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What’s the Difference Between First Degree and Second Degree Murder?

By Jason Bottlinger on November 7, 2021

Under Nebraska law, homicide is defined as the killing of a person by another. First degree murder and second degree murder are two distinct categories of homicide. Other categories of homicide include voluntary and involuntary manslaughter and motor vehicle homicide.

What Is First Degree Murder in Nebraska?

First degree murder is defined in Nebraska Revised Statue 28-303. A person commits murder in the first degree if he or she kills another person:

  • Purposely and with deliberate and premeditated malice, or
  • In the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or
  • By administering poison or causing the same to be done, or
  • By willful and corrupt perjury to purposely procure the conviction and execution of any innocent person.

What Is Second Degree Murder?

Second degree murder is committed intentionally but without premeditation. It is defined in Nebraska Revised Statute 28-304. The definition of premeditation is “to have formed a design to commit an act before acting.” To convict a person of murder in the second degree, the prosecution must prove three elements beyond a reasonable doubt – death, intent to kill, and causation.

How Is Premeditation Determined in First Degree Murder Cases?

To obtain a conviction for first degree murder, the state must prove that the defendant killed another person, did so purposely, and did so with deliberate and premeditated malice. Premeditated malice is defined as “having formed the intent or determination to kill the victim without legal justification.” No particular length of time is required for premeditation, provided the intent to kill was formed before the act was committed.

What Is the Role of Intent in Second Degree Murder Cases?

Second degree murder in Nebraska is intentionally causing the death of another person, but without premeditation. Intent to kill is an essential element of the crime. If the death of a person was caused accidentally, the offense is not murder in the second degree.

What Are the Legal Defenses Against Murder Charges in Nebraska?

Legal defenses your criminal defense attorney will raise will depend on the circumstances of your case. Common legal defenses against murder charges include:

  • Defendant did not commit the crime: It may be a case of mistaken identity. The victim in a murder case is no longer living and cannot testify. A witness may incorrectly identify a suspect.
  • Defendant committed the crime, but with justification: It may have been an act of self-defense. Nebraska’s “stand your ground” laws allow the use of deadly force if you believe you are protecting yourself or another person from death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat.
  • Prosecution cannot prove defendant committed the crime: The state must prove every element of first degree or second degree murder beyond a reasonable doubt to get a conviction. The prosecution may be unable to meet its burden of proof because of weak, circumstantial, or missing evidence, or illegal search and seizure making evidence inadmissible.

What Should You Do If You Are Charged With Homicide in Nebraska?

If you are facing homicide charges, speak with an Omaha criminal defense attorney as soon as possible. Second degree murder is a Class IB felony, punishable by a prison sentence of 20 years to life. First degree murder is a Class I or Class IA felony and carries a sentence of life in prison or the death penalty. A strong defense is essential to protect your future.

At Bottlinger Law L.L.C., we are compassionate listeners and strong litigators. Call us at (402) 505-8234 to schedule a free consultation if you are facing murder charges in Nebraska.

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