I have received many calls about the Mehserle trial and Judge Perry’s decision to allow the jury to consider manslaughter and second-degree murder, as opposed to murder in the first degree. Below is a  thorough definition of second-degree murder and manslaughter, both voluntary and involuntary. I personally agree with Judge Perry’s decision to have the jury try the facts of the case and be able to call the offense manslaughter, either voluntary with intent or involuntary without intent to kill Oscar Grant.

It is unlikely that the jury will find that the evidence reaches the legal threshold of proving murder “beyond a reasonable doubt”. It does not mean Officer Mehserle did not intend to kill Oscar Grant, it is just proving murder is dubious. However, did Officer Mehserle use too much force? Did Officer Mehserle act in a gross and reckless manner? Were Officer Mehserle’s actions reasonable? Did Officer Mehserle attempt to make a legal arrest in an unlawful manner, by use of unnecessary violence? These questions are now going to be tried by the jury. If they find Officer Mehserle did act unreasonably, recklessly and with or without intent to kill, he may be found guilty of manslaughter or murder in the second degree.

***

SECOND DEGREE MURDER
A non-premeditated killing, resulting from an assault in which death of the victim was a distinct possibility. Second degree murder is different from First Degree Murder which is a premeditated, intentional killing, or results from a vicious crime such as arson, rape, or armed robbery. Exact distinctions on degree vary by state.

According to the website Find Law, second degree murder is generally defined as “an intentional killing that is not premeditated or planned, nor committed in a reasonable ‘heat of passion’ ” or “a killing caused by dangerous conduct and the offender’s obvious lack of concern for human life.” However, the California Penal Code has specific laws on this crime.

The California Penal Code defines second degree murder as “all other kinds of murders” that are not first degree murder. It defines first degree murder as “all murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing.” It also defines first degree murder as murder “which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking” or “any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death.”

MANSLAUGHTER
The unjustifiable, inexcusable, and intentional killing of a human being without deliberation, premeditation,
and malice. The unlawful killing of a human being without any deliberation, which may be involuntary, in
the commission of a lawful act without due caution and circumspection.
Manslaughter is a distinct crime and is not considered a lesser degree of murder. The essential distinction
between the two offenses is that malice aforethought must be present for murder, whereas it must be
absent for manslaughter. Manslaughter is not as serious a crime as murder. On the other hand, it is not a
justifiable or excusable killing for which little or no punishment is imposed.

At Common Law, as well as under current statutes, the offense can be either voluntary or Involuntary Manslaughter. The main difference between the two is that voluntary manslaughter requires an intent to kill or cause serious bodily harm while involuntary manslaughter does not. Premeditation or deliberation,however, are elements of murder and not of manslaughter. Some states have abandoned the use of adjectives to describe different forms of the offense and, instead, simply divide the offense into varying degrees.

Voluntary Manslaughter
In most jurisdictions, voluntary manslaughter consists of an intentional killing that is accompanied by
additional circumstances that mitigate, but do not excuse, the killing. The most common type of voluntary
manslaughter occurs when a defendant is provoked to commit the Homicide. It is sometimes described
as a heat of passion killing. In most cases, the provocation must induce rage or anger in the defendant,
although some cases have held that fright, terror, or desperation will suffice.

If adequate provocation is established, a murder charge may be reduced to manslaughter. Generally
there are four conditions that must be fulfilled to warrant the reduction: (1) the provocation must cause
rage or fear in a reasonable person; (2) the defendant must have actually been provoked; (3) there
should not be a time period between the provocation and the killing within which a reasonable person
would cool off; and (4) the defendant should not have cooled off during that period.
Provocation is justifiable if a reasonable person under similar circumstances would be induced to act
in the same manner as the defendant. It must be found that the degree of provocation was such that a
reasonable person would lose self-control. In actual practice, there is no precise formula for determining
reasonableness. It is a matter that is determined by the one who judges the fact, either the jury or the
judge in a nonjury trial, after a full consideration of the evidence.

Certain forms of provocation that frequently arise have traditionally been considered reasonable or
unreasonable by the courts. A killing that results from anger that is induced by a violent blow with a fist
or weapon might constitute sufficient provocation, provided the accused did not incite the victim. It is not
reasonable, however, to respond similarly to a light blow. A killing that results from mutual combat is often
considered manslaughter, provided it was caused by the heat of passion aroused by the combat. An
illegal arrest of one who knows of or believes in his or her innocence may provoke a reasonable person,
although cases are in dispute on the issue of whether such an arrest would justify a killing. An attempt
to make a legal arrest in an unlawful manner by the use of unnecessary violence might also constitute
a heat of passion killing that will mitigate an intentional killing. Some cases have held that a reasonable
belief that one’s spouse is committing Adultery will suffice. An injury to persons in a close relationship
to the accused, such as a spouse, child, or parent, is often held to constitute reasonable provocation,
particularly when the injury occurs in the accused person’s presence.

Mere words or gestures, although extremely offensive and insulting, have traditionally been viewed as
insufficient provocation to reduce murder to manslaughter. There is, however, a modern trend in some
courts to hold that words alone will suffice under certain circumstances, such as instances in which a
present intent and ability to cause harm is demonstrated.

