Concept
Meaning of Premeditation and Deliberation
Premeditation, deliberation
Meaning of Premeditation and Deliberation
Where a statute makes an intentional killing first-degree murder, the prosecution must prove more than the intent to kill that already supplies malice. It must also prove premeditation and deliberation.1 The two words are easy to treat as synonyms, and courts often recite them together, yet each names a different feature of the killer's mind. Deliberation concerns the condition of the mind, and premeditation concerns what that mind actually did before the act, so a complete analysis takes them one at a time before asking how much time they need and whether capacity can stand in for the real thing. All of these are subjective states of mind. Because there is rarely a witness to what the killer was thinking, and the killer does not always say aloud what is in mind, the existence of each must be worked out from the defendant's conduct and the surrounding circumstances.2
The formula exists to separate killings that flow from calm choice from those that flow from impulse, passion, or incapacity. Two words are used because a settled decision to kill has two features: a mind in condition to weigh the act, and actual weighing. Defining the terms by what the mind was doing, instead of by a count of seconds, keeps the label tied to culpability. It also makes the formula hard to apply, and that difficulty explains why the subsections below turn on how courts treat time and capacity.
Deliberation as Cool Reflection
Deliberation requires a cool mind that is capable of reflection.3 The word cool carries the meaning. A cool mind is one not overborne by passion, and capable of reflection means that the mind is in a position to weigh what it is about to do, including whether to go ahead. The jury charge set out in Fisher v. United States describes the mental process in the same terms, as consideration and reflection upon a design to kill already formed, a turning over of the idea in the mind and a second thought about it.4
The law cares about this condition because the degrees sort killers by how they arrived at the decision. A killer whose mind could weigh the act and who went forward anyway has made a choice that might have gone the other way, which is what makes the killing cold-blooded. A killer whose judgment was swamped by rage or fear has not chosen in the same sense. When the passion is strong enough and the provocation adequate, the law treats the killing as done without malice aforethought, and it becomes manslaughter.5 When the emotional upset falls short of that, the killer still intended death and so is guilty of murder, but the heated mind could not have deliberated, and the killing is generally second degree.6
This is the place where students most often overreach: evidence that the defendant intended to kill, such as a blow to the head with a heavy object, shows malice and says nothing by itself about whether the mind was cool when it acted.
Premeditation as Prior Thought
Premeditation is actual reflection by the cool mind, at least for a short period, before the act of killing.8 The distinction from deliberation is a distinction between a condition and an event. Deliberation asks whether the defendant's mind was in a state to reflect, and premeditation asks whether it did. A defendant can have the first without the second, since a clear head that never pauses to think about a killing has the capacity without the reflection. A statute that demands premeditation asks for the reflection itself.
Courts do not divide the two words identically. The charge in Fisher treats premeditation as giving thought, before acting, to the idea of taking a human life and reaching a definite decision to kill, in short the formation of a specific intent to kill, and it treats deliberation as the further reflection on that design.9 Under that division premeditation supplies the decision and deliberation supplies the second thought, while under the formulation above deliberation supplies the cool mind and premeditation supplies the actual thinking. The labels shift from place to place, yet the combined demand is similar: a cool mind that really considered the killing before carrying it out, on top of the intent to kill. The jurisdiction's own instruction therefore controls how the parts are named, and the evidence has to fit each part as the instruction states it.
How Much Time Is Enough
Neither term comes with a stopwatch, and courts disagree about how short the reflection may be. One line of authority holds that a brief moment of thought or a matter of seconds suffices, and convictions have frequently been affirmed on such facts.11 The better and growing view rejects that reading, reasoning that premeditation and deliberation which are instantaneous, or which take no appreciable time, wipe out the statutory difference between first and second degree.12 The mechanism is straightforward. Every intentional killer forms an intent to kill, and that intent precedes the act by at least an instant. If that instant counted as premeditation, the added requirement would add nothing, every intentional killing would be first degree, and the second-degree category would contain no intentional killers. West Virginia's highest court made this point when it overruled an older definition that let the State prove premeditation by showing the intent first came into existence at the time of the killing. It approved an instruction asking for an interval between forming the intent and executing it long enough for the accused to be fully conscious of what he intended.13
Many jurisdictions go the other way. In most places, premeditation describes nothing more than intentional killing, so an intent formed at the moment of the act is enough.14 One formulation treats a murder as premeditated if the perpetrator contemplated the act, even for a moment, before performing it.15 California's statute points in a similar direction by lowering the quality of reflection required: proof that a killing was deliberate and premeditated does not require proof that the defendant maturely and meaningfully reflected on the gravity of the act.{{cite:8b10b70f-8fee-46de-890c423d5118e908}} Where that approach governs, an intentional killer who is not guilty of first degree is hard to find, and the formula adds little to the intent requirement already proved.
