FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 255
Go to Volume 11 Table of Contents  -  Go to Chapter 255 Table of Contents

255.3 Heat Of Passion/Hot Blood, Provocation

    255.3.5 Heat Of Passion/Hot Blood: Burden Of Proof

    255.3.5.1 Heat Of Passion/Hot Blood: Burden Of Proof
    255.3.5.2 Heat Of Passion/Hot Blood, Provocation: Improper To Instruct In Terms Of Reducing Homicide From Murder To Manslaughter

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 255

RATIONALE: Normally the absence of heat of passion is an element of murder. However, without special instruction making this clear, the jury may improperly think that heat of passion is a defense which must be proven by the defendant.

POINTS AND AUTHORITIES: Where there is evidence of sudden heat of passion in a murder prosecution, the burden is normally on the prosecution to negate the existence of the heat of passion beyond a reasonable doubt before a murder verdict, rather than a voluntary manslaughter verdict, may be returned. (See Mullaney v. Wilbur (1975) 421 US 684, 702 [95 SCt 1881; 44 LEd2d 508]; see also Clark v. State (IN 1996) 668 NE2d 1206, 1209.) "When the evidence warrants a passion/provocation charge ... the trial judge must charge the jury that the State bears the burden of proving beyond a reasonable doubt the absence of 'passion/provocation.' [Citations.]" (State v. Lawton (NJ 1997) 688 A2d 1096, 1099; see also U.S. v. Lofton (10th Cir. 1985) 776 F2d 918, 920 ["[A] defendant in a federal murder case who has sufficiently raised a heat of passion defense is entitled to instructions informing the jury of the theory of defense and of the government’s duty to prove beyond a reasonable doubt the defense of heat of passion in order to obtain a murder conviction"]; People v. Wadley (CO 1994) 890 P2d 151, 153; Carter v. State (SC 1990) 392 SE2d 184; State v. Jackson (SC 1990) 389 SE2d 650; Locke v. State (TX 1993) 860 SW2d 494, 495; State v. Hatcher (VT 1997) 706 A2d 429, 434.)

    This is so because when the defendant who relies upon evidence of heat of passion raises a factual issue which, if established, would negate proof of an essential element of the offense -- i.e., malice -- the jury instructions should relate the prosecution's burden of proof to such material factual issues. (See FORECITE National™ 250.4.2 [Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden]; see also Brown v. U.S. (DC App. 1990) 584 A2d 537, 543 ["If there is sufficient evidence of provocation to go to the jury, the burden remains on the government to prove malice ... and to prove the absence of adequate provocation beyond a reasonable doubt"].)

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

Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331 (1997).

See also 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].

    The prosecution has the burden of proving the absence of heat of passion resulting from sufficient provocation.

    If you have a reasonable doubt as to whether the prosecution has met this burden, you must find that there was no malice.

[Source: FORECITE National™.]

    The defendant does not have to prove that provocation existed or that [he] [she] acted in passion. Instead, the prosecution must prove beyond a reasonable doubt that the defendant did not kill during the heat of passion aroused by adequate legal provocation. Unless you find beyond a reasonable doubt that the defendant did not act in the heat of passion upon adequate legal provocation, you must vote to find the defendant not guilty of murder.

[See generally Mullaney v. Wilbur (1975) 421 US 684, 702 [95 SCt 1881; 44 LEd2d 508]; Carter v. State (SC 1990) 392 SE2d 184; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A) inst. 6 [Manslaughter/Provocation-Burden Of Proof] p. 86 (South Carolina CLE, 1994).]

    The defendant is not required to disprove malice or to prove that [he] [she] was acting in the heat of passion based on sufficient provocation. The prosecution must prove malice. Unless you find beyond a reasonable doubt that the defendant did not act in the heat of passion based on sufficient provocation, you must find that malice has not been proven.

[Source: FORECITE National™.]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 255

    255.3.5.2    Heat Of Passion/Hot Blood, Provocation: Improper To Instruct In Terms Of Reducing Homicide From Murder To Manslaughter

RATIONALE: If a heat of passion instruction uses the terminology "reduce a homicide to manslaughter," the jury may be misled regarding the prosecution's burden and the order of deliberations.

