Editing Murder (section)

==Definition==
<!-- This section is too jurisdiction-specific, and need some analysis of the Common Law definition and maybe just a statement that it has been more or less universally applied, although with some modification, in common-law jurisdictions -->
The eighteenth-century English jurist [[William Blackstone]] (citing [[Edward Coke]]), in his ''[[Commentaries on the Laws of England]]'' set out the [[common law]] definition of murder, which by this definition occurs
{{Blockquote|when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.<ref>{{cite book|last1=Blackstone|first1=William|title=Blackstone's Commentaries on the Laws of England|date=1765|publisher=Avalon Project, Yale Law School|url=http://avalon.law.yale.edu/18th_century/blackstone_bk4ch14.asp|url-status=live|archive-url=https://web.archive.org/web/20110810204659/http://avalon.law.yale.edu/18th_century/blackstone_bk4ch14.asp|archive-date=2011-08-10}} Book the Fourth – Chapter the Fourteenth : Of Homicide.</ref>}} At common law, murder was normally punishable by death.<ref name="baker">{{cite book |last1=Baker |first1=Dennis J. |title=Treatise of criminal law |date=2021 |location=London |isbn=9781474320184 |page=804 |edition=Fifth}}</ref>

The elements of common law murder are:<ref name="Joshua Dressler 2001">{{cite book|last=Dressler|first=Joshua|author-link=Joshua Dressler |title=Understanding Criminal Law|edition=3rd |publisher=Lexis |year=2001 |isbn=978-0-8205-5027-5}}</ref>
* unlawful : This distinguishes murder from killings that are done within the boundaries of law, such as capital punishment, justified [[self-defense]], or the killing of enemy [[combatant]]s by lawful combatants as well as causing [[collateral damage]] to [[non-combatant]]s during a war.<ref>{{cite book|author=Dennis J. Baker |title=Glanville Williams Textbook of Criminal Law |location=London |year=2012 |chapter=Chapter 11}}</ref>
* killing : At common law life ended with [[cardiopulmonary arrest]]<ref name="Joshua Dressler 2001" /> – the total and irreversible cessation of blood circulation and respiration.<ref name="Joshua Dressler 2001" /> With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life.<ref name="Joshua Dressler 2001" />
* through criminal act or omission : Killing can be committed by an act or an [[Omission (law)|omission]].<ref>{{cite web|last1=Ashford|first1=Elizabeth|title=Killing & Letting Die|url=https://www.st-andrews.ac.uk/~ea10/topic3b.htm|website=Philosophy 4826, Life and Death|publisher=University of St. Andrews|access-date=10 September 2017|url-status=live|archive-url=https://web.archive.org/web/20170202001338/http://www.st-andrews.ac.uk/~ea10/topic3b.htm|archive-date=2 February 2017}}</ref>
* of a human : This element presents the issue of when life begins. At common law, a fetus was not a human being.<ref>''R v Tait'' [1990] 1 QB 290.</ref> Life began when the fetus passed through the vagina and took its first breath.<ref name="Joshua Dressler 2001" />
* by another human : In early common law, [[suicide]] was considered murder.<ref name="Joshua Dressler 2001" /> The requirement that the person killed be someone other than the perpetrator excluded suicide from the definition of murder.
* with malice aforethought: Originally ''[[malice aforethought]]'' carried its everyday meaning – a deliberate and premeditated (prior intent) killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice".

In contrast with [[manslaughter]], murder requires the mental element known as malice aforethought. Mitigating factors that weigh against a finding of intent to kill, such as "loss of control" or "diminished responsibility", may result in the reduction of a murder charge to voluntary manslaughter.<ref name="baker" />

The four states of mind recognized as constituting "malice" are:<ref>Wise, Edward. "Criminal Law" in ''Introduction to the Law of the United States'' (Clark and Ansay, eds.), [https://books.google.com/books?id=lpybMKdDoVIC&pg=PA154 154] {{Webarchive|url=https://web.archive.org/web/20150517093704/https://books.google.com/books?id=lpybMKdDoVIC&pg=PA154 |date=2015-05-17 }} (2002).</ref>

{{Ordered list|list-style-type=lower-roman
|[[Intention (criminal law)|Intent to kill]],
|Intent to inflict [[grievous bodily harm]] short of death,
|Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
|Intent to commit a dangerous [[felony]] (the "[[felony murder]]" doctrine).
}}

Under state of mind (i), intent to kill, the ''deadly weapon rule'' applies. Thus, if the defendant intentionally uses a [[deadly weapon]] or instrument against the victim, such use authorizes a permissive inference of intent to kill.  Examples of deadly weapons and instruments include but are not limited to guns, knives, deadly toxins or chemicals or gases and even vehicles when intentionally used to harm one or more victims.

Under state of mind (iii), an "abandoned and malignant heart", the killing must result from the defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury. In Australian jurisdictions, the unreasonable risk must amount to a foreseen probability of death (or grievous bodily harm in most states), as opposed to possibility.<ref name="R v Crabbe">{{cite AustLII|HCA|22|1985|litigants=R v [[Douglas Crabbe|Crabbe]] |parallelcite=(1985) 156 [[Commonwealth Law Reports|CLR]] 464 |courtname=[[High Court of Australia|High Court]] |date=26 March 1985}}; but the common law has been modified in NSW: {{cite AustLII|HCA|27|1991|litigants=Royall v R |parallelcite=(1991) 172 [[Commonwealth Law Reports|CLR]] 378 |courtname=[[High Court of Australia|High Court]] |date=25 June 1991}}.</ref>

Under state of mind (iv), the felony-murder doctrine, the felony committed must be an inherently dangerous felony, such as burglary, arson, rape, robbery or kidnapping. Importantly, the underlying felony ''cannot'' be a [[lesser included offense]] such as assault, otherwise all criminal homicides would be murder as all are felonies.

