procedure in which the legal record of an arrest or conviction is “erased.” In the eyes of the law, it is the same as expunging a criminal record or setting aside a criminal conviction.

This legal procedure can transform the life of a person with a prior conviction or arrest record by expanding their options. By expunging a criminal record, a person is able to live more freely, without fear that past legal troubles will follow them.

This article includes more details about expungement. This should not be construed as formal legal advice for anyone in need of assistance with their arrest or court record.

The Case’s Assignment

The defendant may seek a criminal defense counsel personally or the court may assign the case to one. Many criminal defense lawyers work for the public defender’s office and are compensated by them. Local, state, and federal courts appoint them to cases. Private firms recruit other criminal defense lawyers. Some criminal defense lawyers have their own law firm that they manage. Due to the referral procedure and the payment coming from individuals other than defendants, public defenders are paid less than private lawyers and have a larger case load. In some situations, a court may appoint a private attorney to represent a client.

Interview with Regards to the Case

When the criminal defense lawyer has the opportunity to meet with the client in person, he or she should strive to learn as much as possible about the case. He or she can learn about possible defenses, as well as the case’s strengths and weaknesses, by asking specific questions regarding the case. This necessitates a detailed and rigorous interrogation of the defendant.

The Case Is Being Investigated

He or she must not only ask the criminal defendant pointed questions regarding the case, but also conduct more investigation into the case to determine any possible routes of acquittal. This frequently entails interrogating police officers about the processes they employed in the case. It could also entail speaking with witnesses who have information about the case and gathering data on the case. All of this material is used to try to put together a good case defensively. If an expert witness is called to testify in the case, the criminal defense attorney may question him or her about the testimony and evidence that will be presented.

Before the case is presented to the jury, a criminal defense counsel has the right to assess the prosecution’s case. This permits him or her to look for flaws in the prosecutor’s case and try to locate evidence that could disprove it, such as hiring an independent lab or expert to evaluate evidence in the case.

Evidence Evaluation

Analyzing the evidence against a criminal defendant necessitates a thorough examination of the facts and hypotheses of the case by a criminal defense attorney. He or she could have evidence evaluated by a third party. He or she may also study the material to see if there are any legal ideas that work against his or her client’s conviction.

Contact with the Client Continued

A criminal defense lawyer must communicate with his or her client on a regular basis to explain any developments in the case and to keep him or her up to date. The lawyer must ensure that the client’s conversations are kept private. The lawyer must also ensure that the client receives information regarding the case so that he or she has a better knowledge of the potential outcomes.

Selection of the Jury

The jury selection procedure is aided by a criminal defense attorney. He or she may seek to have jurors dismissed for cause if he or she believes they are biased against the defendant or simply has a terrible feeling about a possible juror.

Bargaining for a Plea

A criminal defense lawyer is also in charge of discussing the state of the case with the prosecution and negotiating any possible plea bargain. A criminal defense lawyer may be able to help the defendant negotiate a good agreement that results in the charges or punishment being reduced.

Participation in the trial

During the trial, a criminal defense lawyer argues for his or her client. He or she interrogates witnesses, cross-examines state witnesses, and tries to persuade the jury that the prosecution has not met its burden of proof.

Sentencing

A criminal defense lawyer can represent the defendant during the sentencing phase if the criminal defendant is sentenced for the offense, whether he or she accepted a plea deal or was convicted by a judge or jury. He or she may discuss elements that will persuade the judge or jury to shorten the defendant’s sentence and discuss possible alternatives to incarceration.

Although it will vary depending on the state or county, the expungement process typically begins with the filing of an application or petition. Different legal systems employ various terms. So, for instance, California refers to this as clearing your record with a dismissal, while some states, like Michigan, refer to it as setting aside a conviction. Utah refers to this as expungement of records. The process will result in the sealing or removal of your criminal records, regardless of the terminology used.

Your court will probably have standard forms to use when filing an application, as well as lists of the paperwork and information you’ll need to submit with your request. You must be absolutely certain that your request contains all necessary components. Your application should detail the steps you took to locate any missing documents or information and the reasons you were unable to do so.

However, the county prosecutor’s office frequently has everything you’ll need to submit with your request. You may even need to get the prosecutor’s office’s approval before submitting your request to the court in many jurisdictions.

