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What is Malice Aforethought?

Mary McMahon
Updated May 16, 2024
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When someone acts with malice aforethought, he or she is in a state of mind which results in deliberate injury or death for another person. When it can be demonstrated that someone acted in this way, this fills the requirement of mens rea or “guilty mind” which is needed for certain types of convictions. A number of different things can be used to provide evidence that someone acted with malice aforethought and thus deserves a more severe penalty.

One form of malice aforethought involves the deliberate decision to injure or kill someone in advance of a crime. For example, if someone strings barbed wire across a bike path at neck level with the intent of unseating and injuring bikers so that they will stop using the path, this is malice aforethought. In this instance, the person is acting deliberately to cause harm and is making a conscious choice to do so in advance of the crime. Likewise, someone who buys a gun with the intention of shooting someone is also acting with deliberate intent to kill.

Another form involves behaving in a way which shows a deliberate disregard for human life or safety. In this case, someone decides to be reckless, rather than behaving recklessly out of thoughtlessness or lack of knowledge. This form of malice aforethought is used to charge people with stiff penalties when the kill or injure people in the course of committing a felony such as a bank robbery. The argument is that the accused acted with deliberate recklessness and thus demonstrated malice aforethought.

By contrast, if someone hits another person in the middle of an argument and that person is seriously injured or killed, this is not considered malice aforethought. The accused did not plan ahead of time to inflict harm, and was not behaving in a way which would be considered reckless. However, if it can be demonstrated that someone provoked an argument with the goal of getting the opponent into a position to be hit, this would change the circumstances, because the person would have planned ahead.

For charges such as first degree murder, malice aforethought must be proved. These charges are differentiated from lesser charges in which people accidentally kill people to create a series of escalating penalties. This reflects the idea that people who plan to kill and deliberately do so are more of a menace to society than people who accidentally kill.

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Mary McMahon
By Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a MyLawQuestions researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

Discussion Comments

By jessiwan — On Oct 29, 2013

"How can you really prove what was in anyone’s mind?" Couldn't agree more.

By lovealot — On Oct 06, 2011

Yes, sometimes it's a thorny situation when trying to show malice aforethought. In our legal history, quite a few people have been excused because of the plea of insanity. And the reverse is also true. They ought to be thoroughly examined by psychologists.

Also, what about pre-teens and young teenagers. At what age can they be capable of planning a murder or injury? As with a lot of questions of law, malice aforethought can be hard to determine.

By nony — On Oct 05, 2011

@everetra - I think the insanity defense is overused; for that reason alone I don't think that most jurors look too favorably upon it.

If anything, I think the defense would have to go to great lengths to bolster the insanity plea; certainly it should involve a lot more than blog postings as you pointed out.

The problem with intent is that it’s so subjective. How can you really prove what was in anyone’s mind? Even the case of buying a gun, which the article talks about, does not imply you intended to commit murder. Many people own guns for self-defense purposes alone, with complete absence of malice.

Given these challenges I agree with you that it’s easier to obtain manslaughter charges in most of these cases.

By everetra — On Oct 05, 2011

I think one thing that throws a wrinkle in the idea of malice aforethought is the state of mind of the individual.

If the defense claims that their client was not in a sound state of mind (i.e, the insanity defense) it becomes difficult, from what I understand, to establish malice aforethought.

Usually the person must be shown to be of sound mind and body. Defense lawyers in some cases have successfully argued that their clients were not of sound mind and body, by pointing to incoherent ramblings of the client on blog postings or things like that.

The problem is, even sane people can write incoherent ramblings on blog postings! So you see, it’s a balancing act. In either regard, without solid proof that the suspect acted with malice aforethought they may get slapped with little more than an involuntary manslaughter charge.

By Monika — On Oct 05, 2011

@ceilingcat - I imagine it is hard sometimes to prove that someone acted with malice aforethought. That's why they investigate the case and talk to witness and gather a lot of evidence. I think most of the time it's pretty easy to figure out if someone acted with malice aforethought or not.

I also think it's a good thing that this concept can be used to get harsher penalties for people who kill someone in the course of committing another crime. Even if they didn't intend to kill anyone, they were still acting with malice by breaking the law in the first place, I think.

By ceilingcat — On Oct 04, 2011

I remember learning about this concept when I took an introductory law class as a college freshman (I would recommend everyone do this actually, it's always good to be informed about the law.) As the article said, prosecuting attorneys have to prove malice aforethought for some types of charges.

I imagine it must be hard sometimes to get into the mind of the defendant so to speak. The two examples the article gave kind of illustrated this. In one example, the one with the barbed wire, it was very cut and dry: the person obviously meant to harm others. But in the argument, there's almost now way to know if the person provoked the argument on purpose so they could hit the other person.

Mary McMahon

Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a...

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