Concept
Proving Premeditation
Premeditation, deliberation
Proving Premeditation
Premeditation is a state of mind, and a state of mind is almost never on display. Most killings have no witness, and even a witness cannot report what the killer was thinking. The state therefore proves premeditation and deliberation the way it proves intent to kill, by asking what the defendant's conduct, in light of the surrounding circumstances, reveals about the mind behind it.1 The leading framework comes from People v. Anderson, which sorted the relevant circumstantial evidence into three categories: planning activity, motive, and manner of killing.2
The three categories track what a person who has thought about a killing tends to do before it, because of it, and while carrying it out. Courts use them as a way to sort the evidence a jury may rely on, and they do not require the state to complete a checklist. North Carolina, for example, asks about a somewhat different list of circumstances and describes them as among those to be considered.3 Each category is taken up below, followed by two rules that frame the whole inquiry: there is no presumption of first degree murder, and a premeditated attack on one victim carries its degree over to a different victim whom the bullet happens to hit.
Planning Activity
The first category covers what the defendant did before the killing that was directed toward carrying it out. Typical examples are possessing the murder weapon beforehand, approaching the victim stealthily, acting in coordination with a second shooter, or taking the victim to a place where others are unlikely to intrude.4 The logic is practical. Preparation for a result is what reflection about that result looks like from the outside, since a person does not arm himself, conceal the weapon, and choose the approach without having considered where the steps lead.
In one California case, the defendant hid a shotgun in a laundry basket and carried it to the victim's front door, and the court treated that as planning activity.5 The facts in People v. Perez were less dramatic. The defendant did not park in the victim's driveway, entered the house surreptitiously, and obtained a knife from the kitchen, and those facts supported the jury's finding of premeditation.6 The well-known killing of a physician by Paul Hill shows the category at full strength: he bought the gun in advance, practiced with it, and lay in wait, and absent a mitigating claim that is first degree murder.7
The contrast case is the weapon that was simply at hand. In Watson, the defendant seized a police officer's gun during a struggle, so there was no advance preparation, and the court relied instead on other facts, including a pause and the officer's plea, from which a jury could infer that he decided to kill rather than flee.8 Where nothing else points to reflection, the origin of the weapon carries real weight, and a failure to show that the defendant brought it to the scene has been treated as significant.9 Conduct after the killing, such as flight, generally says nothing about the state of mind before it. The exception is flight that was itself arranged beforehand, as when the defendant removed his belongings from his residence before the killing, because then the flight is part of the plan.10
Motive Evidence
The second category looks backward to the relationship between defendant and victim. Prior threats of violence, plans or desires that the victim's death would advance, and earlier conduct by the victim that is known to have angered the defendant all suggest a reason to kill.12 Motive matters to premeditation because a reason is the raw material of a considered choice. A killing with an identifiable purpose looks like a decision, while a killing with no discernible reason looks more like an outburst.
The cases show how much this category can carry. In the laundry-basket case the court pointed to a pattern of hostile, abusive conduct toward the victim as the motive evidence.13 In Perez the motive was inferred from the fact that the victim knew the defendant from high school and could identify him, which supplied a reason to silence her once the encounter had begun.14 The District of Columbia has sustained submission of premeditation to a jury on prior threats, on a fight about money, and on a jilted lover's grievance.15 Motive does not have to be a good one. In State v. Forrest the defendant shot his terminally ill father, his statements afterward showed he acted out of a promise to spare the old man suffering, and North Carolina still found enough evidence of premeditation on the other circumstances, including that the victim was helpless.16
The absence of both motive and planning can be decisive. California's court in Anderson reversed a first degree conviction for the brutal killing of a housemate's ten-year-old daughter because the record showed neither planning nor motive.17 Two invented twins show how one fact moves the answer. A man who spends months feuding over a boundary fence, tells a friend he intends to put an end to it, and then shoots his neighbor has supplied threat-and-grievance evidence of a reasoned design. A man who meets the same neighbor by chance at a gas station and shoots him after a sudden exchange of insults has supplied none, and a jury would have only the intent to kill to work with.
Manner of Killing
The third category concerns the killing itself. The question is whether the manner was so particular and exacting that the defendant must have killed according to a preconceived design, and the evidence usually comes from examination of the victim's body showing that wounds were deliberately placed at vital areas.19 The reasoning is that precision requires aim, and aim requires a choice made before or during the act. A shot or blow directed at the heart or head is the sort of act a person performs after deciding what it is for.
