Our lawyers focus on defending federal criminal offenses like first-degree murder and other government investigations.

In this article, we will discuss:

  1. The elements of first-degree murder;
  2. Crimes related to first-degree murder;
  3. Penalties for committing first-degree murder; and
  4. Potential defenses to first-degree murder charges.

If you have been charged with, or are under investigation for, first-degree murder contact an experienced federal criminal attorney now.

First-degree murder is a felonious crime under both federal and state law. Often the federal government and states will have concurrent jurisdiction so either federal or state courts can hear the case.

Elements of First-Degree Murder

Murder, manslaughter, and homicide are all crimes that involve the killing of another human being. The major difference between the three crimes and the differing degrees of murder and manslaughter is the mental state of the defendant before and at the time of the killing.

First-degree murder is the most serious of any of the crimes involving the death of another person. The elements of first-degree murder are discussed below.

Murder – 18 U.S.C §1111

Murder is the killing of another with malice aforethought. Malice aforethought is the state of mind required at the time of the murder that brings it to the highest charge, first-degree.

Malice aforethought means that the defendant was in 1 of 2 states of mind when the murder took place. First, the defendant, before committing the crime, had the conscious intention to kill a person or cause them great bodily harm.  Second, the defendant is acting in a depraved, evil state of mind in which they are unconcerned for the lives of others.

First-degree murder, and the malice aforethought necessary breaks down into two parts: intentional murder and murder in the course of a dangerous felony.

Intentional Murder

Intentional murder is every killing that is done through the use of poison, by the defendant

lying in wait, “or any other kind of willful, deliberate, malicious, and premeditated killing.”

For intentional murder there are three key elements: the formation of an intent to act, the action, and the result of the action must be death.

Formation of Intent

In the case of murder through the use of poison or when the defendant has been lying in wait for the victim, the fact that the defendant did some action in preparation for the act is enough proof to show malice aforethought.

Not all cases are so simple. Premeditation is harder to show evidence of. The definition of premeditation is also very blurry.

The premeditation required for first-degree murder can be created in moments. There is no amount of time required – the length of time it takes someone to think about the act and then act is sufficient even if it is mere seconds.

For example, if you look at a baseball bat, decide to use it as a weapon, and then pick it up, all in the matter of a few seconds, that can be considered premeditation.

The Act

This element is simple enough. The act is the use of whatever method, created in the mind during premeditation, to kill another person.

Resulting in the Death of Another

The act must result in the death of another. If the victim does not die as a result of your actions, then you cannot be charged with murder.

The victim does not have to be the person the defendant intended to kill. The defendant need only to act with the intent to kill and then kill someone other than themselves.

Murder in the Course of a Dangerous Felony

A killing that is committed in the course of a dangerous felony, or the attempt to commit a dangerous felony, is considered first-degree murder. The list of dangerous felonies is enumerated in the statute and includes:

  • Arson;
  • Escape;
  • Murder of another;
  • Kidnapping;
  • Treason;
  • Espionage;
  • Sabotage;
  • Aggravated sexual abuse or sexual abuse;
  • Child abuse;
  • Burglary;
  • Robbery; or
  • As a pattern or practice of assault or torture against a child or children

There is no intent to kill necessary. If, in the commission of one of the crimes listed above, you kill another person you can be charged with murder in the first-degree.

Crimes Related to First-Degree Murder

Second-Degree Murder – 18 U.S.C. §1111

Second-degree murder is, under the statute, any murder that is not first-degree murder. That is, any murder that is committed with malice aforethought but without premeditation or during a felony.

For example, second-degree murder could be the charge following an assault on a victim if that victim dies from his injuries.

If convicted of second-degree murder, you could face imprisonment from any term of years up to life imprisonment.

Manslaughter – 18 U.S.C §1112

Manslaughter is the unlawful killing of another human being without malice. It is split into two types:

Voluntary Manslaughter

Any person who commits murder of another in the heat of passion or upon a sudden quarrel may be charged with this.

The heat of passion is hard to define because of the quickness in which premeditation can occur.

An example of murder in the heat of passion would be the following. If a cop came home after his shift and without removing his weapon went upstairs to his bedroom. In his bedroom, he finds his wife with another man. As soon as he sees this, the cop pulls his weapon and shoots.

