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Homicide (Murder)

The terms “homicide” and “murder” are often used interchangeably, however, Wisconsin law distinguishes them. Murder is the taking of another person’s life during the commission of another felony crime, and homicide is the taking of another person’s life regardless of whether another crime is being committed.

Wisconsin law includes categorical definitions for intentional homicide, negligent homicide, reckless homicide, murder, and conspiracy, as well as other forms of homicide, such as homicide resulting from the negligent control of a vicious animal, or homicide by the use of a vehicle while intoxicated (often times referred to as vehicular homicide) or a firearm (such as a hunting death).

How We Help

The following sections discuss the various categories of homicide.  If you have been charged with a homicide, your best course of action is to contact a criminal defense attorney immediately. You should not discuss the case with anyone – the police, investigators, or even family members or friends, as any statements you make can be used against you in court.

Even if you wish to answer questions from the police, you should only do so in consultation with an attorney.  This is the case even if you have not been charged with a crime.  If you are or may be a suspect, you have the right to remain silent.

If you’ve been charged with a homicide, or believe that you may be considered as a suspect in a homicide, please contact us immediately. We offer a free consultation so that we can learn about the facts and circumstances of the case.  At this time we can also explain how we can represent you.

Intentional Homicide

Wisconsin law defines intentional homicide as the taking of another person’s life with intent to take a life. Intentional homicide may be charged in the first degree or the second degree.

First Degree Intentional Homicide

Under Wisconsin laws, first degree intentional homicide is the taking of another person’s life with intent to take a life, or the taking of the life of an unborn child with intent to take that unborn child’s life. The victim who dies need not be the intended victim.

As a result, if a person tries to shoot someone but misses and instead kills an innocent bystander, the shooter can be charged with first degree intentional homicide even though the person did not intend to harm the bystander.

First Degree Intentional Homicide Penalties

First degree intentional homicide is a class A felony punishable by a sentence of life in prison.

Mitigating Circumstances To First Degree Intentional Homicide

If mitigating circumstances existed at the time that the homicide occurred, the prosecution must disprove the mitigating circumstances. If the prosecution is unable to disprove mitigating circumstances, then the charge may be lessened to second degree intentional homicide.

Second Degree Intentional Homicide

Wisconsin law defines second degree intentional homicide as the intentional taking of another person’s life, or the life of an unborn child. As with first degree intentional homicide, the victim of the homicide need not be the intended victim.

Second Degree Intentional Homicide Penalties

Wisconsin law provides that any person found guilty (including those who plead guilty and no contest) may be charged with a class B felony punishable by up to 60 years in prison.

Mitigating Circumstances

Wisconsin law does not provide the affirmative defense of mitigating circumstances to second degree intentional homicide.

Affirmative Defense Defined

An affirmative defense is a part of the defendant’s response to the court to answer to the charges that the prosecution alleges the defendant committed. Those defenses can contest the facts of the case against the defendant, assert that there were mitigating circumstances, or use other legal principles to explain the situation at the time of the alleged crime.

Mitigating Circumstances Defined

Mitigating circumstances refers to some outside influence that occurred at the time that the homicide was committed. Mitigating circumstances do not justify homicide; rather, they explain that there is a legal defense to the charge.

A successful affirmative defense of mitigating circumstances can result in reducing the charge against the defendant, and in some situations, can preclude prosecution for the crime, such as when a person kills another person as a means of defending himself or another person.

In Wisconsin, a person may claim an affirmative defense to first degree intentional homicide for adequate provocation, unnecessary defensive force, prevention of a felony, coercion or necessity, and acts under another statute or law of the state.

Non-criminal Homicide

Some homicides are not a crime. For example, a person would most likely not be charged with criminal homicide if the situation at the time that the death occurred involved a car accident or a hunting accident. Additionally, a person who kills another person in order to defend himself or another person is unlikely to be charged with criminal homicide.

Not all non-criminal homicides are unintentional. In some situations, a homicide can occur that is both non-criminal and intentional, such as when a police officer kills an alleged assailant.

Capital Punishment

The term “capital crime” refers to a homicide. Capital punishment is a sentence to death, and is imposed in some states for capital crimes. Wisconsin has not legalized capital punishment. However, it has been now, and routinely is presented to the legislature for consideration.