Even the better view does not forbid premeditation when the act follows quickly after the intent forms. The intent may be reached as the conclusion of earlier thought, so that the decision itself was premeditated and deliberate. Alternatively, the intent may arise without thought, in which case premeditation arrives only with additional time for further thought and a turning over in the mind.16 The charge in Fisher states the same principle: forming a design to kill may be instantaneous, but deliberating on it requires an appreciable time, the law prescribes no particular period, and a defendant who pauses and actually gives second thought has deliberated, because the fact of deliberation matters more than its length.17 The inquiry is therefore what the defendant's mind did in the time available, and the length of the interval serves only as evidence of that.
A District of Columbia decision, United States v. Watson, shows how a court reasons about seconds. The defendant had pinned a police officer to the floor, picked up the officer's loose gun, and held it to the officer's chest. The officer said twice that it wasn't worth it, and within seconds a shot was fired.18 The court affirmed a first-degree conviction because a jury could find two significant pauses in the action, when the defendant had immobilized the officer and when the officer repeated the plea. The jury could also infer that the second plea asked the defendant to reconsider and that he reaffirmed his decision to kill.19 That court treats first degree as the calculated and planned killing and second degree as the unplanned or impulsive one, so the question it asked was whether the evidence showed thought of a planning kind during the interval.20
Students who answer this issue with a number of seconds miss the point, since the better analysis asks what the defendant did with the interval and which of the competing rules the jurisdiction applies.
Capacity Versus Actual Reflection
Having time or capacity to premeditate and deliberate is not enough to make a killing first degree. The defendant must actually have premeditated and deliberated, as well as actually intended to kill.22 The elements describe what occurred in this defendant's mind, and opportunity shows only that reflection was possible. If a long interval were enough, the prosecution could reach first degree on any killing that took more than a moment, and the elements would collapse into duration, the same problem the time debate exposed.
Capacity itself can also be missing. A killer may be unable to reflect coolly because emotional upset, intoxication, feebleness of intellect short of insanity, or terror prevents it.23 Such a killer is generally still guilty of second-degree murder, on the theory that although unable to premeditate and deliberate, the killer could and did intend to kill, which is usually shown by the intentional use of a deadly weapon on the victim.24 That outcome follows from the layered structure of murder. Malice requires only an intent to kill, and an intent to kill does not need a cool mind, while the added layer for first degree does. A claim of incapacity therefore aims at a reduction from first to second degree and does not reach an acquittal.
The defense in Fisher v. United States took this route. The defendant was sane in the legal sense, since he knew right from wrong and his will could control his impulses. The defense nevertheless argued that his mental and emotional qualities left him incapable of deliberation and premeditation, and that the jury should judge those elements by his own personal traits instead of by a theoretical normal man.25 The court observed that the evidence would support first degree if the defendant was a normal man in his mental and emotional characteristics, so the dispute was whether his own traits could change the answer. The relief at stake was a lesser grade of offense, because the lower court's reference to an acquittal under the proposed instruction was understood to mean a reduction in degree.26
On an exam stem that supplies a long interval, the common error is to treat time or capacity to reflect as reflection and to move the killing into first degree without asking what the defendant's mind actually did.
Deliberation as Cool Reflection
First-degree murder by premeditation asks for more than an intent to kill, and the first of the two added requirements is deliberation. Deliberation requires a cool mind that is capable of reflection, meaning a mind not overborne by passion that is able to weigh what it is about to do.28 The charge approved in Fisher describes the same thing from the inside: deliberation is consideration and reflection upon the design to kill, turning it over in the mind and giving it second thought.29 The traditional description of express malice in criminal law, an intent arising from a deliberate and rational mind, points the same way.30
The reason for the requirement comes from how murder is layered. Legislatures divide murder into degrees so that the most severe punishments are confined to first degree, and every intentional killer already has the malice that makes the killing murder at all.31 The added layer therefore has to separate two kinds of intentional killer. A killer who sets a course while capable of weighing it, and goes forward anyway, has made a choice that might have gone the other way, which is what marks the killing as cold-blooded. A killer whose judgment was swamped by rage or fear has not chosen in the same sense, and requiring a cool mind keeps the first-degree label off the rage killing that the law treats more leniently.