In Spanish criminal law,<ref>{{cite web | url=https://noticias.juridicas.com/base_datos/Penal/lo10-1995.html | title=Noticias Jurídicas }}</ref> ''asesinato'' (literally 'assassination'): takes place when any of these requirements concur: Treachery (the use of means to avoid risk for the aggressor or to ensure that the crime goes unpunished), price or reward (financial gain) or viciousness (deliberately increasing the pain of the victim). After the last reform of the [[Spanish Criminal Code]], in force since July 1, 2015, another circumstance that turns homicide (''homicidio'') into assassination is the desire to facilitate the commission of another crime or to prevent it from being discovered.<ref>{{Cite web|url= http://noticias.juridicas.com/base_datos/Penal/549720-lo-1-2015-de-30-mar-modifica-la-lo-10-1995-de-23-nov-del-codigo-penal.html |title=Ley Orgánica 1/2015, de 30 de marzo, por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal|website=Noticias Jurídicas|language = es}}</ref>

As with most legal terms, the precise definition of murder varies between jurisdictions and is usually codified in some form of legislation. Even when the legal distinction between murder and manslaughter is clear, it is not unknown for a jury to find a murder defendant guilty of the lesser offense. The jury might sympathize with the defendant (e.g. in a [[crime of passion]], or in the case of a bullied victim who kills their tormentor), and the jury may wish to protect the defendant from a sentence of life imprisonment or execution.

=== Degrees <span class="anchor" id="Degrees of murder"></span><span class="anchor" id="Murder in the second degree"></span> ===
{{Redirect2|Murder in the second degree|Premeditated murder|the album|Murder in the Second Degree{{!}}''Murder in the Second Degree''|the film|Premeditated Murder{{!}}''Premeditated Murder''}}
Some jurisdictions divide murder by degrees. The distinction between first- and second-degree murder exists, for example, in [[Murder (Canadian law)|Canadian murder law]] and [[Murder (United States law)#Degrees|U.S. murder law]]. Some US states maintain the offense of [[capital murder]].

The most common division is between first- and second-degree murder. Generally, second-degree murder is common law murder, and first-degree is an aggravated form. The aggravating factors of first-degree murder depend on the jurisdiction, but may include a specific intent to kill, premeditation, or deliberation. In some, murders committed by acts such as [[strangulation]], [[poisoning]], or [[lying in wait]] are also treated as first-degree murder.<ref>Murder in the First and Second Degree (14–17)
A murder which shall be perpetrated by ... poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing or which shall be committed in the perpetration or attempted perpetration of any arson, rape or sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon, shall be ... murder in the first degree ... and shall be punished by death or life imprisonment ... except that any person ... under 17 years of age at the time of the murder shall be punished with imprisonment ... for life.
All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or the preparation of opium ... cause the death of the user, shall be ... murder in the second degree and ... shall be punished as a Class C felony
</ref> A few states in the U.S. further distinguish [[Murder in United States law#Degrees|third-degree murder]], but they differ significantly in which kinds of murders they classify as second-degree versus third-degree. For example, Minnesota defines third-degree murder as [[depraved-heart murder]], whereas Florida defines third-degree murder as [[felony murder]] (except when the underlying felony is specifically listed in the definition of first-degree murder).<ref>{{cite journal|url=https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1427&context=flr|first=Frank|last=Brenner|title=The Impulsive Murder and the Degree Device|journal=Fordham Law Review|volume=22|issue=3|year=1953|access-date=2018-03-13|url-status=live|archive-url=https://web.archive.org/web/20180313214239/https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1427&context=flr|archive-date=2018-03-13}}</ref><ref>{{cite web|url=http://statelaws.findlaw.com/minnesota-law/minnesota-second-degree-murder.html|title=Minnesota Second-Degree Murder|website=findlaw.com|access-date=2018-03-13|url-status=live|archive-url=https://web.archive.org/web/20180314043759/http://statelaws.findlaw.com/minnesota-law/minnesota-second-degree-murder.html|archive-date=2018-03-14}}</ref>

