Malice aforethought

Malice aforethought was the "premeditation" or "predetermination" (with malice) that was required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, it has a technical meaning that has changed substantially over time.

Malice aforethought was the mens rea element of murder in 19th century America, and remains as a relic in those states with a separate first-degree murder charge.

As of 1891, Texas courts were overwhelmed with discussing whether "malice" needs to be expressed or implied in the judge's jury instructions. However, the 1970s revision of the Texas Penal Code states that a murder must be committed "intentionally or knowingly" in Texas.

In English law the mens rea requirement of murder is either an intention to kill or an intention to cause grievous bodily harm. In R v Moloney [1985], Lord Bridge held that intent is defined in the mens rea requirement of murder 'means intent' so the jury should simply use the term intent legally as they would in normal parlance. Furthermore, he held that for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This element of intention is fulfilled when the defendant's motive or purpose was to cause death or serious bodily harm (also known as 'direct intent') but also when the defendant's motive or purpose was not to cause death or grievous bodily harm but (as held by Lord Steyn in R v Woollin) death or serious bodily harm was a 'virtual certainty' of the defendant's act, and the defendant appreciated that to be so (also known as 'oblique intent.')

To varying extents in the United States, the requisite intention can also be found where the perpetrator acts with gross recklessness showing lack of care for human life, commonly referred to as "depraved-heart murder", or during the commission of or while in flight from any felony or attempted felony (termed felony murder). In England, such mens rea would result only in a verdict of reckless or constructive manslaughter.

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