Perez illustrates a second way manner can show reflection. The defendant's first knife broke, and blood in the kitchen's knife drawer supported an inference that he went to find another, which the court compared to reloading a gun when the first runs dry.20 Retrieving a second weapon is a pause in which the defendant could have stopped and instead renewed his purpose. Forrest points the same way, since the defendant fired four shots from a revolver that had to be cocked each time, at a victim lying helpless in a hospital bed.21
The trap lies on the other side of the line. The mere fact that a killing involved great violence, or that many wounds were inflicted, does not show premeditation, because a frenzied attack is just as likely, and perhaps more likely, to have been an impulse.22 Students who treat brutality as proof of design write the wrong answer on exactly the facts the exam likes to use. The same point appears in a dissent in Fisher v. United States, which described a defendant who struck out after an insult, kept going because the victim's screams frightened him, and acted from instinctive reaction rather than purpose. In that dissent's view premeditation means nothing unless it excludes an uncalculated response to a stimulus.23 North Carolina treats the nature and number of wounds as a circumstance a jury may weigh, so the safest exam move is to say that wound count alone is weak evidence and that deliberate placement is the stronger one.24
No Presumption of First Degree
The three categories describe what the state may use, and the next rule describes what the state may not skip. A killing with intent to kill is murder, but the degree is not presumed. For the higher degree there must be affirmative evidence that the defendant in fact premeditated and deliberated.26 Courts have said the same thing about the weapon: the use of a deadly weapon supports an inference of intent, but it raises a presumption of second degree murder only, and the state carries the burden of proving that the killing was deliberate and premeditated.27 The reason is structural. Premeditation is an extra element that separates first degree from second degree, and a presumption that came free with the intent to kill would erase the element.
A related error is to treat opportunity as proof. It is not enough that the defendant had time to premeditate and deliberate, because the defendant must actually have done so.28 Midgett v. State shows how firmly the rule holds even on revolting facts. A father beat his eight-year-old son over a long period, and the child died of abdominal hemorrhage from blows consistent with a fist. Arkansas's court held there was no evidence of premeditation, because the proof supported only an intent to further abuse the child or an intent to kill formed in a drunken rage, and it reduced the conviction to second degree murder.29 The dissent would have left the degree to the jury, which shows the disagreement is about whether the evidence reaches the jury at all.30 Legislatures have since answered such cases by adding routes that do not depend on premeditation, which is the subject of a later section.
Bad Aim and Premeditation
One final rule concerns the victim who was not the target. Under the ordinary rule of transferred intent, a person who aims a lethal blow at one victim with intent to kill, misses, and kills a bystander is guilty of murdering the bystander, though the defendant never wished that person harm.32 The same principle carries the degree along. If the defendant aimed at the intended victim with a premeditated and deliberate intent to kill, so that a hit would have been first degree murder, then by the great weight of authority the accidental killing of the other person is first degree murder as well.33 The reasoning is that the culpable mental state is what the law punishes, and it was fully present when the defendant fired, so the identity of the person the bullet reached does not reduce it.
The rule depends on the premeditated intent actually being directed at someone. A hired shooter who spends weeks planning to kill a rival, fires at the rival from ambush, and strikes a passerby has committed first degree murder of the passerby. A man who fires a shot into the air to frighten a rival and hits a passerby has no intent to kill anyone, so there is nothing premeditated to transfer. Courts apply the same limit to jury instructions: an instruction on transferred intent is improper if the evidence shows no intent to kill anyone other than the person actually killed.34
Planning Activity
The first category of circumstantial evidence looks at what the defendant did before the killing. Premeditation and deliberation are states of mind, and the state seldom has a witness to what the defendant was thinking, so it must show the thought through conduct. The category covers facts showing that the defendant was engaged in activity directed toward the killing, such as having the murder weapon beforehand, approaching the victim surreptitiously, acting at the same moment as a second shooter, or taking the victim to a place where others are unlikely to intrude.36 The inference rests on how preparation works in ordinary life. A person who arms himself, hides the weapon, and chooses a quiet place has made a series of decisions, each of which points toward the result, and that sequence is what reflection about a killing looks like from the outside.
