sympathy with his loss Learning of adultery, observing cheating by situation under the circumstances as he of self-control believes them to be. trivial battery also inadequate to constitute provocation Ex. Extreme Mental or Emotional Distress (EMED) People v. Ambro Defendant wants to mitigate to voluntary Subjective test (not entirely reasonable from – the viewpoint of the actor in circumstances the manslaughter for stabbing and killing his wife. way he sees them) Court rules that wife provoked defendant Could be emotional (heat of passion) OR adequately to mitigate (they had been fighting for seven years, threatened to take his children away, Mental (diminished capacity) called him an alcoholic. Court rules her conduct = Differences from CL Provocation serious provocation). EMED is broader, require: Modern Approach Period of cooling off Person” Test jury must find that: Specific provocative act (can be “Reasonable – Defendant actually in heat of passion combination of acts) Heat of passion was provoked by act/event that Need not be at provoker would have also provoked a reasonable person in Individual history more likely to be considered the defendant’s shoes to lose self-control under EMED Defendant did not have sufficient time to Trend in CL to consider reasonableness “cool off” between provocative event and killing, AND in increasingly subjective manner Reasonable person in defendant’s shoes would Ex. People v. Dumlao not have had time to cool off Defendant extremely jealous, convinced that Must be causal connection his wife was having an affair with her brother. Provocation passion killing Began arguing in front of her family, fighting Victim is either provoker or acting in concert with with brother-in-law, took out his gun and shot and killed mother-in-law. provoker rules that evidence sufficient for Person” “Reasonable manslaughter instruction (still up to jury Not the ideal person determination) based on doctor’s testimony Takes into account fact that people make about defendant’s diagnosis of paranoid mistakes, may be provoked personality disorder. Extremely persistent, Doesn’t include unique characteristics about suspicious and paranoid. defendant (temper, bad judgment) Does include demographics (age Embraces certain cultural norms but not others Ex. People v. Berry Defendant killed wife after she came back from Israel, told him she was in love with another man, wanted divorce. Went to apt. to talk to her, she began screaming, he strangled her with telephone -chord.
sympathy with his loss of self-control Learning of adultery, observing cheating by trivial battery also inadequate to constitute provocation Ex. People v. Ambro Defendant wants to mitigate to voluntary manslaughter for stabbing and killing his wife. Court rules that wife provoked defendant adequately to mitigate (they had been fighting for seven years, threatened to take his children away, called him an alcoholic. Court rules her conduct = serious provocation). Modern Approach “Reasonable Person” Test – jury must find that: Defendant actually in heat of passion Heat of passion was provoked by act/event that would have also provoked a reasonable person in the defendant’s shoes to lose self-control Defendant did not have sufficient time to “cool off” between provocative event and killing, AND Reasonable person in defendant’s shoes would not have had time to cool off Must be causal connection Provocation passion killing Victim is either provoker or acting in concert with provoker “Reasonable Person” Not the ideal person Takes into account fact that people make mistakes, may be provoked Doesn’t include unique characteristics about defendant (temper, bad judgment) Does include demographics (age Embraces certain cultural norms but not others Ex. People v. Berry Defendant killed wife after she came back from Israel, told him she was in love with another man, wanted divorce. Went to apt. to talk to her, she began screaming, he strangled her with telephone -chord. situation under the circumstances as he believes them to be. Extreme Mental or Emotional Distress (EMED) Subjective test (not entirely – reasonable from the viewpoint of the actor in circumstances the way he sees them) Could be emotional (heat of passion) OR Mental (diminished capacity) Differences from CL Provocation EMED is broader, require: Period of cooling off Specific provocative act (can be combination of acts) Need not be at provoker Individual history more likely to be considered under EMED Trend in CL to consider reasonableness in increasingly subjective manner Ex. People v. Dumlao Defendant extremely jealous, convinced that his wife was having an affair with her brother. Began arguing in front of her family, fighting with brother-in-law, took out his gun and shot and killed mother-in-law. rules that evidence sufficient for manslaughter instruction (still up to jury determination) based on doctor’s testimony about defendant’s diagnosis of paranoid personality disorder. Extremely persistent, suspicious and paranoid.
Criminal-Law-Ocen-20143.docx