Wisconsin Intentional Homicide & murder Laws

Under Wisconsin law, intentional homicide is classified into two degrees: first degree intentional homicide and second degree intentional homicide. Although any homicide is often referred to as murder, the law is very specific regarding the acts (actus reus), mental intent (mens rea) and cause (actual and proximate cause, which means that the act must have been a substantial factor in causing the resulting death), and murder is a separate serious felony crime. [Murder] [Felony Murder Rule]

First Degree Intentional Homicide

Wisconsin Statute 940.01 defines first-degree intentional homicide as an act committed by any person causing the death of another person with the intent to kill that person or another person.

First degree intentional homicide is a Class A Felony offense punishable by a mandatory life prisonsentence.

If the intent was to kill an unborn child, the pregnant woman of an unborn child, or another, the charge is the same as if the intent was to kill a born child or an adult.

Wisconsin law provides that the resulting victim need not have been the intended victim. If the resulting victim was not the intended victim, the intent to kill the intended victim transfers to the resulting victim under the legal doctrine of transferred intent.

Premeditated murder, murder with malice and aforethought, and wanton or depraved heart murder are common law terms equivalent to Wisconsin's first degree intentional homicide statute. Premeditated murder is murder with malice and aforethoght; malice is an intent to kill, and aforethought is the deliberation upon that intent. Deliberation only requires a second thought, a momentary reconsideration. Wanton disregard for human life is a malice mens rea (criminal or culpable mind). A depraved heart is the same as wanton disregard for human life; it is without regard for another person's life.

An intentional homicide committed with "just cause" can be mitigated from first degree intentional homicide to second degree intentional homicide. Examples of just cause might be an imperfect self defense, adequate provocation (heat of passion crimes), unnecessary defense force, prevention of a felony, coercion or necessity. [Mitigating Circumstances]

Conversely, an accidental homicide, an unintentional homicide, or a privileged killing are excusable homicides. The law allows the defendant to be excused from criminal liability because the act and the intent were not criminal. An accident homicide lacks intent, and while it may have occurred during an act in which the actor was negligent, only a homicide committed by a person who is criminally negligent and whose act and criminal negligence were a substantial factor in the resulting death is a crime.

Second Degree Intentional Homicide

Wisconsin statute 940.01(2) provides mitigating circumstances as affirmative defenses to first degree intentional homicide reducing the charge to second degree intentional homicide.

Under Wisconsin statute 940.05, second degree intentional homicide is defined as an act by any person causing the death of another human being or unborn child with the intent to kill that person or unborn child or the mother of the unborn child.

Second degree intentional homicide is a Class B Felony punishable by imprisonment for up to 60 years; additional penalties can be imposed upon a person who has prior felony or misdemeanor convictions.

Wisconsin defines first degree intentional homicide and second degree intentional homicide with the same verbiage, but there is a substantial difference.

Second degree intentional homicide is, in essence, common law manslaughter. Wisconsin legislature eliminated the crime of manslaughter when the Wisconsin criminal code was rewritten. Second degree intentional homicide provides stiffer penalties than the previous manslaughter law, and a means by which the state prosecuting attorney can more easily obtain a conviction.

There are no affirmative defenses of mitigating circumstances available under Wisconsin statutory law to second degree intentional homicide; mitigating circumstances (self defense, coercion, adequate provocation (heat of passion murder), unnecessary defensive force, or prevention of a felony) are only available to the charge of first degree intentional homicide. If the state prosecution either fails to prove or concedes that it cannot prove that mitigating circumstances did not exist, then the charge is mitigated from first degree intentional homicide to second degree intentional homicide.

Affirmative Defense

An affirmative defense is part of the defendant's response to the complaint. A defendant asserts an affirmative defense through his or her attorney in response to the charges provided in the complaint. Basically, an affirmative defense states, "yes, I committed the crime, but I have a defense." The affirmative defense is usually due to mitigating circumstances.

