Criminal Law Class Notes 9/26/03


Girouard v. State


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 Maryland defines the difference between degrees the way we’ve previously discussed.  This crime doesn’t seem to be deliberate or done with deliberation.  It was a “hot-blooded” killing.


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




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 Maryland definition and the Michigan definition?[2]


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”?


Back to Class Notes

[1] What does that mean?

[2] Seriously, who cares?!  I’m so bored.