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255.3 Heat Of Passion/Hot Blood, Provocation

    255.3.3 Provocation: Sufficiency

    255.3.3.1 Provocation: Disclosure Of A Provocative Act At A Different Time
    255.3.3.2 Provocation From A Party Other Than The Victim
    255.3.3.3 Provocation/Heat Of Passion: Informational Words May Be Sufficient
    255.3.3.4 Provocation/Heat Of Passion: Jury May Consider Insulting Words Combined With Other Provocation
    255.3.3.5 Provocation: Sufficiency Of A Series of Events Over A Period Of Time
    255.3.3.6 Provocation: Need Not Overpower Knowledge, Rationality And Volition
    255.3.3.7 Provocation: Relevant Factors
    255.3.3.8 Mutual Combat As Adequate Provocation
    255.3.3.9 Sudden Quarrel Is A Type Of Provocation
    255.3.3.10 Transferred Heat Of Passion/Hot Blood Provocation
    255.3.3.11 When Defendant Reacts To Provocation Directed At Another Person
    255.3.3.12 Provocation Need Not Be Actually Committed -- Defendant's Mistaken Belief As To Provocation
    255.3.3.13 Homosexual Assault As Provocation
    255.3.3.14 Provocation: Consideration Of Victim’s Intent And Ability To Physically Harm The Defendant
    255.3.3.15 Provocation: Terror May Be Sufficient
    255.3.3.16 Provocation: Trespass Combined With Aggravating Circumstance Sufficient
    255.3.3.17 Provocation: Sufficiency Of Assault Or Battery
    255.3.3.18 Provocation: Unlawful Arrest       

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PRACTICE NOTE: The provocation and disclosure of events constituting the provocation may occur at different times. (See State v. Muñoz (NM 1992) 827 P2d 1303, 1305.)

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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PRACTICE NOTE: It has been concluded that provocation can only serve to reduce murder to manslaughter when the victim actually initiated the provocation. (See In re Thomas C. (CA 1986) 183 CA3d 786, 798 [228 CR 430]; People v. Superior Court (Henderson) (CA 1986) 178 CA3d 516, 524 [223 CR 741]; People v. Spurlin (CA 1984) 156 CA3d 119, 126 [202 CR 663]; Ojeda v. State (TX 1997) 945 SW2d 197, 201 [provocation, in support of a claim of sudden passion, may derive from someone other than the deceased, but this person must be someone acting with the deceased].)

    However, in light of the California Supreme Court Opinions in People v. Humphrey (CA 1996) 13 C4th 1073 [56 CR2d 142] and People v. Minifie (CA 1996) 13 C4th 1055 [56 CR2d 133] the defendant's state of mind, not the conduct of the victim, determines whether a particular defense or mitigation may be applicable. (See also People v. Brooks (CA 1986) 185 CA3d 687, 694 [230 CR 86] [defendant's belief, even if mistaken, that victim had killed defendant's brother is adequate provocation]; People v. Scott (CA 1983) 146 CA3d 823, 831-32 [194 CR 633] [hallucinatory delusion could provide an absolute defense of necessity where defendant attempted to steal a car based upon drug-induced belief that he was saving the life of the president].)

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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PRACTICE NOTE: Words alone generally do not constitute adequate provocation no matter how scurrilous or insulting. (See Sells v. State (NM 1982) 653 P2d 162, 163-64; see also ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL 13A-6-2(b) [Additional Charge] [Murder-Intentional Murder With Provocative Defense] p. 6-9 (Alabama Bar ICLE, 3rd ed. 1994) ["Mere words, no matter how insulting, never reduce murder to manslaughter"].) However, informational words, as distinguished from mere insulting words, may constitute adequate provocation if the meaning conveyed by the informational words together with the ensuing arguments and other actions of the parties, when taken together, can amount to provocation. (Sells v. State (NM 1982) 653 P2d 162, 163-64 (1982) [informational words, combined with "ensuing arguments and other actions of the parties, when taken together, could amount to provocation"].)

    "Informational" words are treated differently than "insulting" words.  (Wharton’s Criminal Law (West, 15th Ed. 1994) § 158, p. 357.)  However, a sudden disclosure of an event  may be the equivalent of the event presently occurring. For example, if the deceased suddenly disclosed to the defendant that he had raped the latter’s wife the disclosure may be equivalent of the event being presently observed by the defendant.  (Ibid.) 

