Duhaime's Law Dictionary


Deliberate Definition:

An act which is neither sudden nor rash and for which an individual considered the probable consequences beforehand.

Related Terms: First Degree Murder, Homicide, Murder, Deliberate Ignorance, Deliberate Indifference, Complicated Design Evidence, Premeditation

Canada's Criminal Code (2010) at §231 uses the term deliberate as a prerequisite of first degree murder (along with the requirement that it be planned). In that context, Chief Justice Lamer of Canada's Supreme Court adopted these words in R v Nygaard:

"Planned means that the scheme was conceived and carefully thought out before it was carried out and deliberate means considered, not impulsive.

"As far as the word deliberate is concerned, I think that the (Criminal) Code means that it should also carry its natural meaning of considered, not impulsive, slow in deciding, cautious, implying that the accused must take time to weigh the advantages and disadvantages of his intended action."

In State v Miller, Justice Robert Ulrich of the Missouri Court of Appeals provided a summary of the criminal law as regards first degree murder and the necessary element of deliberation:

"A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter. Deliberation required for conviction for murder in the first degree is defined as cool reflection for any length of time no matter how brief. The deliberation necessary to support a conviction of first-degree murder need only be momentary; it is only necessary that the evidence show that the defendant considered taking another's life in a deliberate state of mind. A deliberate act is a free act of the will done in furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful purpose and while not under the influence of violent passion suddenly aroused by some provocation. Deliberation may be inferred from the circumstances surrounding the murder."

Section 189 of the California Penal Code (2010) defines murder of the first degree as being willful, deliberate, and premeditated killing.

In People v Felix, Justice O'Neill of the Court of Appeals of California wrote:

"Premeditated means considered beforehand, and deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.

"The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. The fundamental inquiry is whether a rational jury could have concluded that the crime occurred as a result of preexisting reflection rather than a rash or unconsidered impulse."

In State v McGhee, Justice Heavican of the Supreme Court of Nebraska wrote:

"Deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act.

"The term premeditated means to have formed a design to commit an act before it is done.

"One kills with premeditated malice if, before the act causing the death occurs, one has formed the intent or determined to kill the victim without legal justification.

"No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. The time required to establish premeditation may be of the shortest possible duration and may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed. A question of premeditation is for the jury to decide."

In State v Stitt, Justice Robert Hunter of the Court of Appeals of North Carolina wrote:

"First-degree murder is the unlawful killing of another human being with malice and with premeditation and deliberation.

"A killing is premeditated if the defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing.

"A killing is deliberate if the defendant acted in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.

"Premeditation and deliberation are usually proven by circumstantial evidence because they are mental processes that are not readily susceptible to proof by direct evidence."

REFERENCES:

  • Criminal Code, R.S.C. 1985, c. C-46
  • People v. Felix, 172 Cal. App. 4th 1618 (2009)
  • R. v. Nygaard, [1989] 2 S.C.R. 1074
  • R. v. Widdifield, 6 Crim. L.Q. 152 (1961, Ontario Supreme Court)
  • State v. McGhee, 742 NW 2d 497 (2007)
  • State v. Miller, 220 SW 3d 862 (2007)
  • State v. Stitt, 689 SE 2d 539 (2009)

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