JurisdictionNorth Carolina

§31.07. Manslaughter: Provocation ("Sudden Heat Of Passion")180

[A] In General

At common law, an intentional homicide committed in "sudden heat of passion" as the result of "adequate provocation" mitigates the offense to voluntary manslaughter.181 Although the issue rarely arises, the "provocation defense" may also negate other forms of malice aforethought, e.g., cases in which the actor is provoked to inflict grievous bodily injury upon another or to act in an extremely reckless manner, in which death unintentionally results.182

The common law defense contains four elements, discussed in the next subsection: (1) the actor must have acted in heat of passion; (2) the passion must have been the result of adequate provocation; (3) the actor must not have had a reasonable opportunity to cool off; and (4) there must be a causal link between the provocation, the passion, and the homicide.183

[B] Elements of the Defense

[1] State of Passion

The provocation defense does not apply unless the defendant is in a state of passion at the moment of the homicide.184 Although anger may be the emotion most often claimed in heat-of-passion cases, the defense is not so limited. "Passion" includes any "[v]iolent, intense, high-wrought, or enthusiastic emotion."185 This term is "sufficiently broad to encompass a range of emotions[,] including fear,"186 jealousy,187 "furious resentment,"188 and "wild desperation."189

[2] Adequate Provocation

[a] Early Common Law Categories

Early English case law defined "adequate provocation" as "an amount of provocation as would be excited by the circumstances in the mind of a reasonable man."190 Common law courts developed a small and fixed list of categories that met this standard. These "paradigms of misbehavior"191 were: (1) an aggravated assault or battery;192 (2) mutual combat;193 (3) commission of a serious crime against a close relative of the defendant;194(4) illegal arrest;195 and (5) observation of spousal adultery.196

Among the provocative acts that were not considered adequate were: (1) a trivial battery;197 (2) learning about (but not observing) adultery;198 (3) observation of the sexual unfaithfulness of a fiance or other unmarried sexual partner;199 and (4) words, no matter how insulting or offensive.200

[b] Modern Law

[i] In General

The rigid common law categories of "adequate provocation" described above have given way to the view that the issue of what constitutes adequate provocation should be left to the jury to decide. As one court explained, "[w]hat is sufficient provocation . . . must vary with the myriad shifting circumstances of men's temper and quarrels."201 No court can "catalogue all the various facts and combinations of facts which shall be held [sufficient]."202

Jurors are variously instructed on the meaning of "adequate provocation." For example, provocation is sufficient ("adequate") to mitigate an intentional killing to manslaughter if the unlawful203 provocation: "would render any ordinarily prudent person for the time being incapable of that cool reflection that otherwise makes it murder";204 "might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment";205 is "sufficient to cause an ordinary man to lose control of his actions and his reason";206 "is so gross as to cause the ordinary reasonable man to lose his self-control and to use violence";207 or is "'calculated to inflame the passion of a reasonable [person] and tend to cause [that person] to act for the moment from passion rather than reason.' "208

Although the clear trend is away from recognizing only a limited number of categories of "adequate provocation,"209 one common law rule that has persisted in many jurisdictions is that "words alone" do not constitute adequate provocation.210 This can prove to be a harsh rule. For example, in one incident, G, an African-American, killed V, his white neighbor, in a rage after V informed G that he had purposely shot G's dog a few weeks earlier, and that he had done so because "it was bad enough living around niggers, much less dogs."211 Thus, two types of words were involved in this situation: informational words (words informing the listener of an incident—killing a dog—that might have constituted adequate provocation had it been observed contemporaneously); and highly insulting words. In such circumstances, the words-alone rule bars an instruction to the jury on manslaughter, even though this "ignores the fact that sometimes words may be even more inflammatory than aggressive actions."212