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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RATIONALE: Standard pattern instructions often state that words alone are not provocation. However, such instructions may improperly mislead the jury into believing that words may not be considered sufficient when accompanied by a threat or assault.

POINTS AND AUTHORITIES: Although words alone may not constitute sufficient legal provocation to warrant jury charge on voluntary manslaughter, words accompanied by some overt, threatening act may be sufficient. (State v. Johnson (SC 1998) 508 SE2d 29, 31; see also State v. Pope (KS 1996) 927 P2d 503, 509 [mere words or gestures, however insulting, do not constitute "adequate provocation" for voluntary manslaughter, but insulting words when accompanied by assault may constitute adequate provocation]; State v. Vigilante (NJ 1992) 608 A2d 425, 429 [although words are not legally sufficient for passion/provocation manslaughter when they are mere insults, words may be sufficient when they convey significant threat, even one that does not currently put defendant's own life at risk].)

    In sum, while mere threats, menaces, or gestures alone, however offensive or insulting, do not constitute adequate provocation, when considered in connection with provoking conduct, they may constitute adequate provocation. (See OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-98 [First Degree, Adequate Provocation Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996); see also People v. Pouncey (MI 1991) 471 NW2d 346, 351 ["verbal fracas" was insufficient provocation but court "decline[d] to issue a rule that insulting words per se are never adequate provocation"].)

    See also NCJIC 255.3.3.3 [Provocation/Heat Of Passion: Informational Words May Be Sufficient].

    See also NCJIC 253.4.15.8 [Self Defense: Definition Of Aggressor -- Words Accompanied By Hostile Acts May Be Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

SAMPLE INSTRUCTION # 1:

    Provocation by words alone cannot reduce the offense to manslaughter when the killing is done solely in reaction to such provoking words.

    However, words accompanied by menaces, though the menaces do not amount to an actual assault, may be sufficient provocation to excite a sudden, violent and irresistible passion in a reasonable person and if a person acts from such passion then the offense is  voluntary manslaughter.

[See Brooks v. State (GA 1982) 292 SE2d 694, 696; Aguilar v. State (GA 1978) 242 SE2d 620, 624; cf. GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES pp. 73-74 (B)(5)(b) [Provocation by Words Alone] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1991).]

    Words alone directed to the defendant by the victim, no matter how insulting, offensive or abusive are not legally adequate provocation. However, words which were accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm may be adequate provocation.

[See generally State v. Johnson (SC 1998) 508 SE2d 29, 31; State v. Pope (KS 1996) 927 P2d 503, 509; see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.23b(4) [Manslaughter-Voluntary: Amplified Instruction Including Special Sources Of Provocation-Words Plus Threatening Conduct] pp. 332-33 (Lexis, 2nd ed. 1988).]

    Verbal threats, menaces, or gestures alone, however offensive or insulting, do not constitute adequate provocation. However, words, threats, menaces, or gestures, when considered in connection with provoking conduct of the deceased, may constitute adequate provocation.

[See generally State v. Johnson (SC 1998) 508 SE2d 29, 31; State v. Pope (KS 1996) 927 P2d 503, 509; see also; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4.98 [First Degree, Adequate Provocation Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

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RATIONALE: Without an explanatory instruction the jury may improperly assume that heat of passion must be based on a single act of provocation.

POINTS AND AUTHORITIES: "[S]ufficient provocation to support a conviction for manslaughter may be established by 'the cumulative impact of a series of related events ...'" (Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 782; see also People v. Berry (CA 1976) 18 C3d 509, 515-17 [134 CR 415]; State v. Kelly (NJ 1984) 478 A2d 364, 384-85 [heat of passion may result from course of ill treatment that could evoke a homicidal response]; Commonwealth v. Whitfield (PA 1977) 380 A2d 362, 366 [cumulative impact of series of related events may add up to adequate provocation].)

