Malice aforethought
Malice aforethought is the "premeditation" or "predetermination" (with malice) required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few.[1] Insofar as the term is still in use, it has a technical meaning that has changed substantially over time.
For the novel, see Malice Aforethought.Etymology[edit]
Malice aforethought is a direct translation of the Law French term malice prépensée,[2] so the adjective follows the noun as in French.
Modern law[edit]
England[edit]
In English law, the mens rea requirement of murder is either an intention to kill or an intention to cause grievous bodily harm. In R v Moloney [1985],[15] Lord Bridge held that intent, as defined in the mens rea requirement of murder, 'means intent', so the jury should simply use the term intent legally as they would in normal parlance. Furthermore, he held that for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This element of intention is fulfilled when the defendant's motive or purpose was to cause death or serious bodily harm (also known as 'direct intent') but also when the defendant's motive or purpose was not to cause death or grievous bodily harm but (as held by Lord Steyn in R v Woollin)[16] death or serious bodily harm was a 'virtual certainty' of the defendant's act, and the defendant appreciated that to be so (also known as 'oblique intent.')[17]
United States[edit]
In most common law jurisdictions, the American Law Institute's Model Penal Code, and in the various U.S. state statutes, which have codified homicide definitions, the term has been abandoned or substantially revised. The four states of mind that are now recognized as constituting "malice aforethought" in murder prosecutions are as follows:[18]