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What Is The Open Murder Statute In Michigan?

by | Feb 6, 2020 | Homicide Offenses |


The Michigan Penal Code enumerates and punishes two different types of murder.

  • SECOND-DEGREE MURDER: The elements of second-degree murder are (1) a death, (2) caused by an act of the defendant, (3) with malice and (4) without justification.  Malice is defined as “the intent to kill, the intent to cause great bodily harm, or the intent an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.”  People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014).  “All other kinds of murder [other than first degree murder] shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.”  MCL 750.317.
  • FIRST-DEGREE MURDER: The elements of first-degree murder (punishable by imprisonment for life without eligibility for parole) includes ALL of the elements of second-degree murder plus one of the following:
    • “Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.” MCL 750.316(1)(a).
    • “Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, vulnerable adult abuse in the first or second degree, torture, aggravated stalking, or unlawful imprisonment.” MCL 750.316(1)(b).
    • “A murder of a peace officer or a corrections officer committed while the peace officer or corrections officer is lawfully engaged in the performance of any of his or her duties as a peace officer or corrections officer, knowing that the peace officer or corrections officer is a peace officer or corrections officer engaged in the performance of his or her duty as a peace officer or corrections officer.” MCL 750.316(1)(c).

These are the most serious crimes that can be committed in the State of Michigan with the harshest punishments under the law.  However, the prosecutor is allowed to charge the defendant with the offense of “open murder”.  What does this mean?

Michigan law gives the prosecutor significant latitude in what theory of murder that they intend to pursue.  “In all indictments for murder… it shall not be necessary to set forth the manner in which nor the means by which the death of the deceased was caused; but it shall be sufficient in any indictment for murder to charge that the defendant did murder the deceased…”.  MCL 767.71.  The prosecutor can charge the offense of open murder with encompasses both first- and second-degree murder.  “The jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree…”.  MCL 750.318.  This means that the prosecutor can charge open murder, present their case to the jury and let them decide which type of murder (if any) that the defendant should be charged with.

Does the open murder statute affect the defendant’s right to be notified of the charges against him.  “In all criminal prosecutions, the accused shall enjoy the right… to be informed of the nature and cause of the accusation.”  US Const, Am VI; Mich Const 1963, art 1, §20.  Everyone accused of a felony in Michigan has a right to a preliminary examination where the district court magistrate must determine there is probable cause that a crime was committed and the defendant may have committed it.  If the district court magistrate does not determine the appropriate degree of murder to charge the defendant, does that violate his right to be on notice of the charges?  The Michigan Supreme Court disagrees:

  • “Neither statute nor case law requires specification of the degree of murder at a preliminary examination where open murder is charged in the information. Indeed, at common law, there was no specification of degree of murder because all unexcused and unjustified homicides committed with malice were murder punished by death. Specification of degree is a legislative innovation used to distinguish between those murders meriting the harshest punishment and those murders meriting a less severe punishment. MCL 767.44 simply validates simplified short-form informations for the charging of various crimes. The “open murder” statute, MCL 767.71, recognizes that murder is a single offense and that, at the informational stage, no specification of degree is required. The information occurs after and depends upon the bindover for the possible charges.  MCL 767.45 requires that an information contain merely “[t]he nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged. . . .”  MCL 767.71 provides that an indictment or information charging murder need only set forth the “charge that the defendant did murder the deceased. . . .”  People v Johnson, 427 Mich 98, 107-108; 398 NW2d 219 (1986).
  • “The meaning of the “open murder” charge in Michigan statutory criminal procedure is that no evidence of premeditation and deliberation need be adduced at the preliminary examination. The preliminary examination provides the parameters of the information which may be filed by the prosecution. Since MCL 767.71 does not require specification of first- or second-degree murder in the information, it is a reasonable assumption that the Legislature had no intention of requiring proof of premeditation and deliberation at the earlier stage of the preliminary examination. No statute makes such a requirement. The nature of the process is from general to specific, not from specific to general. A requirement of specification of degree at the preliminary examination stage would make the provisions of MCL 767.71 for an open murder charge at the information stage totally meaningless.” People v Johnson, 427 Mich 98, 108-109; 398 NW2d 219 (1986).

Since there is no fundamental constitutional interest in being charged with degree-specific murder, a defendant is not deprived of his right to be informed of the offense charged under the open murder statute.

When facing a charge of open murder, you only get one opportunity to mount the best defense possible.  Otherwise, a conviction could amount to the rest of your natural life behind bars.  You need a skilled criminal defense lawyer that can carefully review the evidence, evaluate all possible defenses, and hold the prosecutor to their burden of proof that they must show either first-degree murder or second-degree murder was committed beyond a reasonable doubt.  If the prosecutor cannot prove that the defendant committed the crime (or cannot prove it was not a justified killing such as self-defense), then a not guilty verdict should be returned.  Even if the evidence against you is fairly strong, a lawyer in your corner may be able to negotiate a resolution to a lesser charge under the circumstances that doesn’t cause your entire life to be forfeited to prison.  There is only one chance to get it right the first time.

If you or a loved one is charged with murder or any other criminal offense and need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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