    The "ultimate test for adequate provocation remains whether a reasonable [person], confronted with this series of events, became impassioned to the extent that his [or her] mind was 'incapable of cool reflection.'" (Commonwealth v. McCusker (PA 1972) 292 A2d 286, 290; see also Commonwealth v. Galloway (PA 1984) 485 A2d 776, 783 [heat of passion voluntary manslaughter defense is established if a reasonable man, confronted by the same series of events as the defendant, would become impassioned to the extent that his mind was incapable of cool reflection].)

    Hence, "[w]here there is evidence of a series of related events which tend to establish adequate provocation, the trial court must give [an instruction on this point]." (Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 782; see also People v. Thompkins (CA 1987) 195 CA3d 244, 256-57 [240 CR 516]; Commonwealth v. Voytko (PA 1986) 503 A2d 20, 23 [error to refuse series of related events instructed].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    A defendant may act in the heat of passion at the time of killing as a result of a series of events which occur over a considerable period of time.

    Where the provocation extends for a long period of time, take such period of time into account in deciding whether there was a sufficient cooling period for the passion to subside.

    The burden is on the prosecution to establish beyond a reasonable doubt that the defendant did not act in the heat of passion.

[See People v. Wharton (CA 1991) 53 C3d 522, 569-71 [280 CR 631] and People v. Thompkins (CA 1987) 195 CA3d 244, 256-57 [240 CR 516].]

    The cumulative impact of a series of related acts can be serious provocation. The test is whether a reasonable person, confronted with the same series of events, would become so impassioned that he or she would be incapable of cool reflection.

[See generally People v. Berry (CA 1976) 18 C3d 509, 515-17 [134 CR 415]; Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 782; see also  PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.2503A [Voluntary Manslaughter-Murder In Issue] (Pennsylvania Bar Institute, PBI Press, 12/88); see also Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 782.]

    Heat of passion may be based upon a series of events over a considerable period of time which would arouse a reasonable person in the same situation to an extreme emotion when an otherwise dispassionate event occurs.

[See State v. Benavidez (NM 1980) 616 P2d 419, 421; cf. NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-222 committee commentary [Sufficient Provocation; Defined].]

    If the defendant inflicted the wound in a sudden transport of passion, excited by what the deceased then said and by the preceding events which, for the time, disturbed [his] [her] reasoning faculties and deprive [him] [her] of the capacity to reflect, or while under the influence of some sudden and uncontrollable emotion excited by the final culmination of [his] [her] misfortunes, as indicated by the train of events which have been related, the act did not constitute murder in the first degree.

[See Commonwealth v. McCusker (PA 1972) 292 A2d 286, 290.]

    Sufficient provocation to support a conviction for manslaughter may be established by the cumulative impact of a series of related events. The ultimate test for adequate provocation is whether a reasonable person, confronted with this series of events, would have become impassioned to the extent that [his] [her] mind was incapable of cool reflection.

[See Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 782.]

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RATIONALE: Without special instruction the jury may incorrectly believe that heat of passion only applies if the defendant is so irrational that he or she could not act intentionally or volitionally.

POINTS AND AUTHORITIES: Heat of passion is a "high wrought emotion." (See People v. Breverman (CA 1998) 19 C4th 142, 164 [77 CR2d 870].) However, it is not a state akin to insanity or unconsciousness where the defendant is so irrational that he or she does not act with volition. (See generally, State v. Stills (NM 1998) 957 P2d 51, 60.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    To be legally sufficient the provocation need only be sufficient to make a reasonable person in the same situation incapable of cool reflection.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A) inst. 3 [Provocation-Definition] p. 83, ¶ 1, sent. 2 & 3 (South Carolina CLE, 1994); see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.2503A [Voluntary Manslaughter-Murder In Issue] ¶ 3 (Pennsylvania Bar Institute, PBI Press, 12/88 rev.).]

    Sufficient provocation is any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition.

[Source: State v. Stills (NM 1998) 957 P2d 51, 60.]

    The passion need not have been sufficient to entirely overcome reason or to eliminate the ability to freely exercise choice.

[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.2503A [Voluntary Manslaughter-Murder In Issue] ¶ 3 (Pennsylvania Bar Institute, PBI Press, 12/88 rev.); see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-99 [First Degree, Passion Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

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RATIONALE: A special instruction elaborating some of the factors relevant to a determination of heat of passion may be appropriate to assure the jury reliably decides the issue.

