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Adequate (Non)Provocation and Heat of Passion as Excuse not Justification
University of Michigan Journal of Law Reform (2009)
  • Reid Griffith Fontaine, JD, PhD, University of Arizona
For a number of reasons, including the complicated psychological nature of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been whether the defense is a partial justification or excuse. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate that even in circumstances in which there is no actual provocation, or the provocation is not sourced to the victim, heat of passion may still be raised (sometimes successfully) as a defense. The rationale is that the emotional disturbance that interferes with one’s rationality and self-control arises as an effect of the genuine belief that one has been seriously wronged, a perspective that can only be characterized as an excuse. In addition, I discuss how the rationale that the defense is a partial justification fails even in most situations in which the killer has been seriously provoked by the victim. Finally, I clarify discrete psychological components of heat of passion homicide, and discuss how scholarly and judicial blurring of these forms of mental functioning may contribute to the longstanding confusion as to the nature of the defense. In sum, this Article contributes further evidence as to why it can only be correct to view heat of passion as a partial excuse.
  • Justification,
  • Excuse,
  • Affirmative Defense,
  • Provocation,
  • Heat of Passion,
  • Murder,
  • Manslaughter
Publication Date
Citation Information
Reid Griffith Fontaine, JD, PhD. "Adequate (Non)Provocation and Heat of Passion as Excuse not Justification" University of Michigan Journal of Law Reform Vol. (Forthcoming/In Press) (2009)
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