Malice aforethought

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Criminal law

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Specifically in the criminal law, malice aforethought (or malice prepense) is the element of mens rea (Latin for "guilty mind") which must accompany the actus reus of death, in order to secure a conviction for murder under the common law. In other words, knowledge that through an action or omission, the result will be some one's death.

Malice aforethought is a precisely defined legal term that does not correspond to the lay definitions of either of its constituent words. It means one of any of the following states of mind concurrent with an act or omission that resulted in death of a person. One textbook defines it as "a term of art if not a term of deception."^[1] The author further states that "murder does not require either spite or premeditation. Mercy killing can be murder, so can a killing where the intent is conceived on the instant." In English law the mens rea requirement is an intention to cause death or to cause serious injury. Intention in this context is found either when the perpetrator acts with the purpose of causing death or serious injury, or, following Reg. v. Woollin [1999] 1 AC 82, where death or serious injury is a 'virtually certain' result of the perpetrator's act and the perpetrator has knowledge that death or serious injury is a virtually certain result.

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", 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 found 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 US state statutes which have codified homicide definitions, the term has been abandoned although the meaning remains the mens rea requirement for murder.

References