Courts apply the category to a wide range of facts. In People v. Perez, the defendant parked away from the victim's driveway, entered her house surreptitiously, and took a knife from her kitchen, and the court called those facts planning activity supporting the jury's finding of premeditation.37 Other courts have relied on a defendant who hid a shotgun in a laundry basket and carried it to the victim's front door, and on defendants who armed themselves in advance, practiced with the gun, or brought the murder weapon to the scene.38 In State v. Forrest, the defendant carried a revolver to his father's hospital room even though he testified that he carried it only for his job as a truck driver and was not working that day, and North Carolina counted that fact among the circumstances showing premeditation.39 Waiting can also be preparation. The defendant in Berry said he had deliberately waited for the victim to return home, and that long wait was treated as an indicator of premeditation.40
The clearest example is the killing of Dr. Bayard Barrett by Paul Hill in 1994. Hill bought the gun in advance, practiced with it, and lay in wait for the victim, so absent a claim of necessity, insanity, or diminished capacity, he was guilty of first degree murder.41 Each step was a separate act done before the shooting and aimed at it, and none can be explained as anything other than getting ready. Because the planning is both extended and directed at one victim, the jury has little need to speculate about what was in the defendant's mind.
The contrast case is the defendant whose weapon was simply there. Take a man who carries a pistol every day for his work, meets an acquaintance at a gas station, trades insults, and fires. Nothing he did before the shooting was directed toward the killing, so the planning category supplies no evidence, and the state would have to look to motive or manner. The origin of the weapon is therefore important. Where no other evidence is truly probative of premeditation, the District of Columbia treats the origin of the murder weapon as significant and has found failure to show that the defendant brought it as a factor against premeditation, whereas bringing a loaded gun to the scene permits an inference of premeditation.42 Forrest shows the limit of the habitual-carrier point, since the explanation that the gun was always with him lost force once the facts showed he was off work that day.
Two cautions keep the category from being overread. Preparation counts only when it points toward the killing, and a general habit of being armed does not. Prior conduct of that kind is also evidence a jury may use, not a checklist the state must complete, and courts treat stalking, keeping track of the victim's schedule, and preparing for a confrontation as the same kind of proof.43 On an exam, weapon acquired before the encounter is the fact to look for first, and its absence should be noted before turning to motive and manner.
Motive Evidence
The second category of circumstantial proof shifts from what the defendant did to what the defendant had reason to do. Because premeditation is a state of mind, and the killer rarely announces it, the state must show it through conduct and circumstances. This category covers facts about the prior relationship and conduct between defendant and victim from which a motive to kill can be inferred. The usual examples are prior threats of violence against the victim, plans or desires of the defendant that the victim's death would advance, and earlier conduct of the victim that the defendant knew and resented.45
The reason motive helps follows from how impulse works. A killing that erupts in a flash usually has no history behind it: the defendant had no stake in the victim's death until the moment of the quarrel. A reason to want someone dead exists before the act, and a person who carries one has had occasion to turn it over. A threat shows the idea was in the defendant's mind at an earlier time. A financial gain from the death shows an outcome the defendant could weigh, and a long-standing grievance shows the kind of brooding that cool reflection requires. Motive is not an element of murder, so the state never has to prove it. It matters only as evidence that the thought came before the act.
The motive also does not have to exist at the start of the encounter. In People v. Perez, the court assumed the initial entry and attack might have had some other inspiration, but held it reasonable to infer that the defendant then decided he had to kill the victim to keep her from identifying him, since she knew him from high school.46 A motive to escape detection can therefore supply the missing reason in the middle of a crime. In Watson, the court combined the defendant's motive to escape with other circumstances: he had waited for the officer to arrive, started the struggle, held the gun to the officer's chest without firing at once, and then fired one shot rather than a panicked volley. From those facts a juror could conclude that he had decided to kill the officer to secure his escape and had reflected before pulling the trigger.47
The motive also need not be a wicked or selfish one. In State v. Forrest, the defendant shot his terminally ill father in a hospital bed. His statements afterward were that he had thought about putting his father out of his misery and had promised not to let him suffer, and the court called those statements the most persuasive evidence of premeditation and deliberation.48 A mercy motive is still a reason formed ahead of time, and a defendant who acts on a promise has plainly thought about the act. Compassion may soften how a jury or a sentencing judge views the killing, but it does nothing to rebut the inference that the defendant reflected.
