Concept
The Statutory Formula
Premeditation, deliberation
The Statutory Formula
Where a state divides murder into degrees, it usually defines the top grade with a formula of three adjectives. California's statute, for example, makes first degree murder of any killing perpetrated by poison, lying in wait, torture, or "any other kind of willful, deliberate, and premeditated killing."1 Pennsylvania, which first adopted the premeditation-deliberation formula, used nearly identical words in the statute construed in Commonwealth v. Drum.2 The formula exists to separate the cold, calculated killer from the impulsive one. Using three words rather than one lets each word mark a different feature of calculation: a purpose to kill, a calm state of mind, and thought that came before the act.
The Drum court gave the classic reading of each word. An intention to kill makes the killing willful. If that intention comes with circumstances showing a mind fully conscious of its own purpose and design, the killing is deliberate. If there was enough time to frame the design and to select the instrument or plan its execution, the killing is premeditated.3 Treat the words as three requirements, all of which must be met, because the formula is properly read conjunctively.4 Courts do not always keep them apart, however, and the last part of this section explains how the words tend to merge. The first requirement is the foundation on which the other two rest.
Willfulness
In this kind of statute, willful means a specific intent to kill.5 The word does the same job as the intent-to-kill element already discussed, and it sets a floor beneath the other two words. Premeditation and deliberation describe how a purpose to kill was formed, so they have nothing to describe unless the defendant had that purpose. For that reason an intent to scare, to wound, or even to cause grievous bodily harm will not satisfy the word, however brutal the act was.6
Because a defendant rarely announces a purpose to kill, the jury may infer it from the circumstances. If the state proves that the defendant aimed a loaded revolver at the victim's body and hit the heart, killing instantly, the jury may, but need not, find an intent to kill, even if the defendant claims to have meant only to frighten or wound and to have been a poor shot.7 Change one fact and the answer changes. A defendant who fires into the floor to scare a rival, and whose bullet ricochets into the rival's chest, has an intent to scare but no intent to kill, and the word willful is unmet unless the jury disbelieves the account. The weapon and the death are the same in both versions, and what differs is the purpose the evidence supports.
Deliberation
Deliberation concerns the defendant's state of mind when the decision to kill was made or carried out. It requires a cool mind that is capable of reflection.9 To the extent the word adds anything to the other two, it asks whether the defendant acted in a cool state of blood.10 The reason is that reflection needs a mind that can weigh. A person dominated by passion or fear may form a firm intent to kill, but a mind in that condition is unlikely to be turning the decision over, so the formula withholds the label of calculated killing. One much-cited formulation makes the same point from the other side: a killing conceived in passion can still be first degree, but only if the jury finds an appreciable interval in which there was further thought and a turning over in the mind, and not a mere persistence of the original impulse.11
The contrast between two intentional killings shows what the word screens out. A defendant who decides to kill a business partner, thinks calmly about how and when, and then does it has acted with a cool mind. A defendant who is seized by terror and lashes out with a knife has the intent but not the capacity for cool reflection, and the intent that exists is not a deliberate one.12 A caution applies because the word is seldom defined separately from the others. Some decisions have held that the absence of cool deliberation did not stop an intentional killing from being first degree, so the independence of this element varies by jurisdiction.13
Premeditation
Premeditation simply means thought of beforehand.15 Deliberation asks whether the mind was capable of reflection, and premeditation asks whether the person with that mind did in fact reflect, at least for a short period before the act.16 The difficulty is how far in advance the thought must have come. Some courts speak of "appreciable" time, but that word can mean only time capable of being noticed, which may be a matter of seconds.17 The next section takes up that controversy. For now the point is that the formula demands actual reflection and not simply an opportunity for it.
The distinction between time to reflect and actual reflection is where students most often go wrong, and it is easy to trade one for the other. It is not enough that the defendant is shown to have had time to premeditate and deliberate. The defendant must actually have done both, and must actually have intended to kill.18 A long drive to the victim's house proves opportunity. Evidence that the driver used the hour to settle on a plan proves reflection. The distinction matters because the opportunity to think exists in nearly every killing. If opportunity alone satisfied the word, any intentional killing would be first degree, and the line the legislature drew between degrees would vanish.
The same reasoning explains why a deliberate intent to kill is not the same as a premeditated one. Premeditation and deliberation require substantially more reflection than the amount of thought needed to form an intent to kill, so a bare intent to kill is not the equivalent of a deliberate and premeditated one.19 This is why homicide law can be seen as sorting intentional killers into three groups: those who premeditate and deliberate, who commit first degree murder; those who intend to kill without premeditating, who commit second degree murder; and those who intend to kill in a heat of passion, who commit voluntary manslaughter.20 Where a killer intended death and reflected on it in advance with a cool mind, the killing is intentional, deliberate, and premeditated.21
When Courts Merge the Words
The three words are meant to be distinct, but courts often collapse them into a single term of art, and the collapse can erase the difference between the degrees. The most extreme example came when a Pennsylvania court held that any intentional killing qualified as willful, deliberate, and premeditated. The legislature, which had first created the formula, responded by defining an intentional killing as first degree murder, and it then somewhat circularly defined intentional as willful, deliberate, and premeditated.23 West Virginia reached a similar place by a different road. Its trial instructions told juries that the intent to kill need exist only for an instant, and that the formula simply meant the killing was intentional.24
In State v. Guthrie, West Virginia's highest court rejected that approach. It reasoned that proving premeditation merely by showing the intent arose at the moment of the killing eliminates the difference between the two degrees. Because the court lacked power to abolish the distinction, it approved an instruction requiring that the killing be done after a period of time for prior consideration, long enough for the accused to be fully conscious of what he intended.25 The lesson for an exam answer is that the words are conjunctive on paper but may be treated as unitary in practice. The safe method is to address each word separately, note the jurisdiction's tendency to merge, and then ask the one question that gives the formula meaning: did the defendant actually reflect?
