Proving Premeditation

Proving Premeditation

The preceding sections established that first degree premeditated murder requires actual reflection by a cool mind, and that time or capacity to reflect is not enough. That requirement leaves the prosecution with a practical difficulty, because premeditation and deliberation are states of mind, like intent to kill, and a state of mind leaves no direct trace. Often no one saw the killing, and even a witness who did can report what the defendant did but not what the defendant was thinking. The factfinder therefore reasons from the defendant's conduct, usually through circumstantial evidence read against the surrounding circumstances, to the mental state that the conduct suggests.¹

The starting rule concerns what the law refuses to assume. There is no presumption that an intentional murder is first degree, and the higher degree requires some affirmative evidence that the defendant in fact premeditated and deliberated.² The reason lies in why the degrees exist. English judges never divided murder into degrees; legislatures did so later, in order to confine the heaviest punishments, often including the death penalty, to first degree murder and to leave life imprisonment and lesser penalties for second degree.³ For an intentional killing, premeditation and deliberation are what separate the two grades. If proof of the intent to kill were enough to presume them, every intentional killing would carry the first degree penalty, and the line the legislature drew would disappear in practice. A traditional jury charge places the burden accordingly: proof of the intent to kill, and of the state of mind that makes a killing first degree, lies on the prosecution, although that proof need not be express and may be inferred from the circumstances.⁴

Because the prosecution must offer something beyond the killing itself, the question becomes what kinds of facts can support the inference. The evidence that does so falls into three recognized categories, and the sections below take each in turn.⁵

Each category supplies an inference and not a conclusion. Planning shows the defendant working toward the killing before it happened, motive supplies a reason to have thought about it beforehand, and a precise manner of killing suggests the execution of a design. None of them compels a finding, and the jury remains free to accept or reject the inference. Evidence outside the categories can sometimes help, but some kinds prove less than they seem to, notably the sheer violence of an attack and the defendant's efforts to avoid detection afterward, and the last of the sections below explains why.⁶

Two decisions show how the demand for affirmative evidence works in practice. In People v. Anderson, the California Supreme Court held that premeditation requires evidence of planning or motive, and it reversed a first degree conviction for the brutal killing of a housemate's ten-year-old daughter, a killing that appeared unplanned and motiveless.⁷ The brutality did not fill the gap, because a violent killing is just as likely to have been done on impulse as on design.⁸ In State v. Forrest, a North Carolina case, the record pointed the other way. The defendant shot his gravely ill father four times as the father lay helpless in a hospital bed, the father had done nothing to provoke the shooting, the revolver was a single-action gun that had to be cocked before every shot, and the defendant carried it to the hospital on a day when he was not working.⁹ The court also treated the defendant's own statements, that he had thought about ending his father's suffering and had promised not to let him suffer, as the most persuasive proof of earlier thought.¹⁰ The difference between the two cases lies in what the record showed about thought beforehand: Anderson offered nothing but a terrible killing, while Forrest offered preparation, an absence of provocation, and the defendant's own words. The courts do not agree on every item, since Forrest counted brutality and the number of wounds as circumstances pointing to premeditation, and Anderson suggested that a single lethal wound supports the inference more strongly.¹¹

The consequence shows up on exam stems. When the facts establish only that the defendant intended to kill and did, with nothing about preparation, earlier ill will, or how the wounds were placed, intent alone does not carry the prosecution to first degree in a jurisdiction that requires premeditation and deliberation as separate elements. The killing remains murder, because malice is present, but it falls to the second degree, which takes in every murder that is not of the first degree.¹² The dispute often reaches an appellate court as a question of sufficiency. In People v. Perez, a divided California Court of Appeal reduced a first degree conviction to second degree for insufficient evidence of premeditation and deliberation, and the California Supreme Court reversed that judgment.¹³ The four sections that follow set out which evidence can support the inference and which cannot.

