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APPENDIX F

THE MODEL PENAL CODE'S PROVOCATION PROPOSAL AND ITS RECEPTION IN THE STATE LEGISLATURES AND COURTS OF THE UNITED STATES OF AMERICA, WITH COMMENTS RELATING TO THE PARTIAL DEFENSES OF DIMINISHED RESPONSIBILITY AND IMPERFECT SELF DEFENSE

Provocation:

1. The Model Penal Code (hereafter MPC) proposal, Section 210.3(1)(b), is of course known to you. I quote it here for ready reference in this memorandum:

Criminal homicide constitutes manslaughter when a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.

2. The proposal is explained and defended in the commentaries to the Code's provisions on manslaughter, Section 210.3. See American Law Institute, Model Penal Code and Commentaries, Part II, Sections 210.0 to 213.5 (1980). The commentaries constitute a critical explication of this area of law and worth your attention, the more so because it also contains commentary on two other subjects within your reference, diminished responsibility and imperfect self defense.
3. The proposal is in terms founded on the rationale of provocation as an excuse and makes two significant changes in the law.

(1) First, there are no limitations on when a jury is permitted to return a manslaughter verdict that derive from how the defendant came to be disturbed – it is enough that he acts under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. Thus the traditional limitations as to what acts could constitute adequate provocation -- on words as provocation, on cooling off time, on the effect of mistake and so forth -- are gone. To this extent it accomplishes what Section 3 of your Homicide Act of 1957 accomplished and what some American jurisdictions had already accomplished. Also part of the proposal is the reformulation of the traditional requirement of reasonableness to avoid the awkwardness of the standard of the reasonable person (who kills?) by asking rather whether there is reasonable explanation or excuse for the defendant's disturbance. To refer to these features of the MPC proposal I will use the common shorthand, EED.

(2) Second, the MPC introduces a potentially radical subjectivity into how the determination of reasonableness would be made; i.e., from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. I will refer to this as the actor's situation standard.