Courts apply the idea in two directions. When a defendant is dominated by passion or fear, it may be impossible to deliberate to the degree needed for first degree, and Wells v. Commonwealth is the usual example.32 Some decisions go the other way, however, and Commonwealth v. McAndrews classified an intentional killing as first degree even though cool deliberation was lacking.33 Deliberation is also seldom defined separately from the other terms in these statutes, and to the extent it adds anything, what it adds is the cool state of blood.34 The jurisdiction's own instruction therefore decides how much work the word does.
The heated mind that defeats deliberation is the opposite of the cool mind, and voluntary manslaughter marks the far end of that contrast. At common law it was an intentional killing that would otherwise be murder but occurred in the heat of passion, following adequate provocation, before a reasonable cooling-off period had elapsed.35 The same state of passion, when the circumstances arousing it are adequate, is the one in which a person cannot reason well enough to form a deliberate purpose to take a life.36 When the upset falls short of adequate provocation, the killer still intended death and so is guilty of murder, but the heated mind could not have deliberated, and the killing is generally second degree.37 Whether a given provocation is adequate is a separate question that this section does not take up.
Students most often go wrong by treating evidence of an intent to kill as evidence of deliberation, when a blow aimed at the head shows malice and says nothing by itself about whether the mind was cool when it acted.
Premeditation as Prior Thought
Deliberation describes the kind of mind a first-degree killer must have, and the second added requirement, premeditation, describes what that mind did before the killing. The word itself means thought of beforehand, which is why the hard questions about it concern how far in advance the thought must come.39 The usual formulation says that premeditation requires the person with the cool mind to have in fact reflected, at least for a short period, before the act of killing.40 Everyday definitions agree: planning, plotting, or deliberating before acting, and an element of first-degree murder.41 Each of these definitions describes an event, a stretch of actual thinking that took place, so a showing that thinking was merely possible leaves the element unproved.
The relationship to deliberation is easiest to hold as a condition and an event. Deliberation is the condition, a cool mind able to weigh what it is about to do. Premeditation is the event, the weighing that in fact occurred. The test can be stated in one sentence that carries both halves: a killing is deliberate and premeditated if the defendant was capable of reflecting on it with a cool mind and did in fact do so.42 The first half of that sentence is the capacity that deliberation supplies, and the second half is the actual reflection that premeditation adds. A jury charge divides the same thinking by sequence instead of by condition. The charge quoted in Fisher v. United States described premeditation as giving thought, before acting, to the idea of taking a life and reaching a definite decision to kill, and it described deliberation as consideration and reflection upon that preconceived design, turning it over in the mind and giving it second thought.43 Read together, the two descriptions place premeditation in the thinking that produces a decision to kill and deliberation in the cool second look at it, and both presuppose a mind that was actually working on the question.
Courts and statutes often run the two words together, and that habit does not erase the line between them. Statutes typically string the terms into a single phrase listing willful, deliberate, and premeditated killing, and deliberation is seldom defined separately from its neighbors; to the extent it adds anything, it adds the cool state of blood.44 In the ordinary case the same evidence proves both, because a killer who planned carefully both thought beforehand and was cool enough to do so, and the jury returns one verdict on the pair. The analysis still keeps them apart because they can fail independently. A defendant who was calm and fully in control but acted on sudden impulse, with nothing in mind between the urge and the act, had the capacity that deliberation requires, yet the thinking that premeditation requires never happened. A defendant swamped by rage or terror lacks the cool mind to begin with, and premeditation, which belongs to the cool-minded person, then cannot be shown at all.45
The reason for demanding actual prior thought follows from the layered structure of murder. Every intentional killer forms an intent to kill, and that intent precedes the act by at least an instant, so if the intent alone counted as premeditation, the added element would add nothing and first degree would swallow every intentional killing. Requiring that thought really occurred ties the higher grade to what happened in this defendant's mind, and not to a guess about what a calmer person in the same position might have thought. It also tracks the practical difference the grade is meant to mark: a killer who stopped to think had a chance to turn back and went forward anyway, while a killer who acted at once never faced that choice. A classic charge to the jury reflects the link between thought and time, since it reserves first degree for a killing carried out with sufficient time to deliberate and fully to form the conscious purpose of killing.46 How short that time may be varies by jurisdiction, and some places treat a murder as premeditated if the killer contemplated the act, even for a moment, before performing it.47 Whatever the local length, the element asks about thought that occurred.