Planning Evidence

Planning evidence is the first of the three categories, and it tracks the mental state it is meant to prove more closely than the other two. It consists of facts about what the defendant did before the killing that show activity directed toward it.¹⁵ The reasoning is practical. Premeditation happens inside a person's head, where no one can observe it, but preparation happens in the world, where witnesses, purchases, and physical traces can record it. Most people do not prepare for an act that has not occurred to them. So when conduct makes sense only as a step toward a killing, the jury may infer that the defendant had already thought about killing and had the cool mind to weigh it.¹⁶

The recognized illustrations are prior possession of the murder weapon, surreptitious approach of the victim, simultaneous action by two shooters, and taking the prospective victim to a place where others are unlikely to intrude.¹⁷ Each shows earlier thought in a slightly different way. A weapon in hand before the encounter means the defendant equipped for a killing before the occasion arose. A secret approach means the defendant chose to close in unseen, which suggests waiting for an opportunity. Two shooters firing at the same moment are unlikely to have coordinated by coincidence, so their timing points to an agreement reached beforehand. A secluded location shows the defendant arranging the setting so that no one could interrupt, and that arrangement is itself a decision about how the killing would be carried out.

Decided cases and definitions point the same direction. Lying in wait is the series of acts involved in watching, waiting for, and hiding from someone with the intent to kill or seriously injure, and because it shows premeditation and deliberation it can raise the sentence, with killing by poison or by lying in wait commonly classed as first degree murder.¹⁸ In Davis v. United States the trial court told the jury that a shooting preceded by lying in wait, previous preparation, selection of a deadly weapon, and concealment to get an opportunity to act was murder, provided the defendant was mentally accountable for his acts.¹⁹ That charge addressed malice and willfulness rather than the degrees of murder, but the conduct it lists is the kind of preparation that supports an inference of premeditation.

The facts of State v. Forrest show how context turns an ordinary object into planning evidence. The defendant, a truck driver, testified that he always carried his revolver on the job, which would make possession unremarkable. Yet he was not working on the day he shot his father, he carried the gun to the hospital anyway, and the revolver was a single-action gun that had to be cocked before each of the four shots fired at his helpless father. The North Carolina court counted those facts, together with the absence of any provocation, among the circumstances supporting premeditation and deliberation.²⁰ Students go wrong when they treat possession alone as planning. Having a weapon proves little unless something else shows that it was brought, readied, or positioned for a killing.

The weapon and the death are present in both scenes, so the fact that moved the answer is whether the defendant's conduct before the fatal act was directed toward a killing. Absence of planning does not forbid a first degree verdict, because motive and manner of killing can still supply the inference, but it removes one of the three routes to it. The next two sections take those routes in turn.

Motive Evidence

Motive evidence is the second of the three recognized categories, and it draws on a different part of the record than planning evidence does. Planning asks what the defendant did to get ready for the killing, while motive asks what had passed between the defendant and the victim beforehand that gave the defendant a reason to want that person dead.²² The category therefore collects facts about the prior relationship and conduct of the two people, from which a motive may be inferred. Its bearing on premeditation follows from ordinary experience. A person with a reason to want someone dead has had something to think about before the fatal moment, so an intent to kill that grows out of an existing reason is more likely the product of earlier reflection than an intent that appears from nothing. Motive cannot show the thinking itself, but it makes a finding of earlier thought more plausible.

The recognized illustrations come in three forms, and each works by showing that the idea of killing was already available to the defendant before the day it happened.²³

• Prior threats by the defendant to do violence to the victim, which show that harming the victim was already on the defendant's mind.
• Plans or desires of the defendant that the victim's death would advance, such as an inheritance or the removal of an obstacle to a business deal.
• Earlier conduct of the victim that is known to have angered the defendant, which supplies a grievance the defendant may have brooded over.