4. Now as to the reception of the MPC proposal in the states: I need to clarify the sentence on this subject in my casebook that caught your eye. The sentence relies on the cited study by Professor Singer [The Resurgence of Mens Rea, 27 B.C. L. Rev. 243 (1986)], but I find now that Singer's statement did not distinguish which of the features of the MPC's proposal were adopted and which not.
5. Of the some thirty four jurisdictions that revised their criminal codes in the post MPC era none adopted the MPC proposal whole, although five adopted it almost whole, omitting the term "mental" from the MPC's phrase "extreme mental or emotional disturbance." (Possibly the reason was to forestall evidence of mental abnormalities, but as we shall see it did not achieve that effect.) These are Arizona, Arkansas, Connecticut, Kentucky and New York.
6. About a dozen other states adopted some of the Code's features but only with significant alterations, either explicitly requiring a provocative act or rejecting the radical subjectivity of "the actor's situation" standard, or both, or in some other ways. (These statutes are in Annex B.) Delaware, Guam, Hawaii and Montana require that the reasonableness of the explanation or excuse be determined "from the viewpoint of a reasonable person in the actor's situation." Delaware in addition rules out any emotional disturbance or provocation for which the accused was responsible. Oregon makes a similar change, requiring that the reasonableness of the explanation must be determined from the standpoint "of an ordinary person" in the actor's situation. It also changes the MPC's proposal by requiring that the circumstances be taken not as the actor's see them, but as he "reasonably" sees them. Utah requires the standpoint of a "reasonable person" and under "the then existing circumstances." New Hampshire simply requires that the extreme mental or emotional disturbance be "caused by extreme provocation." North Dakota adopts the extreme emotional disturbance language, "but only if occasioned by substantial provocation, or a serious event, or situation for which the offender was not culpably responsible."
7. It is apparent from these modifications of the MPC formula that the sticking points were the degree of subjectivity it imported and its omission of the explicit requirement of a provocative action, both of which served to create a great and largely unguided discretion in the jury. One may surmise that similar concerns were shared by those jurisdictions that rejected the MPC altogether, either at first or on reconsideration. For example Maine and Ohio adopted the MPC formulation, or much of it, but subsequently replaced it with more traditional formulations. The available documentation is skimpy, however, and does not reveal the reasons for the change. (See Annex B for the relevant citations.) And in Wisconsin, where the legislature had not enacted any of the MPC reforms, the Ohio Supreme Court reversed a murder conviction (of a battered woman, it happens) for failure to give a voluntary manslaughter instruction and did so in an opinion that explicitly adopted the MPC standard. State v. Hoyt, 124 N.W.2d 47 (Wisc. 1960). However soon thereafter the court withdrew that opinion and substituted another reaching the same conclusion on traditional grounds. 128 N.W.2d 645 (Wisc 1965). Mysteriously, no explanation is given.
8. Nevertheless, in some respects the MPC proposal had an important impact on the law. For even though only six jurisdictions adopted it whole, a larger number, as we just saw, adopted some of its features, notably the EED formulation, which eliminated constraints on what legally could count as provocation and required that disturbance to be reasonable rather than the killing. These states, together with the five that adopted the MPC virtually whole, are sometimes referred to in the literature as the "reform" jurisdictions.
9. The upshot in these states has been to achieve one of the principal objectives of the MPC proposal -- to enlarge the freedom of the jury and to confine the role of the courts. One sees this in the reluctance of courts in these jurisdictions to exclude mitigating evidence offered by the defendant to explain or excuse his disturbance - almost anything goes. And while this has been seen by some as making the law more just to the individual, it has not evoked rejoicing in all quarters. I offer the following comments from a recent article for two reasons, first to convey the breadth of the evidence allowed in these cases, and second to exhibit an important reason why some do not think this an unmixed blessing (Victoria Nourse, Passion's Progress, 106 Yale L. J. 1331, 1332 (1997)):
10. A significant number of the reform cases I studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. Reform has permitted juries to return a manslaughter verdict in cases where the defendant claims passion because the victim left, moved the furniture out, planned a divorce, or sought a protective order. Even infidelity has been transformed under reform's gaze into something quite different from the sexual betrayal we might expect--it is the infidelity of a fiancée who danced with another, of a girlfriend who decided to date someone else, and of the divorcée found pursuing a new relationship months after the final decree. In the end, reform has transformed passion from the classical adultery to the modern dating and moving and leaving. And because of that transformation, these killings, at least in reform states, may no longer carry the law's name of murder.
11. The force of this criticism is blunted by two facts, that the issue is only mitigation, not exculpation, and that in the cases the author refers to the jury rejected the defense and convicted of murder. Still the point has force, since remitting issues to the bare sympathies of the juries invites the illicit and the prejudiced, particularly troublesome when the prejudice tends to be part of the culture, as it is to some degree with sex roles and behavior.
12. The same expansion of allowable evidence shows up, of course, in other contexts than romantic ones. And in many cases manslaughter instructions have been required where the traditional law would clearly not have countenanced them; cases, for example without any provocative action at all, or where the provocative action occurred long before the homicide. Examples of such cases are set out at pages 420-425 of Kadish and Schulhofer, Criminal Law and its Processes: Cases and Materials 6^th Edition.
13. But it is hard to generalize safely about American law, with its many jurisdictions. While my sense that the courts in reform jurisdictions have on the whole interpreted the MPC formulation consistently with its obvious intent, you will find some courts continuing with old ways. I call to your attention two cases in my casebook where courts couldn't quite get themselves to apply the reformed law. In the Walker case, 6^th Ed. at 424-25, the court balked at requiring a manslaughter instruction in a case involving a drug dealer who shot and killed another over a money dispute. As the dissent pointed out, the statute required otherwise, but it was too much for the court to allow provocation to be raised in this seamy fact situation. . And in the Raguseo case at 436 the Supreme Court of Connecticut, a state which borrowed the MPC proposal whole, quite plainly departed from the statutory standard by approving an instruction to the jury to assess the situation from the viewpoint of a reasonable person of ordinary intellect instead of that of a person in the actor's situation. In addition, while courts in some reform states have read the new law as dispensing with the need for a triggering event (see People v. Casassa, 6^th edition at 420, and the two Connecticut cases at top of page 424), others have not. See, for example, Spears v. Commonwealth, 30 S.W.3d 152 (Ky. 2000); State v. Bishop, 753 P.2d 439 (Utah, 1988), both of which insist on the need for a triggering event. Attachment to the old ways is strong and sometimes law reform is like turning a large vessel at sea – it takes a while.
14. You ask for my opinion of the EED formulation. As you might infer from what I have said in describing the thinking behind the MPC, I think it is a felicitous and useful improvement over the traditional formulation. It might be considered a drawback that it has the effect of enlarging the circumstances in which this defense can be raised, but it does seem to me to be very hard sensibly to lay down in advance, as the traditional law did, the precise few circumstances in which great rage could be a defense. And I think the EED formula hits the nail on the head in asking whether there is reasonable explanation or excuse for the mental disturbance, since in these cases the basis of the mitigation is precisely the emotional disturbance, the hot blood of old, and the relevant question is whether the jury can identify with (find "reasonable explanation or excuse" for) the actor being in that state. This formulation might have assuaged the irritation of Lord Hoffman in Smith (Morgan) with having to ask the jury to consider "the reasonable glue sniffer" or "the reasonable depressed person." So in my view this part of the MPC proposal has it right. I feel otherwise about the other, more controversial feature of the MPC proposal, the "actor's situation" standard.
15. The MPC directs that the judgment of the reasonableness of the actor's disturbance be made from the viewpoint of a person in the actor's situation. What aspects of the individual did the MPC have in mind, and how have the courts applied the standard? The drafters tell us that the ambiguity of "the actor's situation" was deliberate. Plainly it was meant to cover physical characteristics of the defendant (e.g, blindness or other physical handicap), and not meant to cover moral or character defects (in the Commentary they put the example of a fanatic political assassin). However, what other personal characteristics of the defendant should be included in the judgment and what not was to be left to the jury to decide according to "whether the actor's loss of self control can be understood in terms that arouse sympathy in the ordinary citizen." As the drafters saw it, even such character traits as an "exceptionally punctilious sense of personal honor or an abnormally fearful temperament" might not be "wholly irrelevant to the ultimate issue of culpability". (Commentaries 62). This therefore was going a very long way toward a subjective standard with not much more than a gesture toward an objective standard. Evidence of what kinds of abnormalities or peculiarities in the actor's situation would be admissible to support a manslaughter verdict? Would R. v. Smith (Morgan) have to be decided as it was in the House of Lords? I believe so, as I say in my 7^th edition, at page 424.
16. Perhaps the Code's inclusion of mental as well as emotional disturbance is a clue that they had mental abnormalities in mind, as is the statement in the Commentaries:

