Blog | Post

Premeditated & Deliberate
posted on in Criminal Law by BarProse

Premeditated & Deliberate

Rule

Make sure to address the elements of Time to Reflect as well as Cool and Dispassionate in your rule statement.

February 2007 #3 Model A Time to Reflect Upon the Killing

First degree murder requires time to reflect upon the killing. This is commonly known as premeditation. Premeditation, not in keeping with the lay person’s understanding of it, however, requires merely a moment’s reflection upon the killing.

Cool and dispassionate manner

The defendant must have committed the killing in a cool and dispassionate manner. That means that the defendant killed another person in a calm and calculated manner without passion.
February 2007 #3 Model B Premeditated and Deliberate

Premeditation requires that decision to kill have arisen when the accused was acting in a cool, composed manner, with sufficient time to reflect upon the killing. Deliberateness requires that the accused had the intent to kill when he engaged in the act that resulted in the death.
Analysis & Conclusion

The analysis regarding the elements Time to Reflect & Cool and Dispassionate may be done together or under separate headings, depending on the facts.

February 2007 #3 Model A Time to Reflect Upon the Killing

First degree murder requires time to reflect upon the killing. This is commonly known as premeditation. Premeditation, not in keeping with the lay person’s understanding of it, however, requires merely a moment’s reflection upon the killing.

Here, the prosecutor will argue that Dan reflected upon the killing of Vic when he took the time to say to Vic, “I’m going to kill you.” However, Dan will argue that there was no time to reflect upon the killing of Vic because he “exploded” and then hit Vic. Such an intense anger coupled with a spontaneous statement “I’m going to kill you” will likely not be construed as sufficient time to reflect.

Therefore, a jury should not properly find this element of the crime established.

Cool and dispassionate manner

The defendant must have committed the killing in a cool and dispassionate manner. That means that the defendant killed another person in a calm and calculated manner without passion.

Here, the prosecutor will argue that Dan’s action of striking Vic with his fist without an expression of sadness or fright may amount to cool and dispassionate. However, such an argument is tenuous.

Dan will successfully show that his actions were the result of an explosion, regardless of the reasonableness of those actions. Dan “exploded.” This could hardly be construed as “cool.”

Therefore, a jury should not properly find this element of first degree murder established.

In sum, a jury would not properly find Dan guilty of first degree murder.

February 2007 #3 Model B Premeditated and Deliberate

Premeditation requires that decision to kill have arisen when the accused was acting in a cool, composed manner, with sufficient time to reflect upon the killing. Deliberateness requires that the accused had the intent to kill when he engaged in the act that resulted in the death.

The facts indicate that Vic [sic] was stocking shelves before Vic encountered him. There is nothing to indicate that he had any animosity towards Vic prior to the incident, or even knew Vic. The facts indicate instead that Dan punched Vic after he exploded in anger in response to a comment Vic made. Vic’s death resulted from a skull fracture caused by his impact with the ground. At no time do the facts indicate that Dan calmly and cooly reflected on killing Vic. In addition, it is not clear that he had the intent to kill Vic, as he only hit him once, an act that does not usually cause death. Although he shouted that he would kill Vic right before he killed him, the jury could likely not find that this shouting alone immediately before throwing the punch was enough. Moreover, it does not evidence a cool dispassionate manner, but instead, evidences the opposite. Therefore, because Dan’s actions appear neither premeditated nor deliberate, he will likely not be found guilty of first degree murder.

Next: Felony Murder

Homicide Approach

Second Degree Murder
Intent to Kill
Intent to Commit Great Bodily Injury
Reckless Disregard
Common Law Murder
Intent to Kill
Intent to Commit Great Bodily Injury
Reckless Disregard
Felony Murder
Voluntary Manslaughter
Provocation – Objective and Subjective
Time to Cool – Objective and Subjective
Involuntary Manslaughter
Misdemeanor Manslaughter

Please note: The model answers often contain errors of law, spelling and grammar. We provide them as starting points to craft your own responses.

Model answer materials The State Bar of California, used with permission. All other materials BarProse LLC