A person is dead because of the illegal act of another. Was it murder or voluntary manslaughter? Voluntary manslaughter is punished less severely than murder. The Uniform Code of Military Justice (UCMJ) explicitly defines both crimes. However, in practice, the line between them can be hard to draw.
According to the UCMJ, murder is the unlawful and unjustified killing of a human being by a person who:
- Acted with premeditation, or
- Intended to kill or cause great bodily harm, or
- Showed a wanton disregard for human life while performing an inherently dangerous act, or
- Was committing or attempting to commit certain violent crimes.
UCMJ Subchapter 10, Article 118 (http://www.ucmj.us/sub-chapter-10-punitive-articles/918-article-118-murder).
One key element of murder is premeditation. Premeditation means the perpetrator consciously decided to take a life and intended the act or omission that resulted in the death. Premeditation requires the intention to kill and reflection on the act necessary to accomplish the killing. However, the perpetrator does not need to think about the intention for any particular length of time.
For example, Joe’s wife is late coming home every Thursday. He suspects she is having an affair. He decides to follow her next Thursday and kill her lover. On Thursday, Joe puts a pistol in his pocket and follows his wife from her job to a hotel where she meets a man named Bob. Joe pulls out the pistol and shoots and kills Bob.
In this instance, Joe intended to kill Bob, had time to think about it, and shot him intending to kill him.
Intent to Kill or Cause Great Bodily Harm
A killing can be murder even if it was not premeditated if the perpetrator intended to kill or inflict great bodily harm on someone. The person killed does not even have to be the person intended to be killed or hurt. A person’s intentions can be inferred from his or her actions. Thus, if a person does something that is likely to cause death or great bodily injury, a jury could conclude that the person intended that result.
For example, Judy accidently cuts Randy off while changing lanes. Randy runs Judy off the road where her car hits a tree killing her passenger Jane. Since running a car off the road is an act likely to cause death or great bodily injury, a jury could infer that Randy intended to kill or seriously injure Judy. It does not matter than Jane was killed instead.
Wanton Disregard/Inherently Dangerous Act
Other behaviors can also result in a charge of murder even in the absence of the intention to kill. Conviction of murder under paragraph (3) of Article 118 does not require a specific intent to kill, when the perpetrator engages in an inherently dangerous act that shows a wanton disregard for human life. For example, if a person fires a high caliber rifle at a small aircraft and kills a passenger, he could be convicted of murder in the absence of an intent to kill. The shooter’s motive may not have been to kill anyone; he just wanted to see if he could hit the aircraft. In this scenario, the shooter engaged in an inherently dangerous activity and displayed a wanton disregard for human life. Consequently, a murder charge would be warranted under the UCMJ.
Commission of or Attempt to Commit a Violent Crime
As Article 118 indicates, a person can also be convicted of murder if a death occurs when the person is engaging in specific criminal activity, and although a murder was not planned. Article 118 cites five specific crimes in which a perpetrator can be convicted of murder in the absence of premeditation to commit an illegal killing. The five crimes are: burglary, sodomy, rape, robbery, and aggravated arson. For example, if Joe’s intent is to rob Bob, but Bob fights back and Joe kills him in the ensuing struggle, Joe is guilty of murder. In this instance, Joe did not have a premeditated plan or even intention to kill Bob. However, since the robbery resulted in Bob’s death, Joe can be charged with murder.
Voluntary manslaughter can bear many of the marks of murder, but one legal distinction is the absence of premeditation. Voluntary manslaughter is the unlawful killing of a human being by a person who:
- Intended to kill or inflict great bodily harm; and
- Acted in the heat of sudden passion caused by adequate provocation.
UCMJ, in Chapter 10 Article 119 (http://www.ucmj.us/sub-chapter-10-punitive-articles/919-article-119-manslaughter).
VOLUNTARY MANSLAUGHTER ELEMENTS
Heat of Sudden Passion
“In the heat of a sudden passion” means that the individual did not plan and contemplate the killing. The law recognizes that an individual can be faced with such emotional trauma that the person cannot control his or her behavior. Sudden passion distinguishes voluntary manslaughter from murder in which the person considers committing a murder, has a chance to reflect, and chooses to go ahead.
What constitutes,” in the heat of a sudden passion” is an issue that the court-martial panel determines. However, in the case of United States v. Miergrimado, 66 M.J. 34, the United States Court of Appeal found that it was reasonable for the panel to find that the defendant was in the heat of passion when he was involved in a verbal and physical altercation with a fellow Marine over possession of keys to a military vehicle.
In the Miergrimado case, the United States Court of Appeals for the Armed Forces noted that the defendant testified that he was hit hard during the fight and was “terrified for [his] life.” Then “he automatically switched” into a “sort of a preservation mode.” The automatic switching was evidence the defendant did not make a conscious decision and thus did not engage in premeditation.
A second key element of voluntary manslaughter is that adequate provocation must be present. Again, the Miergrimado case is instructive. The Court notes “The provocation must be adequate to excite uncontrollable passion in a reasonable person and the act of killing must be committed under and because of that passion.” In Miergrimado, the Court noted that a “slight blow” does not constitute adequate provocation.
Another key phrase used by the Court was “reasonable person”. A “reasonable person” standard is used to distinguish between voluntary manslaughter and other more serious charges. For example, if a newspaper boy does not take the time to put your paper on your porch as you asked him, a reasonable person would not be provoked into shooting the newspaper boy.
However, suppose Joe looks out of his window and sees an adult is severely beating Joe’s ten- year-old child. The adult retreats when he sees Joe and is no longer a threat to Joe or his child. Joe is so outraged that he repeatedly strikes and kills the offender with a hammer he picked up off the countertop on the way out of the door. Of course, taking the life of a person who is no longer a threat is morally and legally wrong, but this is an example of how a reasonable person might be excited to such an extent that the person could not control his behavior.
HAYTHAM FARAJ: EXPERIENCED AND AGGRESSIVE
Military personnel need an experienced and aggressive attorney who knows the UCMJ when they are charged with a serious crime. Attorney Haytham Faraj has extensive experience as a criminal defense attorney for military personnel. He is a former Marine defense attorney and has won high-profile military cases. Attorney Faraj brings the passion for representing and defending his clients when they face turbulent times.