NCJ Number
84471
Journal
Journal of Criminal Law and Criminology Volume: 73 Issue: 2 Dated: (Summer 1982) Pages: 421-470
Date Published
1982
Length
50 pages
Annotation
The article analyzes the heat of passion doctrine in terms of historical background, rationales for the doctrine, interpretation by the courts, and suggested wording for a model heat of passion homicide statute.
Abstract
Heat of passion is a defense that has been too little analyzed or clarified. Although initially created to avoid the death penalty, it was never sufficiently clear why the provoked killer should not be executed. Various rationales, often contradictory, have been suggested for the defense. Although more modern statutes often treat the defense as a forum of excuse, the reasons why it is an excuse, and only a partial one, have remained largely uncertain. Also, the law often still combines common law rules of justification with what might otherwise be an excusing defense. Careful analysis of the defense, therefore, serves to clarify the law and make the rules relating to this and other defenses more consistent. The analysis demonstrates that heat of passion is not a form of justification, but an excuse. Moreover, heat of passion should either be a partial or full excuse, depending upon the degree of capability for self-control which the actor, and the ordinary person, possess. Legislation should carefully codify this understanding. A total of 315 footnotes are supplied. (Author summary modified)