Some jurisdictions also distinguish premeditated murder. This is the [[crime]] of wrongfully and intentionally causing the death of another human being (also known as murder) after rationally considering the timing or method of doing so, in order to either increase the likelihood of success, or to evade detection or apprehension.<ref>{{cite web|title=Premeditation|url=https://www.merriam-webster.com/dictionary/premeditation|website=Merriam-Webster|access-date=10 September 2017|url-status=live|archive-url=https://web.archive.org/web/20170910082842/https://www.merriam-webster.com/dictionary/premeditation|archive-date=10 September 2017}}</ref> State laws in the United States vary as to definitions of "premeditation". In some states, premeditation may be construed as taking place mere seconds before the murder. Premeditated murder is one of the most serious forms of homicide, and is punished more severely than manslaughter or other types of homicide, often with a [[life imprisonment|life sentence]] without the possibility of [[parole]], or in some countries, the [[capital punishment|death penalty]]. In the U.S., [[United States federal law|federal law]] ({{USCSub|18|1111|a}}) criminalizes premeditated murder, felony murder and second-degree murder committed under situations where federal jurisdiction applies.<ref>{{cite web|title=Title 18 USC, Sec. 1111, Murder|url=https://www.law.cornell.edu/uscode/text/18/1111|website=Legal Information Institute|publisher=Cornell Law School|access-date=10 September 2017|url-status=live|archive-url=https://web.archive.org/web/20170910040431/https://www.law.cornell.edu/uscode/text/18/1111|archive-date=10 September 2017}}</ref> In Canada, the [[Criminal Code (Canada)|criminal code]] classifies murder as either first- or second-degree. The former type of murder is often called premeditated murder, although premeditation is not the only way murder can be classified as first-degree. In the [[Netherlands]], the traditional strict distinction between premeditated intentional killing (classed as murder, ''moord'') and non-premeditated intentional killing (manslaughter, ''doodslag'') is maintained; when differentiating between murder and manslaughter, the only relevant factor is the existence or not of premeditation (rather than the existence or not of mitigating or aggravated factors). Manslaughter (non-premeditated intentional killing) with aggravating factors is punished more severely, but it is not classified as murder, because murder is an offense which always requires premeditation.<ref>{{Cite web|url=https://wetten.overheid.nl/BWBR0001854/2023-01-01|title=Wetboek van Strafrecht|first=Ministerie van Binnenlandse Zaken en|last=Koninkrijksrelaties|website=wetten.overheid.nl}}</ref>

===Common law===
According to Blackstone, English [[common law]] identified murder as a ''public wrong''.<ref>{{cite web |url=http://www.yale.edu/lawweb/avalon/blackstone/bk4ch14.htm |title=Blackstone, Book 4, Chapter 14 |publisher=Yale.edu |access-date=2010-06-25 |url-status=dead |archive-url=https://web.archive.org/web/20101203082805/http://www.yale.edu/lawweb/avalon/blackstone/bk4ch14.htm |archive-date=2010-12-03 }}</ref> According to common law, murder is considered to be ''[[malum in se]]'', that is, an act which is evil within itself. An act such as murder is wrong or evil by its very nature, and it is the very nature of the act which does not require any specific detailing or definition in the law to consider murder a crime.<ref>A Dictionary of Modern Legal Usage By Bryan A. Garner, p. 545.</ref>

Some jurisdictions still take a common law view of murder. In such jurisdictions, what is considered to be murder is defined by [[precedent]] case law or previous decisions of the courts of law. However, although the common law is by nature flexible and adaptable, in the interests both of certainty and of securing convictions, most common law jurisdictions have [[Codification (law)|codified]] their criminal law and now have statutory definitions of murder.

===Exclusions===

====General====
Although laws vary by country, there are circumstances of exclusion that are common in many legal systems.
* The killing of enemy combatants who have not surrendered, when committed by lawful combatants in accordance with lawful orders in war, is generally not considered murder.  Illicit killings within a war may constitute murder or homicidal [[war crime]]s; see [[Laws of war]].
* [[Right of self-defense|Self-defense]]: acting in self-defense or in defense of another person is generally accepted as legal justification for killing a person in situations that would otherwise have been murder. However, a self-defense killing might be considered manslaughter if the killer established control of the situation before the killing took place, such as [[imperfect self-defense]]. In the case of self-defense, it is called a "justifiable homicide".<ref name="crim liability">{{cite web|url=http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000278633&dateTexte=|title=Article 122-5|access-date=2007-11-01|publisher=Legifrance|author=The French Parliament|website=French Criminal Law|language=fr|url-status=live|archive-url=https://web.archive.org/web/20080408162844/http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000278633&dateTexte=|archive-date=2008-04-08}}</ref>
* Unlawful killings without malice or intent are considered manslaughter.
* In many common law countries, [[provocation (legal)|provocation]] is a partial defense to a charge of murder which acts by converting what would otherwise have been murder into manslaughter (this is voluntary manslaughter, which is more severe than involuntary manslaughter).
* Accidental killings are considered homicides. Depending on the circumstances, these may or may not be considered criminal offenses; they are often considered manslaughter.
* Suicide does not constitute murder in most societies. Assisting a suicide, however, may be considered murder in some circumstances.

