Guest Post: Law of Murder for Writers

Today on my blog, the brilliant writer, Amie Gibbons. She also happens to be a lawyer. We’ll forgive her for that last part because she wrote this awesome post about the Law of Murders for Writers. 

As a long time murderer who has killed oh so many fictional people, my only advice is to not get caught and then you won’t need to worry about making sure the legal stuff is correct. 

Here ya go. Enjoy!

Something I’ve noticed in TV shows lately are they really don’t like to do their homework.  I’m sure this happens in every show depicting a complicated profession (Yeah, my mind went to Grey’s Anatomy too) but where I notice it the most is obviously in the legal profession since I’m in it.

So here’s a crash course on the (very general!) differences between the levels of murder, manslaughter and justifiable homicide.

(First up, the usual disclaimer: Nothing in here is meant to be taken as legal advice and it is all general statements of complex and often fact specific laws.  I can not stress that enough, especially in a post like this where the laws vary wildly by state and the lines between homicide, manslaughter and murder rely so heavily not only on the exact facts of the situation but the perception of those.)

Justifiable Homicide:

Homicide is the killing of another human being.  It’s justified when it’s something like self defense or defense of others.  It gets complicated, as everything in law always does.

Self Defense laws vary wildly by state so take this with a grain of salt and google the state laws of where your book is set.  The general idea is if you reasonably believe you are in danger of life or limb, or someone else is, then you can use deadly force as a defense.

Now, the exact wording differs by state, some states say stuff about proportional force, yada yada yada.  But if you’re writing about a five foot nothing woman shooting a linebacker, she’s probably going to be found to have used reasonable force, because she’s outsized and outweighed by such an extreme amount.

Whether the person actually had to use deadly force is not the question, whether that person reasonably believed they had to use deadly force is the question.  Because self defense homicide is not about the now dead supposed bad guy’s mentality, it’s about the person’s who is now on trial for killing them mentality.

Self Defense is about the would be victim’s and the now defendant’s mental state.  If she perceived she was in danger, if it was danger of life, limb, or whatever legal babble the statute says, and if it was reasonable.  Some guy comes up to you in broad daylight in a crowd with a smile on his face, probably not reasonable to kill him.  But what if he had a knife held down by his side and he’s been stalking you for months?  Reasonable now?

That’s why I say it’s so fact specific.  The jury has to hear everything and decide if they believe the defendant was in reasonable fear of life and limb.  Or if she had reasonable fear that someone else was.

A TV Show I usually love had a really stupid episode around this issue.  A guy and a teenager are in a bad area and get into an argument, it gets bad and the guy is in fear for his life and has his gun out, the kid reaches behind his back while the guy has his gun on him and has told him not to move, and the guy shoots him.  It looks on camera like the kid is reaching for the small of his back, like for a gun.  In the TV Show, the guy panics and plants a knife on the kid, saying the kid pulled a knife so it was a justified shooting, and then the MCs find the security tape that shows what happened and the guy’s arrested.

Wellllll, yeah, you might get charged and go to trial and let the jury sort it out, but whether or not the kid actually had a knife is irrelevant.  And that was the whole point of the episode, whether or not he really had a knife.

Nope, what’s relevant was the guy’s mindset when he shot the kid.

You want even more complicated?  Try writing somebody charged with murder during a bar brawl and the guy claiming self defense.  Then you get into who started it, who escalated it to deadly force, if the defendant tried to deescalate it or leave.  Don’t look at me, I can’t help you cut through that mess.  That would be so fact heavy and the tiny details would make such a huge difference, it really would depend on the jury.  It’d be interesting to write though

Manslaughter:

There are two types, voluntary and involuntary.

Voluntary is when there was no previous intent to kill, but the person did mean to attack, maybe even kill in the moment, someone else.  Usually states will have something in the statute saying there was intent in the moment to attack, but it was in the “heat of passion.”

Like a man walks in on somebody having sex with his wife and he launches himself at the guy, drags him off her and beats him over the head with the table lamp, causing death from the head trauma.

This doesn’t mean he won’t get charged with something higher, like Murder 2, or even Murder 1.  It just means his defense attorney will be arguing the lesser charge of Manslaughter is more appropriate due to the extreme circumstances that would reasonably lead to a heat of passion killing.

Why is it we think attacking the wife’s lover is reasonable heat of passion?  No clue.  But it’s the typical example.

Involuntary is an unintentional killing that results from recklessness or criminal negligence, or from an unlawful act that is a misdemeanor or low-level felony.  This is where you’d stick your perp if he hit someone with his car accidentally and killed them.  There was no intention to do the person any harm, there was just somebody not paying attention.

What if someone’s killed by a drunk driver?  Now it gets interesting.  Because they didn’t mean to, but a lot of states don’t want to let them off with just an involuntary manslaughter charge, because the driver meant to drink and meant to drive when they knew they were drunk, so there’s some culpability there.

So a lot of states have come up with a third category called Vehicular Manslaughter.  I know, I said there were only 2, sue me  This one kind of goes under Involuntary, and in some states they’re basically interchangeable, but it gives the state more wiggle room to deal with cases that are more egregious than a mere accident, but don’t meet the elements of voluntary manslaughter.  Some states have killing someone while driving drunk as one of the possible versions of Murder 2.

Murder:

This is the unlawful killing of another human being.  (Note the term unlawful, it’s what distinguishes the murder definition from the homicide one.)

2nd degree: Depends on the state.  States usually have elements along the lines of intentional but not “pre-meditated,” but doesn’t count as the “heat of passion” killing.  I think of Murder 2 as the catch all.  It’s what you charge on every homicide case and then figure out if you need to have a lesser included offense like a manslaughter later, or if you can go for Murder 1 and have 2 be the lesser included offense.

Murder 2 is the basic charge and then you go from there on what the evidence says.

It’s what you could charge in all the scenarios above, and then see what the grand jury comes back with.  If they see enough evidence for Murder 2, okay, there it is.  If they see evidence that says Manslaughter, that’s it.  And that’s what the person’s charged with and either pleads out or goes to trial over and then the jury decided what the defendant’s mindset was.

1st degree: This is when it was pre-meditated, or had other factors that state deems relevant and puts in the statute to say it’s 1st degree.  Most states have stuff like killing a cop while he’s on duty or killing while committing another felony, or killing as a hate crime.  (Important aside, crimes are defined by statute so if the statute doesn’t say murder while in commission of a felony makes it 1st degree, then it isn’t 1st degree.)

1st degree is when there’s murder but there’s something extra.  Remember how I said Murder 2 was the basic one?  That’s your go to for charges, and then you see what the evidence supports.  If you find a plan mapped out on how to kill that person, you’re looking at Murder 1.  If you find out the person attacked the guy humping his wife, probably Manslaughter.

And all of this is just the beginning, it’s just what the person gets charged with.  And if it doesn’t get pled out (which most do) then it goes to the jury… and they’re your wild card.  Then you are all about trying to keep evidence that’d hurt your case out of the jury’s hands to try to get them to see things your way.  And the other side is doing the same thing.

Okay, there’s your basics.  Take them and write great (and hopefully more accurate than TV) things

Happy Writing!

And now for my not so subtle push of my new book, Psychic Undercover (with the Undead). Psychic Ariana with the FBI has to go uncover as a singer at a club to catch a serial killer… but things get complicated when it turns out it’s a vamp club.

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