Prior threats are the most direct of the three, and they raise a question about how the words reach the jury. A threat is an out-of-court statement, yet statements that tend to prove a plan, design, or intention may be received to show that the declarant carried it out, subject to the usual limits of remoteness in time and apparent sincerity.²⁴ In Mutual Life Insurance Co. v. Hillmon the Supreme Court held that letters in which a man wrote that he expected to leave town with a particular companion should have been admitted, because they made it more probable that he did go with that companion.²⁵ A statement of intent to kill is stronger proof of ill will when it was spoken than proof that the speaker later committed the killing, but it still makes the killing more probable than it would be without the statement, and that is all relevance requires.²⁶ For premeditation the statement does further work, because it shows that the idea of killing this victim existed in the defendant's mind at the earlier time.

Decided cases show the same pattern. The facts of Tarasoff v. Regents of the University of California supply a plain example: two months before the killing, Poddar told his therapist that he intended to kill Tatiana Tarasoff, an advance statement of the kind a prosecutor would offer as a prior threat, although that decision addressed the therapists' civil duty and not the degrees of murder.²⁷ North Carolina's list of circumstances bearing on premeditation includes the defendant's threats and declarations before and during the occurrence and any ill will or previous difficulty between the parties, alongside want of provocation and the brutality of the killing.²⁸ State v. Forrest, the case of the defendant who shot his gravely ill father in a hospital bed, also shows that a motive need not be hostile. The defendant said that he had thought about putting his father out of his misery and had promised not to let him suffer, and the court called those statements the most persuasive proof of premeditation.²⁹ The words were spoken after the shooting, yet they disclose what the defendant had been thinking and had undertaken before it. That separates them from efforts to escape detection, which say nothing about reflection before the act.³⁰

The fact that moved the answer is whether the record shows a reason for the defendant to have thought about this victim's death before the fatal act. Even where it does, motive is circumstantial. It explains why a defendant might have wanted the victim dead and does not establish that the defendant in fact reflected before acting, because many people with grievances never kill and a defendant with a long grudge can still strike in a sudden burst of anger that leaves no room for cool thought. Students lose this issue when they treat motive alone as proof of premeditation, since the law presumes nothing in favor of first degree and requires affirmative evidence of actual reflection.³¹ Motive earns its weight in combination with the other categories. A weapon acquired beforehand is ambiguous by itself, as the preceding section showed, and a known reason to kill tells the jury what the preparation was for. A precise manner of killing likewise reads as the execution of a design once there is a reason the defendant would have wanted a design.

Manner of Killing

The third category of evidence moves from what the defendant did before the killing to the killing itself. Planning evidence asks how the defendant prepared, and motive evidence asks what had passed between defendant and victim. Manner-of-killing evidence asks what the act left behind on the victim's body. The rule is that facts about the nature of the killing may support an inference that the manner was so particular and exacting that the defendant must have killed according to a preconceived design.³³ What the prosecution needs is evidence, usually based on an examination of the victim's body, showing that the wounds were deliberately placed at vital areas.³⁴

The reasoning rests on the link between precision and forethought. A blow struck in a sudden surge of feeling rarely lands where the attacker chose, because the attacker is choosing nothing. Wounds that cluster over the heart or at the base of the skull therefore look like the work of someone who knew where to aim and had settled on killing before beginning. The body also keeps a physical record of how the killing was done, and a medical examiner can read that record at trial even when no one saw the act. This category thus resembles planning evidence, since it lets the jury reason from something observable in the world to a state of mind that no one can observe directly, on the premise that exacting execution reflects an earlier design.

