Second Degree Murder Defenses

There are several defenses that could apply to a second degree murder charge. Most defendants assert that they didn't actually commit the crime. Other defendants admit to killing the victim, but claim some sort of justification. Attorneys call these types of defenses affirmative defenses. As with most criminal cases, the result of a defense strategy will depend on the facts surrounding the charges and the laws of the jurisdiction. Here is a list to illustrate the most common defenses that could apply to an allegation of second degree murder.

Actual Innocence

The most common defense that defendants raise is that they didn't perpetrate the crime. This defense can involve several elements, including the presentation of an alibi or challenges to the prosecution's evidence. The prosecution has the burden of proof, and must demonstrate beyond a reasonable doubt that the defendant committed the killing. Thus, if the defendant can raise a doubt about their guilt in the minds of the members of the jury, there is a good chance the jury will find them not guilty of the charge.


The insanity defense is not available in all jurisdictions, but most jurisdictions allow it. Even where its available, an insanity defense won't necessarily relieve a defendant of all responsibility for a second degree murder charge, though. Some jurisdictions recognize that a defendant has a mental illness, but still knew that their actions were wrong or prohibited at the time the crime took place. These jurisdictions often have a verdict of guilty but mentally ill, which means that, despite their mental illness, the defendant had control over their actions when the killing occurred.

In the jurisdictions that do accept the full insanity defense, if a defendant can show that they fit the legal definition of insanity at the time of the killing, the law will generally not hold them accountable for their actions. The legal definition of insanity varies between jurisdictions, and there are several different tests to show insanity. FindLaw's Insanity Defense Section has more information on the various standards for an insanity defense.


When a slaying occurs as a result of actions taken to protect ones own life, it is possible that the killer can escape legal consequences for the killing. The requirements for a self-defense argument vary between cases and jurisdictions, but there are a few general rules applicable to most self-defense situations.

Here are the basic elements of a self-defense claim:

  • The defendant was not in a place they were prohibited from entering.
  • The defendant cannot be at fault in the situation.
  • The defendant was not the aggressor or instigator.
  • The defendant had a reasonable fear of death or great bodily harm that required the use of force.
  • The defendant fulfilled the requirement to retreat from the threat or attempt to avoid danger.

First, 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 someones property and then claim self-defense if they kill the property owner in a scuffle.

Second, the general rule is that the person claiming self-defense must not have provoked the slain party in any way. If the situation arose because of the actions of the eventual killer, the killer cannot argue that the slaying occurred in self-defense. It might lessen the severity of the charge, but provocation by the defendant negates the possibility of an acquittal because of self-defense.

In addition, the person acting in self-defense must have had a reasonable fear of death or great bodily harm that necessitated the use of force. If the situation would not result in death or great bodily harm, or if the killers fear was unreasonable, then the self-defense argument is not available.

Furthermore, a person can only justify self-defense if the situation requires immediate action in order to prevent bodily harm or loss of life. Once the situation has ceased to threaten bodily harm or loss of life, the self-defense justification is no longer available.

For example, if a person acting in self-defense fires a shot that knocks their assailant unconscious and the shooter has enough time to perceive that the threat has ceased, the shooter could not justify firing another shot as self-defense.

Some states also require that the person claiming self-defense retreat from the danger or otherwise attempt to defuse the situation before using force to protect themselves. If the person claiming self defense does not attempt to retreat from the threat, the self-defense argument may not be available. Some states, such as Florida, do not require retreat before defending. This is often called a "stand your ground" law.


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. Getting drunk with friends at a bar is voluntary intoxication, even if you didn't mean to get as drunk as you actually did. Involuntary intoxication occurs when a person becomes intoxicated for reasons outside of their control, usually after being drugged by someone else.

Voluntary Intoxication

People often claim that, because they were drunk or otherwise intoxicated when committing a crime, they shouldn't be punished for it. Generally, however, voluntary intoxication isn't an excuse for committing a crime, and second degree murder is no different.

In some states, intoxication becomes a factor when determining degrees of homicides, though, so it is possible that a second degree murder charge could be reduced on the basis of the defendants intoxication at the time of the slaying. This cuts both ways, however, and the defendants intoxication may also constitute an aggravating factor in the killing.

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. If the defendant engaged in any voluntary intoxication, then the entire intoxication was voluntary.

Many people try to claim that alcoholism or drug addiction rendered their intoxication involuntary since they could not help but follow the compulsion to drink or do drugs. This argument is almost never successful.

If a person suffers from a mental defect as a result of their drug or alcohol addiction, however, they may be able to use the insanity defense discussed above.

Charged With Murder? You Will Want an Attorney

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 qualified attorney who has experience in murder cases can be your strongest ally and can help you determine your best defenses or possibly negotiate a plea deal with the prosecution to reduce the charges. Speak with a criminal defense attorney in your area today.

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