A defendant cannot be convicted of murder unless it is proved that the killing was done with malice aforethought. Malice is a state of mind. It is an element of murder that must be proved. It is typically proved circumstantially by the defendant’s conduct, or possibly by statements he or she has made.
Malice is either express or implied. Express malice is simply an intent to kill. No crime can be committed by accident, and murder is no exception. If the defendant does something with the intent for it to cause the death of another, and it does, this is express malice. How much proof is needed? All elements, including malice, must be proved to the jury beyond a reasonable doubt.
If there is no express malice, the prosecution will attempt to prove implied malice. For this, there only needs to be proof that the defendant intended to do the act which is the cause of the death, and that such act would be, to a reasonable person, something the natural and probable consequences of which carries a high degree of the risk of death.
If you are on a mountain trail next to a sheer drop that no one could survive and you trip someone from behind and they lose their footing and fall, then this would qualify as implied malice even if you did not intentionally grab and throw them off the cliff directly. Let’s say grabbing and throwing them is express malice and tripping them is implied malice.
Let’s say two guys engaged in a road race spontaneously one night on the freeway and reached speeds of over 150 m.p.h. before there was a fatal collision. This would likely be enough for implied malice, even though the drivers were weaving between cars and trying not to run into anyone. This is because a reasonable person would know that a high speed accident carries a high risk of death. Implied malice will only get a second degree murder conviction, though, unless there are circumstances in aggravation such as multiple deaths.
On the other hand, let’s say someone intentionally drives onto the sidewalk where there are pedestrians, or into a crowd and strikes and kills someone. This would be a first degree murder charge since there is no other reason for the act than to strike a pedestrian, making it an intentional killing. James Alex Fields was convicted of first degree murder for such a killing of Heather Heyer on August 12, 2017, in Charlottesville.
It is called malice aforethought because the malice must be in place prior to the act itself. The malice must come before the killing. This does not mean that proof of malice cannot utilize as proof, conduct or statements of the defendant made after the killing. This would simply be proof of a state of mind after the killing used as circumstantial proof of the state of mind prior to the killing. For example, evidence that someone quickly sought to recover on life insurance after the death of a loved one may be introduced as proof of intent to kill the loved one.
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