We’re going to start with the provocation doctrine which reduces an intentional killing from murder to manslaughter.

Common Law Principles

Girouard v. State

321 Md. 532 (1991).

Charged of second degree murder.


Overarching question is whether words alone are sufficient to be considered provocation. In the case at hand, was the provocation by Joyce enough to mitigate the murder charge to voluntary manslaughter?


… (1) There must have been adequate provocation…


Words alone are not adequate provocation. Trial court ruling affirmed.


Joyce and Steven had been married for only two months and had dated for only three months previously. At the time of the incident the marriage had been rocky and Joyce thrust several insults at Steven ultimately concluding that they should be divorced. Steven went to the kitchen, hid a knife behind the pillow and went back to the bedroom. When he asked her if she meant what she said, she responded affirmatively and he attacked.


The trial court says that the provocation was not sufficient to mitigate the charge from murder to voluntary manslaughter. The reason for this is because to do so, any domestic dispute with similar consequences would result in this lessor charge.

Words alone are not enough to find adequate provocation. A person would also need to find fear for their bodily safety for the provocation to be justified. Although she had stepped on him and pulled his hair, their size difference was such that he had no fear of harm from her. Therefore, the trial court got it right.

There are for elements (all need to be satisfied) to determine whether there was provocation:

  1. Adequate provocation
  2. Killing done in the heat of passion
  3. Heat of passion was sudden
  4. Causal connection between the provocation, the passion, and the fatal act.

There were things that the court can find to be found as adequate provocation.

  1. Discovery of spousal adultery
  2. Mutual combat
  3. Assault upon the defendant
  4. Injury to a close relative
  5. Illegal arrest

Because none of those things were the case here, there is not an adequate provocation. Words alone are not enough and because of social necessity, this should not be adequate provocation. Therefore, there needs to also be a threat of bodily harm.

Additional Notes

A voluntary manslaughter (under one definition of common law) is the killing of another human being resulting from serious provocation from the victim.

Here we are going to start talking about provocation.

During trial, the defendant presented expert testimony to say that he was pushed beyond his limit and that the wife had a compulsive need to provoke jealousy.

Using utilitarian and retributive theory we want to make sure that we punish somebody who is morally blameworthy. We also want to deter the common public from engaging in a lessor standard.

MPC Approach

People v. Casassa

49 N.Y.2d 668 (1980).

Casassa is the defendant, lost in trial and appealed.


“Whether the defendant established the affirmative defense of “extreme emotional disturbance” which would have reduced the crime to manslaughter in the first degree.”


Extreme emotional disturbance as a defense has two prongs:

  1. Defendant must have aced under the influence of extreme emotional disturbance.
  2. There needs to be a reasonable explanation or excuse for the disturbance.


The second prong was not met by the jury, ruling stands.


Defendant and his victim first met in their apartment complex. He started casually dating the victim but she ended the relationship because she was not falling in love with him. Distraught, he broke into the apartment below her to eavesdrop. On two occasions, he broke into her apartment. The second occasion he brought a gift of wine and when she refused the gift, he attacked. During trial, he produced expert witnesses to testify that his actions were consistent with the extreme emotional disturbance he felt.


The court can use a subjective test to determine whether the defendant felt extreme emotional disturbance. This can be evaluated on a case-by-case basis according to their minds. The time for emotional disturbance does not need to be in an instant but can occur over time.

However, for the second prong, the trial court was correct in determining that a jury (fact-finders) must find that the disturbance was reasonable. In other words, the jury will determine if his actions are consistent with what another reasonable person would do in that situation. The answer here was no, and he was found guilty.

Additional Notes

MPC approach to manslaughter is that a killing of another person is murder unless it is done under extreme emotional disturbance.

An extreme emotional disturbance is that the defendant acted under the influence of an EED and that a reasonable explanation or excuse

The first prong is entirely subjective. The second part is objective but has a subjective component. When determining if something is reasonable, we consider the mind of the person and the facts as they saw them, but use those facts to see if it was reasonable according to a jury.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Criminal Law

Will Laursen

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