Self-Defense and Second-Degree Murder

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Second degree murder, generally speaking, is classified as any non-premeditated killing where the killer, acting under his own free will,  intended harm and knew that the consequences could be potentially lethal. The biggest distinction between second degree and first-degree murder is the mindset of the perpetrator in at the time of the killing. Many second defense murders are borne out of killing done impulsively with malice aforethought, out of actions meant to cause serious bodily harm, or out of an action that demonstrates the perpetrator’s “depraved indifference to human life.” (Thomson Reuters) These caveats, especially the first two, make it difficult to for attorneys defending against such a charge to claim that their client acted in self-defense, since the goal of the violence undertaken by the defendant is to invoke harm upon their attacker to protect themselves, even if they may not expect their action to be lethal. While there is a more obvious gray area in cases where someone claims to act in self-defense and winds up accidentally killing an innocent bystander – a situation in which either a manslaughter or negligent homicide charge would be more appropriate - if the attacker is the one who winds up dead, then the distinction between the intent of the defendant and the charge levied against them becomes more difficult to pin down.

As described in the handout from class, for a self-defense claim to be successfully mounted, it requires proving that the defendant’s use of force was to prevent an unlawful act, that it was immediately necessary to protect themselves, and that the amount of force used was not excessive. For a defense attorney trying to successfully mount a self-defense claim, it would be most appropriate to use information that would help prove that the defendant did not intend their action to be lethal, which would constitute the use of a reasonable amount of force. Let’s say a burglar breaks into a house, and the homeowner, fearing for their safety, grabs a baseball bat and goes to defend themselves and their property. The two meet and come to blows. The homeowner, swinging wildly, hits the burglar in the head and kills them. While it would be difficult, the defense could claim that, in the heat of the moment, the defendant was merely trying to save themselves from imminent danger and did not intend to strike the victim in the head. In this instance, it would also be necessary to establish that the defendant was acting out of necessity. If they went hunting for the burglar, then this would be trickier to prove, but if the burglar came to them first then it would be more of an open-and-shut case.

For prosecutors attempting to gain a conviction and refute the self-defense argument, it’s essential to prove that the defendant’s act doesn’t meet the three previously discussed guidelines. The easiest of these would be the use of reasonable vs. excessive force. If the aforementioned homeowner were to scuffle with the burglar and, seeing an opportunity to gain the upper hand, push the burglar down the stairs to their death, then the prosecution could successfully argue that the defendant used excessive force. It could be claimed that there was no need to get so violent during a fistfight, and that the defendant could have reasonably known that their action may have led to the death of the burglar. If use of excessive force is more difficult to prove, then the prosecution could also attempt to prove that it was not immediately necessary for the defendant to protect themselves. As discussed earlier, if the homeowner goes hunting for the burglar, then this particular argument becomes stronger, since the homeowner is taking on the responsibility of putting themselves in danger instead of trying to stay safe.

Since second degree murder is a tricky crime to pin someone with, it is essential that any self-defense claim used in defense of such a charge be airtight, with the three guidelines – stopping an unlawful act with immediate necessity to protect oneself, while using reasonable force – able to be unequivocally proven by the defense.


Hill, G., & Hill, K. (n.d.). Legal definition of second-degree murder. The Free Dictionary. Retrieved from

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Thomson Reuters. Second degree murder overview. (n.d.). Criminal Law - FindLaw. Retrieved from