Murder is the common term used for two categories of killing: Murder in the First Degree; and Murder in the Second Degree.
What is the difference between First- and Second-Degree Murder?
First, NRS 200.010 defines “murder”:
Murder is the unlawful killing of a human being:
- With malice aforethought, either express or implied;
- Caused by a controlled substance which was sold, given, traded or otherwise made available to a person in violation of chapter 453 of NRS; or
- Caused by a violation of NRS 453.3325.
- The unlawful killing may be effected by any of the various means by which death may be occasioned.
There are essentially two ways that killing someone becomes “murder,” either because it was done with “malice aforethought, either express or implied,” or because it occurred because controlled substances were involved.
What does “malice aforethought” mean?
NRS 200.020 defines “Malice: Express and implied defined”:
- Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof.
- Malice should be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.
In other words, there are two types of “malice aforethought”: Express and Implied.
There are two elements to “express malice.” The first is that you act with the intention of killing another person. The second is that your intent is clear by the circumstances of the murder.
“Implied malice” exists when one of two factors exists: either it does not appear that the alleged murderer was provoked into killing or when the circumstances show that the alleged murderer acted with a reckless disregard for human life.
Finally, the word “aforethought” generally means that the alleged murderer acted after having at least a moment to think about what he was about to do.
Taken together, “malice aforethought, either express or implied” means that the alleged murderer either planned to kill the victim, knew that his actions were going to kill the victim, or acted with a complete disregard for the life of the victim.
Why does the law refer to NRS Chapter 453?
NRS Chapter 453 governs controlled substances, or drugs. The reference, therefore means that if someone dies because you provided, or made available, the controlled substance that caused someone’s death, then you can be charged with murder.
The second reference, to NRS 453.3325, refers specifically to there being a child present during violations of the controlled substance laws.
Logically, these should make sense. Controlled substances are regulated because they can be dangerous, so providing such a substance to someone can easily be seen as a reckless disregard for that person’s life. Moreover, since crimes involving controlled substances often lead to death, allowing a child to be present during the commission of such a crime is a clear disregard for that child’s life.
Okay, so what is the difference between First- and Second-Degree Murder?
NRS 200.030 explains the different degrees of Murder:
- Murder of the first degree is murder which is:
- Perpetrated by means of poison, lying in wait or torture, or by any other kind of willful, deliberate and premeditated killing;
- Committed in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years, child abuse or abuse of an older person or vulnerable person pursuant to NRS 200.5099;
- Committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody;
- Committed on the property of a public or private school, at an activity sponsored by a public or private school or on a school bus while the bus was engaged in its official duties by a person who intended to create a great risk of death or substantial bodily harm to more than one person by means of a weapon, device or course of action that would normally be hazardous to the lives of more than one person; or
- Committed in the perpetration or attempted perpetration of an act of terrorism.
- Murder of the second degree is all other kinds of murder.
- The jury before whom any person indicted for murder is tried shall, if the find the person guilty thereof, designate by their verdict whether the person is guilty of murder of the first or second degree.
- A person convicted of murder of the first degree is guilty of a category A felony and shall be punished:
- By death, only if one or more aggravating circumstances are found and any mitigating circumstances or circumstances which are found do not outweigh the aggravating circumstances, unless a court has made a finding pursuant to NRS 174.098 that the defendant is a person with an intellectual disability and has stricken the notice of intent to seek the death penalty; or
- By imprisonment in the state prison:
- For life without the possibility of parole;
- For life with the possibility of parole, with for parole beginning when a minimum of 20 years has been served.
- A determination of whether aggravating circumstances exist is not necessary to fix the penalty at imprisonment for life with or without the possibility of parole.
- A person convicted of murder of the second degree is guilty of a category A felony and shall be punished by imprisonment in the state prison:
- For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or
- For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served…
Obviously, this is a very long statute, so its probably easiest to start by looking at each of the two categories of murder in turn.