====Specific to certain countries====
* [[Capital punishment]]: some countries practice the death penalty. Capital punishment may be ordered by a legitimate court of law as the result of a conviction in a [[criminal trial]] with [[due process]] for a serious crime. All member states of the [[Council of Europe]] are prohibited from using the death penalty.
* [[Euthanasia]], doctor-assisted suicide: the administration of lethal drugs by a doctor to a [[terminally ill]] patient, if the intention is solely to alleviate pain, in many jurisdictions it is seen as a special case (see the doctrine of [[double effect]] and the case of [[John Bodkin Adams|Dr John Bodkin Adams]]).<ref name="google1">{{Cite book|url=https://books.google.com/books?id=mDvBJ5J4tusC&q=%22Thomas+Lodwig%22+dr&pg=PA177 |title=Margaret Otlowski, ''Voluntary Euthanasia and the Common Law'', Oxford University Press, 1997, pp. 175–177 |access-date=2010-06-25|isbn=978-0-19-825996-1|year=1997|last1=Otlowski |first1=Margaret |publisher=Clarendon Press }}</ref>
* Killing to prevent the theft of one's property may be legal under certain circumstances, depending on the jurisdiction.<ref>{{cite news|url=https://abcnews.go.com/GMA/story?id=3880630#.UcGy2diVXFI|title=Man Kills Suspected Intruders While Protecting Neighbor's Property|website=ABC News|access-date=2014-10-23|url-status=live|archive-url=https://web.archive.org/web/20141018005420/https://abcnews.go.com/GMA/story?id=3880630#.UcGy2diVXFI|archive-date=2014-10-18}}</ref><ref>see [[Joe Horn shooting controversy]]</ref> In 2013, a jury in south Texas acquitted a man who killed a [[sex worker]] who attempted to run away with his money.<ref>{{cite web|url=https://news.yahoo.com/video/texas-man-acquitted-killing-craigslist-042716929.html|title=Texas man acquitted of killing Craigslist escort|date=7 June 2013|website=Yahoo News|access-date=2014-10-23|url-status=live|archive-url=https://web.archive.org/web/20141018221333/http://news.yahoo.com/video/texas-man-acquitted-killing-craigslist-042716929.html|archive-date=18 October 2014}}</ref>
* Killing an intruder who is found by an owner to be in the owner's home (having entered unlawfully): legal in most US states (see [[Castle doctrine]]).<ref name=njsd>{{cite web|url=http://www.njleg.state.nj.us/2008/Bills/A0500/159_I1.PDF|title=Assembly, No. 159, State of New Jersey, 213th Legislature, The "New Jersey Self Defense Law"|date=May 6, 2008|access-date=2017-10-03|url-status=live|archive-url=https://web.archive.org/web/20120902001532/http://www.njleg.state.nj.us/2008/Bills/A0500/159_I1.PDF|archive-date=September 2, 2012}}</ref>
* Killing to prevent specific forms of aggravated rape or [[sexual assault]] – killing of attacker by the potential victim or by witnesses to the scene; legal in parts of the US and in various other countries.<ref>{{Cite book|chapter-url=http://open.lib.umn.edu/criminallaw/chapter/5-2-self-defense/|title=Criminal Law|publisher=University of Minnesota Libraries Publishing|year=2015|isbn=978-1-946135-08-7|location=University of Minnesota|chapter=5|url-status=live|archive-url=https://web.archive.org/web/20180130091256/http://open.lib.umn.edu/criminallaw/chapter/5-2-self-defense/|archive-date=2018-01-30}}</ref>
* In some countries, the killing for what are considered reasons connected to [[family honor]], usually involving killing due to sexual, religious or [[caste]] reasons (known as [[honor killing]]), committed frequently by a husband, father or male relative of the victim, is not considered murder; it may not be considered a criminal act or it may be considered a criminal offense other than murder.<ref>{{Cite web|url=https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/hk-ch/p1.html|title = Introduction - Preliminary Examination of so-called honour killings in canada|date = 24 September 2013}}</ref><ref>{{cite web | url=https://daraj.media/en/36602/ | title="Honour" Killings in Yemen: Tribal Tradition and the Law - Daraj | date=19 December 2019 }}</ref> International law, including the [[Istanbul Convention]] (the first legally binding convention against [[domestic violence]] and [[violence against women]]) prohibits these types of killings (see Article 42 – Unacceptable justifications for crimes, including crimes committed in the name of so-called honor).<ref>{{cite web | url=https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=210 | title=Full list - Treaty Office - www.coe.int }}</ref>
* In the United States, in most states and in federal jurisdiction, a killing by a police officer is excluded from prosecution if the officer reasonably believes they are being threatened with deadly force by the victim. This may include such actions by the victim as reaching into a glove compartment or pocket for license and registration, if the officer reasonably believes that the victim might be reaching for a gun.<ref name="NYT72816">{{cite news|author1=Joseph Goldstein|title=Is a Police Shooting a Crime? It Depends on the Officer's Point of View|url=https://www.nytimes.com/2016/07/29/nyregion/is-a-police-shooting-a-crime-it-depends-on-the-officers-point-of-view.html|access-date=July 29, 2016|work=The New York Times|date=July 28, 2016|quote=The longstanding official deference to the viewpoint of police officers is enshrined in the laws of some states and Supreme Court rulings.|url-status=live|archive-url=https://web.archive.org/web/20160801120501/http://www.nytimes.com/2016/07/29/nyregion/is-a-police-shooting-a-crime-it-depends-on-the-officers-point-of-view.html|archive-date=August 1, 2016}}</ref>

===Victim===
All jurisdictions require that the victim be a natural person; that is, a human being who was still alive before being murdered. In other words, under the law one cannot murder a [[cadaver|corpse]], a corporation, a non-human animal, or any other non-human organism such as a plant or bacterium.

[[California]]'s murder statute, [[California Penal Code|penal code]] [[Murder (California)|section 187]], expressly mentioned a fetus as being capable of being killed, and was interpreted by the [[Supreme Court of California]] in 1994 as not requiring any proof of the viability of the fetus as a prerequisite to a murder conviction.<ref name="davis">''People v. Davis'', [http://online.ceb.com/CalCases/C4/7C4t797.htm 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591] {{Webarchive|url=https://web.archive.org/web/20150904003144/http://online.ceb.com/CalCases/C4/7C4t797.htm |date=2015-09-04 }} (1994).</ref> This holding has two implications. Firstly, a defendant in California can be convicted of murder for killing a fetus which the mother herself could have terminated without committing a crime.<ref name="davis" /> And secondly, as stated by Justice [[Stanley Mosk]] in his dissent, because women carrying nonviable fetuses may not be visibly pregnant, it may be possible for a defendant to be convicted of intentionally murdering a person they did not know existed.<ref name="davis" />

===Mitigating circumstances===
Some countries allow conditions that "affect the balance of the mind" to be regarded as [[mitigating factor|mitigating circumstances]]. This means that a person may be found guilty of "manslaughter" on the basis of "diminished responsibility" rather than being found guilty of murder, if it can be proved that the killer was suffering from a condition that affected their judgment at the time. [[clinical depression|Depression]], [[post-traumatic stress disorder]] and medication [[adverse effect (medicine)|side-effects]] are examples of conditions that may be taken into account when assessing responsibility.