The absence of any motive weakens the state's case on the same logic. In People v. Anderson, California's court reversed a first degree murder conviction for the apparently unplanned and motiveless brutal killing of a housemate's ten-year-old daughter, because the record showed neither planning nor motive.49 Midgett v. State shows the same gap in a child-abuse setting. The Arkansas court found no evidence that a father who beat his eight-year-old son to death had premeditated, reasoning that the proof showed only an intent to keep abusing the child, or at most an intent formed in a drunken, heated rage.50 Had he planned the child's death, the court observed, he could have accomplished it in an earlier beating, so the long history of abuse pointed away from a settled reason to kill.51 A dissent in Fisher v. United States reached the same result on its facts: it found no basis for any motive before the victim's insult, and it concluded that the defendant acted on instinctive reaction to a stimulus, which premeditation must exclude.52
Two invented twins show how a single fact moves the answer. A nephew tells relatives for months that his uncle will not live to see another harvest, knows he is the sole heir to the farm, and then shoots the uncle. The threats and the inheritance give the jury a reason to kill that existed well before the shot, which supports an inference of reflection. Change one fact: the same nephew has never spoken ill of his uncle, knows nothing of the will, and fires during a sudden roadside argument. The state is left with the intent to kill and nothing else on motive, and it must look to planning or manner of killing to prove the added element.
On an exam, students go wrong by treating a reason to kill as proof of reflection in itself, when it is only one circumstance from which a jury may infer reflection. The answer should name the specific threat, gain, or grievance, say when it arose relative to the killing, and then ask whether it shows the thought preceded the act or merely explains an outburst. Motive evidence also works alongside planning and manner evidence, not in place of them.
Manner of Killing
The third category of circumstantial proof looks at the killing itself. Planning evidence asks what the defendant did beforehand, and motive evidence asks what reason the defendant had, but manner evidence asks whether the way the death was inflicted shows a design formed in advance. The rule is that the state may point to facts about the nature of the killing from which a jury can infer that it was so particular and exacting that the defendant must have killed according to a preconceived design.54 The usual proof is the placement of the wounds, normally established by examining the victim's body, which must show that the wounds were deliberately placed at vital areas.55
The reasoning follows from the connection between precision and control. A person who aims at the heart or the head and hits it has chosen a target and held to the choice, and that kind of control is difficult to square with a mind in a frenzy. The same logic explains why the category excludes violence as such. The fact that a killing involved great violence, or that the victim suffered a great many wounds, is not relevant here, because a killing of that kind is just as likely, or perhaps more likely, to have been committed on impulse.56 An attacker who loses control tends to strike again and again without aim, so a high wound count can indicate that no reflection occurred. This is the sense in which the manner category rewards exactness over savagery.
The two poles can be seen in a pair of invented scenes. A man brings a pistol to a confrontation in a parking lot, fires once from arm's length, and the bullet enters the victim's chest over the heart. The weapon was brought to the scene, and a single shot placed in a vital area suggests a chosen target, so a jury may infer design. Compare an attacker who strikes a neighbor dozens of times in an uncontrolled assault and then runs away. The number of blows shows only a loss of restraint, and the flight afterward is not evidence that he thought about the killing beforehand.57 In the second scene the state has intent to kill at most and no affirmative proof of the added element, so it must look to planning or motive to carry the degree.
The flight in that second scene is dismissed for a separate reason. Conduct after the killing that is aimed at avoiding detection and punishment is not relevant to premeditation, because it shows the defendant's state of mind at that later moment and says nothing about the state of mind before or during the killing.58 An innocent panicked person and a cool planner would both want to get away, so escape does not separate them. The exception is flight that was itself arranged before the killing, such as removing one's belongings from a residence in advance, which is evidence of planning rather than of afterthought.59 Courts also sometimes let the jury consider calm post-killing behavior as context for the manner of the killing. In People v. Perez, the court noted that the defendant searched drawers and changed a bandage on his bloody hand instead of fleeing, and it treated that as consistent with the manner evidence and inconsistent with a rash killing, while stating that such facts were not sufficient in themselves.60
Several decisions show how manner evidence works in practice. In Perez, the defendant's steak knife broke during the attack, blood in the kitchen knife drawer indicated that he went back to the kitchen for another knife, and he then inflicted further wounds. The court compared that to reloading a gun or switching to a second gun when the first runs out of ammunition, and it reasoned that the pause in the action gave him time to reflect, so searching for a second knife indicated a reasoned decision to kill.61 In Watson, the defendant had immobilized an officer and held a gun against the officer's chest without firing at once. He then fired a single shot into the right side of the chest instead of a volley, and the court said a juror could conclude from that pattern, combined with his motive to escape, that he acted with deliberation and did not shoot in a panic.62
A wound count can also help the state when it is joined to other facts, and jurisdictions differ on how much weight it deserves alone. In State v. Forrest, the defendant shot his terminally ill father four times at point-blank range as he lay helpless in a hospital bed, using a single-action revolver that had to be cocked before each shot. North Carolina treats the dealing of lethal blows to a victim who has been felled and rendered helpless, a brutal manner of killing, and the nature and number of wounds as circumstances from which premeditation can be inferred.63 The need to cock the gun each time is what gave the number of shots its force there, because each shot required a separate act. California's approach is stricter on this point, and People v. Anderson suggested that the inference of premeditation is stronger when the killer inflicts a single lethal wound.64 The general rule in the hornbook treatment is that sheer wound count and violence prove nothing, and precision rather than brutality is what the manner category rewards.