- Murder in the First Degree
As you may have noticed, there are 5 types of murder that are considered “First-Degree.”
- Premeditated murder;
- Murder that flows from the commission of a dangerous crime specifically, sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years, child abuse or abuse of an older person or vulnerable person;
- Murder committed to avoid arrest or help an escape from custody;
- Murder committed on school property or during a school function or activity;
- Murder that flows from an act of terrorism.
It is important that you understand the extent and meaning of each of these.
- Premeditated Murder
Premeditated Murder is probably what most people think of when they think of “murder.” It involves a conscious act and intent to kill the victim. There are essentially three parts to “Premeditated Murder,” the murder must have been willful, deliberate, and of course premeditated.
The first element, “willful” simply means that you intended to kill the victim. In other words, you expected, planned, or wanted your actions to cause the death of the victim.
The second element, “deliberate,” is slightly less obvious, but is still easy to understand. In the context of murder, “deliberate” means to think about the decision to kill someone, weigh the reasons for and against doing so as well as the consequences, and deciding to commit the murder.
The final element, “premeditation,” is the trickiest element because it is so specifically defined. “Premeditation,” as it applies to murder means simply before you killed the victim (“pre”), you thought about committing the murder and made the decision to do so (in other words, you “meditated” on the act).
The relationship between “deliberate” and “premeditated” can make this law somewhat difficult to understand for most people. “Deliberation” and “premeditation” sound like they are slow and long processes, and they often can be. However, they can also happen almost instantaneously. The main factor in determining whether you had enough time to “deliberate” and “premeditate” on the killing is whether there was enough time for you to sufficiently understand the consequences of your actions. Given that the consequences for murder are commonly understood, this is not a difficult burden to overcome. Consequently, the time needed for “deliberation” and “premeditation” can be almost instantaneous.
- Murder that flows from a dangerous crime
As noted in the statute above, there are 10 different crimes can lead to charges of Murder in the First Degree if they lead to someone’s death.
- Sexual assault (rape or attempted rape);
- Invasion of the home;
- Sexual abuse of a child;
- Sexual molestation of a child under the age of 14 years;
- Child abuse; or
- Abuse of an older person or vulnerable person.
What you may have noticed is that most of these crimes involve violence against another person. It should be easy to see why a death that stems from one of these crimes would be considered Murder in the First Degree: Since the underlying crime already involves violence against another person, then the alleged murderer should know that death is a likely outcome. In other words, even though there was no intent to kill someone, there was an intent to commit a violent act where death was a possibility, if not an actual probability.
As for those acts that are not inherently violent towards another person (arson, burglary, and home invasion), it should still be fairly obvious that even though death is not intended, it is a clear possibility. Burglary and home invasion both involve entering onto premises owned by another without permission. Anytime you illegally enter a building where someone may or may not be present, there is always a possibility of death. Assume, for example that you illegally enter into someone’s home expecting them to be absent, only to find that they are present and ready to defend their home. If one of those people dies as a result, you can be charged with Murder in the First Degree. Similarly, it should be obvious why arson would apply as a dangerous crime that could lead to Murder in the First Degree: Intentionally setting fire to, or burning, a building is the exact type of inherently dangerous crime where death is a likely result. Just like the crimes that involve violence against another person, an arsonist should know that his actions are likely to lead to someone’s death, if someone happens to be in the building when the fire is set.
- Murder committed to avoid arrest or escape custody
As with murders that flow from dangerous crimes, this is another instance where murder may not be intended, but is very likely. If you are being hunted by law enforcement, either because they are attempting to arrest you or because you have escaped custody and they are trying to recapture you, then it is probable that at some point you will have to use force to continue avoiding capture. Anytime you use force against another person, there is a possibility of death. Because there is a strong possibility of death, if someone dies as the result of your evading capture or arrest, you can be charged with Murder in the First Degree.