====Insanity====
{{main|Insanity defense|M'Naghten rules}}
[[Mental Disorder (Insanity) Defense|Mental disorder]] may apply to a wide range of disorders including [[psychosis]] caused by [[schizophrenia]] and [[dementia]], and excuse the person from the need to undergo the stress of a trial as to liability. Usually, [[antisocial personality disorder|sociopathy]] and other [[personality disorders]] are not legally considered insanity. In some jurisdictions, following the pre-trial hearing to determine the extent of the disorder, the defense of "not guilty by reason of insanity" may be used to get a not guilty verdict.<ref>''M'Naughten's case'', [1843] All ER Rep 229.</ref> This defense has two elements:

* That the [[defendant]] had a serious mental illness, disease, or defect
* That the defendant's mental condition, at the time of the killing, rendered the perpetrator unable to determine right from wrong, or that what they were doing was wrong
[[File:CCTV 1 of Aaron Alexis in building 197.jpg|thumb|[[Aaron Alexis]] holding a shotgun during his rampage]]

Under [[New York (state)|New York]] law, for example:
{{blockquote|§ 40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defence that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.|[[N.Y. Penal Law]], § 40.15<ref>N.Y. Penal Law, § 40.15, found at [http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$PEN40.15$$@TXPEN040.15+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=14676554+&TARGET=VIEW N.Y. Assembly web site], retrieved 2014-04-10.</ref>}}

Under the [[French Penal Code of 1791|French Penal Code]]:
{{blockquote |Article 122-1
* A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions.
* A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime. |source=Penal Code §122-1 found at [http://195.83.177.9/code/liste.phtml?lang=uk&c=33&r=3627 Legifrance web site]}}

Those who successfully argue a defense based on a mental disorder are usually referred to mandatory clinical treatment until they are certified safe to be released back into the community, rather than prison.<ref name="french civil law on mental health">{{cite web |url=http://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=LEGITEXT000006072665&idArticle=LEGIARTI000006687933&dateTexte=20080929 |title=Code de la Santé Publique Chapitre III: Hospitalisation d'office Article L3213-1 |access-date=2007-10-23 |publisher=Legifrance |year=2002 |language=fr |url-status=live |archive-url=https://web.archive.org/web/20081021032011/http://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=LEGITEXT000006072665&idArticle=LEGIARTI000006687933&dateTexte=20080929 |archive-date=2008-10-21 }}, note: this text refers to the procedure of [[involuntary commitment]] by the demand of the public authority, but the prefect systematically use that procedure whenever a man is discharged due to his dementia.</ref>

====Postpartum depression====
[[Postpartum depression]] (also known as post-natal depression) is recognized in some countries as a mitigating factor in cases of [[infanticide]]. According to  Susan Friedman, "Two dozen nations have infanticide laws that decrease the penalty for mothers who kill their children of up to one year of age. The United States does not have such a law, but mentally ill mothers may plead not guilty by reason of insanity."<ref>Friedman, SH. "Commentary: Postpartum Psychosis, Infanticide, and Insanity Implications for Forensic Psychiatry", J Am Acad Psychiatry Law 40:3:326-332 (September 2012).</ref> In the [[law of the Republic of Ireland]], infanticide was made a separate crime from murder in 1949, applicable for the mother of a baby under one year old where "the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child".<ref>{{cite web |url=http://www.irishstatutebook.ie/eli/1949/act/16/section/1/enacted/en/html#sec1 |title=Infanticide Act, 1949, Section 1 |website=[[Irish Statute Book]] |access-date=22 May 2016 |url-status=live |archive-url=https://web.archive.org/web/20160601084439/http://www.irishstatutebook.ie/eli/1949/act/16/section/1/enacted/en/html#sec1 |archive-date=1 June 2016 }}</ref> Since independence, death sentences for murder in such cases had always been [[commutation of sentence|commuted]];<ref name="Rattigan2008">{{cite journal |last1=Rattigan |first1=Clíona |title='Done to death by father or relatives': Irish families and infanticide cases, 1922–1950 |journal=The History of the Family |date=January 2008 |volume=13 |issue=4 |pages=370–383 |doi=10.1016/j.hisfam.2008.09.003 |s2cid=144571256  | issn = 1081-602X }}</ref> the new act was intended "to eliminate all the terrible ritual of the [[black cap]] and the solemn words of the judge pronouncing sentence of death in those cases ... where it is clear to the Court and to everybody, except perhaps the unfortunate accused, that the sentence will never be carried out."<ref>{{cite web |url=http://oireachtasdebates.oireachtas.ie/debates%20authoring/DebatesWebPack.nsf/takes/seanad1949070700007 |title=Infanticide Bill, 1949—Second and Subsequent Stages |website=Seanad Éireann debates |pages=Vol.36 c.1472 |no-pp=y|date=7 July 1949 |access-date=22 May 2016 |url-status=live |archive-url=https://web.archive.org/web/20160701225250/http://oireachtasdebates.oireachtas.ie/debates%20authoring/DebatesWebPack.nsf/takes/seanad1949070700007 |archive-date=1 July 2016 }}</ref> In Russia, murder of a newborn child by the mother has been a separate crime since 1996.<ref>[[Criminal Code of Russia]], art.106</ref>

