Adequate (Non)Provocation and Heat of Passion as Excuse not Justification
26 Pages Posted: 28 Jan 2008 Last revised: 12 May 2010
Date Written: October 7, 2009
For a number of reasons, including the complicated psychological makeup of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been the justificatory versus excusatory nature of the defense. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate how, per the common law framing of the defense, in instances in which there is no actual provocation, or the provocation is not sourced to the victim, heat of passion may nevertheless apply. The rationale is that the emotional disturbance that interferes with one’s rationality and self-control arises as an effect of the genuine belief that one has been seriously wronged, a perspective that can only be characterized as an excuse. In addition, I discuss how the rationale that the defense is a partial justification fails even in most situations in which the killer has really been seriously provoked by the victim. Finally, I clarify discrete psychological components of heat of passion homicide, and discuss how scholarly and judicial blurring of these forms of mental functioning may contribute to the longstanding confusion as to the nature of the defense. In sum, this Article contributes further evidence as to why it is correct to view heat of passion as a partial excuse.
This paper was the lead article in a Symposium published by the University of Michigan Journal of Law Reform on "The Nature, Structure, and Function of Heat of Passion/Provocation as a Criminal Defense." Several leading criminal law scholars provided Essays in Response, including Marcia Baron (Indiana U.), Gabriel "Jack" Chin (U. Arizona), Stephen Morse, (U. Penn.), Samuel Pillsbury (Loyola, L.A.), Robert Weisberg (Stanford), and Peter Weston (U. Michigan). In addition, Kyron Huigens (Cardozo) wrote an introduction to the symposium and provided critical commentary on these works. Finally, I contributed a detailed Reply to all commentators, titled "On Passion's Potential to Undermine Rationality: A Reply," which may be downloaded at http://ssrn.com/abstract=1534680.
Keywords: Heat of Passion, Provocation, Manslaughter, Murder, Cognition, Emotion, Homicide
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