Article
Loss of Self-Control, Dual-Process Theories and Provocation
Fordham Law Review
(2020)
Abstract
Contemporary understanding of the provocation defense views the "loss of self-control theory" as the cornerstone of this partial excuse. In considering whether to reduce murder charges to voluntary manslaughter, juries and judges rely on this theory to determine if the defendant lost self-control after experiencing intense emotional arousal and if a reasonable person would have also likely lost self-control in similar circumstances.
The article questions this conventional wisdom by examining the various flaws embedded in provocation’s loss of self-control theory. It argues that the theory is both over-and-under inclusive. It is over-inclusive because it provides a basis for mitigation in cases where leniency is normatively unwarranted given policy considerations. It is also under-inclusive because it only accommodates the typical reactions of angry defendants who manifest sudden impulsivity, yet it fails to help defendants who visibly appear calm and composed, because their emotional arousal was triggered by a host of other emotions beyond anger, mostly fear, desperation and hopelessness.
This article turns to psychological research on dual-process models to craft an alternative theory underlying the provocation defense. Drawing on these models’ two modes of thinking, it contends that provoked killers’ reactions may be understood as the result of emotions that shape actors' judgment and decision-making processes. The Article uses the term "impaired judgment" to refer to these situations. Acknowledging both the promises and the pitfalls of this alternative theory, the Article advances two arguments. First, it posits that the concept of impaired judgment is better suited than loss of self-control to support provocation's doctrinal framework. Second, it points to intrinsic limitations embedded in reliance on the loss of self-control theory, which is unable to account for provocation's normative dimension. The theory must therefore be supplemented with a value-based component that would assist juries in determining the circumstances that make provocation adequate from a normative and evaluative perspective.
Disciplines
Publication Date
2020
Citation Information
Michal Buchhandler-Raphael. "Loss of Self-Control, Dual-Process Theories and Provocation" Fordham Law Review Vol. 88 Iss. 5 (2020) Available at: http://works.bepress.com/michal-buchhandler-raphael/33/