West Virginia Homicide Jury Instructions Project Professor James R. Elkins & Students at the West Virginia University College of Law [Spring][2006]




Premeditation & Deliberation

Standard Jury Instruction (Premeditation): The Court instructs the jury that to premeditate is to think of a matter before it is executed. Premeditation implies something more than deliberation, and may mean the party not only deliberated, but formed in his mind the plan of destruction.

Standard Jury Instruction (Deliberation):  The Court instructs the jury that to deliberate is to reflect, with a view to making a choice. If a person reflects even for a moment before he acts it is sufficient deliberation.

Proposed Jury Instruction (Premeditation): The defendant has been charged with murder. To convict the defendant of first degree murder, you must find that the defendant's acts were premeditated and deliberate.

Premeditated killing means that the defendant intended to kill and made a conscious decision to do so. It means simply that the defendant had an opportunity to think about [his] [her] acts before they were undertaken. The decision to kill must have been formulated at the time of the killing. The law does not fix an exact period of time that must pass between the formation of the intent to kill and the acts that result in the killing. The period of time must, however, be long enough to allow reflection and conscious choice by the defendant.

Whether premeditation exists is to be determined by all the evidence presented to you concerning the facts and circumstances of the killing.

Proposed Jury Instruction (Deliberation): Deliberation requires reflection and the making of a choice. If a person reflects on the act of killing, for whatever length of time, it is sufficient to constitute deliberation.

Commentary & Relevant Cases

1. §61-2-1 of the West Virginia Code defines first degree murder (among other definitions), as "any willful, deliberate and premeditated killing . . . ." First degree murder also requires a showing of malice.

2. The primary cases on premeditation and deliberation are: State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (Sup.Ct.App. W.Va., 1982) [text of the opinion] and State v. Guthrie, 194 W.Va. 657, 461 S.E.3d; 1995 W.Va. LEXIS 169 (Sup.Ct. App. W.Va., 1995)(overturning the definition of premeditation and deliberation in Schrader) [on-line text] [Justice Workman concurring]

3. The revised premeditation jury instruction is modeled on Florida's instruction. [Standard Jury Instructions for Criminal Cases]