Malice aforethought

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For the novel, see Malice Aforethought.

Malice aforethought was the "premeditation" or "predetermination" (with malice) that was required as an element of some crimes in some jurisdictions,[1] and a unique element for first-degree or aggravated murder in a few.[1] To the extent this term is still in use, it has a technical meaning that has changed substantially over time.

Legal history[edit]

Malice aforethought was the mens rea element of murder in 19th century America,[2][3] and remains as a relic in those states with a separate first-degree murder charge.[4]

As of 1891, Texas courts were overwhelmed with discussing whether "malice" needs to be expressed or implied in the judge's jury instructions.[5] However, the 1970s revision of the Texas Penal Code corrected this as "intentionally or knowingly" are the requisite mental state for murder in Texas. See Texas Penal Code Section 19.02.

Modern law[edit]


In English law the mens rea requirement of murder is either an intention to kill or an intention to cause grievous bodily harm. In R v Moloney [1985], Lord Bridge held that, intent, as defined in the mens rea requirement of murder 'means intent,' therefore the jury should simply use the term intent legally as they would in normal parlance. Furthermore, in Moloney, Lord Bridge held that, for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This element of intention is not only fulfilled when the defendant's motive or purpose was to cause death or serious bodily harm (also known as 'direct intent,') but also when the defendant's motive or purpose was not to cause death or grievous bodily harm, but (as held by Lord Steyn in R v Woollin) death or serious bodily harm was a 'virtual certainty' of the defendant's act, and the defendant appreciated this to be so (also known as 'oblique intent.')[6]

United States[edit]

To varying extents in the United States, the requisite intention can also be found where the perpetrator acts with gross recklessness showing lack of care for human life, commonly referred to as "depraved heart murder",[4] or during the commission of or while in flight from any felony or attempted felony (termed felony murder.) In England, such mens rea would only find a verdict of reckless or constructive manslaughter.

Note that through the principle of transferred intent, an accused who intended to kill one person but inadvertently killed another instead is still guilty of murder. The intent to kill the first person suffices.

In most common law jurisdictions, the American Law Institute's Model Penal Code, and in the various U.S. state statutes which have codified homicide definitions, the term has been abandoned, or substantially revised. The four states of mind that are now recognized as constituting "malice aforethought" in murder prosecutions are as follows:[7]

  1. Intent to kill,
  2. Intent to inflict grievous bodily harm short of death,
  3. Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
  4. Intent to commit a dangerous felony (the "felony murder" doctrine).


Malice aforethought is no longer regarded as a necessary mens rea element to prove a murder conviction. The term is a catch all phrase that encompasses all the states of mind that are sufficient mens rea [8] for murder. Most Australian jurisdictions require some degree of actual awareness of the resulting consequences of the accused's own actions to justify a murder conviction. The High Court of Australia affirmed that there is a spectrum of mens rea ranging from intention to kill to reckless indifference which would be relevant in securing a murder conviction.[9] However, the High Court ruled that it was not necessary to prove malice aforethought in a manslaughter conviction.[10] The Full Court in Victoria distinguished between the two classes of homicide of murder by reckless indifference and manslaughter by criminal negligence in R v Nydam,[11] in which malice aforethought was definitively ruled out as an element in a charge of manslaughter by criminal negligence.


  1. ^ a b The Free Legal Dictionary, citing, West's Encyclopedia of American Law, edition 2. Accessed November 15, 2010.
  2. ^ Thomas Welburn Hughes, A treatise on criminal law and procedure (1919) § 110, p. 72. Found at Google Books. Accessed November 15, 2010.
  3. ^ See The Free Legal Dictionary, citing, John Bouvier A Law Dictionary, Adapted to the Constitution and Laws of the United States (1856), citing Fost. 424; Yelv. 205; 1 Chit. Cr. Law, *242, 2 Chit. Cr. Law, *787; 1 East, Pl. Or. 402. 2 Mason, R. 91. Accessed November 15, 2010.
  4. ^ a b malice aforethought in Nolo's Plain-English Law Dictionary. Accessed November 15, 2010.
  5. ^ See Ainsworth v. State, 16 S.W. 652 (Tex. 1891), Washington v. State, 16 S.W. 653 (Tex. 1891), Mendez v. State, 16 S.W. 766, 767 (Tex. 1891), and Martinez v. State, 16 S.W. 767, 768 (Tex. 1891), found at Google Books. Accessed November 15, 2010.
  6. ^ "Cases on mens rea" (PDF). Retrieved 2 May 2013. 
  7. ^ Wise, Edward. "Criminal Law" in Introduction to the Law of the United States (Clark and Ansay, eds.), 154 (2002).
  8. ^ See also He Kaw Teh v R [1985] HCA 43 AustLii
  9. ^ R v Crabbe (1985) 156 CLR 464 AustLii
  10. ^ R v Lavender [2005] HCA 37 AustLii
  11. ^ [1977] VR 430, 437. AustLii