On an exam, the manner analysis should ask what the wounds show about control. Wounds placed at a vital area, a deliberate second weapon, or a pause between shots suggest design, while a flurry of blows suggests impulse. Escape conduct afterward should be set aside unless the flight was arranged before the killing, and the answer should then compare the manner evidence with the planning and motive evidence, since each category supplements the others.
No Presumption of First Degree
The three categories of circumstantial proof (planning, motive, and manner) answer the question of how the state shows premeditation. A prior question is who bears the risk when the state shows none of them. The answer is that the risk stays with the state. Proof that the defendant killed, and even proof that the defendant intended to kill, does not carry a presumption that the murder is of the first degree. For the higher degree there must be some affirmative evidence from which the trier of fact can find that the defendant actually premeditated and deliberated.66 Jurisdictions that grade murder apply the same baseline in different words: a killing is presumptively murder, but the mere fact of killing raises no presumption about its degree, and one West Virginia decision treated a killing with a deadly weapon as presumptively second degree, leaving the state to prove deliberation and premeditation.67
The reason follows from how the grades are built. In most graded systems, intent-to-kill murder becomes first degree only when premeditation and deliberation are added to the intent.68 Intent to kill is therefore the floor on which the added element rests, and the added element is the only thing that separates the two grades. If the state could satisfy the added element by proving the floor, every intentional killing would qualify for first degree, and the statute's purpose of reserving the heaviest punishments for the most culpable killers would be defeated. The presumption would also relieve the state of proof on the one issue that distinguishes first degree from second. The point has extra force because even intent can no longer be presumed from the use of a deadly weapon in many jurisdictions. Prosecutors now have to meet the argument that the gun just went off or that the defendant meant only to wound, and premeditation requires evidence beyond what proves intent.69
A companion rule blocks a quieter route to the same result, which is to treat the opportunity to reflect as if it were reflection. It is not enough that the defendant is shown to have had time to premeditate and deliberate. The defendant must actually have premeditated and deliberated, as well as actually intended to kill.70 The reason is that time is only a condition under which reflection can occur, and a person can spend a long interval in a rage and weigh nothing. California's court states the test this way: the question is the extent of the reflection, not the duration of the interval, because a cold, calculated judgment can form quickly while an unconsidered, rash impulse that includes an intent to kill cannot count as premeditation.71 An older Pennsylvania jury charge shows how easily the slide happens, since it described a killing with a deadly weapon at a vital part, with sufficient time to deliberate and no extenuating cause, as first degree murder.72 The modern requirement of affirmative evidence guards against reasoning from weapon plus time straight to the top grade.
Midgett v. State shows the rule operating against a sympathetic state. The Arkansas court held that evidence of long-running abuse of an eight-year-old, ending in a fatal blow to the abdomen, supported only an intent to keep abusing the child, or at most an intent formed in a drunken, heated rage, and neither supports a finding of premeditation or deliberation.73 The court added that the duty is to require substantial evidence of premeditation no matter how heinous the facts otherwise are.74 The dissent disagreed about who should decide, not about what the law requires. It argued that the degree of murder is for the jury and that repeated starving, choking, and striking could lead a jury to find an intent to kill.75 The two opinions reconcile on one point: the jury picks the degree only when substantial evidence of premeditation is in the record, and the majority held that on those facts the record did not contain it. Revulsion at the act cannot substitute for that evidence, and the dissent in Fisher v. United States put the same idea in a sentence: a deed may be gruesome and not be premeditated.76
Two short invented scenes show what moves the answer. A man buys a handgun a week before, tells a coworker the victim "won't be a problem much longer," waits at the victim's car, and shoots. The state has intent plus planning and motive evidence, so the jury may find first degree. Change the facts: a bar patron pulls a pistol he habitually carries during a sudden argument and fires, and the state offers only the shooting and the weapon. The state has shown an intentional killing, which supports second degree, but a verdict of first degree would rest on nothing except the presumption the law forbids.