If found guilty of voluntary manslaughter, you could face up to 15 years in prison, a fine, or both.

Involuntary Manslaughter

Involuntary manslaughter is a murder committed in the course of any crime that is not a felony or caused by the negligence of the defendant.

An example of what would be considered an involuntary manslaughter charge is the following. If you, while driving a car, hit a pedestrian who was in a crosswalk because you were looking down at your phone.

If you are convicted of involuntary manslaughter, you could face up to 8 years in prison, a fine, or both.

Attempt to Commit Murder or Manslaughter – 18 U.S.C §1113

Any person who attempts to commit murder or manslaughter but is unsuccessful (i.e., the intended victim does not die) can be charged with this crime.

If convicted of attempted murder, you could face up to 20 years in prison, a fine, or both.

If convicted of attempted manslaughter, you could face up to 7 years in prison, a fine or both.

Conspiracy to Murder – 18 U.S.C. §1117

If two or more people conspire (secretly plan together) to commit murder and one or more of those people makes an overt act to commit the act conspired to.

An overt act is an act made in furtherance of the crime. An example of an overt act would be if, due to a plan to shoot someone, a member of a conspiracy buys a gun.

If convicted of conspiracy to murder, you and all of your partners in the conspiracy could face a prison sentence of any term of years to life imprisonment.

Other Crimes Related to First-Degree Murder

Below is a list of crimes related to first-degree murder but not as a close to the above-listed crimes.

  • Assault
  • Battery
  • Criminal possession of a weapon
  • Illegal purchase of a weapon
  • Dumping of a weapon
  • Any of the crimes listed under “Murder in the Course of a Dangerous Felony”

Investigation and Enforcement

Investigations into federal first-degree murder are generally a joint effort between state and federal agencies.

These agencies include, but are not limited to:

  • Federal Bureau of Investigation (FBI)
  • United States Department of Justice (DOJ)
  • State and local police departments
  • Federal Bureau of Alcohol, Tobacco, and Firearms (ATF)
  • Federal Drug Enforcement Administration (DEA)
  • Office of the United States Attorney General
  • United States Marshals

Depending on the circumstances surrounding a case, different federal and local agencies may become a part of the investigation.

For example, if a murder involves a protected person or takes place in a certain space, the United States Secret Service may get involved. Or if a member of the United States Navy is a murder  victim the Naval Criminal Investigative Service (NCIS) will be involved in the investigation.

Possible Penalties

If you are found guilty of first-degree murder, you face either life imprisonment or the death sentence.

As with most criminal penalties, the actual length of the sentence imposed after a conviction is determined by a judge based on a consideration of several sentencing factors and on the federal sentencing guidelines.

Factors, both aggravating and mitigating, looked at include, but are not limited to:

  • Criminal Record;
  • Role of the victim in the crime/ causing the crime; and
  • Past circumstances (such as abuse) that led to criminal activity;

Federal first-degree murder is a serious charge that carries with it an equally serious penalty. If you are under investigation for, or have been charged with, first-degree murder contact an experienced federal criminal law attorney today.

Non- Criminal Consequences

Due to the severity of the punishment for first-degree murder, if convicted, there are not many non-criminal consequences.

This is because if you are convicted of first-degree murder, the lowest possible sentence available for judges to consider is life imprisonment.

Facing Both Civil and Criminal Cases

In addition to the criminal charges brought against you by the state, the family of the victim in a first-degree murder case may also sue you for wrongful death in civil court.

Civil cases have a lower burden of proof necessary for a verdict  of liable then for a verdict of guilty in criminal cases. Due to this, it is possible to be found  liable in the wrongful death of a victim and not be criminally convicted of the murder of the same victim.

An example of this would be O.J. Simpson. Simpson was famously acquitted of the murder charges against him but was found liable in the wrongful deaths of his wife, Nicole Brown Simpson, and Ron Goldman, in civil court. He was ordered to pay $33.5 million to the families of his 2 victims.

If you are not criminally convicted, you may also become subject to restraining orders or orders of protection to keep you away from the family and friends of the victim. You could also lose custody to any children you may have.

Potential Defenses

Every criminal case is different, and defenses that work in one case may not work in another. It is important to have an attorney who is experienced in federal litigation and who can craft the best defense possible for your individual case.

The following are general defenses that can be used against a charge of first-degree murder.

