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The Wrongfulness of Wrongly Interpreting Wrongfulness: Provocation Interpretational Bias and Heat of Passion Homicide

New Criminal Law Review, Vol. 12, No. 1, p. 69, Winter 2009

Arizona Legal Studies Discussion Paper No. 08-06

25 Pages Posted: 28 Jan 2008 Last revised: 17 May 2009

Reid Griffith Fontaine

Duke University

Date Written: May 14, 2009

Abstract

In United States criminal law, a defendant charged with murder can invoke the heat of passion defense, an affirmative, partial-excuse defense so that he may be instead found guilty of the lesser crime of manslaughter. This defense requires the defendant to demonstrate that he was significantly provoked and, as a direct result of the provocation, became extremely emotionally disturbed and committed the killing while in this uncontrolled emotional state. In this way, the law makes a partial allowance for emotional dysfunction - the wrongfulness of the homicide is mitigated when the emotionally charged reactivity restricts the actor's capacity for rational thought and reasoned behavior. However, the defense makes no such allowance for cognitive dysfunction, despite the widely replicated finding in psychology that violent reactivity is associated with distorted cognitive processing. In particular, reactive violence is often attributed, in part, to provocation interpretational bias - a set of cognitive difficulties by which certain ambiguous-provocation situations are interpreted as intentional, hostile, and wrongful by the reacting aggressor. The present paper discusses how affording a partial excuse for emotional - but not cognitive - dysfunction poses both a logical inconsistency and a moral dilemma for American provocation law. Recommendations for reframing the heat of passion doctrine and resolving these issues are made.

Keywords: Social information processing, heat of passion, provocation, reactive violence, hostile attributional bias, cognitive dysfunction

Suggested Citation

Fontaine, Reid Griffith, The Wrongfulness of Wrongly Interpreting Wrongfulness: Provocation Interpretational Bias and Heat of Passion Homicide (May 14, 2009). New Criminal Law Review, Vol. 12, No. 1, p. 69, Winter 2009; Arizona Legal Studies Discussion Paper No. 08-06. Available at SSRN: https://ssrn.com/abstract=1087820

Reid Griffith Fontaine (Contact Author)

Duke University ( email )

United States

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