The reasonable person standard is generally applied in a purely objective manner. Unusual mental or
physical characteristics are not taken into consideration. The fact that a defendant was more susceptible
to provocation than an average person because he or she had a previous head injury is not relevant to
a determination of whether the person’s conduct was reasonable. There has, however, been a trend in
some cases that indicates a willingness to consider some subjective factors.

If a reasonable period of time passed between the provocation and the killing so that the defendant had
sufficient time to cool off, a homicide will not be reduced to manslaughter. Most courts will reduce the
charge if a reasonable person would not have cooled off. Some, however, look solely at the defendant’s
temperament and make a subjective decision as to whether the person had sufficient time to regain self-
control.

In some states, there is a case-law trend in which a killing that is committed under a mistaken belief that
one is justified constitutes voluntary manslaughter. It is reasoned that although the crime is not justifiable,
it is not serious enough to be murder.

It is a general rule that a defendant who acts in Self-Defense may only use force that is reasonably
calculated to prevent harm to himself or herself. If the person honestly, but unreasonably, believes
Deadly Force is necessary and, therefore, causes another’s death, some courts will consider the crime
voluntary manslaughter. Similarly when a defendant acts under an honest but unreasonable belief that
he or she has a right to kill another to prevent a felony, some courts will find the person guilty of voluntary
manslaughter. Although it is generally considered a crime to kill another in order to save oneself, the
justification of coercion or necessity may, likewise, reduce murder to manslaughter in some jurisdictions.

Involuntary Manslaughter
Involuntary manslaughter is the unlawful killing of another human being without intent. The absence of
the intent element is the essential difference between voluntary and involuntary manslaughter. Also in
most states, involuntary manslaughter does not result from a heat of passion but from an improper use of
reasonable care or skill while in the commission of a lawful act or while in the commission of an unlawful
act not amounting to a felony.

Generally there are two types of involuntary manslaughter: (1) criminal-negligence manslaughter; and
(2) unlawful-act manslaughter. The first occurs when death results from a high degree of Negligence or
recklessness, and the second occurs when death is caused by one who commits or attempts to commit
an unlawful act, usually a misdemeanor.

Although all jurisdictions punish involuntary manslaughter, the statutes vary somewhat. In some states,
the criminal negligence type of manslaughter is described as gross negligence or culpable negligence.
Others divide the entire offense of manslaughter into degrees, with voluntary manslaughter constituting a
more serious offense and carrying a heavier penalty than involuntary manslaughter.
Many statutes do not define the offense or define it vaguely in common-law terms. There are, however,
a small number of modern statutes that are more specific. Under one such statute, the offense is defined
as the commission of a lawful act without proper caution or requisite skill, in which one unguardedly or
undesignedly kills another or the commission of an unlawful act that is not felonious or tends to inflict
great bodily harm.

Criminally Negligent Manslaughter
A homicide resulting from the taking of an unreasonable and high
degree of risk is usually considered criminally negligent manslaughter. Jurisdictions are divided on the
question of whether the defendant must be aware of the risk. Modern criminal codes generally require
a consciousness of risk, although, under some codes, the absence of this element makes the offense a
less serious homicide.

There are numerous cases in which an omission to act or a failure to perform a duty constitutes criminally
negligent manslaughter. The existence of a duty is essential. Since the law does not recognize that an
ordinary person has a duty to aid or rescue another in distress, an ensuing death from failure to act would
not be manslaughter. On the other hand, an omission in which one has a duty, such as the failure of a
lifeguard to attempt to save a drowning person, might constitute the offense.

When the failure to act is reckless or negligent, and not intentional, it is usually manslaughter. If the
omission is intentional and death is likely or substantially likely to result, the offense might be murder.
When an intent to kill, recklessness, and negligence are present, no offense is committed.
In many jurisdictions, death that results from the operation of a vehicle in a criminally negligent manner
is punishable as a separate offense. Usually it is considered a less severe crime than involuntary
manslaughter. Although criminal negligence is an element, it is generally not the same degree of
negligence as that which is required for involuntary manslaughter. For example, some vehicular homicide
statutes have been construed to require only ordinary negligence while, in a majority of jurisdictions, a
greater degree of negligence is required for involuntary manslaughter.

Unlawful-Act Manslaughter In many states, unlawful-act manslaughter is committed when death results
from an act that is likely to cause death or serious physical harm to another person. In a majority of
jurisdictions, however, the offense is committed when death occurs during the commission or attempted
commission of a misdemeanor.

In some states, a distinction is made between conduct that is malum in se, bad in itself and conduct
that is malum prohibitum, bad because prohibited by law. In these states, the act that causes the death
must be malum in se and a felony in order for the offense to constitute manslaughter. If the act is malum
prohibitum, there is no manslaughter unless it was foreseeable that death would be a direct result of
the act. In other states that similarly divide the offense, the crime is committed even though the act was
malum prohibitum and a misdemeanor, especially if the unlawful act was in violation of a statute that was
intended to prevent injury to other persons.