MALICE MURDER

The Legal Definition

A person commits the offense of malice murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

In Plain Terms

Essentially malice murder occurs when you intentionally kill a person. The State has to prove the malice, or intent to kill, in order to secure a conviction for malice murder. It is important to note that malice is not the same thing as premeditation. Georgia courts have determined that a person can form malice, or the intent to kill, moments before the actual murder.

Sentencing Exposure

A malice murder conviction carries a sentence of Life Imprisonment with the possibility of parole, Life Imprisonment without the possibility of parole, or the Death Penalty.

The Legal Definition

A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice. Any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain. Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.

In Plain Terms

Second degree murder occurs when a child, under the age of 18, dies because of your neglect. The State is not required to prove malice, or the intent to kill, in order to secure a conviction for second degree murder. Instead, the State has to prove that you either knew or should have known that your actions, or neglect, would cause severe physical or mental pain to the child.

Sentencing Exposure

A second degree murder conviction carriers a minimum of 10 years in prison and a maximum of 30 years in prison.

Defining Justifiable Homicide

The Legal Definition: A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person, or to prevent the commission of a forcible felony. If a self-defense claim is raised, the State not only has to prove that you killed the person, but also that the killing was not in self-defense. In other words, the State must disprove your self-defense claim in order to secure a conviction.

In Plain Terms: If you believe that a person is about to kill or severely injury yourself or another person, you are allowed to kill that person in self-defense or in defense of another. You can also use deadly force to prevent a person from committing a violent felony, such as an armed robbery, rape, or aggravated assault.

The thing to keep in mind is that self-defense claims are examined based on a reasonable person standard. That means your actions are justifiable only if a normal, reasonable person would’ve acted in a similar manner under the circumstances. A self-defense claim will not be victorious if your actions were reasonable to you but would be unreasonable to the average person.

When homicide is not justifiable: There are 3 scenarios in which a person is not justified in using force that is intended or likely to cause death or great bodily harm: (1) If he initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant; (2) is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or (3) was the aggressor or was engaged in a combat by agreement, unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.

Stand Your Ground Law

The law in some states places a duty to retreat on a person before they are justified in using deadly force against another. A duty to retreat means that if you can safely remove yourself from the threatening situation, you must do so. You can only use deadly force against another if leaving is not a safe option.

It is important to note that Georgia does not have a duty to retreat law. The law in Georgia is that if a person is about to kill or severely hurt you, or someone else, you have the right to stand your ground and use deadly force against that person.

Immunity From Prosecution

If you are facing murder charges and are raising a self-defense claim, then you probably need to have an immunity hearing. Your criminal defense attorney should file an immunity motion, which is a document that provides an explanation for why you should be immune from prosecution. At the hearing, your defense attorney should call witnesses and present evidence to support your self-defense claim. The State may present evidence to rebut your self-defense claim. Ultimately, the judge will decide whether you are immune from prosecution. If the judge rules in your favor, then the State is prohibited from prosecuting you and must dismiss the charges. If the judge rules against you, then you still have the option of presenting your self-defense claim to a jury during trial.

Other Common Legal Defenses to Criminal Homicide (in Georgia)

Alibi

An alibi defense asserts that it is impossible for you to have committed the charged crime because you were elsewhere at the time of the crime. If you want to raise an alibi defense, Georgia law requires that your criminal defense attorney provide the State notice of your alibi defense at least 10 days prior to your jury trial. That notice must include the names and contact information of your alibi witnesses, as well as the specific place or places you claim to have been at the time of the crime. If an alibi defense is presented, the State must disprove it in order to secure a conviction.

Misfortune or Accident

Georgia law provides that a person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence. In other words, you can raise an accident defense if unforeseen and unpredictable circumstances were the cause of death. There is no notice requirement for an accident defense, so you aren’t required to disclose that information to the State prior to your jury trial. If an accident defense is raised, the State must disprove it in order to secure a conviction.

Insanity

Although the term insanity is frequently used in conversations, it has a specific legal definition when it comes to criminal defense. In Georgia, a person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, that person did not have the mental capacity to distinguish between right and wrong in relation to the act, omission, or negligence. A lot of preparation goes into raising an insanity defense. For example, your defense attorney will likely review your mental health history and associated medical records, schedule a psychiatric evaluation, interview your family and close friends. Because you are presumed to be sane under the law, your attorney must rebut that presumption and present evidence to support your insanity defense.