The weapon, the target, and the intent are the same in both scenes, and the fact that moved the answer is what each defendant's mind did before acting. That is why the sequence of events can matter more than the speed of the final act. Where a jurisdiction accepts a moment's contemplation as enough, the second defendant's position is weaker, because the prosecution need only point to some thought preceding the shot, and the facts supply none. Students who treat the proof of intent as proof of premeditation give the element no independent meaning, since a jury that finds intent to kill shows malice and nothing more still needs some evidence of thought before the act. There is no presumption that an intentional murder is first degree, so the higher grade requires affirmative evidence that the defendant in fact premeditated.48 How a prosecutor proves thought that no one can observe is the subject of the section on proving premeditation below.
How Much Time Is Enough
Once premeditation is understood as actual thought before the killing, the remaining question is how much time that thought requires. The term itself means thought of beforehand, so the real difficulty lies in ascertaining how far beforehand the thought must come.50 Courts answer along a spectrum. At one end, an instant of reflection suffices, which brings the element very close to the intent to kill that every murderer already has. At the other end, the reflection must fill an appreciable stretch of time, which keeps first degree a separate and narrower category. The decisions below mark both ends, then explain why the stricter view is described as the better and growing one, and then show what happens when the only evidence offered is the length of the interval.
One line of authority holds that a brief moment of thought, or a matter of seconds, is enough, and convictions for first degree murder have frequently been affirmed on intervals that short.51 The Washington court in State v. Arata reasoned that reflection a moment before the act is sufficient and that the time for premeditation and deliberation need not be long.52 North Carolina's court in State v. Misenhimer accepted some period of time, however short, before the actual killing.53 The facts of People v. Waters show how little that can be: a youth armed with a gun fired once into a car and, within about five seconds, with both hands on the pistol, fired a second time and killed the victim, and the appellate court upheld the finding of premeditation.54 Other courts say much the same. New Jersey in State v. Pierce required no specific period so long as the time sufficed to conceive the design to kill and purposely execute it, the District of Columbia in Watson v. United States accepted a space of a few seconds, and Nevada in State v. Gregory held that once a design to kill is formed, the haste of its execution does not lessen the degree of guilt.55
The lenient line has an extreme form, in which the element nearly disappears. In Commonwealth v. O'Searo the Pennsylvania court held that any intentional killing qualifies as willful, deliberate, and premeditated, and the legislature that first created the formula now defines an intentional killing as first degree murder, although it defines intentional, somewhat circularly, as willful, deliberate, and premeditated.56 Some jurisdictions likewise treat a murder as premeditated if the killer contemplated the act, even for a moment, before performing it.57 In many jurisdictions the word describes nothing more than an intentional killing, so an intent formed at the moment of the act is enough.58 California's statute leans in the same direction in a related way, because proving that a killing was deliberate and premeditated does not require proof that the defendant maturely and meaningfully reflected on the gravity of the act.59 Wherever this rule governs, the prosecution who proves intent has proved premeditation, and the second degree of intentional murder is left with very little to cover.
The better view, and the one described as growing in popularity, is that premeditation and deliberation which are instantaneous, or which take no appreciable time, destroy the statutory distinction between first and second degree murder.60 The reason is mechanical. Every intentional killer forms the intent to kill at least an instant before the act, so if an instant of intent counted as premeditation, every intentional killing would be first degree and the added element would do no work. Legislatures divide murder into degrees to confine the heaviest punishments to the first degree, and a reading that sweeps in every intentional killing defeats that confinement.61 History shows the same pressure at work. After the Revolution, state legislatures reserved the death penalty for premeditated, willful, and deliberate killings in order to single out cold-blooded killers, but many courts soon thwarted that design by reading premeditation to cover split-second decisions.62 Courts that resist this drift hold the line directly: the Mississippi court in Windham v. State found it error to instruct a jury that the design to kill may be formed at the moment of the fatal act.63
The stricter view does not set a minimum on the clock, and it does not deny that a killing may follow immediately on the formation of an intent. The intention may be finally formed only as the conclusion of earlier premeditation and deliberation, and where the intention was formed without prior thought, premeditation can still occur when additional time passes for further thought and a turning over in the mind.64 The charge approved in Fisher v. United States states the position precisely: forming a design to kill may be as quick as thought, but deliberating on it requires an appreciable time between the design and the fatal act, within which deliberation in fact occurs.65 The same charge says the law prescribes no particular period, that consideration may last hours or days or only a brief span of minutes, and that what matters is the fact of deliberation and not how long it lasted.66 A rule demanding long contemplation would wrongly exclude a killer whose settled, cool purpose arose quickly, so the middle position treats the interval as evidence about whether reflection occurred and does not treat it as a measure of guilt.
That is why the interval by itself often proves less than it seems to. In State v. Bingham the defendant spent five minutes strangling the victim, yet the divided Washington court held that with no other evidence of premeditation, time alone would not support such a finding.67 The same court showed how unsettled the line is when it later held in State v. Ollens that a man who repeatedly stabbed a taxi driver could be guilty of first degree murder on the theory that each additional stab constituted premeditation.68 The two results can be reconciled only by asking what the interval shows about thought, since repeated blows are separate moments at which the defendant could have stopped, while a single continuous act may show only persistence. A further caveat applies even where the interval is short and the facts point toward reflection: merely because a jury could find premeditation does not mean it must.69 Premeditation is a subjective state of mind that must be inferred from conduct and circumstances, and there is no presumption that an intentional murder is first degree, so the prosecution needs some affirmative evidence that the defendant in fact reflected.70
The five minutes are identical in both scenes, so the fact that moved the answer is the evidence surrounding them. On an exam stem that supplies a stopwatch, the trap is to count seconds or minutes as though time alone answers the question. The first step is to identify whether the jurisdiction accepts a moment of thought or insists on appreciable time. The second is to ask what, beyond the interval, shows that reflection actually took place, and the third is to remember that a jury may find premeditation on the evidence but is never required to.
Capacity Versus Actual Reflection
The earlier sections in this chapter defined deliberation as the capacity for cool reflection and premeditation as the reflection itself, and they showed that the length of the interval matters less than whether thought occurred in it. This section takes up the gap that definition leaves open, which is the defendant who had the time and, in the abstract, the ability to think before killing but did not. Opportunity does not satisfy the element. A prosecutor who shows that the defendant had time to premeditate and deliberate has shown only the chance, and this form of first degree murder requires proof that the defendant actually premeditated and deliberated, in addition to actually intending to kill.72
The reason follows from what the element is built to measure. First degree is reserved for the killer who made a cool choice, and a choice is something a mind does, so the clock can show only that the opportunity existed. If elapsed time were enough, the verdict would turn on what a calmer person in the defendant's position might have thought, and the individual on trial would drop out of the analysis. A passage from Judge Andrews's opinion in People v. Caruso, reproduced in a footnote to Fisher v. United States as a model of the guidance a trial judge should give a jury, shows the correct sequence of questions. It concedes that time to deliberate and premeditate plainly existed and then asks whether the defendant in fact did so, testing that question against the surrounding circumstances of nervous strain, grief, and a sudden gust of anger.73
Four conditions are recognized as capable of defeating the cool reflection the element demands: emotional upset, intoxication, feebleness of intellect that falls short of insanity, and terror.74 Each works on the same part of the analysis. Deliberation requires a mind not overborne by passion and able to weigh what it is about to do, and rage, panic, a drug-clouded brain, or an intellect too limited to hold competing considerations in view all interfere with that weighing. Premeditation belongs to the cool-minded person, so where the cool mind is missing there is no reflection to count as premeditation either. None of these conditions must amount to legal insanity to have this effect, which is why the argument is open to defendants who could never make out an insanity defense.
