1. Homicide
Voluntary Manslaughter (Heat of Passion)
Manslaughter (Extreme Emotional Disturbance)

2. Three homicide schemes
Pennsylvania
Common Law
First Degree Murder
Malice Murder
Intent (purpose) to kill + specified
manner of killing
Intent (purpose) to kill + willful,
deliberate, premeditated
Felony murder with enumerated felony
Intent (purpose or
knowledge) to kill
Murder
§ 210.2(1)(a)
Intent (purpose or
knowledge) to inflict
GBH
Depraved heart
Second Degree Murder
Model Penal Code
Felony murder
Manslaughter
Manslaughter
Voluntary (heat of passion)
Voluntary (heat of
passion)
Involuntary
(negligence)
Involuntary
(negligence)
Murder
§ 210.2(1)(b)
Manslaughter
Manslaughter
(extreme emotional
§ 210.3(1)(a) &(b)
§ disturbance)
210.3(1)(b)
Negligent Homicide
§ 210.4

3. State v. Girouard (Ct. App. Md. 1991)
What verdict would you return (assume a
Pennsylvania-like scheme with a Morrin definition of
deliberation and premeditation)?
A = First-degree murder
B = Second-degree murder
Judge Harry Cole
C = Voluntary manslaughter
D = Not guilty

4. Common-law heat of passion




There must have been adequate (reasonable)
provocation
The killing must have been while in the heat of
passion
It must have been a sudden heat of passion – no
reasonable opportunity to cool off
There must have been a causal connection between
the provocation, the passion, and the fatal act

5. Common-law heat of passion
The General Doctrine
Reasonable
provocation
Anger
(heat of passion)
Reasonable loss of
self-control
Objective
Subjective
Objective
Reasonable Provocation

Provocation is reasonable (or adequate) if
(based on D’s reasonable belief) it is:






Extreme assault or battery
Mutual combat
[Illegal arrest]
Serious injury of a close relative
[Sudden discovery of a spouse’s adultery]
Modern variation ─ Jury decides if
provocation was “reasonable,” provided the
judge does not declare it “unreasonable” as a
matter of law
Death
Reasonable Loss of Self-Control

If the provocation is reasonable, then D’ loss
of self-control is reasonable, unless D had a
reasonable opportunity to “cool down”

6. Aaron hypothetical
Should Aaron guilty of murder or manslaughter?
A = Murder
B = Manslaughter
&%@#!!!
Innocent third party

7. Why?


Partial justification — What D did was wrong but not as
wrong as it otherwise would have been but for V’s provocation
 Disproportionate response – V’s provocation warranted
some response, but D’s response (i.e., killing V) was
disproportionate to the provocation
 Worthy motive – D’s reason or motive for killing does not
justify the killing, but his or her motive nonetheless renders
the killing less wrongful
Partial excuse — D was responsible for what he or she did
but not as responsible as he or she otherwise would have
been but for V’s provocation
 Partial incapacity – D’s capacity to control his or her desire
to kill was partially undermined

8. Theory and doctrine
Reasonable
provocation
Anger
Reasonable loss of
self-control
What would the doctrine look like if provocation was
What would the doctrine look like if provocation
was a partial excuse?
justification?
Death

9. Discussion
Should the doctrine be reformed?
A = No
B = Yes, as a partial justification only
C = Yes, as a partial excuse only
D = Yes, as two separate defenses
E = Yes, abolish!