POINTS AND AUTHORITIES: The objective reasonable person standard applies to a defense of heat of passion from provocation. (See NCJIC 255.3.1.4 [Heat Of Passion/Hot Blood, Provocation: Objective Standard In Light Of Defendant's Past Experience].) This requires the jury to consider whether a reasonable person in the defendant's situation would have been provoked. (See NCJIC Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)]; see also State v. Martin (SC 1949) 57 SE2d 55, 56.)

    Regardless of what factors relate to the determination of whether a reasonable person in the defendant's situation would have been provoked (See NCJIC 48.1.4 [Reasonable Person's Standard: Consideration Of Defendant’s "Situation"]), the just must consider all the relevant factors in deciding the subjective issue of whether the defendant actually was provoked.

    See also NCJIC 255.3.1.5 [Heat Of Passion/Hot Blood, Provocation: Consideration Of Intoxication And Mental Defect].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    In attempting to decide whether the prosecution has proved beyond a reasonable doubt that the defendant was not provoked into acting in the heat of passion, consider all the circumstances, including but not limited to, the following:

    1.  The nature of the provocation;

    2.  The defendant’s physical and mental condition; 

    3.  The defendant’s situation at the time of the conflict; 

    4.  The defendant’s education and background.

[See generally State v. Martin (SC 1949) 57 SE2d 55, 56; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A) inst. 4 [Provocation-Relevant Factors] p. 84 (South Carolina CLE, 1994).]

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PRACTICE NOTE: Blows received during mutual combat -- which requires a mutual intent to fight -- are adequate provocation regardless of who struck the first blow or that one of the participants never struck a blow because he was disabled or killed before he could return the initial blow of the adversary. (Wharton’s Criminal Law (West, 15th Ed. 1993) § 161, pp. 360-61; see also Whitehead v. State (MD 1970) 262 A2d 316, 319 ["There is "adequate provocation" for purposes of reducing homicide to manslaughter where there is a mutual quarrel or combat, and combat is mutual if intent to fight is mutual, and question of which party actually struck first blow or whether one party struck a blow at all is not controlling"].)

    See also NCJIC 253.5.1 [Mutual Combat As Basis For Self Defense: Requirement Of Agreement To Fight Prior To Beginning Of Combat].

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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PRACTICE NOTE: For a discussion of whether the terms "sudden quarrel," "sudden affray," "mutual combat," and "sudden combat" have meanings distinct from "heat of passion" see U.S. v. Martinez (7th Cir. 1993) 988 F2d 685, 694-96.

OPINION AVAILABLE: To read the Martinez opinion, click here. [Opinion Bank # O-307].

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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RATIONALE: Logically, the doctrine of transferred intent should apply to heat of passion based on provocation.

POINTS AND AUTHORITIES: If the defendant acts in heat of passion and negligently or accidentally kills a third party, the doctrine of heat of passion should be available to mitigate the homicide. (See ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 7.04 [Issues where Jury Instructed On Both First Degree And Second Degree Murder- Provocation] 7.19B [Issues In Voluntary Manslaughter Of An Unborn Child- Provocation By A Person Other Than The Pregnant Woman- Transferred Intent] (West, 4th ed. 2000); People v. Forrest (IL 1971) 272 NE2d 813.) As the court observed in Bostick v. U.S. (DC App. 1992) 605 A2d 916, 920: "The government weakly suggests that the doctrine of 'transference,' or transferred intent, is inapplicable in cases of provocation. We cannot agree. According to a classic formulation, 'if A aims at B with intent to kill under circumstances which would make him guilty of voluntary manslaughter of B, but he hits and kills C instead, A is guilty of voluntary manslaughter.' [Citations.]".

    In sum, "[i]f one who has received adequate provocation is so enraged that he intentionally vents his wrath upon an innocent bystander, causing his death, he will be guilty of murder; but if his deadly force was directed at the provoker and hit the other by accident, or if as a reasonable mistake of fact he thought the provocative act had been perpetrated by the deceased, he is guilty of manslaughter only, if he otherwise meets the requirements of the rule of provocation." (Perkins & Boyce, Criminal Law (Foundation Press 1982) p. 102; LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.12(d); but see State v. Gutierrez (NM 1975) 541 P2d 628, 631 [heat of passion: transference not allowed].)