The vital-part idea appeared earlier in the deadly-weapon inference. At common law, when a defendant intentionally used a deadly weapon directed at a vital part of the victim's body, the factfinder could infer an intent to kill, which satisfies the malice aforethought requirement.³⁵ That inference answers whether the defendant meant to kill. The manner-of-killing category answers a different question, namely whether the defendant killed according to a design formed beforehand, and it asks for more than a blow that happened to land somewhere fatal. A single stab that enters the chest in the middle of a scuffle shows intent to kill, yet a scuffle is just as consistent with impulse. The exacting placement, shown by examining the body, is what points toward a design, and a first degree charge needs affirmative evidence of that design because nothing is presumed in its favor.³⁶

The contrasting case is the killing that is merely violent. The fact that a killing was attended by much violence, or that a great many wounds were inflicted, is not relevant to design, because such a killing is just as likely, or perhaps more likely, to have been committed on impulse.³⁷ The explanation connects to the definition of deliberation, which requires a cool mind that is capable of reflection.³⁸ A flurry of blows scattered over the arms, back, and head is the pattern a mind overborne by rage tends to produce. That evidence therefore points toward the heated state that deliberation excludes, and away from the calm it requires.

The fact that moved the answer is precision against frenzy. The larger count in the second scene does not help the prosecution. Cut it to three wounds and keep the scattered pattern, and the analysis would be unchanged, because this category measures how exactly the wounds were placed and takes no account of how many there are.

The courts do not fully agree on how far that contrast runs. In State v. Forrest, the defendant shot his gravely ill father four times at point-blank range as the father lay helpless in a hospital bed, using a single-action revolver that had to be cocked before each shot.³⁹ The North Carolina court listed the dealing of lethal blows after the victim has been felled and rendered helpless, a brutal manner of killing, and the nature and number of the wounds among the circumstances from which premeditation and deliberation may be inferred.⁴⁰ The California Supreme Court in People v. Anderson suggested instead that the inference is stronger when the actor inflicts a single, lethal wound.⁴¹ The logic of the North Carolina view is that each additional blow is another moment at which the defendant could have stopped, so a persistent attack on a helpless victim looks less like one surge of feeling. The logic of the California view is that one well-aimed wound reflects a decision about how to kill, while a pile of wounds may reflect lost control. The facts in Forrest fit either analysis, since four point-blank wounds to the head, each requiring a fresh cocking of the revolver, show placement at a vital area and a separate act for every shot. Even there the manner of killing did not stand alone, because the court called the defendant's own later statements the most persuasive proof of premeditation and deliberation.⁴²

On an exam stem, the first task is to look for facts about where and how the wounds were placed, such as a medical examiner's description of wounds deliberately directed at vital areas. When the stem supplies only a count of wounds or a description of a savage attack, violence alone is weak evidence of design, and the answer should look to planning or motive evidence for the rest of the inference. A jurisdiction that lists brutality and the number of wounds as circumstances, as North Carolina does, can still treat them as supporting evidence, though one circumstance rarely carries first degree murder by itself. Like the other two categories, manner of killing supplies an inference that gains strength when the inferences reinforce one another.

Evidence That Proves Little

The three categories just covered (planning, motive, and manner of killing) share one feature: each makes earlier reflection more probable than impulse. Three other kinds of facts turn up constantly in first degree prosecutions and in exam stems, and they look as though they belong on that list when they do not. They are the sheer violence of the killing or the number of wounds, the defendant's conduct after the killing to avoid detection, and the passage of time standing alone. Each fails for the same underlying reason: it fits an impulsive killing at least as well as a premeditated one, so it cannot help a jury tell the two apart.⁴⁴ Because nothing is presumed in favor of first degree murder, the prosecution needs affirmative evidence that the defendant in fact premeditated and deliberated, and a fact equally consistent with impulse supplies none.⁴⁵

Violence is the most tempting of the three, because a savage killing feels deliberate. The rule is that the fact that a killing was attended by much violence, or that a great many wounds were inflicted, is not relevant to whether the defendant killed by design, since such a killing is just as likely, and perhaps more likely, to have been committed on impulse.⁴⁶ The mechanism lies in the definition of deliberation, which requires a cool mind that is capable of reflection.⁴⁷ Rage produces exactly the pattern a prosecutor might point to: the attacker keeps striking because nothing in a mind overborne by anger supplies a reason to stop, so the number of wounds measures how long the loss of control lasted. The manner-of-killing discussion above separated wounds placed with precision at vital areas from wounds scattered in a struggle. A bare count falls on the wrong side of that line because it records quantity and says nothing about placement.

