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255.3 Heat Of Passion/Hot Blood, Provocation

    255.3.1 Heat Of Passion/Hot Blood, Provocation: Miscellaneous Issues

    255.3.1.1 Defense Theory That Heat Of Passion/Hot Blood Was Reasonable In Light Of Defendant's Past Experience
    255.3.1.2 Cultural Background As Defense Theory Regarding Heat Of Passion/Hot Blood
    255.3.1.3 Heat Of Passion/Hot Blood, Provocation: Battered Person Syndrome
    255.3.1.4 Heat Of Passion/Hot Blood, Provocation: Objective Standard In Light Of Defendant's Past Experience
    255.3.1.5 Heat Of Passion/Hot Blood, Provocation: Consideration Of Intoxication And Mental Defect
    255.3.1.6 Heat Of Passion/Hot Blood, Provocation To Negate Premeditation/Deliberation If Not Recognized As A Basis For Voluntary Manslaughter
    255.3.1.7 Heat Of Passion: May Negate Required Mental State Other Than Malice
    255.3.1.8 Heat Of Passion: Improper To Instruct On "Homicidal Reaction"

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    See FORECITE National™ 255.3.1.4 [Heat Of Passion/Hot Blood, Provocation: Objective Standard In Light Of Defendant's Past Experience].

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    See FORECITE National™ 250.8.7 [Culture As Relevant To Heat Of Passion].

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    255.3.1.3    Heat Of Passion/Hot Blood, Provocation: Battered Person Syndrome

RATIONALE: Even though a provocation defense entails an objective standard of reasonableness, that standard must be evaluated in light of the experiences of the individual defendant. (See e.g., FORECITE National™ Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)].) Hence, battered person syndrome evidence should be considered by the jury to determine whether the defendant's heat of passion was objectively reasonable.

POINTS AND AUTHORITIES: See FORECITE National™ 256.1.2 [Battered Person Syndrome: Challenge To Required Objective Mental State Under On Reasonable Person Standard].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].

    To reduce* an intentional felonious homicide from the offense of murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such character and degree as naturally would cause excitement and arousal to such passion in an ordinarily law-abiding person, and that person must act under the influence of that sudden quarrel or heat of passion.

    The heat of passion which will reduce a homicide to manslaughter must be of such passion as naturally would cause an ordinarily law-abiding person to lose self control in the same circumstances or situation. Relevant to the ordinarily law-abiding person standard is evidence admitted at trial which either demonstrates a history of conduct depicting a loss of control and excitability to commit violent unlawful acts. Where such person's ability to reason is frequently obscured or disturbed by some passion to act rashly or without due deliberation or reflection, then the lost of control and excitability in the fact situation presented at trial ought to be viewed without consideration of the proffered explanation for extreme emotional disturbance above and beyond the fact situation immediate to the administration of the lethal act.

    Conversely, where the evidence proffered at trial suggests the perpetrator does not demonstrate a commonplace propensity to excitability to such a degree that reason is obscured or disturbed by some passion causing that person to act rashly or without due deliberation or reflection, where the loss of control resulting from the events appears to have provoked an otherwise ordinarily law-abiding person, then it is proper to consider the totality of the admissible facts proffered by that person.

    The totality of facts shall include a reasonable explanation for extreme emotional disturbance at the time of the lethal act, even where such extreme emotional disturbance may encompass events prior to the facts immediately surrounding the lethal act. A defendant is not permitted to set up [his] [her] own standard of conduct and justify or excuse [himself] [herself] because [his] [her] passions were aroused unless the circumstances in which the defendant was placed and the facts confronted [him] [her], were such as also would have aroused the passion of the ordinarily reasonable law-abiding person faced with the same situation, in light of the totality of the circumstances described above.

    The totality of the facts presented at trial which shall be considered in determining whether the defendant has proffered evidence of legally adequate provocation may include facts which occur over a short or long period of time.

