What is malice?

"Malice" denotes a state of mind required for some crimes.

By , Attorney · William Mitchell College of Law

Each crime has its own set of elements—components that the prosecution must prove in order to establish the defendant's guilt. Almost all crimes have a mental-state element. For some, this element is malice. (See Criminal State of Mind.)


In criminal law, descriptions of malice vary somewhat. But, in general, "malice" isn't as simple as dislike or hate. For example, a common definition provides that a person acts with malice by intentionally committing a wrongful act without a reasonable excuse. A person shows malice in this context by:

  • acting deliberately with a calm mind or with a plan, or
  • committing a purposeful and cruel act without any or without great provocation.

(State v. Ryan, 543 N.W.2d 128 (Neb. 1996), overruled on other grounds by State v. Burlison, 583 N.W.2d 31 (Neb. 1998); Branch v. Com., 419 S.E.2d 422 (Va. Ct. App. 1992).)

Example: Henry works at a convenience store in Virginia. He hears a person say that someone is stealing beer. He discovers Sam crouched near a beer refrigerator. Henry pulls out a gun and tells Sam to sit in a chair while he calls the police. He says that if Sam does this, he won't shoot. As Henry turns around to make the call, Sam fires multiple shots and hits him. A jury convicts Sam of aggravated malicious wounding. Despite Sam's argument that Henry provoked him, the jury could have reasonably found malice from the evidence that Sam fired multiple shots at Henry's back. (Branch v. Com., 419 S.E.2d 422 (Va. Ct. App. 1992).)

Crimes Involving Malice

Malice is often an element in crimes involving death or injury. In such cases, states may use a more specific definition of malice. That definition, which some states use for all crimes, provides that malice is the intent to:

  • kill someone or cause him or her great bodily harm, or
  • create a high risk of death or great bodily harm with knowledge that such a result is probable.

(People v. Kemp, 508 N.W.2d 184 (Mich. Ct. App. 1993).)

Example: Larry and Peter walk near train tracks in Rhode Island. A homeless man shouts at them. Peter pulls out a BB gun that looks like a pistol, aims it at the man, and makes him lie down on the ground. Peter asks Larry to find a rope, and Larry obliges—they use it to hog-tie the man. They beat him and he dies of his injuries. Larry is convicted of second degree murder. The victim's grave injuries and Larry's active role in the attack establish that Larry acted with extreme malice. (State v. Lambert, 705 A.2d 957 (R.I. 1997).)

Evidence of Malice

The words a defendant uses or a plan that he or she expresses can directly show malice. Other facts and circumstances, like the deliberate use of a deadly weapon, can also establish this state of mind. (Doss v. Com., 479 S.E.2d 92 (Va. Ct. App. 1996).)

Example: Frank goes to a building with two other men. Jenny, who lives there with her family, opens the door to the building slightly and the men push their way inside. One man points a gun at Jenny, and the men drag her to an upstairs apartment. Without asking for keys, one of the men kicks out the glass in the apartment door; they enter. One of the invaders pulls Jenny into the apartment by her neck. The men rummage through the apartment. At one point, Frank holds a gun to the head of Jenny's daughter, while one of his colleagues kicks a hole in a locked closet door. The men dump and scatter the contents of a suitcase and Jenny's purse. A jury convicts Frank of malicious destruction of property. He argues that there wasn't proof that he acted due to cruelty, hostility, or revenge. However, the smashing of the apartment and closet doors without asking for keys, the scattering of the personal items, and the ferocity of the invasion established malice. (Com. v. Wynn, 677 N.E.2d 710 (Mass. App. Ct. 1997).)

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