Requisite Intent Missing

In order to be convicted of first-degree murder, the prosecution must prove that you acted with malice aforethought when committing the crime.

A good defense attorney will argue that you acted in the heat of passion or that you did not intend to kill your victim, only “beat them up.”

A defense that the intent necessary to commit first-degree murder will not get you acquitted but will often lessen the charges you are facing to second-degree murder or manslaughter, which carry a much lesser penalty with them.

Insanity or Other Mental Incapacity

A defense of insanity, or other mental incapacity, is one way that a person could argue that they did not have the necessary intent required at the time the crime was committed to be convicted of first-degree murder.

Intoxication is one form of mental incapacity. Being drunk prevents you from forming the intent to kill required for a conviction under the first-degree murder statute.

On the other hand, if you had the intent to commit murder before you became intoxicated, then the intoxication does not matter toward your intent.

Further, insanity is an excuse defense. This means that you, via your defense attorney, is admitting to having done the killing but that you did so because of a mental disease, disorder, or defect and could not have had the intent necessary.

Tainted or Insufficient Evidence

The prosecution must build a case around evidence, whether it be direct or circumstantial, physical or testimonial. The most important thing about the evidence is that it has not been interfered with in an unlawful way.

Unlawful interference with evidence can take several forms, but the most common would be alteration, destruction, or concealment of evidence. There can also be accidental evidence interference when the crime lab does not take proper precautions with evidence in a case.

Evidence could also be “thrown out” from a case because it was obtained in an unlawful manner by the investigating agency. Generally means that the agency did not have a warrant or the warrant was deficient in some way.

A good defense attorney will always examine all of the evidence that has the potential to be presented against you at trial and make as many motions as possible to stop as much evidence as possible from making it to the jury.

These motions could mean that something like a murder weapon being introduced into evidence at trial because the FBI obtained it without a search warrant.

A successful motion to suppress evidence could be the difference between a conviction and an acquittal at trial.

Prominent Cases

Former Marine Convicted of First-Degree Murder in Death Penalty Case

In April of 2015, Jorge Torrez, a former Marine, was convicted of the July 2009 murder of  Amanda Jean Snell, a member of the United States Navy.

Torrez snuck into Snell’s apartment, which was just a few doors away,  on Joint Base Myers – Henderson Hall in Arlington County, Virginia. In an apparently random attack, Torrez strangled Snell with the charging wire of a laptop.

Torrez was sentenced to death in 2014. He was later sentenced to 100 years in prison for the 2005 murders of 2 girls in his home state of Illinois.

Murder of Terry King

In 1998, Donald Fell and an accomplice kidnapped Terry King, took him across state lines, and killed him. He and the accomplice had also murdered Fell’s mother and a friend, but King’s murder received more media attention due to its being investigated by the federal government.

In 2005, Fell was convicted and sentenced to murder as a result of the federal charges against him.

In 2018, after a series of appeals, Fell changed his plea to guilty in order to avoid the death penalty and will instead serve the rest of his life in prison.


“If there is strong evidence against me or I have confessed to the crime, how can an attorney help me?”

In terms of a first-degree murder charge, a good attorney can literally be the difference between life and death. When the sentences imposed on crime is this harsh, a seasoned attorney can be key to your case.

An experienced federal criminal defense attorney will know the ins and outs of both the investigative process and judicial process, from arrest to sentencing – if the case even gets that far.

“Will I have to testify at my own trial?”

In the United States, you have a constitutional, fifth amendment right against self-incrimination. This means that you cannot be called by the prosecution to testify in a case in which you are a defendant.  

You can, however, testify on your own behalf. It is important to consult with your attorney on whether testifying would be beneficial or detrimental to your case.

Often, a defendant may have a statement they would like to make in their own interest but will ultimately choose not to testify. This is because going on the stand on your own behalf allows the prosecution to cross-examine you.

Cross-examination by the prosecution may do more harm than your direct examination by your own counsel does good. It is often a well thought out, strategic decision by a defense team on whether or not a client should testify.

Contact a Federal Criminal Attorney You Can Trust

Our attorneys are experienced and respected federal litigators with knowledge and experience in all federal judicial and investigatory practices and procedures. The attorneys have defended public companies and private individuals and will strive to protect you, your family, and your rights from charges and accusations of first-degree murder.