The court will typically issue an order of expungement after granting a petition or application, which other agencies can then be served with. This guarantees that all of the records they may have on you are sealed or deleted. Frequently, these organizations are:

• the organization that made the arrest (such as the sheriff’s office or local police department);
• the jail or booking office, for example:
• the corrections department of your state (covering your records while serving any prison sentences)

Eligibility for Expungement: Additional Factors

You may be required to register and report if your underlying convictions were for sex-related offenses. Don’t assume that just because your criminal record has been expunged, any registration or reporting requirements will also be waived.

In California, for instance, you must file a separate motion to be released from your registration and reporting obligations in addition to an order expunging your criminal history. You would still have to abide by your state’s registration and reporting laws if that separate request were to be denied.

Expungement, also known as “expunction,” is a court-ordered procedure in which the legal record of an arrest or conviction is “erased.” In the eyes of the law, it is the same as expunging a criminal record or setting aside a criminal conviction.

This legal procedure can transform the life of a person with a prior conviction or arrest record by expanding their options. By expunging a criminal record, a person is able to live more freely, without fear that past legal troubles will follow them.

This article includes more details about expungement. This should not be construed as formal legal advice for anyone in need of assistance with their arrest or court record.

The Case’s Assignment

The defendant may seek a criminal defense counsel personally or the court may assign the case to one. Many criminal defense lawyers work for the public defender’s office and are compensated by them. Local, state, and federal courts appoint them to cases. Private firms recruit other criminal defense lawyers. Some criminal defense lawyers have their own law firm that they manage. Due to the referral procedure and the payment coming from individuals other than defendants, public defenders are paid less than private lawyers and have a larger case load. In some situations, a court may appoint a private attorney to represent a client.

Interview with Regards to the Case

When the criminal defense lawyer has the opportunity to meet with the client in person, he or she should strive to learn as much as possible about the case. He or she can learn about possible defenses, as well as the case’s strengths and weaknesses, by asking specific questions regarding the case. This necessitates a detailed and rigorous interrogation of the defendant.

The Case Is Being Investigated

He or she must not only ask the criminal defendant pointed questions regarding the case, but also conduct more investigation into the case to determine any possible routes of acquittal. This frequently entails interrogating police officers about the processes they employed in the case. It could also entail speaking with witnesses who have information about the case and gathering data on the case. All of this material is used to try to put together a good case defensively. If an expert witness is called to testify in the case, the criminal defense attorney may question him or her about the testimony and evidence that will be presented.

Before the case is presented to the jury, a criminal defense counsel has the right to assess the prosecution’s case. This permits him or her to look for flaws in the prosecutor’s case and try to locate evidence that could disprove it, such as hiring an independent lab or expert to evaluate evidence in the case.

Evidence Evaluation

Analyzing the evidence against a criminal defendant necessitates a thorough examination of the facts and hypotheses of the case by a criminal defense attorney. He or she could have evidence evaluated by a third party. He or she may also study the material to see if there are any legal ideas that work against his or her client’s conviction.

Contact with the Client Continued

A criminal defense lawyer must communicate with his or her client on a regular basis to explain any developments in the case and to keep him or her up to date. The lawyer must ensure that the client’s conversations are kept private. The lawyer must also ensure that the client receives information regarding the case so that he or she has a better knowledge of the potential outcomes.

Selection of the Jury

The jury selection procedure is aided by a criminal defense attorney. He or she may seek to have jurors dismissed for cause if he or she believes they are biased against the defendant or simply has a terrible feeling about a possible juror.

Bargaining for a Plea

A criminal defense lawyer is also in charge of discussing the state of the case with the prosecution and negotiating any possible plea bargain. A criminal defense lawyer may be able to help the defendant negotiate a good agreement that results in the charges or punishment being reduced.

Participation in the trial

During the trial, a criminal defense lawyer argues for his or her client. He or she interrogates witnesses, cross-examines state witnesses, and tries to persuade the jury that the prosecution has not met its burden of proof.

Sentencing

A criminal defense lawyer can represent the defendant during the sentencing phase if the criminal defendant is sentenced for the offense, whether he or she accepted a plea deal or was convicted by a judge or jury. He or she may discuss elements that will persuade the judge or jury to shorten the defendant’s sentence and discuss possible alternatives to incarceration.