Concept
How Long Is Long Enough?
Premeditation, deliberation
How Long Is Long Enough?
Premeditation means thought of beforehand, which immediately raises a question of timing: how much beforehand must the thought have occurred? The statutes that use the formula say nothing about duration, so the answer has come from courts, and they have split. One line of authority treats a moment, even a matter of seconds, as enough. A growing line insists on an interval long enough for real reflection, so that the two degrees of murder keep distinct meanings. Between them sits a middle position that refuses to fix a number of seconds but also refuses to let the clock stand in for evidence of thought. The first view comes first, because the second developed largely as a reaction to it.
Instantaneous Premeditation View
Many courts have said that premeditation and deliberation require only a brief moment of thought, or a matter of seconds, and first degree convictions have frequently been affirmed on intervals that short.1 The classic statement comes from State v. Arata, where the Washington court declared that the law knows no specific time, that reflection a moment antecedent to the act is sufficient, and that the time for deliberation and premeditation need not be long.2 Under that formulation the question is only whether some thought, however fleeting, preceded the fatal act. A prosecutor who proves an intent to kill has nearly proved the rest, because almost every intent to kill is formed at least an instant before the act it directs.
The reason courts took this route is visible in how the statutes were first applied. Legislatures divided murder into degrees to reserve the heaviest penalties for cold-blooded killers, but judges kept meeting defendants who seemed every bit as dangerous and blameworthy without having planned anything. One court, confronting a man who shot into a passing train for no apparent reason, called him worse than one who waylays a personal enemy.3 Because a court cannot announce that it is adding a new class of death-eligible killers, it can only redefine the statute's words, and stretching premeditation to cover split-second decisions was the available tool. The instantaneous view is therefore a judicial response to a gap between the statute's language and the courts' sense of who deserves the top grade.
The cases show how far the stretching went. In People v. Waters a youth fired into a car, fired again within five seconds with both hands on the pistol, and killed the driver, and the finding of premeditation was upheld on appeal.4 In State v. Misenhimer the North Carolina court held that some period of time, however short, before the actual killing will suffice, and in Commonwealth v. O'Searo a Pennsylvania court went further and treated any intentional killing as willful, deliberate, and premeditated.5 The Pennsylvania legislature then defined an intentional killing as first degree murder, although it somewhat circularly defined intentional as willful, deliberate, and premeditated.6 In many jurisdictions, in short, premeditation now describes nothing more than an intentional killing, even if the intent formed at the moment of the act.7
The cost of the instantaneous view is that it erases the line it was supposed to draw. A defendant in such a jurisdiction who decides to shoot a rival and fires in the same breath is guilty of first degree murder, because the decision preceded the shot. Judge Cardozo put the difficulty this way: a sudden impulse is said to mark the dividing line, yet an impulse cannot be anything but sudden when its formation is measured in seconds, and the decisions nonetheless hold that seconds may be enough.8 If the intent to kill and the premeditation can arise together, nothing is left for second degree intentional murder to cover. That objection is the starting point for the competing view.
Appreciable Time View
The better view, which is growing in popularity, holds that speaking of premeditation and deliberation that are instantaneous, or that take no appreciable time, destroys the statutory distinction between first and second degree murder.10 The mechanism is simple. Every first degree murder by premeditation is also an intentional killing, so if intent plus an instant of thought qualifies, then second degree intentional murder has no cases left and the legislature's two grades have become one. Courts that accept this reasoning treat the interval as a real element that the state must prove, rather than as a formality satisfied by the intent itself.