Brutality and premeditation also measure different things, which is a further reason the first cannot stand in for the second. A person who shoves a child off a bridge into a deep river out of wanton cruelty acts with no earlier plan, yet the killing is no less vicious than a planned one.⁴⁸ The opposite pairing exists too: a planned mercy killing is premeditated without revealing the extreme depravity that the first degree label is meant to mark.⁴⁹ Jurisdictions do not fully agree on the point. In State v. Forrest, North Carolina treated brutality, including many wounds, as circumstantial evidence of deliberation and premeditation, while the California Supreme Court in People v. Anderson suggested that the inference is stronger when the actor inflicts a single lethal wound.⁵⁰ A jurisdiction that counts brutality does so as one circumstance among others, and the general rule stated here remains the safer starting point for an answer.

The second trap is conduct after the killing. The rule is that a defendant's efforts after the killing to avoid detection and punishment are not relevant to premeditation and deliberation, because they show only the defendant's state of mind at that later moment and not before or during the killing.⁵¹ Premeditation is thought that precedes the act, so a fact that comes after the act is on the wrong side of the timeline to prove it. Hiding a weapon or fleeing may show that the defendant knew the killing was wrong once it was done, but that knowledge arises from the killing itself. A person who planned for weeks and a person who snapped in a moment both want to avoid prison, so the conduct cannot separate them. Words spoken after the killing can stand differently when they disclose what the defendant had been thinking beforehand: in Forrest the defendant's later statements that he had thought about putting his father out of his misery and had promised not to let him suffer were called the most persuasive proof of premeditation.⁵² Those statements reveal earlier thought. Concealment reveals only fear of capture.

The fact that moved the answer is when the conduct occurred relative to the killing. Conduct before the act can show a design, while conduct after it can only show a reaction to what the defendant had already done.

The third trap is treating elapsed time as if it proved thought. As the discussion of duration showed, many courts accept a brief moment of reflection, and a jury in those jurisdictions may find premeditation within seconds. In People v. Waters, a youth fired once into a car and then, within five seconds and with both hands on the pistol, fired again and killed the victim, and the first degree finding was upheld.⁵⁴ The deliberate steadying of the weapon gave the jury something to weigh besides the interval. A jury that may find premeditation is still not required to, and time alone, with no other factor beside it, may not even permit the finding.⁵⁵ In State v. Bingham the defendant spent about five minutes strangling the victim, yet the divided Washington Supreme Court held that nothing else supported premeditation and that time alone would not carry it.⁵⁶

The reason is that time shows only an opportunity to think, while premeditation requires that the defendant actually did. Five minutes of strangling might contain a decision to kill, or it might contain five minutes of panic, and the clock cannot say which. That gap between capacity and actual reflection is the same one the earlier discussion of the mental element drew. A couple of years after Bingham, the same court held that a man who repeatedly stabbed a taxi driver could be guilty of first degree murder on the theory that each additional stab constituted premeditation.⁵⁷ Read together, the two decisions show how unsettled it is to reason from duration or repetition: Ollens treats each added act as another moment of thought, and Bingham declines to read thought into the passage of minutes. A minute count therefore works as a supporting fact, and the answer should look for planning, motive, or exacting manner to give the interval meaning.

On an exam stem, the pattern to watch for is a recital of facts that sound ominous but sit on the wrong side of the killing or say nothing about thought, such as a ferocious attack, a frantic cleanup, or a span of minutes. Students lose this issue when they credit aftermath conduct or body count as proof of reflection, since the evidence that counts shows planning, motive, or an exacting manner of killing before or during the act.⁵⁸ The stronger answer concedes what these facts do show, which is an intent to kill or fear of capture, and then asks where the affirmative evidence of actual reflection is.