The Prostitution of Lying in Wait

66 Pages Posted: 28 Oct 2008

See all articles by Harry M. Caldwell

Harry M. Caldwell

Pepperdine University - Rick J. Caruso School of Law

Date Written: October 23, 2008


Murder by lying in wait is a particularly vile manner of murder. Each act is the culmination not only of planning and premeditation, but also of preying on an unsuspecting victim from a position of overwhelming advantage. However, has the definition of lying in wait, as a death qualifying circumstance in murder trials, been inappropriately broadened so that it has lost its distinctiveness as a legitimate narrowing mechanism for singling out those deserving of capital punishment? Does it now encompass scenarios not even contemplated at the time of its inclusion as a death qualifying event? This article discusses the requirement, set forth by the Supreme Court in Furman v. Georgia, that any death penalty law must narrow the class of individuals that deserve execution. It then presents the history of lying in wait as a death qualifying circumstance. First, it discusses the early American lying in wait murder case of Riley v. State, which set out the three lying-in-wait prerequisites: (1) waiting, (2) watching, and secrecy. Then, it offers an explanation of the classification of lying in wait as an aggravating circumstance, with its four elements: (1) concealment, (2) watching and waiting, (3) surprise lethal attack, and (4) connection between lying in wait and having an advantage over the victim. This is followed by an analysis of the lying in wait aggravating circumstance in the California Penal Code, and how it has been used in California death penalty cases. This is followed by a comparison of the use of lying in wait as an aggravating circumstance in other states, including Indiana and Colorado. The article concludes with the argument that the use of lying in wait as an aggravating circumstance must be reexamined, rewritten, and reapplied to faithfully adhere to the fundamental fabric of our death penalty jurisprudence.

Keywords: murder, lying in wait, premeditation, victim, death, death penalty, death qualifying, murder trial, capital punishment, aggravating circumstance

Suggested Citation

Caldwell, Harry M., The Prostitution of Lying in Wait (October 23, 2008). University of Miami Law Review, Vol. 57, 2003, Available at SSRN:

Harry M. Caldwell (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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