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

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    When a person acts in the heat of passion as a result of adequate provocation and by such act or acts inadvertently [injures] [kills] an innocent bystander, the person has [not acted with malice] [can not be guilty of murder] as to the bystander.

[Source: NCJIC.]

    Heat of passion is available to insulate a defendant from criminal responsibility where his or her act, committed in the heat of passion as a result of adequate provocation, inadvertently results in the death or injury of an innocent bystander. Hence, one who acts in the heat of passion toward one person, but by mistake or inadvertence kills a different person, [has not acted with malice] [can not be convicted of murder as to the person who was killed].

[Source: NCJIC.]

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PRACTICE NOTE: "Vicarious provocation" may exist when the provoking person directs provocation toward another person and the defendant reacts by killing the provoking person . (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 76 at 577; see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.23b(5) [Special Sources Of Provocation] (Lexis, 2nd ed. 1988).)

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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RATIONALE: Without special instruction the jury may improperly assume that the provocation must actually be committed for heat of passion to apply. This is not so because heat of passion is evaluated based on reasonable appearances, not what actually occurred.

POINTS AND AUTHORITIES: Heat of passion is available in a homicide case when a reasonable person in the defendant’s situation would have concluded that the victim engaged in an act of serious provocation, even if the victim did not actually engage in that act. (See Robinson, Criminal Law Defenses (West, 1984) (2000 Pocket Part) § 102(b) fn. 24 [citing Howell v. State (AK 1996) 917 P2d 1202, 1209]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) 7.10(b)(9).)

    See also NCJIC 253.4.10.3 [Self Defense: Truth Not Controlling; Belief May Be Reasonable Even If Mistaken].

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

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    Even if it is proved that the defendant was wrong in estimating the provocation, the provocation is adequate so long as there was a reasonable basis for what the defendant believed and [he] [she] acted reasonably in response to that belief.

[See generally Robinson, Criminal Law Defenses (West, 1984) (2000 Pocket Part) § 102(b) fn. 24; LaFave & Scott, Substantive Criminal Law (West, 1986) 7.10(b)(9); see also NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 7.1 [Self Defense (No Deadly Force)] ¶ 4 (West, 2nd ed. 1992).]

    A reaction to perceived acts of provocation may be reasonable even though the perceptions were mistaken.

[See generally Robinson, Criminal Law Defenses (West, 1984) (2000 Pocket Part) § 102(b) fn. 24; LaFave & Scott, Substantive Criminal Law (West, 1986) 7.10(b)(9); see alsoWISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 790 [Coercion] ¶ 4 (University of Wisconsin Law School, 2000).]

    It is not necessary that _____________(alleged victim) actually committed the acts alleged as provocation. Adequate provocation exists so long as the circumstances were sufficient to cause a reasonable person to believe that the provocation occurred, even if that belief was mistaken.

[Source: NCJIC.]

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PRACTICE NOTE: See Mison, "Homophobia and Manslaughter: The Homosexual Advance as Insufficient Provocation," 80 Cal.L.Rev. 133 (1992).

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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RATIONALE: Without special instruction the jury may not understand that it should consider the intent and ability of the alleged victim to harm the defendant in evaluating the issue of heat of passion based on provocation.

POINTS AND AUTHORITIES: Determination of heat of passion requires consideration of a reasonable person in the defendant's situation. (See NCJIC 48.1.4 [Reasonable Person's Standard: Consideration Of Defendant’s "Situation"].) The alleged victim's intent and ability to harm the defendant is, therefore, a relevant factor for the jury to consider. (See generally NCJIC 253.4.14 [Transferred Self Defense].)

    See NCJIC 255.3.3.17 [Provocation: Sufficiency Of Assault Or Battery].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    In considering whether ________________ (name of alleged victim) had the present intention and ability to cause bodily harm to the defendant, consider the following:  

    (1)     the height, weight, and other physical characteristics of the victim and the defendant;

    (2)     any acts and/or deeds that would evidence the present intention and ability of the victim to cause bodily harm to the defendant; and

    (3)     any other surrounding circumstances.