====Unintentional====
For a killing to be considered murder in nine out of fifty states in the US, there normally needs to be an element of intent. A defendant may argue that they took precautions not to kill, that the death could not have been anticipated, or was unavoidable. As a general rule, [[manslaughter]]<ref name="manslaughter in France">{{cite web|url=http://195.83.177.9/code/liste.phtml?lang=uk&c=33&r=3691|title=Article 222-8|access-date=2007-11-01|publisher=Legifrance|author=The French Parliament|website=French Criminal Law|url-status=dead|archive-url=https://web.archive.org/web/20071102221056/http://195.83.177.9/code/liste.phtml?lang=uk&c=33&r=3691|archive-date=2007-11-02}}</ref> constitutes [[recklessness (law)|reckless]] killing, but manslaughter also includes criminally negligent (i.e. grossly negligent) homicide.<ref name="invol offences">{{cite web|url=http://195.83.177.9/code/liste.phtml?lang=uk&c=33&r=3686|title=Section II – Involuntary Offences Against Life|access-date=2007-11-01|publisher=Legifrance|author=The French Parliament|website=French Criminal Law|url-status=dead|archive-url=https://web.archive.org/web/20071102221040/http://195.83.177.9/code/liste.phtml?lang=uk&c=33&r=3686|archive-date=2007-11-02}}</ref>  Unintentional killing that results from an involuntary action generally cannot constitute murder.<ref>{{cite journal|last1=Michaels|first1=Alan C.|title=Defining Unintended Murder|journal=Columbia Law Review|volume=85|issue=4|pages=786–811|jstor=1122334|year=1985|doi=10.2307/1122334}}</ref> After examining the evidence, a judge or jury (depending on the jurisdiction) would determine whether the killing was intentional or unintentional.

====Diminished capacity====
In jurisdictions using the Uniform Penal Code, such as California, [[diminished capacity]] may be a defense. For example, [[Dan White]] used this defense<ref>The so-called "[[Twinkie defense]]").</ref> to obtain a manslaughter conviction, instead of murder, in the [[Moscone–Milk assassinations|assassination]] of Mayor [[George Moscone]] and Supervisor [[Harvey Milk]]. Afterward, California amended its penal code to provide "As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action...."<ref>{{Cite web|url=https://law.justia.com/codes/california/2011/pen/part-1/25-29/28/|archiveurl=https://web.archive.org/web/20180425183608/https://law.justia.com/codes/california/2011/pen/part-1/25-29/28/|url-status=dead|title=2011 California Code :: Penal Code :: PART 1. OF CRIMES AND PUNISHMENTS [25 - 680] :: TITLE 1. OF PERSONS LIABLE TO PUNISHMENT FOR CRIME :: Section 28|archivedate=April 25, 2018|website=Justia Law}}</ref>

===Aggravating circumstances===
Murder with specified [[aggravation (law)|aggravating circumstances]] is often punished more harshly. Depending on the jurisdiction, such circumstances may include:
* Premeditation
* Poisoning
* [[Lying in wait]]
* [[Child murder|Murder of a child]]
* Murder committed during [[sexual assault]]
* Murder committed during [[kidnapping]]<ref>{{cite web | url=https://www.gencourt.state.nh.us/rsa/html/lxii/630/630-1.htm | title=Section 630:1 Capital Murder }}</ref>
* Multiple murders committed within one criminal transaction or in different transactions as part of one broader scheme
* Murder of a police officer,<ref name="Murder English law">See [[Murder (English law)]].</ref><ref name="NSW (of Australia) Law">{{cite Legislation AU|NSW|act|ca190082|Crimes Act 1900|19B}} Mandatory life sentences for murder of police officers.</ref> judge, firefighter or witness to a crime<ref>See [[Murder (United States law)]].</ref>
* Murder of a pregnant woman<ref>See [[Murder (Romanian law)]].</ref>
* Crime committed for pay or other reward, such as [[contract killing]]<ref>See [[Murder (Brazilian law)]].</ref>
* Exceptional brutality or cruelty, such as that employed in [[torture murder]]
* The use of excessive or gratuitous violence beyond that which is necessary to kill; [[Overkill (term)|overkill]]<ref>{{Cite web |title=Domestic Homicide Sentencing Review - Publication and Interim Response |url=https://questions-statements.parliament.uk/written-statements/detail/2023-03-20/hlws634 |access-date=2025-02-02 |website=questions-statements.parliament.uk |language=en}}</ref>
* Murder committed by an offender previously convicted of murder
* Methods which are dangerous to the public<ref>Criminal Code of Russia art.105 p.2"e"</ref> e.g. explosion, arson, shooting in a crowd etc.<ref>{{Cite web|url=http://www.consultant.ru/document/cons_doc_LAW_21893/#dst100022|archiveurl=https://web.archive.org/web/20151018134419/http://www.consultant.ru/document/cons_doc_LAW_21893/|url-status=dead|title=Постановление Пленума Верховного Суда РФ от 27.01.1999 N 1 (ред. от 03.03.2015) "О судебной практике по делам об убийстве (ст. 105 УК РФ)" \ КонсультантПлюс|archivedate=October 18, 2015|website=www.consultant.ru}}</ref>
* Murder for a political cause<ref name="Murder English law"/><ref name="paroleireland">{{cite web|title=Parole Board of Ireland|url=http://www.citizensinformation.ie/en/justice/prison_system/parole_board_of_ireland.html|website=Citizens Information Board|publisher=Parole Board of Ireland|url-status=live|archive-url=https://web.archive.org/web/20141017231027/http://www.citizensinformation.ie/en/justice/prison_system/parole_board_of_ireland.html|archive-date=2014-10-17}}</ref>
* Murder committed in order to conceal another crime or facilitate its commission.<ref>Criminal Code of Russia art.105 p.2"k"</ref>
* Murder committed in order to obtain material gain, for example to obtain an inheritance<ref>{{cite web | url=https://law.justia.com/codes/utah/2006/title76/76_05028.html | title=2006 Utah Code - 76-5-202 — Aggravated murder }}</ref>
* [[Hate crimes]], which occur when a perpetrator targets a victim because of their perceived membership in a certain social group.
* Treachery (e.g. ''[[:de:Heimtücke|Heimtücke]]'' in [[Murder in German law|German law]])