On an exam, students go wrong by moving from intent to kill straight to first degree, because the stem mentions a gun or a long argument. The answer should identify the affirmative evidence of reflection in the facts, whether planning, motive, or manner, and should say expressly when none is present. If the facts show only a killing with intent and an interval of time, the supportable grade is second degree, since time to premeditate is not premeditation.
Bad Aim and Premeditation
The preceding sections asked how the state proves that a defendant actually reflected before killing. A different problem arises when the proof is strong but the bullet lands on the wrong person. The defendant plans and deliberates the killing of one person, fires, misses, and kills a bystander. By the great weight of authority, the defendant is guilty of first degree murder of the person who actually died, even though that person was never the object of the plan.78 This follows from the general bad-aim principle that a person who aims at one victim with a murderous intent and kills another is just as guilty as if the aim had been accurate, and that the principle carries the first-degree state of mind along with it.79
The reason lies in what premeditation measures. Premeditation and deliberation describe the defendant's own mental process: a cool mind that actually reflected on killing a human being before acting. That culpability is complete when the plan is formed and carried out, and the accuracy of the aim adds nothing to it and subtracts nothing from it. A defendant who spent weeks planning a killing has shown the same cold dangerousness whether the shot struck the target or a passerby. An Oregon decision relied on in California's earliest bad-aim case put the point this way: the defendant displays the same malignity and recklessness in one event as in the other, and the consequences for society are just as fearful.80 If the rule were otherwise, a poor shot would be rewarded with a lower degree for a death that was every bit as deliberate.
Courts usually reach this result through the label of transferred intent, under which the intent to kill the target is treated as moving to the person actually killed. The label is a fiction, since the defendant never intended to harm the bystander, and the better account is that the law holds the defendant as culpable as if the intended victim had died.81 Dressler offers an even simpler explanation: murder requires an intent to kill a human being, not a specific one, so the defendant's mental state is already satisfied without any transfer.82 The Model Penal Code reaches the same place by statute, providing that a purposely caused result is established even when the actual result differs from the one contemplated only in that a different person is injured.83 In People v. Suesser, the defendant deliberately intended to kill a man named Allen but shot a different person, and the court approved an instruction that he was guilty of the same degree of murder as if Allen had died.84 In People v. Scott, defendants fired an automatic weapon into a park to kill one man and fatally hit a bystander, and the California Supreme Court held that a transferred intent theory of first degree murder was properly put to the jury.85
The rule is easiest to hold by comparing three situations that differ in one fact each. In the first, Priya spends weeks planning to kill a former business partner, buys a pistol, waits outside his office, and fires at him. She misses, and the bullet kills a passerby. Her premeditated, deliberate intent to kill is established as to the person she aimed at, and that state of mind makes the death of the passerby first degree murder.86 Now remove the planning: Marcus, in a sudden roadside quarrel, grabs a gun and fires at his opponent, misses, and kills a driver passing by. The degree follows the mental state that would have applied had the target died, and that state was an unreflective intent to kill, so the bystander's death is second degree murder.87 Last, suppose Priya's shot misses and the passerby is wounded but not killed. Transferred intent does not reach attempted murder, which punishes only what the defendant intended and failed to accomplish, so each alleged attempt victim requires its own intent to kill that victim. Priya is guilty of attempted murder of the partner but not of attempting to kill the passerby.88
Two limits keep the doctrine from becoming a shortcut. The first is that the intent being carried forward must itself be a guilty one. If the defendant's shot at the target was privileged and carefully made, as in a lawful use of deadly force, no malice exists to carry over, and the bystander's death would at most support manslaughter on a showing of criminal negligence.89 The second is that the doctrine only changes whom the premeditation attaches to. The state still has to prove premeditation and deliberation as to the original plan with affirmative evidence, because the no-presumption rule from the previous section applies with full force.90
On an exam, students go wrong by asking whether the defendant premeditated the death of the bystander, which leads to the false conclusion that an accidental victim can never be a first degree victim. The correct move is to ask whether the defendant premeditated and deliberated the killing of the person aimed at, and if so, to apply that degree to whoever died. Then check the other side of the line: use the same degree analysis for the target's killing, and withhold any transfer to attempt counts for persons who were not killed.