POINTS AND AUTHORITIES: There are two problems with heat of passion instructions which are phrased in terms of reducing the homicide from murder to manslaughter. (See e.g., Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 8-1 [Assault And Battery Of A High And Aggravated Nature (ABHAN)] 8-2 [Assault And Battery Of A High And Aggravated Nature (ABHAN) And Assault Of High And Aggravated Nature (AHAN)] (South Carolina Bar, 1995); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-24-26 [Homicide-Manslaughter-First Degree-Heat Of Passion-Definition] (State Bar of South Dakota, 1996); CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.42 [Sudden Quarrel Or Heat Of Passion And Provocation Explained] (West, 6th Ed. 1996).)

    First, phrasing the instruction in terms of "reducing" impermissibly shifts the burden of proof to the defendant in violation of the federal constitutional rights to trial by jury and due process. (See Sandstrom v. Montana (1979) 442 US 510, 523-24 [99 SCt 2450; 61 LEd2d 39]; Mullaney v. Wilbur (1975) 421 US 684, 703 [95 SCt 1881; 44 LEd2d 508]; see also FORECITE National™ 6.2.20 [Avoiding Language That Burden Never "Shifts" To Defendant].)

    Second, the language at issue has the likely effect of setting an order of deliberations for the jury. By suggesting that they should presume the killing was murder unless convinced otherwise, the logical starting point for the deliberations would be on the question of whether the killing was murder. This violates the defendant's federal constitutional rights under the 5th, 6th and 14th Amendments to fair jury consideration of the defendant's theory of the case. (See generally FORECITE National™ 300.3.1 [Disparate Treatment Of Identical Claims]; see also People v. Kurtzman (CA 1988) 46 C3d 322, 329-31 [250 CR 244].)

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

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].

    The defendant is charged in [Count _______ ] with voluntary manslaughter. For the defendant to be found guilty of that charge, the prosecution must prove each of the following elements beyond a reasonable doubt:

    First, the defendant killed _______;

    Second, the killing was unlawful; and

    Third, the defendant either intended to kill _______ but the killing was without malice aforethought, that is, the defendant acted upon a sudden quarrel or heat of passion, or the defendant acted with reckless disregard for human life.*

[See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.91 [Manslaughter-Voluntary] (2000).]

*USE NOTE: This instruction does not address the issue of whether an unintentional killing which would otherwise be murder (e.g., committed with extreme disregard for human life) can be voluntary manslaughter if committed in the heat of passion. (See FORECITE National™ 92.8.3.6 [Provocation/Heat Of Passion Can Reduce An Unintentional Homicide Murder To Manslaughter]; see also FORECITE National™ 92.4.4.1 [Unintentional Killing In Heat Of Passion Or Hot Blood As Mitigated Homicide].)

[See 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.57 [Voluntary Manslaughter] (2001).]

* NOTE: This instruction does not require that the killing be intentional. (See FORECITE National™ 92.4.4.1 [Unintentional Killing In Heat Of Passion Or Hot Blood As Mitigated Homicide].)

** USE NOTE: The jurisdictional element only applies in federal prosecutions.

    It is a crime or offense for anyone to commit voluntary manslaughter - - that is, the unlawful and intentional killing of a human being without malice upon a sudden quarrel or heat of passion.

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the alleged victim named is dead;

    Second: That the Defendant caused the death of the victim, as charged;

    Third: That the Defendant so acted intentionally, but in the heat of passion caused by adequate provocation; and

    [Fourth: That the killing occurred within the [special maritime] [territorial] jurisdiction of the United States.]*

    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.

[See 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Offense Instruction 39.1 [Manslaughter-Voluntary] (1997).]

* USE NOTE: The jurisdictional element only applies in federal prosecutions.

    The defendant is not required to disprove malice or to prove that [he] [she] was acting in the heat of passion based on sufficient provocation. The prosecution must prove malice. Unless you find beyond a reasonable doubt that the defendant did not act in the heat of passion based on sufficient provocation, you must find that malice has not been proven.

[Source: FORECITE National™.]

    If you have a reasonable doubt whether the defendant acted in the heat of passion resulting from sufficient provocation, you must give the defendant the benefit of that doubt and find that there was no malice.

[Source: FORECITE National™.]