In the United States and Canada, these murders are referred to as [[first degree murder|first-degree]] or [[aggravation (law)|aggravated]] murders.<ref name="murdercanada">{{cite web|title=Classification of murder|url=http://laws-lois.justice.gc.ca/eng/acts/C-46/section-231.html|website=Justice Laws Website|publisher=Government of Canada|access-date=10 September 2017|url-status=live|archive-url=https://web.archive.org/web/20150925090055/http://laws-lois.justice.gc.ca/eng/acts/C-46/section-231.html|archive-date=25 September 2015}}</ref> Under [[English criminal law]], [[Murder in English law|murder]] always carries a mandatory [[Life imprisonment in England and Wales|life sentence]], but is not classified into degrees. Penalties for murder committed under aggravating circumstances are often higher under English law than the 15-year minimum non-parole period that otherwise serves as a starting point for a murder committed by an adult.

===Felony murder rule===
{{Main|Felony murder rule}}
A legal [[doctrine]] in some common law jurisdictions  broadens the crime of murder: when an offender kills in the commission of a dangerous crime, (regardless of intent), he or she is guilty of murder. The felony murder rule is often justified by its supporters as a means of preventing dangerous felonies,<ref>{{cite journal|last1=Sidak|first1=J. Gregory|title=Two Economic Rationals for Felony Murder|journal=Cornell Law Review|date=2015|volume=101|page=51|url=http://cornelllawreview.org/files/2016/04/Sidakessayfinalread-2.pdf|access-date=10 September 2017|url-status=live|archive-url=https://web.archive.org/web/20161021050754/http://cornelllawreview.org/files/2016/04/Sidakessayfinalread-2.pdf|archive-date=21 October 2016}}</ref> but the case of [[Ryan Holle]]<ref>{{cite news
 |url         = https://www.nytimes.com/2007/12/04/us/04felony.html
 |title       = Serving Life for Providing Car to Killers
 |first       = Adam
 |last        = Liptak
 |newspaper   = The New York Times
 |date        = 2007-12-04
 |url-status     = live
 |archive-url  = https://web.archive.org/web/20170929183244/http://www.nytimes.com/2007/12/04/us/04felony.html
 |archive-date = 2017-09-29
}}</ref> shows it can be used very widely.

The felony-murder reflects the versari in re illicita: the offender is objectively responsible for the event of the unintentional crime;<ref>{{Cite web |title=Hein Online |url=https://heinonline.org/HOL/Page?public=true&handle=hein.journals/hjlpp8&div=40&start_page=359&collection=journals&set_as_cursor=1&men_tab=srchresults |access-date=2024-02-29 |website=heinonline.org}}</ref>  in fact the figure of the civil law systems corresponding to felony murder is the [[Preterintention|preterintentional]] homicide (art. 222-7 French penal code,<ref>{{Cite web |title=La praeterintention |url=https://www.penale.it/public/docs/La_praeterintention.pdf }}</ref><ref>{{Cite web |title=Article 222-7 - Code pénal - Légifrance |url=https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006417608 |access-date=2024-02-29 |website=www.legifrance.gouv.fr}}</ref><ref>{{Cite web |title=Journal of law |url=https://jlaw.tsu.ge/index.php/JLaw/article/download/2400/2549/3068 }}</ref> art. 584 Italian penal code,<ref>{{Cite web |title=Art. 584 codice penale - Omicidio preterintenzionale |url=https://www.brocardi.it/codice-penale/libro-secondo/titolo-xii/capo-i/art584.html |access-date=2024-02-29 |website=Brocardi.it |language=it}}</ref> art. 227 German penal code<ref>{{Cite web |title=Körperverletzung mit Todesfolge, § 227 StGB - Exkurs |url=https://jura-online.de/lernen/koerperverletzung-mit-todesfolge-227-stgb/745/excursus/ |access-date=2024-02-29 |website=Jura Online |language=de}}</ref> etc.).  Felony murder contrasts with the principle of guilt, for which in England it was, at least formally, abolished in 1957, in Canada it was quashed by the Supreme Court, while in the USA it continues to survive.<ref>{{Cite book |last1=Reimann |first1=Mathias |url=https://books.google.com/books?id=evqNDwAAQBAJ&dq=cadoppi+comparato&pg=PT150 |title=The Oxford Handbook of Comparative Law |last2=Zimmermann |first2=Reinhard |date=2019-03-26 |publisher=Oxford University Press |isbn=978-0-19-256552-5 |language=en}}</ref><ref>{{Cite book |last=Cadoppi |first=Alberto |url=https://books.google.com/books?id=83_vSAAACAAJ |title=Mens rea |date=1992 |publisher=Utet |language=it}}</ref><ref>{{Cite book |last=Pradel |first=Jean |url=https://books.google.com/books?id=BBLXEAAAQBAJ&q=jean+pradel+droit+p%C3%A9nal+compar%C3%A9 |title=Droit pénal comparé. 4e éd. |date=2016-09-14 |publisher=Editis - Interforum |isbn=978-2-247-15085-4 |language=fr}}</ref>