Willfulness
The first word of the formula sets the floor under the other two. In a statute that grades a killing as first degree when it is "willful, deliberate, and premeditated," willful means a specific intent to kill.27 California's standard jury instruction compresses the same idea by telling jurors that willful means intentional.28 The reason this word comes first is structural. Deliberation and premeditation describe how a purpose to kill was formed, so they have nothing to describe unless the defendant had that purpose. First degree murder of this kind therefore requires an intent to kill, plus premeditation and deliberation on top of it.29
The consequence is that lesser mental states cannot be promoted into the top grade by the formula. An intent to scare, to wound, or even to cause grievous bodily harm will not satisfy the word, however brutal the act or however dead the victim.30 Consider a defendant who means only to break a rival's leg and who beats him so badly that the rival dies. The killing may still qualify as some grade of murder, depending on the malice categories a jurisdiction recognizes, but it is not willful in the first-degree sense, because the defendant never aimed at death. The legislature reserved the heaviest penalties for killers who purposed death, and a purpose to injure, however vicious, falls short of that purpose.31 Students often lose this point by treating an intent to cause serious injury as though it were an intent to kill, which it is not.
Proof is the next problem, because a defendant seldom announces a purpose to kill. The law lets the jury infer it from the circumstances, but only as a permission and never as a command.32 If the state proves beyond a reasonable doubt that the defendant aimed a loaded revolver at the victim's body and hit the heart, killing instantly, the jury may find an intent to kill. That remains true even when the defendant says she only meant to frighten or wound and was a poor shot.33 The jurors are free to accept her account instead, and the inference carries no more weight than the circumstances give it. Compare a man who fires into the floor to scare a rival and whose bullet ricochets into the rival's chest. The weapon and the death are the same, but the evidence points to a purpose to scare, so the jury has far less to work with in finding a willful killing.
Proving willfulness does not finish the first-degree analysis, and the limit matters on an exam. A bare intent to kill is not the equivalent of a deliberate and premeditated intent to kill, because the last two words demand substantially more reflection than forming the intent requires.34 An intentional killer who satisfies this first word but not the other two is, in the usual scheme, guilty of second degree murder, so willfulness is necessary for first degree murder and never sufficient by itself. The next two words, deliberation and premeditation, ask what kind of intent was formed and how.
Deliberation
Willfulness fixes the floor, a specific intent to kill, and deliberation asks what kind of mind held that intent. The element concerns the defendant's state of mind when the decision to kill was made or carried out, and it requires a cool mind that is capable of reflection.36 The word is seldom defined apart from its two companions, but to the extent it adds anything, it asks whether the defendant acted in a cool state of blood.37 The reason follows from what the statute is sorting. A legislature that reserves its heaviest penalty for calculated killings needs some way to separate a choice from an eruption. Reflection requires a mind that can weigh, and a mind swamped by rage or terror may form a firm purpose to kill without ever turning that purpose over, so the formula withholds the top grade from that killer.
Courts describe the quality of reflection in several ways that point to the same idea. California's standard instruction defines deliberate as formed upon careful thought and a weighing of considerations for and against the proposed course of action.38 The jury charge approved in Fisher v. United States describes deliberation as consideration and reflection upon the preconceived design to kill, turning it over in the mind and giving it second thought.39 Nevada's formulation adds that the weighing may include the consequences of acting, and those consequences can be moral doubts or practical worries such as the risk of being caught.40 Whichever wording a jurisdiction uses, the defendant must have been clear-headed enough to evaluate the decision, and the evaluation must actually have happened.
Two killings show how the element sorts cases. A defendant who spends several days waiting for a chance to kill a former partner, and who then carries out a settled plan without hurry, has acted with a mind that was cool and was weighing the act throughout. Change the mental condition and leave the intent in place: a defendant who is insulted, loses control, grabs a knife, and kills in an uncontrolled rage also intended death, but a person dominated by passion or fear may be unable to deliberate to the degree the formula demands.41 The first killer chose and the second erupted. Nothing about the weapon or the outcome distinguishes them, and the difference lies entirely in the mind that was operating when the decision was carried out.