The difficulty is that the classic word, appreciable, is ambiguous. It can mean long enough for real reflection, or it can mean merely capable of being appreciated, which could be a matter of seconds.11 Courts that want the stricter meaning therefore supply content. In People v. Anderson the California court looked for evidence of planning, motive, and manner of killing, and reversed a first degree conviction for the apparently unplanned and motiveless brutal killing of a housemate's ten-year-old daughter.12 The West Virginia court in Guthrie called its earlier instruction, which let the state prove premeditation by showing the intent first arose at the time of the killing, "confusing, if not meaningless," and approved an instruction requiring an interval long enough for the accused to be fully conscious of what he intended.13 Michigan asks for enough time to give a reasonable person a second look at the nature of the response.14 Nevada adds that a determination formed in passion must be carried out only after the passion has had time to subside.15
Even the stricter courts do not demand a stopwatch measurement. In Watson the court said no specific amount of time is necessary and the government need not show days, hours, or even minutes, though some appreciable time must pass between forming the design and carrying it out, and that time may be as brief as a few seconds.16 The instruction in Fisher v. United States states the same idea: forming a design to kill may be instantaneous, but deliberating on it requires an appreciable time between the design and the fatal act, and what matters is the fact of deliberation and not the length of the interval.17 A California court has put it as a matter of what the interval holds: the true test is the extent of the reflection, because cold, calculated judgment may be reached quickly.18 A short interval can therefore carry premeditation if it was spent in thought. A killing that follows the formation of intent immediately can also qualify when the intent was the conclusion of earlier premeditation and deliberation.19
The converse also holds, and State v. Bingham is the leading illustration. The state relied on the fact that manual strangulation takes three to five minutes, but the Washington Supreme Court held that an opportunity to deliberate is not evidence that the defendant did deliberate, because otherwise any killing that took more than a moment could be called premeditated.20 Set Bingham beside Waters and the lesson becomes clear: five seconds was enough to uphold a finding in one case and several minutes was not enough in the other, so duration is neither necessary nor sufficient.21 The line is not applied evenly, either. A couple of years after Bingham, the same court held that a man who repeatedly stabbed a taxi driver could be found to have premeditated on the theory that each additional stab constituted premeditation.22 California's current instruction tries to hold the middle, saying a few minutes can suffice but the period must be long enough to show a state of mind equivalent to premeditation or deliberation.23 Students go wrong when they write that a long struggle is automatically premeditated, which is the opportunity mistake, since the question is always what evidence shows reflection.
One caution limits every version of the rule. That a jury could find premeditation in a short interval does not mean it must, and time alone, absent other facts, may not even permit the finding.24 Because the controversy turns on which view a jurisdiction follows, an exam answer is best built in steps.
Instantaneous Premeditation View
Many courts hold that premeditation and deliberation require only a brief moment of thought, or a matter of seconds, and they have repeatedly affirmed first degree convictions on intervals that short.26 The classic statement comes from State v. Arata, where the Washington court said that "the law knows no specific time; if a man reflects upon the act a moment antecedent to the act, it is sufficient; the time for deliberation and premeditation need not be long."27 Under that formulation the only question is whether some thought, however fleeting, came before the fatal act. Massachusetts reaches a similar place by treating reflection as a matter of logical sequence rather than of time: first the deliberation, then the resolution to kill, then the killing, and all of it may happen in a few seconds.28 Because nearly every intent to kill is formed at least an instant before the act it directs, a prosecutor who proves intent has come very close to proving premeditation as well.
The reason courts took this route lies in what the statutes were meant to do and in what judges saw in front of them. Legislatures divided murder into degrees to reserve the death penalty for killers who thought about the killing, brooded over it, and then acted, which is to say for the cold-blooded killer rather than the impulsive one.29 Judges, however, kept meeting defendants who seemed just as dangerous and just as blameworthy without having planned anything. One court, facing a man who shot into a moving train for no apparent reason, said he was worse than a man who lies in wait for a personal enemy.30 A court cannot announce that it is adding a new class of death-eligible killers, since the legislature drew the categories. It can only construe the statute's words, so it stretched "premeditation" until it covered the split-second decision, and the instantaneous view is the product of that stretching.
The decisions show how far the stretching went. In People v. Waters a youth fired a pistol into a car, fired again within about five seconds with both hands on the gun, and killed the driver; the finding of premeditation was upheld.31 North Carolina, in State v. Misenhimer, held that some period of time before the killing, however short, will suffice, and in Commonwealth v. O'Searo the Pennsylvania court went further and treated every intentional killing as willful, deliberate, and premeditated.32 The Pennsylvania legislature, which had invented the premeditation formula, responded by defining an intentional killing as first degree murder, although it somewhat circularly defined intentional as willful, deliberate, and premeditated.33 West Virginia's older jury instructions went the same way, telling jurors that an intent to kill need exist only for an instant and that the intent could arise for the first time at the moment of the killing.34 Nevada has put the underlying idea bluntly: once a design to kill is formed, the haste with which it is carried out does not change the degree of guilt.35 In many jurisdictions, then, premeditation now describes nothing more than an intentional killing, even if the intent arose at the moment of the act.36
The difference between jurisdictions shows up on a single set of facts. A pedestrian sees a car approaching, decides in a flash to push a child into its path, and does it. In a jurisdiction that follows the instantaneous view, the decision preceded the push, so a jury may find premeditation and the pedestrian is guilty of first degree murder.37 In a jurisdiction that rejects the view, the same split-second decision shows intent to kill but not reflection, so the conviction is for second degree murder.38 Nothing about the pedestrian's conduct changed between the two answers. Only the rule about how much time premeditation needs did. Even courts that demand more will accept a few seconds if something happened in them, as in Watson, where a pause and a plea for mercy gave the defendant a moment to reconsider and renew his decision.39 Students slip when they assume that an intent formed at the moment of the act always counts as premeditation. That is true only where the jurisdiction accepts instantaneous premeditation.
