Criminal Law

Manslaughter: A Lesser Crime Than Murder

By John McCurley, Attorney | Reviewed by Janet Portman, Attorney
Murder and manslaughter are each intentional killings, differing according to the state of mind of the defendant and the nature of the act. No single, neat definition separates the two crimes, unfortunately.

Manslaughter and murder are both homicides—the unlawful killing of a human being. Though a serious felony, manslaughter is considered a lesser crime than murder. The distinction between manslaughter and murder depends on the state of mind of the defendant and the nature of the act that caused the death. In some instances, the difference is clear, while in others, it’s more subtle.

For example, a homicide where the perpetrator intends to kill or does so with reckless indifference to human life, can be either manslaughter or murder, depending on the circumstances of the case. However, if a perpetrator kills someone while committing another inherently dangerous felony (such as during a bank robbery), the killing will almost always be murder, not manslaughter. (For more information, see Murder During the Commission of a Felony.) And a homicide that’s caused by a perpetrator while committing a misdemeanor or non-inherently dangerous felony will usually be manslaughter, as opposed to murder.

Most states define murder as the unlawful killing of another person with “malice aforethought.” Malice aforethought is an age-old legal term that generally means you intended to kill or did so with reckless indifference to human life, without legal justification. Manslaughter is also an unlawful killing, but without “malice aforethought.” Confusingly, states differ on the exact meaning of malice, so that the same criminal conduct might be called manslaughter in one state and some degree of murder in another. In most states, the law includes at least two categories of manslaughter—voluntary and involuntary. Let’s look more closely at these two types of homicide.

Voluntary Manslaughter

With voluntary manslaughter, the defendant intends to kill or does so with reckless indifference to human life. Reckless indifference might include intending to inflict serious injury on the victim or committing an inherently dangerous felony. In most states, a person who kills with any of these mental states could be guilty of murder. However, in these states, the existence of certain circumstances, explained below, will “displace” malice aforethought and reduce the crime to manslaughter.

Heat-of-Passion Homicides

A defendant who commits a homicide in the heat of the moment and after substantial provocation (usually by the victim), will ordinarily be culpable of voluntary manslaughter rather than murder. The provocation must be significant enough to cause an average person to act rashly and without thinking. And if there’s a substantial period of time between the provocation and the killing—a “cooling off” period—it’s unlikely the homicide will be reduced to voluntary manslaughter.

Imagine you are at a bar and a patron aggressively taunts you because your favorite football team just lost a big game. He then crudely insults your spouse, who is with you. After the bouncer tells the man to leave, you look out a window and see him bashing the windshield of your new car with a baseball bat. Enraged, you run to the parking lot, take away the bat, and strike the man in the face, killing him with one blow. What crime might you be charged with?

Because you were acting under a state of extreme emotional disturbance, your conduct will likely be deemed voluntary manslaughter by the local prosecutor. But if you had remained in the bar, noted the man’s license plate, tracked him down the next day and shot him to death, your conduct would be murder because you had ample time to cool off before you killed the man. Or, if the man had only taunted you about your favorite baseball team, but not insulted your wife or damaged your car, these acts wouldn’t be adequate provocation to reduce the killing to manslaughter.

Imperfect Self-Defense

Self-defense is a complete defense to a homicide charge, meaning you can’t be convicted of murder or manslaughter if you justifiably kill another person to protect yourself. (For more information, see Criminal Law Defenses: Self-Defense.) For a killing to be justified as self-defense, the defendant must reasonably believe that force is necessary for self-protection against an immediate threat of harm, and lethal force is an appropriate response to the threat. But what if the defendant sincerely believes that lethal force is necessary, but the belief is unreasonable?

In some states, a murder charge can be reduced to voluntary manslaughter based on “imperfect self-defense” where the defendant actually believes that force is necessary and that lethal force is appropriate, but at least one of these beliefs is unreasonable.

Here’s an example of imperfect self-defense: Assume Reginald is walking down the street in Deadwood looking for a business that will let him to use their restroom. He pokes his head into a sporting goods shop—which unbeknownst to Reginald also sells guns—and yells, “Hey, can I use your bathroom?” At the same time, the man working the counter is showing a customer a revolver. The clerk turns toward Reginald, revolver in hand, but before he can answer, Reginald draws his own gun and shoots the clerk dead. Reginald sincerely believed the man was about to shoot him, but his belief was probably unreasonable because, although armed, the clerk did not present a threat. If his state accepts the defense, Reginald will guilty only of voluntary manslaughter based on imperfect self-defense.

Voluntary Manslaughter as a Lesser-Included Offense

Prosecutors often charge murder and manslaughter simultaneously for the same homicide, because manslaughter is a “lesser-included offense” of homicide. (For a more complete discussion, see Lesser Included Offenses.) Or, when only murder has been charged but enough evidence exists that, if believed by the jury, would justify a voluntary manslaughter conviction, the judge might instruct the jury that they have this option as well as murder. This means that for a single homicide you could be convicted of murder or manslaughter, but not both.

Here’s an example of how this choice might arise. Using the bar example above, assume now that you chased after the offensive man for some period of time, and arguably had a chance to cool off before you caught and killed him. The prosecutor might argue that, because you had time to cool off, you’re guilty of murder. But if the jury decides that the cooling period wasn’t long enough to have calmed down from the agitating event, the prosecution can still argue you’re at least guilty of the lesser-included offense, manslaughter. And even if the prosecution doesn’t want to give the jury this option, the judge should do so anyway when the evidence would support this conclusion.

Involuntary Manslaughter

Voluntary manslaughter typically refers to unintentional killings where the perpetrator is either criminally negligent or accidentally kills someone while committing a misdemeanor or non-inherently dangerous felony. In many states, involuntary manslaughter can be based on the violation of a misdemeanor only if the misdemeanor statute was designed to protect people, or the defendant violated the statute in a manner that shows disregard for the safety of others.

For an example of involuntary manslaughter, suppose your neighbor has a dog that he knows is aggressive and dangerous; and suppose his backyard fence is broken, the neighbor knows it, and has not repaired it. The dog escapes, attacks a child, and kills him. The neighbor clearly didn’t intend the death or the attack, but he’s been negligent in failing to contain the dog (his intentional act is not fixing the fence), and perhaps he has violated a city ordinance concerning the keeping of dangerous pets. The neighbor could be charged with involuntary manslaughter (or, if the prosecutor thought the neighbor’s behavior was reckless enough, with murder).

Involuntary manslaughter can arise in countless scenarios that involve negligent or illegal behavior that causes a death. For example, restaurant management serving spoiled food, a nurse blindly administering the wrong medication; a contractor conducting a careless building demolition; and a caregiver leaving an infant unattended in a bath. Any of these situations, depending on the specific facts surrounding the death, might be prosecuted as involuntary manslaughter.

Like voluntary manslaughter, a charge of involuntary manslaughter could be brought by the prosecution as a less-included offense along with charges or murder or voluntary manslaughter. In cases with lesser-included offenses, the judge will instruct the jury at the end of the trial on the law governing each particular offense and explain that they cannot find the defendant guilty of more than one of the homicide charges.

Questions for Your Lawyer

  • How does my state distinguish between murder and manslaughter?
  • Is voluntary manslaughter a more serious crime than involuntary manslaughter?
  • Will I go to prison if I’m convicted of vehicular manslaughter?

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