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William D. Kickham
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First Degree Murder

As our Massachusetts Murder and Homicide Overview makes clear, the law of murder, homicide and manslaughter is complex. To begin, even the caption for this paragraph (“Massachusetts Murder Law”) can be confusing: Why? Because not all killings in Massachusetts are murders. Far from it. Actually, a far better term would be "Massachusetts Homicide Law," because homicide is defined as the “killing of a human being due to the act or omission of another.” Murder and manslaughter are included among homicides, but not all homicides are a crime, particularly where there is a lack of criminal intent. Some examples of non-criminal homicides include killing another person in self-defense, a hunting accident even government execution of a prisoner that has received the death penalty. So, this area of law is not as “simple” as one might think.

So what type of actions, really, constitute a "murder"? The briefest answer, is that murder is not just plain “homicide”, but criminal homicide (remember: killing someone in self-defense is “homicide”, but it isn’t criminal homicide.) Criminal homicide is often defined as "the unjustified killing of a living person." But what constitutes a "person"? And since the person must be alive at the time of the killing, what, then, constitutes "alive"? These questions became central in the past several decades, principally surrounding two medical areas: Abortion and brain death. Consider this question: Is a fetus a "person", and would a doctor performing an abortion (at various stages of the pregnancy) be guilty of "murder"? If a doctor or another person unplugged the respirator from a patient who had no brain waves, is that patient "alive", and would the person pulling the plug be guilty of "murder"?

These are critical questions when considering how to approach Massachusetts murder charges. The law has, to varying degrees, answered these questions (though to many persons, still not satisfactorily). At common law, the killing of a child not yet born outside of the womb, did not constitute a homicide. Hence, if a woman who was pregnant eight months was shot in the abdomen, and the fetus was killed but the woman survived, then legally there was no "murder". The Supreme Judicial Court of Massachusetts changed this doctrine in the 1980's. Presently, Massachusetts law recognizes a viable fetus as a "person" for definitional purposes in this area of law. At the other end of the spectrum, the issue of when life ends also had to be addressed. This question ushered in the concept and definition of "brain death". In Massachusetts, it has been ruled by the Supreme Judicial Court that death essentially occurs when a patient exhibits no spontaneous respiration, when no positive electroencephalogram (EEG, or brain waves) exists for a period of 24 hours, and when the patient does not respond to painful stimuli. Together, these factors constitute brain death. Hence, were someone to walk into a hospital room and unplug the respirator from such a patient, legally no "murder" would have occurred.

Now that those very basic ideas have been broached, let's discuss what constitutes First Degree Murder in Massachusetts, what the legal defenses might be, and what the penalties are.

Definition of First Degree Murder in Massachusetts: This crime is defined by statute as “the unjustified killing of another person with deliberately premeditated malice aforethought, or murder executed with extreme atrocity and cruelty, or murder resulting from the commission of a crime punishable with death or imprisonment for life.” This crime is defined and governed by Massachusetts General Laws Chapter 265 Section 1.

Legal Elements of First Degree Murder in Massachusetts:

Premeditated Malice

This is the first legal element required for first degree murder, and the term refers to the thinking process of the defendant in developing the intent to kill another person. Essentially, it means this: That the defendant’s actions were not spontaneous – that he or she acted after reflecting or "thinking about" his/her planned actions. The law does not mandate that this time period of “premeditation” be very long at all, only as much time as to provide the defendant with a brief interim to weigh his or her actions in advance.

Aside from the premeditation requirement, "malice aforethought" is an additional element required for this crime. This essentially means that the defendant possessed an intent to cause mortal injury or serious bodily harm without having legal justification (such as self-defense or the defense of another). To find malice aforethought, one of three elements must be present: (1) The intent (mental purpose) to kill; or (2) The intent to cause serious bodily harm; or (3) The intent to create a likelihood that death or grievous harm would result from the defendant's actions. The first two of these require a "specific intent"; the third requires merely a "general intent." Resultantly, a jury could find malice aforethought, provided there is sufficient evidence that the "third element" of malice was present. Translated, this means that the defendant was aware of conditions that a reasonable person would have realized was likely to bring about death or cause serious harm to the victim.

Extreme Atrocity or Cruelty

This second legal element of first degree murder applies to killings that are especially brutal or savage. A jury determines whether this element was present or not, given the evidence introduced at trial. Various factors that juries can weigh on this element include: (1) The amount of conscious suffering the victim experienced, and the defendant's disregard of the same; (2) the degree of the victim's physical injuries; (4) how many times the victim was struck with an instrument or weapon; (4) the type of instrument(s) or weapons(s) used (including fists); as well as various other relevant information that the jury is allowed to consider.

When extreme atrocity or cruelty has been demonstrated, the single mental condition required of the defendant when this element applies is malice aforethought. As a result, the prosecution need not establish any deliberate premeditation.

Commission of a Capital Offense – Felony Murder

The “felony murder” rule applies when a person has been killed during the commission of a crime punishable with death or imprisonment for life. This almost always applies to a death that is caused while a felony is being committed (think of a bank robbery.) Were this to happen, this death could be considered first degree murder, without establishing a prior intent to kill. This rule "injects" the malice, or intent, element required for first degree murder, from the act of committing the felony. For the felony-murder rule to apply, the prosecution is required to first establish the required elements of the alleged felony, and the death must have resulted from the "natural and probable consequence of the felony." Again, the prosecution doesn't have to prove intent to kill; only that a death resulted during the felony, or the attempt to commit the felony.

Penalties for First Degree Murder:

The maximum sentence for a first-degree murder conviction in Massachusetts is life imprisonment without parole. All first degree murder convictions trigger an automatic appeal to the state Supreme Judicial Court. However, that's a far cry from saying the appeal will be successful. The vast majority of these appeals are not overturned or successful.

Legal Talent Is Key In These Cases

If you or someone you know is facing these kinds of charges, the situation is dire. Call us at Ph.: (781) 320-0062, or Ph.: (617) 285-3600, and we’ll provide you with a free initial consultation. Or click here for a free consultation. We will review the relevant police reports, review your version of the incident, and we'll give you our frank opinion regarding what your preferred legal options would be. Our defense team will tell you upfront what the weak and strong points are in the commonwealth’s case against you. We will do all this as part of a free initial consultation for 20-30 minutes. Whatever the specific Massachusetts murder or manslaughter charge is, we will make sure your rights are protected.

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