Murder is causing someone’s death (homicide) with malice aforethought. “Malice” can be found in several ways, but is most commonly found by proof of intent to kill. There are two degrees to murder. Murder is 1st degree if it is premeditated or committed during certain felonies, and carries a 25 year to life sentence If there are “special circumstances” then murder is punishable by life in prison without the possibility of parole, or by death. Among these are lying in wait, murder of a police officer, or to silence a witness.
All other murder is second degree which carries a 15 year to life sentence. Bear in mind, however, that parole is only granted to about ten percent of those eligible in any given year. If denied, a convict must wait another three years before he/she is eligible again. All the above penalties are increased by “enhancements” if the crime is carried out in different ways or for different purposes, such as for a gang, or with a gun, or if the defendant has criminal convictions (“priors”).
There is no statute of limitations on murder, and the District Attorney has charged this crime thirty or more years after the alleged act. Because of the serious nature of this crime and its punishments, murder cases can take years from the time charges are filed to a jury’s verdict, especially if there are multiple defendants. That is, if a plea agreement is not reached.
There are storied defenses to this crime, as old as the crime itself, such as self defense, or alibi. But this crime, like any other, has elements which must be proved. The prosecution must be able to present evidence of the alleged facts in order to supply such proof on each element “beyond a reasonable doubt.” Therefore, the battle ground of a murder case will be wherever there is any weakness in the evidence supporting the prosecution’s theory of the case.
This battleground is usually a trial. Murder cases proceed to trial more frequently than other crimes because there is either no acceptable offer on the table, or no offer at all. Winning or losing at trial hinges mostly on the quality and quantity of the prosecution’s evidence. But the jury is not legally obligated to believe all or any of it. An artful trial lawyer can raise doubts about the state’s witnesses and evidence through impeachment, or conflicting evidence, or be able to limit or exclude evidence essential to the state’s case. It is not uncommon for the public to be surprised by a verdict in a closely watched murder trial – a public that knows the basic facts, but was not sitting in the jury box.
Some lawyers believe that the most important stage of a trial is the jury selection itself. Though it is impossible to know (because such a proposition is impossible to test) it is still safe to say that effectiveness at trial, including jury selection, is as much an art as a science.
Conviction of an attempted crime typically carries half the sentence of the completed crime. Attempted first degree murder will still carry a life sentence with an earlier possible parole date. Attempted second degree murder carries up to a nine year sentence.
Attempted murder is sometimes charged in a serious assault case because the punishment is harsher. This will have a greater likelihood of ending in a plea bargain as few people will risk a trial with a life sentence in the balance. Also, the prosecution can charge the “lesser included” crimes of aggravated assault or battery along with the attempted murder. Thus, they have little to lose if the jury acquits on the attempted murder charge and convicts on the assault which is all the case was to begin with. For this reason, this, like all crimes. is often charged based on the most serious possible interpretation of the facts, and not the most likely.
On the other hand, overcharging a criminal defendant can backfire. I have received acquittals on lesser charged offenses – offenses for which my client was arguably guilty – when the jury returned a “not guilty” on more serious, but less certain, charges.
Links to Information for Anyone Charged with a Crime: