According to Scheb and Scheb II (2012), “In many jurisdictions, second-degree murder is
a residual classification applied to unlawful homicides not evidenced by malice aforethought or
premeditation, not occurring in conjunction with other felonies, and not falling within the
statutory definition of manslaughter” (p. 136). Some types of cases that would call for a label of
second-degree murder would be someone tossing stones into a busy freeway resulting in a death
or a person shooting a gun into a group of people at a festival. These crimes are usually referred
to as depraved-mind or depraved heart murders because the defendant acted in a manner that
gives no thought to the harm that can be caused by their actions.
“… [The] depraved mind murder includes no specific intent to injure or harm. However,
if the conduct of the defendant was so reckless as to create a high risk of death, he or she would,
in many instances, be found guilty of depraved-heart or reckless-conduct murder” (Gardner and
Anderson, 2012, p. 263). Defense attorneys may use self-defense or defense of others as a
defense for their client, but this can be seen to attack the elements the crime of second degree
murder. Self-defense and defense of others attacks the elements in that the defendant is acting in
a reckless manner, but self-defense and defense of others would not necessarily mean that the
defendant was acting recklessly in that they had a specific purpose of protection.
A defense of self-defense or defense of others means that the defense attorney has to
prove that the defendant was fearful for their life or for another person’s life and acted
accordingly to that threat. According to Currier and Eimermann (2010), “For self-defense and
defense of others to be valid, the plaintiff must reasonably believe that a threat exists and then
must use only as much force as is necessary to stop the battery” (p. 149). The information that a
defense attorney would need to establish this defense is any incident or evidence that proves
there was a reason for the defendant to fear for their life or the lives of others. For instance,
evidence that the victim had been heavily drinking and was threatening someone related by
eyewitnesses to the incident or police collecting a gun that had been in the victim’s possession.
This is the type of information that the defense attorney would need to establish a strong defense
for his client.
Now, the prosecutor would need information that would refute the defense’s information,
and poke holes in the defense. For instance, this information could be as simple as eyewitnesses
that refute the testimony of the defense’s witnesses stating that the defendant was the aggressor
and not defending themselves or someone else. It could also be proving an escalation on behalf
of the defendant that was not necessary to defend themselves, such as utilizing a weapon when
the victim only had their fists and was of a similar size as the defendant. Any information that
could be used to show the judge or jury that the defendant was not threatened, but acted in a
manner intending to cause harm even though it was not premeditated.
References
Currier, K. A., & Eimermann, T. E. (2010). Introduction to paralegal studies: a critical thinking
approach (4th ed.). New York: Aspen Publishers.
Gardner, T. J., & Anderson, T. M. (2012). Criminal law (11th ed.). Belmont, CA: Wadsworth
Cengage Learning.
Scheb, J. M., & Scheb, J. M. (2012). Criminal law (6th ed.). Belmont, CA: Wadsworth.