Second Degree Murder Defenses

Second-degree murder is a serious charge that can result in life imprisonment in some states. The death penalty is not an option.

 This article explains second-degree murder and the defenses available to individuals facing charges.

What Is Second-Degree Murder?

Second-degree murder is:

  1. The intentional killing of another human being
  2. With malice aforethought.

Unlike first-degree murder, which requires premeditation, second-degree murder occurs without a plan

Sometimes, the death of another person occurs due to the extreme carelessness of the perpetrator. In those cases, they are often charged with second-degree murder. This degree of recklessness is often referred to as "extreme indifference to human life."

Or, the offender may not actually intend to kill the victim — they may intend to cause serious injury. Either way, second-degree murder is likely what the charge would be.

Second-Degree Murder Defenses

There are several defenses that could apply to a second-degree murder charge. Many defendants assert that they didn't actually commit the crime. They may have an alibi.

Other defendants admit to taking a human life but claim some sort of justification. Self-defense is not an uncommon defense to murder. Attorneys call these types of defenses affirmative defenses. The defendant has the responsibility of proving an affirmative defense.

As with all criminal cases, a defense strategy will depend on the facts surrounding the charges and the laws of the jurisdiction. Read on to learn about the most common defenses that could apply to an allegation of second-degree murder.

Second-Degree Murder Defenses: Actual Innocence

A common defense that defendants raise with any criminal charge is that they didn't commit the crime. This defense could include presenting evidence of an alibi or challenges to the strength of the prosecution's case. Even eyewitness identification of the killer is not always reliable.

The prosecution has the burden of proof and must demonstrate — with proof beyond a reasonable doubt — that the defendant committed the murder. A defendant may raise a serious doubt about their guilt in the minds of the members of the jury. If they're successful, the jury will find them not guilty of the charge.

Second-Degree Murder Defenses: Insanity

The insanity defense isn't available in all states, but most jurisdictions allow it. "Not guilty by reason of insanity" — or NGRI — may prevent a second-degree murder conviction. Even where the defense is available, though, an NGRI verdict won't necessarily relieve a defendant of all responsibility for their actions.

Some states recognize that a defendant suffers from a serious mental illness. But, the offender still knew their actions were wrong or illegal when they committed the crime. These jurisdictions recognize a verdict of "guilty but mentally ill." Even though they were mentally ill, the defendant had the ability to control their actions when the killing occurred.

In the states that do recognize an insanity defense, what happens if someone is found not guilty by reason of insanity? The law will generally not hold them accountable for their actions if they can prove they met the legal definition of insanity at the time of the murder. The legal definition of insanity varies among the states. There are several different tests to evaluate sanity.

What does a "not guilty by reason of insanity" (NGRI) defense look like?

Here are three examples:

  • Because of a mental illness, the defendant was 1) unable to understand that their behavior was criminal, or 2) unable to control their behavior within the bounds of the law (Model Penal Code).
  • The defendant has a mental illness or injury that caused them to be unable to 1) understand what they were doing, or 2) know the difference between right and wrong (M'Naghten Rule).
  • The defendant has a mental illness and, as a result, could not control their actions. This "irresistible impulse" then caused them to commit a criminal act. Some states couple the irresistible impulse defense with the M'Naghten Rule.

In most states, a defendant who raises an insanity defense has the burden of proving it. But, in some states, the burden is on the prosecution to prove that the person was sane during commission of the crime.

What happens when a defendant is found not guilty by reason of insanity? Or, guilty but mentally ill?

Typically, in a murder case, the defendant will face commitment to a psychiatric facility for mental health treatment. The judge will review the defendant's progress periodically.

The defendant may be released in the future if it is determined they no longer pose a danger to anyone.

Second Degree Murder Defenses: Self-Defense

When a death occurs as a result of actions taken to protect one's life, or the life of another, it's possible that the defendant can escape legal consequences for the killing. The requirements for a self-defense argument vary depending on the jurisdiction (where the crime is charged). Criminal law recognizes a few general rules which are applicable to most self-defense situations:

  1. The defendant must be in a place that they had a right to be in when the situation arose. A trespasser, for example, cannot enter someone's home and then claim self-defense if they kill the property owner in a scuffle.
  2. The person claiming self-defense must not have provoked the slain party in any way. If the person who claims self-defense encouraged the victim to fight — or actually began a fight — their defense will be unlikely to succeed.
  3. The person acting in self-defense must have had a reasonable fear of immediate death or bodily harm that required the use of force. If the encounter would not result in death or great bodily harm, or if the killer's fear was unreasonable, then the self-defense argument would likely fail.

Furthermore, a person can only justify self-defense if the situation requires immediate action to prevent bodily harm or loss of life. A self-defense argument will fail if someone is killed after the danger has passed and the defendant is no longer in harm's way.