This rule is breaking down. A few jurisdictions have wholly abolished the rule or permit the defense to be raised in "informational words" cases, but retain the no-defense position with insulting words.213 One jurisdiction has suggested that there are very special informational words that constitute adequate provocation: "[W]ords alone do not amount to the sort of provocation necessary to reduce a murder to manslaughter. . . . But words that disclose the adulterous conduct of a spouse are not just words, at least to the extent that they cause the accused to genuinely and reasonably believe that his spouse has been unfaithful."214 In addition, the "words alone" rule does not apply in jurisdictions following the Model Penal Code.215 And it should be stressed that the common law rule, to the extent that it remains viable, applies to "words alone" Thus, words coupled with conduct, for example, "conduct indicating a present intention and ability . . . to cause bodily harm,"216 may serve as adequate provocation, as well as serve as the possible basis for a self-defense or defense-of-other claim.

Another common law rule that persists in most jurisdictions involves the "misdirected retaliation" rule, which provides that the defense may only be asserted if the defendant attempts to kill the person who performed the provocative act rather than an innocent bystander.217

[ii] The Nature of the "Reasonable Person"218

Who is the "reasonable person" to whom the provoked defendant is compared, in order to determine what constitutes "adequate provocation"? First, it should be observed that the word "reasonable" is an odd term to apply in this context, since the "reasonable man" is sometimes considered to be "the public embodiment of rational behavior,"219 which is hardly an apt description of a provoked killer. It is perhaps more accurate, therefore, to describe the objective character in this context—as some courts do — as an "ordinary" (or, at least, "ordinarily reasonable"220) person, one who sometimes, unfortunately, acts out of uncontrolled emotion rather than reason.

Second, to the extent that one seeks to determine the nature of the "reasonable/ordinary person" on the basis of traditional Anglo-American case law, we learn that such a person is: of average disposition,221 i.e., not exceptionally belligerent;222 sober at the time of the provocation;223 and of normal mental capacity.224 The doctrine, in other words, is said to be "an objective one. . . . Qualities peculiar to the defendant which render him or her particularly excitable are not considered. The concept of manslaughter was not intended to excuse a defendant's subjective personality flaws."225

As in other areas of the criminal law,226 however, there is a movement to partially subjectivize the standard, i.e., to include at least some of the defendant's personal characteristics and/or life experiences in the "ordinary/reasonable person" standard.227 Due to the influence of the Model Penal Code,228 juries are increasingly instructed to test the defendant's reaction to provocation by the standard of the ordinary person "in the actor's situation." Left ambiguous is what "the actor's situation" might include.

In this regard it is useful to consider two possible ways a defendant's personal characteristics—"the actor's situation"—might be legally relevant: (1) in measuring the gravity of the provocation to the reasonable/ordinary person; and (2) in assessing the level of self-control to be expected of a reasonable/ordinary person.

In regard to the gravity of the provocation, American courts are struggling with this question. In England, however, the House of Lords many years ago held that the "reasonable man referred to [in the law] . . . share[s] such of the accused characteristics as [the jury] think[s] would affect the gravity of the provocation to him."229 Thus, under this standard, a defendant's height, weight, sex, religion, race, culture, or virtually any other personal factor may potentially be incorporated into the "reasonable person," as long as the jury believes that the factor(s) in question would affect the gravity of the provocation.

To appreciate the significance of this approach, consider two American cases. In the first case,230 the defendant observed two women in lesbian lovemaking. Inflamed, he killed one of the women and wounded the other. He sought to reduce the homicide to manslaughter by introducing psychiatric testimony that, while growing up, he had been rejected by his mother, whom he long suspected had been involved in a lesbian relationship. In effect, the defendant sought to be measured by the standard of a "reasonable/ ordinary man who, because of family trauma, has (perhaps pathological) animus towards lesbians." Under the British approach, the defendant's background might be used to determine whether the defendant's sexual observations constituted adequate provocation. But should it? Arguably, the proffered testimony might support a valid diminished capacity claim,231 but it is submitted that subjectivization of the sort sought here is out of place in a provocation case, which focuses on the type of provocation that would cause an ordinary person, with ordinary human frailties, to become so inflamed as to lose self-control.232 Are we prepared, for example, to let a racist who is required to sit next to an...

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