Virginia law lists 13 elements that would elevate first-degree murder to capital murder. To be eligible for the death penalty, only one of the elements needs to be proved at trial.
John Lee Malvo is charged with killing FBI analyst Linda Franklin outside a Seven Corners Home Depot store under two of the 13 provisions:
* The willful, deliberate and premeditated killing of more than one person within a three-year period.
* The willful, deliberate and premeditated killing of any person during the commission or attempted commission of an act of terrorism as defined as an act of violence committed with the intent to intimidate the civilian population; or influence the conduct or activities of the U.S. government, a state or locality through intimidation.
The Virginia Supreme Court has held that for the first provision, the so-called triggerman rule would apply and prosecutors would have to prove that Malvo was an actual participant in Franklin's Oct. 14 slaying. Prosecutors believe that they do not have to prove who pulled the trigger under the terrorism provision. But that element is new and has never been tested. If Malvo is convicted under that element, the state Supreme Court probably would decide whether the triggerman rule applies.
For today's hearing, prosecutors need only prove probable cause that Franklin was slain and that there is enough evidence to believe that Malvo might have killed her.