Criminal Law Class Notes
The
wife taunts the husband severely, and the husband kills the wife. He tries to kill himself and then calls the
police.
Girouard
is convicted of second degree murder.
Part of his sentence is suspended.[1]
As
far as we know, the prosecutor charged second degree murder rather than first
degree murder. Let’s assume that
What
does Girouard want? He doesn’t claim
that he should be acquitted, but he does think he should have been convicted of
manslaughter instead of murder.
Sometimes,
this is called “voluntary” manslaughter, but it is more properly called “intentional”
manslaughter.
Here
are the requirements for mitigation from murder to manslaughter:
1. Adequate
provocation
2. Heat of
passion
3. Lack of
opportunity for the passion to cool
4. Causal
connection between provocation, passion, and act
Malice
To
prove malice, there are certain aspects that must be present and certain
aspects that must be absent.
There
must be intent to kill or to commit grave bodily harm, a depraved heart, or
intent to commit a felony.
There
must not be a justification, an excuse or any mitigating factor.
Adequate
provocation
At common
law, words alone never constitute adequate provocation.
Strictly
speaking, in Girouard, the provocation is not words alone because
the victim jumped on the defendant and pulled his hair.
Why
did the defense introduce evidence that Joyce had a compulsive need to provoke
jealousy? Why do we care about the
victim? Why do we care why she provoked
him? How does this tie into the “reasonable
man” standard?
The
court gives us a definition of adequate provocation, which rests on the
definition of “a reasonable man”.
What’s
the difference between the
Say
we were to conclude that provocation X would cause a person to become
violent and kill. Then the question
would be, how could we conflict the defendant of any punishment? But that’s not what we’re saying. We’re saying that provocation X makes it
simply more likely than not that the defendant might lash out due to the
provocation.
We
expect people to behave in a “reasonable” way.
Will a reasonable man sometimes not act with reason?
If the system works, we will
be deeply sensitive to the important distinction between justification and
excuse.
The
common law doesn’t know what to do with “heat of passion”. Sometimes it classifies it as a partial
justification, and sometimes it classifies it as a partial excuse.
The
reasonable man
The
“reasonable man” issue will come up again and again and the issue is in
constant flux.
To
what extent should we “subjectivize” the “reasonable man” standard?
Why
are there so many English cases? Dressler
says that they are ahead of us in their law.
It
is argued that if you include some subjective characteristics, you must include
all characteristics. For example, do we
compare Al Capone to the “reasonable mobster” or Alexander de Large to the “reasonable
ultraviolent man”?
There
are several ways we might want to bring a defendant’s characteristics into the “reasonable
man” standard:
1. Was the defendant
really provoked to lose self-control?
2. Was the
provocation severe to a reasonable person?
3. How much
self-control is expected of the reasonable person?
The
type of provocation in Bedder presumably would be more severe to an
impotent man than to the average reasonable man. On the other hand, if you bring in “pugnaciousness”,
it would seem to fall into the third category.
The
public did not like the result of Bedder, and public outrage led to the Homicide Act of 1957. Among other things, the Act seems to abolish
the “words along rule”. It also leaves
the provocation issue entirely to the jury.
Director of Public Prosecutions
v. Camplin
Should
we include the defendant’s age in the description of the “reasonable man” we
will compare him to?
Why
should gender count? Should women be
held to a “reasonable woman” standard?
That’s a higher standard than “reasonable (male, manly) man” or “reasonable
person).
The
objective “reasonable man” standard is simple.
But is it fair? What about “Holocaust
survivor syndrome”?