Also known as: malice aforethought · malitia praecogitata
Written by attorneys · grounded in primary & secondary sources — see below
A Latin phrase used in common law indictments to allege that the defendant committed an unlawful killing with malice aforethought. The phrase specifies that the mental state required for murder was present at the time of the act.
Ella Emerson worked as a deckhand on a fishing vessel. She had long been in conflict with Captain Elena Estrada. One stormy night Ella deliberately cut a section of Elena's safety line. Ella then stood by without assisting as Elena was swept overboard by a wave and drowned in the rough seas. The facts establish that Ella acted with malice aforethought.
Eileen Epstein, a physician at Urban Clinical, treated patient Ezra Eastman in a crowded emergency room. Enraged by Ezra's repeated demands for pain medication, Eileen deliberately injected him with a powerful sedative in a dose far exceeding safe limits. Ezra died within minutes. The evidence shows Eileen knew the dose was excessive and dangerous. The facts establish that Eileen acted with malice aforethought.
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Erika Echevarria summoned her graduate student Eva Espinosa after discovering what she believed to be plagiarism. Erika locked the door, seized a thick extension cord, wrapped it around Eva's neck, and pulled forcefully for several minutes directly on the throat. Eva died from asphyxiation. The facts establish that Erika acted with malice aforethought.
Elena Estrada met with junior analyst Ezra Eastman to discuss client accounts. Alfred accused Elena of fraud. Enraged, Elena locked the conference room door and began striking Ezra repeatedly in the head with a heavy stapler and closed-fist punches. Ezra died from a brain hemorrhage. The facts establish that Elena acted with malice aforethought.
Eva Espinosa served as a loss-prevention officer at a retail store. She observed a teenage customer lingering near high-value electronics. Eva became convinced the customer was shoplifting, tackled him to the floor, and repeatedly stomped on his chest. The customer suffered fatal internal injuries and died at the scene. The facts establish that Eva acted with malice aforethought.
Ella Emerson was indicted for the crime of having feloniously, wilfully, and of her malice aforethought, killed and murdered one Sol Blackwell. At trial the government introduced evidence which, if alone considered, made it the duty of the jury to return a verdict of guilty. But there was evidence tending to show that at the time of the killing the accused, by reason of unsoundness of mind, was not capable of forming the required mental state. The facts establish that the prosecution must prove malice aforethought beyond a reasonable doubt.
The phrase alleges that the defendant committed the unlawful killing with malice aforethought. It specifies the required mental state for murder under common law definitions.
Supporting sources
Malice aforethought requires only that the defendant acted with intent to kill, intent to inflict grievous bodily harm, extreme recklessness, or intent to commit a felony. It does not require extended planning or deliberation beyond the moment of the act.
Yes. When a defendant intentionally uses a deadly weapon directed at a vital part of the victim's body, the factfinder may infer an intent to kill, thereby satisfying the malice aforethought requirement.
Yes. When malice aforethought is an element of murder, a state may not shift to the defendant the burden of proving that he acted in the heat of passion to reduce murder to manslaughter.
…(1975), in which we invalidated a Maine statute that presumed that a defendant who acted with an intent to kill possessed the "malice aforethought" necessary to constitute the State's murder offense (and therefore, was subject to that crime's associated punishment of life imprisonment). The statute placed the burden on the defendant…