The element is easy to overstate, because anger at some point in the story does not automatically defeat it. A sudden passion can produce an impulsive intent and then persist long enough for that intent to become the subject of further reflection and a weighing of consequences. In that case the killing can still be first degree, provided the jury finds an appreciable interval after the design was conceived in which there was further thought and a turning over in the mind, and not a mere persistence of the original impulse.42 Students therefore lose points when they treat any anger at the moment the intent formed as proof that deliberation is absent. The correct question is whether the killer's passion had subsided, or at least left room for real reflection, before the fatal act. The Fisher instruction makes a related point: forming a design to kill may take no time at all, but deliberating on it requires that an appreciable time pass between the design and the act, and what counts is the fact of deliberation rather than the length of the interval.43 The next section takes up how much time that is.
A final caution concerns how independent the element is. Because deliberation is seldom separately defined, some decisions have held that the absence of cool deliberation did not stop an intentional killing from being first degree murder.44 The better approach keeps it distinct from its neighbor. Under the Michigan formulation quoted in Guthrie, to premeditate is to think about the act beforehand, and to deliberate is to measure and evaluate the major facets of a choice, a process that hot blood disturbs.45 Premeditation therefore asks whether the thought came first, while deliberation asks whether the mind that had it was able to weigh. On an exam, state the element, test the defendant's emotional condition at the time of the act, and note whether the jurisdiction treats the word as a separate requirement.
Premeditation
Premeditation is the word in the formula that asks when the thinking happened. The term means thought of beforehand, and the difficulty lies in saying how much beforehand the thought must have been formed.47 The jury charge in Fisher v. United States gives the working definition: the defendant gave thought, before acting, to the idea of taking a human life and reached a definite decision to kill.48 California's standard instruction says the same thing more briefly, telling jurors that premeditated means considered beforehand, and it adds that the intent must have been formed on pre-existing reflection rather than under a sudden heat of passion.49 Deliberation, which the last section covered, asks whether the defendant's mind was cool enough to weigh the choice. Premeditation asks whether the weighing came first and whether it actually took place.
The word demands actual reflection, and a chance to reflect does not meet it. The one with a cool mind must in fact have reflected, at least for a short period before the act of killing.50 The reason is that nearly every killing is preceded by some interval in which thought was possible, so a rule satisfied by opportunity alone would convert every intentional killing into first degree murder. The legislature created two grades to separate the planned killing from the unplanned one, and only a requirement of real thought preserves that separation. Proof that the defendant had time to premeditate and deliberate therefore falls short, because the defendant must actually have done both, as well as actually intended to kill.51
Two defendants with the same hour on the clock show how the word operates. The first sits in his car outside the victim's office for an hour, turning over the idea of killing, and then walks in and shoots. The hour was spent on the very decision, so the killing was thought of beforehand and the element is met. The second also had hours between the quarrel and the shooting, but the killing erupted from a sudden impulse and he never reflected on it. The time available is identical, yet this defendant did not premeditate, because the interval was never used to think about killing.52 What separates them is the content of the interval, and the length of it does no work. A prosecutor who proves only that the second defendant had hours has proved opportunity, which is not the same fact.
A common confusion is that premeditation requires a long gap between deciding and acting. It does not, because the thought can come at either end of the interval. The defendant may form the intent to kill only as the conclusion of earlier premeditation and deliberation. In that case the killing can follow the formation of the intent immediately and still be premeditated. In other cases the intent forms without prior thought, and premeditation then occurs only as more time passes for further thought and a turning over in the mind.53 In United States v. Watson the court affirmed a first degree conviction on that second pattern. The jury could find that the defendant decided to kill when he reached for a loose gun, and that he gave the decision further thought when the officer pleaded for his life.54 A plea for mercy supplies a natural pause in which the killer must either go on or stop, and the continued purpose after that pause is what showed reflection. The sequence in that case is the one to look for on an exam: an initial decision, a pause, and then a renewed commitment.
The converse is that a long duration does not prove premeditation. In State v. Bingham the prosecution rested its case for premeditation on the fact that the victim died by strangulation, so the defendant must have held her windpipe for at least three minutes. The Washington Supreme Court reversed the premeditation verdict because the law requires both time for deliberation and the fact of deliberation, and a jury cannot infer the second merely from the length of the first.55 Three minutes of grip show that the defendant had opportunity to think, and nothing about them shows what the defendant was thinking. Courts have not applied this limit consistently. A few years later the same court held that a man who stabbed a taxi driver repeatedly could be found guilty of first degree murder on the theory that each additional stab constituted premeditation.56 The two decisions show how much the line depends on whether the court demands evidence of thought or treats the passage of seconds as enough. Students who write that a drawn-out killing is automatically premeditated are making the opportunity mistake, and they should instead ask what evidence shows the defendant actually reflected.
That leaves the question of how much time is enough, which is the central dispute in the law of premeditation. The classic language says the time must be appreciable, but that word can mean either a real interval for reflection or merely an interval capable of being noticed, which can be a matter of seconds.57 How courts resolve that ambiguity determines whether first degree murder remains a distinct and demanding grade or collapses into any intentional killing, and the next section takes up the competing views.