Dressler,
pp. 245-248: “Rethinking Heat of Passion: A Defense in Search of a Rationale”
Dressler
basically says that the “heat of passion” argument is a “partial justification”
that’s hard to justify.
On
the other hand, you can argue that it is an excuse on one of three grounds:
1. When you’re in
the heat of passion, you can’t think straight and thus can’t form a true mens
rea.
2. The defendant
is less blameworthy because his act is less voluntary.
3. Offenses
committed under the heat of passion do not reflect a person’s true character,
but rather general human frailty. Or
whatever.
Notes
and Questions
1. Explaining “heat
of passion” as a justification appeals to me more than explaining it as an
excuse. It shows that society does not
approve of the victim’s conduct that led to the defendant’s offense.
2. If “heat of
passion” is an excuse, Aaron is entitled to a manslaughter jury
instruction. If it is a justification,
Aaron’s killing of Ruth is certainly not justified.