Some states also require that the person claiming self-defense retreat from the danger or attempt to defuse the situation before using force to protect themselves. If the person claiming self-defense doesn't attempt to retreat from the threat, the self-defense argument may not be available. Some states, on the other hand, have "stand your ground" laws, which remove the duty to retreat.

A person claiming self-defense is entitled to respond to the aggressor with the same amount, or a lesser amount, of force than the aggressor is using. If an aggressor attacks you with deadly force, or with a deadly weapon, you are permitted to defend yourself with the same amount of force or the same type of weapon.

Second-Degree Murder Defenses: Intoxication

When referring to criminal defenses, there are two basic kinds of intoxication: voluntary and involuntary. Voluntary intoxication refers to intoxication that an individual has chosen to engage in, such as getting drunk with friends at a bar. Involuntary intoxication occurs when a person becomes intoxicated for reasons outside of their control, usually after being drugged by someone else.

Voluntary Intoxication

People have claimed that because they were drunk or tipsy when committing a crime, they shouldn't be punished for it. Voluntary intoxication, though, isn't an excuse for committing a crime.

In some states, intoxication becomes a factor when determining what degree of homicide was committed. It's possible a second-degree murder charge could be reduced because of the defendant's intoxication at the time of the death. But this cuts both ways. In some cases a defendant's drunkenness may constitute an aggravating factor in the killing.

A prime example of voluntary intoxication being an aggravating factor occurs in alcohol-related vehicle deaths. A high blood alcohol content or prior drunk-driving convictions could easily be aggravating factors in a drunk-driving-related homicide.

Involuntary Intoxication


Involuntary intoxication will relieve a defendant of responsibility for a killing in most instances. The difficulty lies in proving that intoxication was involuntary.

Many people try to claim that alcoholism or drug addiction rendered their intoxication involuntary since they couldn't help but follow the compulsion to drink or do drugs. This argument is almost never successful. But if a person suffers from a mental disorder as a result of their drug or alcohol addiction, they may be able to argue an insanity defense discussed above.

What if a Second-Degree Murder Defense Is Unsuccessful?

When someone is charged with a homicide, often the judge or jury will often be required to consider other, less serious charges. At the end of a second-degree murder trial, the defendant will be found guilty or not guilty. Depending on the facts of the case, a defendant could also be found guilty of a lesser offense.

What other charges could they be convicted of? With second-degree murder, they could be found guilty of a "lesser included offense" of third-degree murder, voluntary manslaughter, or involuntary manslaughter. More on these lesser offenses below.

Third-Degree Murder

Some states, such as Minnesota, recognize a charge of third-degree murder. Third-degree murder is charged when a person is extremely reckless but had no intent to kill anyone.

Firing a gun in the direction of a crowd would fall into this class of homicide. While there is no intent to kill anyone, it is extremely reckless and potentially deadly to fire a gun near a crowd of people. If someone is hit and killed, the shooter could be charged with third-degree murder.

Voluntary Manslaughter

Voluntary manslaughter is often employed in "heat of passion" or "heat of the moment" cases.

The typical scene is:

Bob comes home from work. He finds his wife and the neighbor in a compromising position. A shotgun is nearby. Bob grabs it and impulsively shoots the neighbor. Because Bob acted in the "heat of passion," he'd likely be found guilty of voluntary manslaughter instead of second-degree murder.

Voluntary manslaughter is sometimes referred to as "imperfect self-defense." In this case, a defendant charged with murder argues they were acting in self-defense. However, the force they used was much more force than what the situation called for.

For example, Bob is walking down the street, and out of nowhere comes Adam. Adam pushes Bob, but not hard enough for him to fall down. Bob then pulls out his gun and shoots Adam five times at close range. The amount of force Bob used to protect himself largely exceeded the amount of force used by Adam when he pushed Bob.

If Bob is charged with second-degree murder, he could argue self-defense. He would probably not succeed and would, instead, be found guilty of voluntary manslaughter.

Involuntary Manslaughter

Most states have a charge of involuntary manslaughter. The most common case of involuntary manslaughter is the case of a deadly alcohol-related traffic accident. The driver had no intent to kill but acted recklessly by drinking and driving.

When a death occurs as the result of a DUI/DWI, the homicide is typically charged as involuntary manslaughter.

Learn More About Second-Degree Murder Defenses: Talk to a Lawyer

As you can see, there are a number of defenses to second-degree murder charges. Whether one — or several — apply in your case depends on the evidence.

A criminal defense lawyer, with experience in murder cases, can be your best ally. An attorney can help you determine your best defenses or negotiate a plea deal with the prosecution to reduce the charges. Request a case evaluation and legal advice from a criminal defense attorney in your area today.

Was this helpful?

Can I Solve This on My Own or Do I Need an Attorney?

  • Complex criminal defense situations usually require a lawyer
  • Defense attorneys can help protect your rights
  • A lawyer can seek to reduce or eliminate criminal penalties

Get tailored advice and ask your legal questions. Many attorneys offer free consultations.


If you need an attorney, find one right now.