- Murder committed on school property or during a school function or activity
Because of the likelihood that children will be present on school property, or for school functions and activities, any murder that takes place in at one of those locations is likely to involve and/or effect children. Even though there may have been no intent to involve or impact children, by killing someone on school property, or at a school function or activity the alleged murderer must, or at the very least should, have known that children would be present or impacted by their actions. Consequently, because of this implied knowledge that children will probably be present and therefore could become victims, such a murder is included as Murder in the First Degree.
- Murder that flows from an act of terrorism
Acts of terrorism generally involve random acts of violence against people. They are also intended to cause harm, injury or damage to those people. As a result, committing an act of terrorism is, at the very least, likely to lead to someone’s death. Consequently, an act of terrorism is very similar to a premeditated murder in that it is a planned act that is likely to lead to the death of another person. As with premeditated murder, if such an act does actually lead to the death of another person, it will be charged as Murder in the First Degree.
What are the penalties for Murder in the First Degree?
Murder in the First Degree has 4 possible sentences:
- Life in Prison in a Nevada State Prison, without the possibility of parole;
- Life in Prison in a Nevada State Prison, with the possibility of parole after a minimum of 20 years has been served; or
- A definite sentence of 50 years in a Nevada State Prison, with the possibility of parole after a minimum of 20 years has been served.
Since there are four possible penalties, how is the penalty determined?
The jury will decide on what sentence is imposed after they have determined that the accused is guilty.
Please Note: The death penalty can only be imposed if there are aggravating factors and the jury decides that those aggravating factors outweigh any mitigating factors.
The jury will listen to all of the aggravating and mitigating factors that are presenting and will determine the appropriate sentence based on those factors, as well as the facts and circumstances of the crime.
What are “aggravating” and “mitigating” factors?
Aggravating factors for Murder in the First Degree are governed by NRS 200.033. NRS 200.033 is an extremely long statute, which sets forth all of the possible aggravating factors.
Essentially, “aggravating factors” are circumstances of the crime that raise the maximum punishment. In the case of Murder in the First Degree, they raise the maximum punishment from Life in Prison, to the possibility of the death penalty.
There are number of different factors that can “aggravate” your sentence, as set forth in NRS 200.033:
- If the murder was committed during the commission of one of the following crimes and you either meant to kill the victim, or knew that death was likely to occur from your actions. The crimes that apply are:
- Home Invasion;
- First-Degree Arson; or
- First-Degree Kidnapping.
- If the murder was committed while you were under a sentence for conviction or a crime, whether you are in prison or out on parole;
- If you knowingly or intentionally created a risk of death to others at the time of the murder;
- If you committed the murder in order to prevent an arrest or to escape custody;
- If the murder was committed in exchange for pay (monetary or otherwise);
- If the murder victim was a law enforcement officer or firefighter engaged in their official duties. It is important that you either knew or should have known that the victim was an officer or firefighter at the time of the murder;
- If the victim was tortured or mutilated prior in addition to being killed ( Please Note: Mutilation does not have to occur prior to the murder to apply as an aggravating factor);
- If the killing was random, and there was more than one killing;
- If the murder was of a person younger than 14 years old;
- If the murder was a hate-crime based on race, religion, national origin, disability, or sexual orientation;
- If the murder occurred in the process of, or as a part of, a rape or attempted rape;
- If the murder took place on school property, or at a school function or activity, and there was an intent to create a great risk of injury or death to multiple people;
- If the murder was committed as an act of terrorism.
However, just as there are “aggravating factors” to a murder, there are equivalent “mitigating factors” that can lower the sentence you may be facing.
In many cases, there are circumstances that can help to lower the maximum penalty that you will be facing.
Mitigating factors are set forth in NRS 200.035 and can include:
- No criminal history prior to the murder;
- Extreme mental disorder or disturbance at the time of the murder (this generally applies when you were under a delusion or some sort of mental disorder that affects your ability to sufficiently understand the consequences of your actions);
- The victim was a participant in the criminal conduct that led to their death;
- The victim consented to the act that led to their death;
- The defendant was an accomplice in a murder committed by someone else and the defendant played a relatively minor role in the murder;
- Extreme duress, or being forced to kill by another person;
- Being very young at the time of the murder (generally, this applies when you were young enough that you could not fully understand the consequences of your actions);
- Being the victim of a poor, usually abusive, childhood;
- Any other facts or circumstances that could give the jury reason to be lenient during the penalty phase of a trial.
Generally speaking, in a murder case the prosecutor will seek the maximum possible penalty, and your attorney will use any and all possible mitigating factors to convince the jury to impose a lesser sentence.
- Murder in the Second Degree
Now that you have a better understanding of what constitutes Murder in the First Degree, it is much easier to understand what constitutes “Murder in the Second Degree.”
NRS 200.030(2) states “[m]urder of the second degree is all other kinds of murder.”
In other words, Murder in the Second-Degree is any unlawful killing, committed with malice aforethought, that does not fall in to one of the categories that make up Murder in the First Degree.
What are the penalties for Murder in the Second Degree?
Murder in the Second Degree is also a category A felony, like Murder in the First Degree. However, the penalties are not quite as severe.
There are two possible sentences for Murder in the Second Degree:
- Life with the possibility of parole, with eligibility for parole after serving a minimum of 10 years;
- For a definite term of 25 years, with eligibility for parole after serving a minimum of 10 years.
As with the penalties for Murder in the First Degree, the jury has the discretion to determine what sentence to impose based on any possible mitigating factors.
Are there any defenses to a Murder charge?
Of course. There are a few different defenses that may apply depending on the specific facts of your case, including:
- Self-Defense – Self-defense is not an automatic defense to a murder charge. There are three elements to a proper claim of self-defense: The amount of force used must have been reasonable, and must have been, in response to an immediate, and substantial bodily harm. If your attorney cannot show that all three elements existed, then your self-defense claim will fail. However, if all three elements existed, then the murder charges against you should be dropped.
- Police mistake or misconduct – Investigating a murder charge is a long, slow, and extensive process. During that process it is not uncommon for law enforcement officers to make mistakes. When the police, or other law enforcement agency, violated your rights through an improper search, illegal seizure, or the mishandling of evidence, then all of the evidence either gained thereby or mishandled may be suppressed, or thrown out. Getting evidence suppressed can lead to the charges being dropped or dismissed if it means that there is not enough admissible evidence to convict you.
- Insufficient Evidence – In order to be convicted, the prosecution must prove, beyond a reasonable doubt, that you are guilty. In order to meet this burden, the prosecution must prove every element of the crime beyond a reasonable doubt. This is an incredibly high standard to meet. If your attorney can cast doubt on the prosecution’s case, or on anyone of the specific elements, then the charges against you should not stand.
Is there anything else I need to know about Murder?
Yes. Nevada has what are known as “enhancement penalties” for certain crimes. In the case of murder, they are “use of a deadly weapon,” and “elderly victim.”
If you used a deadly weapon in the commission of murder, then the court has the discretion to add an additional penalty to your sentence. The enhancement penalty will be between 1 and 20 years. To read more about the “use of a deadly weapon” enhancement penalty, please click here.
If your victim was more than 60 years old, then the court has the discretion to add an additional penalty to your sentence. The enhancement penalty will be between 1 and 20 years.
What should I do if I’ve been charged with Murder in the First- or Second-Degree?
As with any crime, it is important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific facts of your case and determine what, if any defenses apply. Also, given the time and extent of a murder investigation, you should consult with an attorney as soon as you know that you are being investigated in order to help you determine the proper steps to take throughout the investigation and so that you can ensure that any mistakes or missteps made by the police are quickly pointed out and that any subsequent evidence is suppressed immediately.