When someone acts with malice aforethought, he or she is in a state of mind which results in deliberate injury or death for another person. When it can be demonstrated that someone acted in this way, this fills the requirement of mens rea or “guilty mind” which is needed for certain types of convictions. A number of different things can be used to provide evidence that someone acted with malice aforethought and thus deserves a more severe penalty.
One form of malice aforethought involves the deliberate decision to injure or kill someone in advance of a crime. For example, if someone strings barbed wire across a bike path at neck level with the intent of unseating and injuring bikers so that they will stop using the path, this is malice aforethought. In this instance, the person is acting deliberately to cause harm and is making a conscious choice to do so in advance of the crime. Likewise, someone who buys a gun with the intention of shooting someone is also acting with deliberate intent to kill.
Another form involves behaving in a way which shows a deliberate disregard for human life or safety. In this case, someone decides to be reckless, rather than behaving recklessly out of thoughtlessness or lack of knowledge. This form of malice aforethought is used to charge people with stiff penalties when the kill or injure people in the course of committing a felony such as a bank robbery. The argument is that the accused acted with deliberate recklessness and thus demonstrated malice aforethought.
By contrast, if someone hits another person in the middle of an argument and that person is seriously injured or killed, this is not considered malice aforethought. The accused did not plan ahead of time to inflict harm, and was not behaving in a way which would be considered reckless. However, if it can be demonstrated that someone provoked an argument with the goal of getting the opponent into a position to be hit, this would change the circumstances, because the person would have planned ahead.
For charges such as first degree murder, malice aforethought must be proved. These charges are differentiated from lesser charges in which people accidentally kill people to create a series of escalating penalties. This reflects the idea that people who plan to kill and deliberately do so are more of a menace to society than people who accidentally kill.