    Slight or remote provocation will not reduce an offense of murder where the unlawful killing of a human being otherwise satisfies all the elements of murder. Provocation which may otherwise appear slight or remote when viewed narrowly to the facts surrounding the administration of the lethal act may in fact be reasonable, and thus, shall be found to be legally adequate where such provocation included other provoking circumstances arising slowly over time, where such ordinarily law-abiding person is provoked to violence beyond the extent to which an ordinarily law-abiding person in similar circumstances or similarly situated would be expected to be provoked.

    If sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, the provocation will not reduce the offense to manslaughter.

* But see FORECITE National™ 255.3.5.2 [Heat Of Passion/Hot Blood, Provocation: Improper To Instruct In Terms Of Reducing Homicide From Murder To Manslaughter].

[Source: Klis, "Reforms to Criminal Defense Instructions: New Patterned Jury Instructions Which Account For The Experience Of The Battered Woman Who Kills Her Battering Mate," 24 Golden Gate Univ. L. Rev. 131 (1994); see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.42 [Sudden Quarrel Or Heat Of Passion And Provocation Explained] (West, 6th Ed. 1996).]

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PRACTICE NOTE: Even though heat of passion imposes an objective standard of reasonableness, that standard must be evaluated in light of the experiences of the individual defendant. (See FORECITE National™ Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)].)

    For example, battered woman syndrome evidence should be considered by the jury to determine "whether the defendant had reasonable grounds for an honest belief that she was in imminent danger when considering the issue of self defense." (See People v. Humphrey (CA 1996) 13 C4th 1073 [56 CR2d 142]; see also FORECITE National™ 253.1 [Battered Person’s Syndrome].)

    Similarly, other relevant evidence relating to the defendant's past experience should be considered. (See generally FORECITE National™ 48.1.3 [Objective Reasonable Person Standard: Consideration Of Past Experiences].)

INSTRUCTION PACKAGE AVAILABLE: For a package of instructions drafted by FORECITE National™ subscriber Christie Warren relating the victim's character and prior violent acts to self defense, click here. [Instruction Bank # I-858].

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See LaFave & Scott, Substantive Criminal Law (West, 1999 Supp.) § 7.10(1) fn 72, citing cases rejecting consideration of mental defect and intoxication in determining reasonableness of defendant’s perception of provocation and heat of passion. (LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.10; see also State v. Heisler (WI 1983) 344 NW2d 190, 193 [when a heat-of-passion, stimulated by intoxication, defense is raised, voluntary intoxication is considered only for its subjective effect on defendant; objective test looks at reasonable, sober person under similar provocation].)

    Under this construction intoxication and mental defect may be considered in deciding whether the defendant actually acted in the heat of passion but not as to whether a reasonable person would have been similarly provoked. (But see FORECITE National™ 48.1.9 [Reasonable Person Standard: Consideration Of Intoxication].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Even if a jurisdiction does not recognize heat of passion or provocation as a basis for voluntary manslaughter, such a theory should be available to negate other mental states such as premeditation, deliberation or malice. (See FORECITE National™ 92.7.3.3 [Intentional Murder: Impact Of Provocation And Heat Of Passion/Hot Blood On Premeditation And Deliberation].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].

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    255.3.1.7    Heat Of Passion: May Negate Required Mental State Other Than Malice

    See e.g., FORECITE National™ 92.7.3.3 [Intentional Murder: Impact Of Provocation And Heat Of Passion/Hot Blood On Premeditation And Deliberation].

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    255.3.1.8    Heat Of Passion: Improper To Instruct On "Homicidal Reaction"

PRACTICE NOTE: In People v. Lee (CA 1997) 54 CA4th 559, 562 [63 CR2d 387] the court gave the following instruction at the request of the prosecution:

    "The concept of 'sudden quarrel or heat of passion' allows a defendant to reduce a killing from murder to manslaughter only in those situations where the provocation would trigger a homicidal reaction in the mind of an ordinarily reasonable person under the same facts and circumstances. [Citations.]"

    The Court of Appeal held this to be reversible error because the jury could have construed the term "homicidal reaction" to mean "murderous reaction" which would necessarily have precluded a finding of manslaughter.

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 255.1.1 [Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes].