Capital murder is not, strictly speaking, a category of homicide, though it is often defined as such. Similar to Felony Murder, Capital Murder is only a subset of Murder in the First Degree. It applies whenever the prosecution is seeking the death penalty for a First-Degree Murder case.

Please Note: For an in-depth explanation regarding First-Degree Murder, please click here.

How does Capital Murder work?

Capital Murder is essentially any First-Degree Murder case where the prosecution seeks the Death Penalty. After someone has been convicted of First-Degree Murder, their penalty will then be decided by the jury. In making this determination, the jury will look at the both the aggravating factors, and the mitigating factors. If the jury determines that the aggravating factors outweigh the mitigating factors, and that they make the crime worthy the death penalty, then they can impose the death penalty.

Please Note: Just because the jury finds that the aggravating factors outweigh the mitigating factors does not mean that the jury is required to impose the death penalty.

What are “aggravating factors?

Essentially, “aggravating factors” are circumstances of the crime that raise the maximum punishment. In the case of Capital Murder, 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:

  • 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:
    • Robbery;
    • Burglary;
    • 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.

If any of the above circumstances applies to your case, then you may be facing “capital murder” charges, and you should speak with an experienced criminal defense attorney as soon as possible.

However, just as there are “aggravating factors” to a murder, there are equivalent “mitigating factors” that can lower the sentence you may be facing.

What are the “mitigating factors”?

In many cases, there are circumstances that can help to lower the maximum penalty that you will be facing. These circumstances are known as “mitigating factors” and include:

  • You had no criminal history prior to the murder;
  • You were under an extreme mental disorder 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);
  • You were under extreme duress, or were forced to kill by another person;
  • You were 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);
  • You were the victim of a poor, usually abusive, childhood;
  • Any other facts or circumstances that could give the jury reason to be lenient on you during the penalty phase of a trial.

Generally speaking, in a Capital Murder case (and, to a lesser extent, in any homicide 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.

So, the Death Penalty is not automatically imposed on Defendants convicted of First-Degree Murder?

No. There are two requirements to imposing the death penalty in a First-Degree Murder case. The four requirements to a jury imposing the death penalty: (1) the prosecution must be seeking the death penalty (it is not uncommon for someone to plead guilty to First-Degree Murder, in exchange for the prosecution not seeking the death penalty; if the prosecution does not seek the death penalty, the jury cannot impose the death penalty); (2) The defendant must be found guilty; (3) there must be enough aggravating factors present to outweigh any mitigating factors; and (4) the jury must unanimously agree to impose the death penalty.

The Jury is never required to impose the death penalty, they always have the discretion to determine if it is appropriate based on the circumstances.

Are there cases where the Prosecution cannot seek the Death Penalty?

Yes. There are two situations where even a defendant already convicted of First-Degree Murder:

  • When the defendant is under 18 years of age; and
  • When the defendant is mentally retarded.

Are there any defenses to Capital Murder?

Since Capital Murder applies to the sentencing of a First Degree Murder charge, there only way two ways defend against Capital Murder: (1) don’t get convicted of the underlying First-Degree Murder charge; or (2) give the jury a reason to vote against the death penalty.

There are, of course defenses to the First-Degree Murder charge:

  • 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.

If you are unable to defend against the First-Degree Murder charge, then you have to rely on convincing the jury not to impose the death penalty. As mentioned above, this will require that you convince at least one juror that the mitigating factors in your case outweigh the aggravating factors. Remember, in order to impose the death penalty, the vote must be unanimous.

What happens if I manage to avoid the death penalty, but have been convicted of First-Degree Murder?

If the jury convicts you of First-Degree Murder, but declines to impose the death penalty, there are 3 possible remaining penalties:

  • 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.

The jury will have the discretion to impose any of the three penalties based on their determination of the aggravating and mitigating factors.

What should I do if I’ve been charged with Capital Murder?

Because of the nature of the charges, it is important that you have an experienced attorney to help you as soon as possible. You will need to discuss the specifics of your case so that your attorney can try to firmly establish any defenses and mitigating factors that may benefit your case.

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