Reporter's Notebook: Second degree murder vs. Manslaughter

Attorney says second degree murder is primary charge, what State is trying to prove

By Christina Vazquez - Reporter
Headline Goes Here

SANFORD, Fla. - After watching the defense utilize cross examination to bolster George Zimmerman's self defense claim through yet another round of state witnesses, many of you wanted to know what the difference is between second degree murder and manslaughter.

Miami-based former US Attorney David Weinstein breaks it down for you:

"Second degree murder is the primary charge and that is what the State is trying to prove.

The key for second degree murder is not necessarily reckless conduct, but conduct that an ordinary person (the everyday man or woman) would know is reasonably certain to kill or seriously harm someone and it is committed out of ill will, hatred, spite, or an evil intent (new Twitter shorthand – IW/H/S/EI) or indicates an indifference to human life (IHL).

The key words are reasonable and ordinary.

Would the average man or woman on the street (the ordinary person) know that -- (conduct) tracking down a "suspicious" person on a dark rainy night, forcing an encounter with them while you had a pre-determined plan in your mind to hold someone accountable for recent burglaries (IW/H/S/EI), confronting them, becoming involved in a fistfight with them while you were carrying a handgun on your person (IHL) -- would create a series of events that is reasonably certain (reasonable) to kill or harm that person?

If the answer, based on the proof submitted during the trial (and you were not acting in lawful self defense), is yes then you are guilty of second degree murder.

You don't get to reckless until you begin to consider manslaughter or self defense.

Here's where this all comes from; The law.

The basis for a second degree murder conviction is whether the actions of a defendant were:

"Imminently dangerous to another and demonstrating a depraved mind."

You prove that someone committed an act that was "Imminently dangerous to another and demonstrating a depraved mind" by showing:

  • A person of ordinary judgment would know (the act) is reasonably certain to kill or do serious bodily injury to another, and
  • (The act is) is done from ill will, hatred, spite, or an evil intent, and
  • Is of such a nature that the act itself indicates an indifference to human life.

Self defense is a recognized defense to second degree murder.

If the jury believes that George Zimmerman was in fear for his life and was defending himself within the confines of legitimate self defense under either common law or SYG they can find him not guilty.

If the jury does not believe that the prosecution can prove second degree murder, then they move on to consider whether or not he is guilty of the lesser included offense of manslaughter (by act).

To prove manslaughter (by act) the State must prove:

That Trayvon Martin is dead and that George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin

However - George Zimmerman cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide:

Negligence: Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.

Justifiable Homicide: (Self Defense) The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant

Excusable Homicide: The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:

1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or

2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or

3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner. (This would not apply because Zimmerman used a dangerous weapon)

In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death."

Copyright 2013 by All rights reserved. This material may not be published, broadcast, rewritten or redistributed.