Beneath this sits a floor that applies to murder generally. In Davis v. United States the Court explained that a person who takes a life cannot be said to act with malice aforethought, or to have deliberately intended to kill, unless at the time that person had enough mind to comprehend the criminality of the act, so the crime of murder presupposes that much capacity.75 That floor is low compared with what first degree asks. A defendant who clears it can still lack the cool state that deliberation needs, which makes the capacity question for premeditation a separate and more demanding inquiry than the question whether the defendant could commit murder at all.
When the conditions above prevent premeditation and deliberation, the defendant generally does not walk free. The defendant can still be convicted of second degree murder, on the theory that, though unable to premeditate and deliberate, the defendant could and did at least intend to kill, an intent that in most cases is shown by the intentional use of a deadly weapon on the victim.76 Second degree is the grade for a killing without premeditation, so it fits a homicide in which intent and malice are present and the cool prior reflection is absent.77 The structure of murder explains the result. Intent to kill and premeditation are separate layers, and terror or intoxication that defeats the upper layer leaves the lower one untouched, since a frightened or drunk defendant can still want the victim dead at the instant of firing. The law lowers the label without excusing the killing. Exam answers go wrong when they treat a failure of premeditation as the end of murder liability, because the grade drops to second degree while the liability for murder remains.
The weapon and the intent to kill are the same in both scenes, so the fact that moved the answer is what each defendant's mind was able to do, and did, before the shot. Change that fact in the second scene, so that the panic clears and the second shopkeeper stands calmly over the intruder for a minute before firing, and the capacity question comes out the other way; the prosecution would then need evidence of actual thought, as the earlier sections required. A fact pattern that pairs an intentional shooting with terror, heavy intoxication, rage, or limited intellect raises this issue, while one that pairs the shooting with evidence of calm preparation answers it the other way.
Courts have also had to decide how a jury may use evidence of a defendant's mental condition on this question. Leland v. Oregon shows one approach. The Oregon jury was told that first degree murder required proof beyond a reasonable doubt of a killing done purposely and with deliberate and premeditated malice, that a killing done purposely and maliciously but without deliberation and premeditation was second degree, and that the State carried the burden on every element, premeditation and deliberation included.78 The jury was further told to weigh the evidence offered on insanity, together with all the other evidence, on the defendant's ability to premeditate, to form a purpose, and to deliberate, and that a defendant whose mental condition left no capacity to formulate a plan, design, or intent to kill in cool blood had not committed first degree murder.79 Insanity itself was a separate issue set apart by a special plea, on which the defendant bore the burden, so the jury could find the defendant mentally incapable of premeditation and deliberation without finding him legally insane.80
The same contrast between a hypothetical normal person and the actual defendant drove the defense in Fisher v. United States. The Court observed that the defendant's own testimony would support a first degree verdict if he was a normal man in mental and emotional characteristics, but the defense argued that he should be judged on deliberation and premeditation by his own personal traits, and that those traits left him incapable of both although he was sane in the usual legal sense.81 The instruction the defense requested would have directed the jury to consider the defendant's entire personality, including his mental, nervous, emotional, and physical characteristics, on intent, premeditation, and deliberation.82 Whether a given jurisdiction lets a jury weigh such traits is a matter of its own law, and two decisions mark the limits of the argument.
In Williams v. State a Texas court of appeals held that evidence of recent methamphetamine and marijuana use, together with a claim that the defendant was having a PTSD flashback, supplied at best an excuse and did not negate his intent to fire the weapon, so the jury could infer intent to kill from the use of a deadly weapon.83 The murder statute there asked only whether the defendant intentionally or knowingly caused death, so the capacity argument could reach nothing beyond intent, and the evidence left intent standing.84 In Clark v. Arizona the Supreme Court held that due process permitted a State to restrict evidence of mental illness and incapacity to its bearing on an insanity claim, even though that eliminated its direct significance on the mental element of the crime charged.85 The majority treated mens rea as an issue distinct from the insanity defense, with the burden on mens rea resting on the prosecution, while the dissent argued that evidence of mental illness bears on whether the defendant had the intent or knowledge the statute requires, which is a question of fact.86 These decisions mark two boundaries: the capacity argument reaches premeditation only where premeditation is an element, and even then only where the jurisdiction lets the jury consider the evidence on that element.