The cost of the instantaneous view is that it erases the line it was supposed to draw. Every premeditated killing is also an intentional killing, so if intent plus an instant of thought qualifies for first degree, second degree intentional murder has no cases left. That objection explains why other courts reject the view, and the next section takes up their answer.
Appreciable Time View
The courts that reject instantaneous premeditation start from a structural point. If a first degree murder requires both an intent to kill and premeditation, and premeditation can arise in the same instant as the intent, then the second element adds nothing, and the statute's two grades of intentional murder collapse into one.41 Every premeditated killing is also an intentional killing, so the only way second degree intentional murder keeps any cases is for premeditation to demand something more than intent. The appreciable time view supplies that something more: an interval, however brief, in which the defendant actually reflected on a design to kill before carrying it out. The better and growing view treats this interval as a real element that the state must prove, rather than as a formality the intent itself satisfies.42
The reason for insisting on this lies in what the degree system was built to do. Legislatures divided murder to reserve the heaviest punishment for killers who thought about the killing, brooded over it, and then acted, which is to say for the cold-blooded rather than the impulsive.43 Preserving that line requires that premeditation be able to fail on the facts. The West Virginia court made the point directly in State v. Guthrie, where it called an older instruction allowing the intent to arise for the first time at the moment of the killing confusing, if not meaningless, because it completely eliminated the distinction between the two degrees.44 The court added that it lacked the power to abolish the distinction, since the legislature had drawn it, so the only available remedy was to give the statutory words real content. Washington's statute reaches the same place by text, providing that premeditation must involve more than a moment in point of time.45
The difficulty is that the classic requirement of appreciable time is ambiguous. It can mean time long enough for real reflection, or it can mean only time capable of being appreciated, which may be a matter of seconds.46 Courts that want the stricter meaning therefore supply content in one of two ways. The first is to look at evidence of what the defendant did and why. In People v. Anderson the California court identified planning activity, motive, and manner of killing as the evidence from which a preconceived design may be inferred, and it reversed a first degree conviction for the apparently unplanned and motiveless brutal killing of a housemate's ten-year-old daughter.47 The second is to define the interval by what it must hold. Guthrie approved an instruction requiring an interval long enough for the accused to be fully conscious of what he intended.48 Michigan asks for enough time to give a reasonable person a second look at the nature of the response, and Nevada adds that a determination formed in passion must be carried out only after the passion has had time to subside.49
Even the stricter courts decline to fix a number of seconds or minutes. In Watson the court said no specific amount of time is necessary, and that the government need not show days, hours, or even minutes, though some appreciable time must elapse.50 The jury instruction in Fisher v. United States explains how those statements fit together. Forming a design to kill may be instantaneous, but deliberating on it requires an appreciable time between the design and the fatal act, and a defendant who pauses and actually gives second thought to the intended act has deliberated, because the fact of deliberation matters more than the length of the interval.51 So a few seconds spent in thought can qualify, while a long interval spent in a struggle or frenzy may not. California's current instruction in People v. Russell tries to hold this middle ground: a few minutes can suffice, but the period must be long enough to show a state of mind equivalent to premeditation or deliberation.52
Two contrasting fact patterns show which fact does the work. A defendant who takes a rifle from a closet, drives to the victim's home, waits outside, and then shoots has premeditated under either view, because the preparation and the waiting are themselves evidence of reflection. Now remove everything except the clock. In State v. Bingham the prosecution relied on the pathologist's testimony that manual strangulation takes three to five minutes, and the Washington Supreme Court held that an opportunity to deliberate is not evidence that the defendant did deliberate, because otherwise any killing taking more than a moment could be called premeditated.53 The court also observed that holding a hand over a person's mouth or windpipe may reflect only a wish to quiet the person, not a decision to kill.54 Duration is therefore neither necessary nor sufficient by itself, since five seconds supported a finding of premeditation in Waters while several minutes did not in Bingham.55 Courts are not always consistent, since the same Washington court later held that a man who repeatedly stabbed a taxi driver could be found to have premeditated on the theory that each additional stab constituted premeditation.56
One limit applies under every version of the rule. That a jury could find premeditation on a given interval does not mean it must, and time alone, with nothing else pointing to reflection, may not even allow the finding.57 The error students most often make is to write that a long struggle was automatically premeditated, which is the opportunity mistake. The correct question is always what evidence shows that the defendant actually reflected, and a long interval answers that question only when something was happening in it.