What is the Difference Between First, Second and Third Degree Murder?

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Crime scene tape

Unlawful killings in Australia are divided into two broad categories:

  1. Murder, which is a person kills another with the intention to kill or inflict grievous bodily harm, or with reckless indifference to human life, or during or immediately after the commission of an offence punishable by a maximum penalty of 25 years in prison, and manslaughter, and
  2. Manslaughter, which covers all other unlawful killings such as unintentially and without recklessness causing a death by an unlawful and dangerous act, criminal negligence or excessive self-defence.

The position in the United States is a little different. There, murders are divided into three categories: first, second and third degree murder, and there are also the lesser offences manslaughter and criminally negligent homicide.

First degree murder

First degree murder is the most serious category of murder offences in the US. Such a murder is where the killing is premeditated, intentional and carried out with ‘malice aforethought’; in other words, with a blatant disregard for human life.

In many states, the offence also covers ‘felony murder’, which is where the killing occurs during the commission of a serious offence, which in the United States is known as a ‘felony’ as distinct from a less serious offence, or a ‘misdemeanor’.

Second degree murder

The second most serious category is aptly known as second degree murder. This is where a person kills another without premeditation and may have intended to cause harm but not necessarily the death of the victim. 

Malice aforethought is a necessary element of the crime.

Third degree murder

The least serious category of murder is known as third degree murder, and only exists in three of the United States: Florida, Pennsylvania and Minnesota. 

It is where the killing was not premeditated, but there was some intent to cause harm but not to kill the victim.

Manslaughter

Although the definition of manslaughter varies from state to state, it generally involves killings that occur ‘in the heat of the moment’ without premeditation but with significant provocation, or a significant degree of criminal negligence, or during reckless behaviour as in the case of vehicular homicide, or during the commission of a ‘misdemeanor’.

Criminally negligent homicide

This is where a death occurs due to a person’s negligence; in other words, where a reasonable person would have taken more precautions to prevent harm from occurring to the victim.

United States police officers charged with second-degree murder

Just days ago, five Memphis Police Officers were terminated from their positions and charged with second-degree murder for fatally assaulting 29 year old Tyre Nichols earlier this month. 

The officers have each additionally been charged with aggravated assault, aggravated kidnapping resulting in bodily harm, aggravated kidnapping with a weapon, official misconduct through the exercise of power, official misconduct regarding failure to act when there is a duty imposed by law and official oppression. 

Bashed to death after a traffic stop

The officers pulled Tyre Nichols over for suspected reckless driving on 7 January 2023, and beat him so badly that he fought for his life for the following three days in hospital before succumbing to death from excessive blood loss. 

Video footage of the Memphis beating is so brutal and horrific that it has received condemnation from some of the US’ top police officials and authorities, as well as President Biden. But for those of us who have written, time and again, about these issues, the comments feel like platitudes because it is impossible NOT to condemn the actions of the police officers involved. 

Tyre was beaten with batons, kicked and punched well beyond his capacity to pose any threat to five officers. At one point, two officers hold Tyre upright as another punches him repeatedly in the face. Other officers stand by, without any attempt at intervention.  

As one commentator recently wrote, ‘the actions of officers have been branded ‘criminal’ and not ‘proper policing’, yet in the US, violence, coercive force, the carry and use of deadly weapons… are central to “proper policing” as the institution of policing in this country (the US) currently exists.’

Very little is known about Tyre’s arrest. He was stopped by police. Officers can be heard on released police audio of the incident saying he was running. Police later said he had been transported to hospital. 

This could be, as some suggest, explained away as just another example of the systemic racism that exists within the US police force, except that the five officers who have been arrested and charged are also black men. 

It’s important not to jeopardise the legal process underway and to understand that the men arrested are each innocent until proven guilty in a court of law. 

But there are questions that demand answers – for example, why five police officers were involved in what seems to be a relatively routine traffic stop, and why a 30-minute sustained beating of a handcuffed man was determined, by the officers at the time, as necessary during the course of arrest. 

Armed mobs in uniforms 

Memphis police has disbanded the special team the officers had belonged to, and dismissed them from the force after determining they used excessive force, failed to intervene, and failed to render aid.

A number of inquiries are in progress, including one by the Fire Department in relation to the actions of two firefighters who were present at some time during Tyre’s arrest. The firefighters have been temporarily suspended.  

Memphis Police, of course, have also released the video of Tyre’s beating – a move which many believe is a step towards accountability. 

In Australia, police are trained only to use force and weaponry as methods of last resort. 

But, as has been well documented for many years – in research papers, by the courts, by the Law Enforcement Conduct Commission (LECC), by the Royal Commission into Indigenous Deaths in custody, in the media … etc … There are countless incidents where people have been seriously injured or lost their lives at the hands of police – either at the time of arrest, or while in custody –  without any indication or proof of guilt with regard to why they were incarcerated to begin with. 

And in a significant number of cases, questions remain unanswered. 

All Australian police officers are armed to some degree – either with what are determined to be non-lethal weapons (pepper spray and tasers) or lethal weapons (guns). 

‘Mob policing’ has also been on the rise for some time. No longer do officers patrol just in pairs, but are more likely to be seen in public in larger groups. 

Police brutality must stop 

In Australia there are many examples of officers beating unarmed, restrained offenders and we don’t have crystal clear definitions about what’s determined to be acceptable force when it comes to police powers of arrest. 

In fact, some might argue that the threshold for proof for the use of force during arrest is declining, particularly given that while police are issued with body cams, footage is rarely available to be used as evidence. 

And this isn’t just occurring when adults are arrested, police use force on young people too. 

The NSW Law Enforcement Conduct Commission is currently investigating allegations that excessive force was used by five adult police officers during a “proactive policing” operation in northern NSW last September, during which a 14-year old indigenous teenager says he was “slammed on his head”.

Police had not activated their body-cams at the time of the incident. 

The young man is currently seeking for the LECC hearings to be made public – a decision is expected soon. 

Which leads us to transparency. The system will never change without information being available to the public. 

Irrespective of the racial issues we know exist, we need to thoroughly question and assess the whole system and philosophy of policing. 

If we don’t, then as a community, we too are implicit in the ongoing violence.  

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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