Model Jury Instructions on Homicide: V. Murder in the second degree

Part V of the Model Jury Instructions on Homicide

Murder in the second degree

In order to prove murder in the second degree, the Commonwealth must prove the following elements:^[167]

1. The defendant caused the death of [deceased's name].

2. The defendant had the required intent, which can be proven in one of three ways. These ways are that the defendant:

   1. intended to kill [deceased's name]; or
   2. intended to cause grievous bodily harm to [deceased's name]; or
   3. intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.^[168]

   [Note to Judge: Because the Commonwealth is now required to prove malice to convict a defendant of murder in the first degree on a theory of felony-murder, it is no longer proper to instruct a jury on the crime of felony-murder in the second degree.^[169]  If the Commonwealth proves an unlawful killing and malice, the defendant is guilty of murder in the second degree without the additional elements of the commission of a separate felony. Nonetheless, a defendant charged with murder in the first degree on a theory of felony-murder would be entitled, upon request, to an instruction on the lesser included offense of murder in the second degree if there is a rational basis in the evidence to find that the defendant killed the victim with malice but not in commission of a separate felony. Similarly, an instruction on manslaughter is appropriate if there is a rational basis in the evidence to find mitigation or an unlawful killing unintentionally caused by wanton or reckless conduct.]

3. [Where there is evidence of self-defense or defense of another] The defendant did not act in proper self-defense or in the proper defense of another.
4. [Where there is evidence of mitigating circumstances] In addition to these elements, the Commonwealth must also prove that there were no mitigating circumstances. If the Commonwealth proves all the required elements, but fails to prove beyond a reasonable doubt that there were no mitigating circumstances, you must find the defendant not guilty of murder, but you shall return a verdict of voluntary manslaughter.

[Where the defendant is charged with murder in the first degree with extreme atrocity or cruelty] 

The requirements of proof for murder in the second degree are the same as for murder in the first degree with extreme atrocity or cruelty, but without the element that the killing was committed with extreme atrocity or cruelty.

[Note to Judge: Where the defendant is not charged with murder in the first degree with extreme atrocity or cruelty, the judge must give the detailed instructions for each element of murder in the second degree that are set forth in the instructions for murder in the first degree with extreme atrocity or cruelty.]

Footnotes

[167] Commonwealth v. Berry, 466 Mass. 763, 772 n.16 (2014) ("The intent necessary to be proved for a conviction of murder in the first degree committed with extreme atrocity or cruelty, defined by three alternate prongs, is the same as the intent necessary for murder in the second degree").

[168] See Commonwealth v. Earle, 458 Mass. 341, 346-347 & n.9, 350 (2010) (finding evidence legally insufficient to support conviction of murder in second degree under theory that parent's intentional failure to act, in circumstances known to parent, created "plain and strong likelihood" of child's death); Commonwealth v. Grey, 399 Mass. 469, 470 n.1, 472 n.4 (1987) (in instructing jury regarding whether, in circumstances known to defendant, reasonably prudent person would have known of plain and strong likelihood of death, judge erred in instructing jury that malice was determined by objective standard, as objective reasonable person test is applied to circumstances defendant knew).  See also Commonwealth v. Lyons, 444 Mass. 289, 293-294 (2005) (discussing distinction between murder in second degree based on "plain and strong likelihood of death" and involuntary manslaughter based on "high degree of likelihood that substantial harm will result to another"; concluding judge erred in reducing conviction of murder in second degree to involuntary manslaughter).

[169] See Commonwealth v. Brown, 477 Mass. 805, 832 & n.4 (2017), cert. denied, 586 U.S. 826 (2018).

Date published:	March 30, 2026