Weird legal situation

This just popped into my head and I found myself curious.

Let’s say, for whatever reason… an alternative suicide, or insurance for his family or something… a man hires a professional hitman to kill him by surprise. During the actual act, the man panics and kills the hitman in self defense. What could he be charged with?

It seems like it would be a valid case of self defense - but in this case, the man instigated the situation that resulted in a death by hiring the hitman. He would be guilty of whatever crime it is to hire someone to kill, but would he be guilty of additional crimes? Would he be guilty of murder, or manslaughter, or would he get off based on self defense?

Is this assuming that the cops (or DA or whoever) has concrete undeniable proof that the hitman was infact hired?

Yeah - doubt would turn it from a clear legal hypothetical to an ambiguous situation. What would the difference be if they were only 90% sure, though?

I don’t know, I just figured that it needed to be added. Seems like if there are ANY holes in the case they would be exploited and it would just be a normal question of self defense.

IANAL, just my WAG.

hiring the hitman would make him guilty of conspiracy to murder. Killing someone during the comission of a crime would make him guilty of felony murder.

Also easy to spin it as murder:

“So, Mr - my apologies, Senor - Beef, I put it to you that you gave this innocent man $2000 and a handgun and told him to meet you at your apartment, where you lay in wait for him, fully intending to shoot him, and foolishly hoping that you could persuade this court to consider your actions ‘self-defence’…”

As with any legal question, this depends on the applicable jurisdiction.

I guess German penal law would handle this case like this:

Killing another person intentionally is murder (first degree or second degree in American legal diction, handled in sections 211 and 212 of the German penal code). Killing another person intentionally with this person’s consent is still murder, because German penal law doctrine basically says you can’t renounce your right to live (suicide is legal, though); if you explicitly request the killer to kill you, he’s still committing a crime, although this is regulated by section 216, which mitigates the lifetime or imprisonment of up to 15 years in sections 211 and 212. But, as said, it’s still illegal, so the case you describe is still valid self-defense.

In California, the defendant committed solicitation. I’m not going to link to the California pattern jury instructions, because it’s a massive pdf, but the website is here, and you can reach the jury instructions from there. Pattern jury instructions are an easy way to see what the elements of a crime are.

Solicitation requires that the defendant request someone else to commit a crime (murder and that the defendant intend that the crime be committed. Cal. Crim. Jury Instr. 441.

Self defense is permitted if the defendant can show that he reasonably believed that he was in imminent danger of being killed or sustaining great bodily harm, that the immediate use of deadly force was necessary to defend against that danger, and he used only that level of force necessary to defend against that danger. Cal. Crim. Jury Instr. 505.

This, of course, raises jury questions: was the defendant’s belief that the only way to defend himself was to kill the hitman reasonable? Some of that may hinge on what instructions the defendant had given the hitman. Some would argue that in light of the fact he hired the hitman, he could have talked to the guy, rather than kill him. Others would argue that there was no threat to him, that this was merely a fight over money.

But Peter Morris raises the felony murder rule. In California, to prove felony murder where the defendant himself killed the victim (as opposed to being a participant in the crime, where someone else delivered the fatal blow), the state must prove that the defendant committed (or attempted to commit) a felony, that he intended to commit (or attempt to commit) a felony, and while committing (or attempting to commit) the felony, the defendant did an act that caused the death of another person. Cal. Crim. Jury Instr. 540A.

So the question then becomes whether solicitation of murder can be an underlying felony justifying the felony murder rule. I think that there are likely other predicate felonies committed by our defendant that would justify the application of the felony murder rule. So I’d say that, yes, our defendant would be doing long, hard time for this.


“I want you to kill me by surprise. I don’t want to wake up and know, this is the day I’m going to die.”

“OK. How long can I take?”

“Well, not too long. Waiting too long would be agonizing. Say two weeks. Within the next two weeks.”

That evening the guy starts thinking.

“He can’t kill me on the last day of the two weeks. Then I’d have to know it was going to happen that day. So that’s out. But if that’s out, then he can’t kill me the day before, which is now the last possible day, for the very same reason. So that day is out too. But then …”

And so he goes on, as each of the days is remorselessly ruled out by logic, leading to the inescapable conclusion that he cannot be killed by surprise at all, given his initial stipulation.

Still wrestling with the problem, he is shot by the assassin two days later, totally by surprise.