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Implied Malice: What Does the Future Hold?

NCJ Number
Criminal Justice Journal Volume: 13 Issue: 1 Dated: (Winter 1991) Pages: 59-80
T Cristy
Date Published
22 pages
The California Supreme Court has ruled that a person may be charged with murder under the concept of implied malice in situations where he was not only aware that his activity, for example, drunk driving, created a highly probable risk of death, but also ignored that recognition.
Because implied malice does not specifically define the activities which would constitute murder, the courts have had discretion in determining whether the risk is excessive and the conduct culpable. This has resulted in some ambiguity in the meaning of implied malice and has blurred the line between murder and manslaughter. This article explores the meaning of malice, its historical development, and how its presence is detected in a defendant's conduct. The second part of the article examines the court's efforts to construct a standard by which some measure of specificity can be applied to each incident. The author concludes that there are three, viable options for dealing with cases which involve volitional, but unintended killing: the court may assess the degree of liability on a case-by-case basis, the legislature could pass a statute listing the types of conduct which qualify as implied malice, or the legislature could adopt the model Penal Code's "extreme reckless indifference to the value of human life" standard. 102 notes


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