===Year-and-a-day rule===
{{Main|Year and a day rule}}
In some common law jurisdictions, a [[defendant]] accused of murder is not guilty if the victim survives for longer than [[year and a day rule|one year and one day]] after the attack.<ref>See ''State v. Picotte'', 2003 WI 42, 261 Wis. 2d 249 (2003)[http://law.justia.com/wisconsin/codes/2010/940/940.10.html](search for "year-and-a-day rule")</ref> This reflects the likelihood that if the victim dies, other factors will have contributed to the cause of death, breaking the chain of [[causation (law)|causation]]; and also means that the responsible person does not have a charge of murder "hanging over their head indefinitely".<ref>{{cite news|title=Criminal lawyers back review of time limit for homicide charges|url=http://www.radionz.co.nz/news/national/325302/criminal-lawyers-back-review-after-family's-plea|access-date=14 August 2017|work=Radio NZ|date=25 February 2017|url-status=live|archive-url=https://web.archive.org/web/20170814102630/http://www.radionz.co.nz/news/national/325302/criminal-lawyers-back-review-after-family%27s-plea|archive-date=14 August 2017}}</ref> Subject to any [[statute of limitations]], the accused could still be charged with an offense reflecting the seriousness of the initial assault.

With advances in modern medicine, most countries have abandoned a fixed time period and test causation on the facts of the case. This is known as "delayed death" and cases where this was applied or was attempted to be applied go back to at least 1966.<ref>{{cite journal|url=http://www.newsweek.com/will-john-hinckley-jr-face-murder-charges-delayed-death-james-brady-263716|journal=Newsweek|title=Will John Hinckley Jr. Face Murder Charges for the 'Delayed Death' of James Brady?|last=Wofford|first=Taylor|date=August 9, 2014|access-date=2015-02-28|url-status=live|archive-url=https://web.archive.org/web/20150310062113/http://www.newsweek.com/will-john-hinckley-jr-face-murder-charges-delayed-death-james-brady-263716|archive-date=March 10, 2015}}</ref>

In England and Wales, the "year-and-a-day rule" was abolished by the [[Law Reform (Year and a Day Rule) Act 1996]]. However, if death occurs three years or more after the original attack then prosecution can take place only with the [[attorney-general]]'s approval.

In the United States, many jurisdictions have abolished the rule as well.<ref name="google">{{cite web|url=https://scholar.google.com/scholar_case?case=3098137125217744818|title=''People v. Carrillo'', 646 N.E.2d 582 (Ill. 1995)|access-date=2015-06-14|url-status=live|archive-url=https://web.archive.org/web/20150904003144/http://scholar.google.com/scholar_case?case=3098137125217744818|archive-date=2015-09-04}}</ref><ref name="google2">{{cite web|url=https://scholar.google.com/scholar_case?case=14610536214171167663|title=''State v. Gabehart'', 836 P.2d 102 (N.M. 1992)|access-date=2015-06-14|url-status=live|archive-url=https://web.archive.org/web/20150904003144/http://scholar.google.com/scholar_case?case=14610536214171167663|archive-date=2015-09-04}}</ref> Abolition of the rule has been accomplished by enactment of statutory criminal codes, which had the effect of displacing the common-law definitions of crimes and corresponding defenses. In 2001 the [[Supreme Court of the United States]] held that retroactive application of a state supreme court decision abolishing the year-and-a-day rule did not violate the [[Ex post facto law|Ex Post Facto]] Clause of [[Article One of the United States Constitution|Article I of the United States Constitution]].<ref>''[[Rogers v. Tennessee]]'', {{ussc|532|451|2001}}.</ref>

The potential effect of fully abolishing the rule can be seen in the case of 74-year-old William Barnes, charged with the murder of a Philadelphia police officer Walter T. Barclay Jr., who he had shot nearly 41 years previously. Barnes had served 16 years in prison for attempting to murder Barkley, but when the policeman died on 19 August 2007, this was alleged to be from complications of the wounds suffered from the shooting – and Barnes was charged with his murder. He was acquitted on May 24, 2010.<ref>{{cite news|title=Shooter acquitted of murder charge in 1966 shooting of Philadelphia police officer|url=http://www.pennlive.com/midstate/index.ssf/2010/05/shooter_acquitted_of_murder_ch.html|agency=Associated Press|publisher=PA Media Group|date=24 May 2010|url-status=live|archive-url=https://web.archive.org/web/20170910084004/http://www.pennlive.com/midstate/index.ssf/2010/05/shooter_acquitted_of_murder_ch.html|archive-date=10 September 2017}}</ref>