The burden of proof is upon the prosecuting attorney to prove beyond a reasonable doubt that the mitigating circumstances did not exist. While that level of proof may seem difficult to achieve, juries often return incorrect verdicts. If you or someone you care about are under investigation for homicide, if you have been charged with homicide, or if you have been convicted of homicide, please contact the attorneys at Van Wagner & Wood right away for a professional first-impression analysis of the case against you.

Criminal Homicide Defense Attorneys - Van Wagner & Wood

Criminal homicide is a very serious felony charge. If convicted, the minimum penalty is sixty years in a state prison for second degree intentional homicide, and life imprisonment for first degree intentional homicide.

Attorney Chris Van Wagner has handled nearly one hundred felony trials to verdict in his more than twenty years as a criminal attorney.

Recently, Attorney Chris Van Wagner represented a defendant accused of murder in a twenty-eight year old case. After eighteen months of aggressive defense by Attorney Van Wagner, the state conceded its hand and dropped the charges. In another case, he won an outright acquittal on murder and hiding a corpse after the defendant had confessed to committing murder and hiding the corpse. And in yet another case, he obtained an acquittal for a defendant charged with multiple counts of sexual assault after the prosecution presented overwhelming factual evidence (evidence that a sexual assault had occurred).

Finding Experienced Criminal Murder Defense Lawyers

Crime rates are very low in Wisconsin, and serious crimes, such as homicide, represent a very small percentage of the total crimes committed in Wisconsin, particularly when compared to New Jersey, where Chris Van Wagner began his legal career as a prosecutor, or Chicago, where Chris began his private practice. Chicagos hardened criminal courts readily sentence convicted felons, including to capital punishment (to death for capital crimes, such as murder), and present challenges that most lawyers never experience, yet none of Chris clients ever saw death row.

The O. J. Simpson trial gave America its first view into criminal proceedings. It demonstrated, among other things, the prosecutions vast resources available to prosecute a crime, the prosecutors access to forensic lab tests and results, to police witnesses and their testimony, to expert analysis and the experts who make the assessments, and to additional legal experts and their trial skills. Attorney Tracey Wood experienced a similar situation in defending one of the five people charged in a wide-ranging conspiracy scheme that actually stole missile launchers and military tanks from Ft. Mc Coy military base in northern Wisconsin. All but one other defendant in that case went to federal prison for years.

The criminal system of the USA is run by humans and it cannot be perfect, but in its idealistic sense would always acquit defendants, because doubt should never be completely resolved without a confession, but it takes great skill to present the facts within the guidelines provided by law.

Successful Criminal Defense Attorneys

Chris Van Wagner and Tracey Wood, the founders of Van Wagner & Wood, represent people under investigation for or charged with or convicted of homicide (murder), as well as any of the types of cases listed to the left or above. You can click on any of the topics to the left or above for further information about those types of criminal charges. For further information about the criminal defense lawyers at Van Wagner & Wood, please click here to review their credentials.

If you are under investigation for a serious crime such as homicide, it may comfort you to know that these attorneys have won several outright acquittals for their clients, and their record clearly reflects their hard work, their intelligent and professional approach to their cases, and their skill in developing a strategy that fits an individual client's case, while drawing upon their experience, knowledge, and skill from past cases. With more than 30 years of combined legal experience, those lawyers have handled more than one hundred felony trials ranging from low-level offenses all the way to kidnapping, homicide, and domestic terrorism in both rural and urban counties, willing cases they were expected to lose quickly.

AV Rated

Chris and Tracey were both named among a small handful of the very best criminal defense lawyers in Madison. The law firm of Van Wagner & Wood is AV-rated by the other lawyers in the region, which means, in short, that the local legal community considers them a top criminal defense law firm.

Free Initial Consultation

If you are under investigation for a homicide, if you have been charged with homicide, murder, or reckless endangerment, or if you already have been convicted for a serious murder charge, please contact the attorneys at Van Wagner & Wood for a brief, but professional first-impression analysis of the case against you. For very serious crimes such as homicide, Van Wagner & Wood's attorneys would prefer to speak with you and gather more information than a one-way email communication can provide.

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