Second Degree Murder

Massachusetts General Law chapter 265 § 1:
The unlawful killing of a human being accomplished in one or both of the following modes:
(1) with malice aforethought; or
(2) in the commission or attempted commission of a felony punishable by other than death or imprisonment for life.

Malice Aforethought

Unlike first degree murder, which the statute describes in particularity, case law (meaning prior decisions of Massachusetts' courts and also known as "common law") defines the elements in second degree murder. Under Massachusetts law, murder in the second degree includes homicides committed with malice aforethought, that lack deliberate premeditation, extreme atrocity or cruelty, or participation in a felony punishable by life imprisonment (remember that the law requires these elements for murder in the first degree). Under Massachusetts case law, to prove murder in the second degree, the Commonwealth must establish that the perpetrator committed the killing with malice. As with murder in the first degree, malice means an intent to inflict grievous bodily injury without legal justification, or an intent to act in a manner likely to cause death or serious injury. The malice element does not require an intent to cause a death.

Felony Murder

For second degree felony murder, the same conditions as for first degree felony murder apply, with the exception that the underlying felony for second degree felony murder is punishable by less than death or a life sentence. Felonies such as larceny fall under this category. As in the case of first degree murder, to convict of second degree felony murder, the law requires that the underlying felony be one which is inherently dangerous or committed in a manner which demonstrates the defendant's conscious disregard for the risk to human life.

The maximum sentence for a second degree murder conviction is imprisonment for life with parole eligibility after fifteen years. It should also be noted that, unlike first degree murder, a defendant in a second degree murder case may waive the right to a jury and submit to a trial in which a judge determines guilt or innocence, otherwise known as a bench trial.


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