Also known as: malice aforethought · express malice · implied malice · malice aforethought express or implied · malice · premeditated malice
Written by attorneys · grounded in primary & secondary sources — see below
The culpable mental state required at common law for the crime of murder. It exists when a defendant acts with an intent to kill, an intent to inflict grievous bodily harm, extreme recklessness demonstrating a depraved heart, or an intent to commit a felony. Express malice consists of a deliberate intent to kill. Implied malice consists of the remaining forms.
Mustafa Mahmoud locked a laboratory door and wrapped an extension cord around Preston's neck. He pulled forcefully for several minutes even after Preston went limp. The sustained targeting of a vital area supplied the mental state needed to elevate the killing to murder.
Harbor Crest Fund alleged that Meridian Advisors circulated misleading performance summaries. The complaint described the summaries only as misleading and incomplete without identifying any particular statement or date. The court required particularity as to the circumstances even though the mental state could be alleged generally.
Select any source to read its text and confirm it supports the definition.
A reporter deliberately rearranged words in a public official's statement about a policy decision. The change produced a materially different meaning from the original remarks. The alteration established the knowledge of falsity required for liability.
Mason McCarthy struck Malcolm McKinley during a confrontation and caused his death. No justification or heat-of-passion reduction applied. The prosecution therefore had to prove the required mental state to establish murder rather than a lesser homicide.
A credit agency circulated a negative report on a private company's finances to a small group of subscribers. The report did not address any matter of public concern. Recovery of presumed damages therefore did not require proof of the heightened mental state.
Michael Miller selected a weapon and aimed it at a vital area of the victim's body during an argument. He continued the attack after the victim pleaded for mercy. The deliberate choice and persistence demonstrated the express form of the required mental state.
Express malice requires a deliberate intent to kill. Implied malice covers an intent to inflict grievous bodily harm, extreme recklessness showing a depraved heart, or an intent to commit a felony. Both satisfy the mental element for murder when an unlawful killing occurs.
Supporting sources
The mental state is satisfied by an intent to kill, an intent to cause grievous bodily harm, extreme recklessness, or an intent to commit a felony. Use of a deadly weapon aimed at a vital body part permits an inference of intent to kill.
Supporting sources
No. The mental state exists without any showing of hatred or ill will toward the victim. It is satisfied by the listed forms of intent or recklessness even when the defendant acts for another purpose.
Supporting sources
…appear in the Constitution's text . . . . The Constitution makes no mention, for example, of the First Amendment's 'actual malice' standard for proving certain libels, see New York Times Co. v. Sullivan , 376 U. S. 254 (1964). . . . Similarly, the Constitution makes no mention of the rational-basis test, or the…