DerryNews.com, Derry, New Hampshire

October 12, 2011

First- and second-degree murder are quite different

About the law
Andrew Myers

Reading the news about high-profile cases, I see first and second degree murder charges. What really is the difference?

Conviction on a charge of first-degree murder requires a demonstration of premeditation and deliberation. Second-degree murder is the causing of death under circumstances showing an extreme indifference to the value of life, or where the death is caused by use of a deadly weapon in the commission of attempted commission of or flight from a class A felony.

First degree requires what the law calls a deliberate and premeditated design to kill, which precedes the killing by some appreciable space of time.

However, the time need not be long. There need be only opportunity for reflection and consideration. So, premeditation and deliberation are considered the unique ingredient distinguishing first-degree murder.

Where this cannot be established and under what is called "heat of passion," the criminal offense becomes second degree.

New Hampshire law requires that a person convicted of first-degree murder "shall be sentenced to life imprisonment and shall not be eligible for parole at any time."

State law allows for a life sentence for conviction on second-degree murder "or for such term as the court may order." So, the difference between first- and second-degree can mean the difference between life in prison and a prison term measured in years.

Finally, where negligence or recklessness causes an unintentional killing, then the charge is manslaughter, which carries less severe penalties.

I have to go to court in a few weeks in a messy divorce and custody case. I heard at the gym that my ex apparently has a coworker that is friends with someone at the sheriff's department and they asked to put in a good word for them to the judge. I actually know someone that has a boyfriend in the probation department and I want to do the same, have a good word put in for me. Can I do that?

Yikes stripes! No. Having any sort of contact with a judge outside of the courtroom while in session is called an "ex parte" communication and is, without question, off limits. Even if the contact is through a third party, this is a clear "no-no."

I'm only guessing here — and I may be wrong — but in the emotion of the moment, it's quite possible that this is a rumor cooked up intentionally to unnerve you.

Also, I can't see the good folks in the sheriff's department or probation, or anywhere else in the system for that matter, taking part in such an idea.

I would discuss it with your attorney. If you don't have one you might coolly and calmly discuss it with the court clerk in the courtroom, who would bring it up with the court.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.