    You must find that malice has not been proved if, after considering all the circumstances, you have a reasonable doubt whether or not the words and conduct of ________________ (name of alleged victim) caused the defendant, and would have a caused a reasonable person in the same situation, to lose self control and act from passion rather than from judgment.

[See Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.23(b)(4) [Manslaughter - Voluntary: Amplified Instruction Including Special Sources Of Provocation-Words Plus Threatening Conduct] ¶ 2, p. 333 (Lexis, 2nd ed. 1988).]

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RATIONALE: Without an explanatory instruction the jury may tend to focus primarily on rage or anger in evaluating heat of passion and provocation. This would improperly limit the jury because fear or terror should also be considered predicates for heat of passion.

POINTS AND AUTHORITIES: Passion does not have to be manifested by rage or anger. It includes any "violent, intense, highly-wrought, or enthusiastic emotion" such as terror.  (Perkins & Boyce, Criminal Law (Foundation Press, 1982) pp. 98-99; see also Wilcoxen v. State (IN 1999) 705 NE2d 198, 202 ["... terror ... may be sufficient to obscure the reason of an ordinary person, and to prevent deliberation and premeditation, to exclude malice, and to render the defendant incapable of cool"].)

    See also NCJIC 255.3.3.6 [Provocation: Need Not Overpower Knowledge, Rationality And Volition].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    The phrase "in the heat of passion" means an emotional state that is generally provoked or induced by anger, fear, terror, or rage. In order for this provocation to be an "adequate provocation," it must be of a kind that would naturally cause a reasonable person to temporarily lose self control and to commit the act upon impulse and without reflection.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI 46.1 [Manslaughter, Voluntary] ¶ 7 (1997).]

    Heat of passion includes emotions such as fear, terror, anger, rage, or resentment.

[See generally Perkins & Boyce, Criminal Law (Foundation Press, 1982) pp. 98-99; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-97 [First Degree, Requirement For Heat Of Passion] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

* NOTE: In most jurisdictions this should be modified to place the burden on the prosecution. (See NCJIC 255.3.5.1 [Heat Of Passion/Hot Blood: Burden Of Proof].)

    Heat of passion may be provoked by fear, rage, anger or terror. 

[See generally Perkins & Boyce, Criminal Law (Foundation Press, 1982) pp. 98-99; see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.91 [Manslaughter-Voluntary] (2000); IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 707 [ Murder And Manslaughter Distinguished] (Idaho Law Foundation, Inc., 1995).]

    Heat of passion includes rage, resentment, anger, terror and fear. 

[See generally Perkins & Boyce, Criminal Law (Foundation Press, 1982) pp. 98-99; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.18(B) [Homicide-First Degree Premeditated Murder, Second Degree Murder, And Voluntary Manslaughter (Self Defense And Heat Of Passion Caused By Adequate Provocation)] ¶ 4, sentence 1 (Bar Association of the District of Columbia, 4th ed. 1993).]

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PRACTICE NOTE: While a simple trespass does not constitute adequate provocation if the trespass is accompanied by an aggravating circumstance, such as an assault or the destruction of property, it may be adequate provocation. (Wharton’s Criminal Law (West, 15th Ed. 1994) § 159, p. 358.)

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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PRACTICE NOTE: Assault or battery may constitute adequate provocation to reduce a killing to voluntary manslaughter. (See Wharton’s Criminal Law (West, 15th Ed. 1993) § 160, p. 359.)

    "Although a slight battery does not constitute adequate provocation, an insolent touching of the person (though otherwise harmless) may be sufficient." (Wharton’s Criminal Law (West, 15th Ed. 1993) § 160, p. 360.)

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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PRACTICE NOTE: Unlawful arrest may constitute adequate provocation to reduce the homicide to voluntary manslaughter. But the provocation of the unlawful arrest must actually cause the defendant to kill out of passion. (Wharton’s Criminal Law (West, 15th Ed. 1993) § 164, p. 363; see also Davis v. State (MD 1954) 102 A2d 816, 821.)

RESEARCH NOTES:

See generally, NCJIC 305.16.12 [Provocation/Heat Of Passion].

RELATED FEDERAL MODEL INSTRUCTIONS:

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