"The term 'situation' . . . is designedly ambiguous and is plainly flexible enough to allow the law to grow in the direction of taking account of abnormalities that have been recognized in the developing law of diminished responsibility. . . .Like blindness or other physical infirmities, perhaps it should be that certain forms of mental abnormality should be regarded as a part of the actor's 'situation' that is relevant to the moral assessment of his conduct." American Law Institute, Model Penal Code and Commentaries, Part II, Sections 210.0 to 213.5 at 72, 73 (1980).

17. Cutting the other way, however, is the strong position the Code takes against the doctrine of diminished capacity. So at p.71 of the Commentaries to Section 210.3 the Reporter states:

[P]rovocation focuses on circumstances that would so move an ordinary person to kill that the defendant's act of succumbing to that temptation, although culpable, does not warrant conviction for murder. It seeks to identify cases of intentional homicide where the situation is as much to blame as the actor. Recognizing diminished responsibility as an alternative ground for reducing murder to manslaughter undermines this scheme. Unlike provocation, diminished responsibility is entirely subjective in character. It looks into the actor's mind to see whether he should be judged by a lesser standard than that applicable to ordinary men.

18. Consistent with that view the MPC does not adopt a diminished responsibility provision, reasoning that:

By evaluating the abnormal individual on his own terms, . . . it blurs the law's message that there are certain minimal standards of conduct to which every member of society must conform. By restricting the extreme condemnation of liability for murder to cases where it is fully warranted in a relativistic sense, diminished responsibility undercuts the social purpose of condemnation. (Ibid)

19. One would suppose that this reasoning would require that evidence of defendant's mental abnormalities would be rejected also in assessing his "situation" under the MPC extreme emotional disturbance formula -- presumably a similar blurring of the law's message would be involved even though the jury does have to find the actor's (abnormal) disturbance reasonably explicable. In any event, that's not what the commentaries said; and courts in the handful states that adopted this standard have tended to accept the relevance of such evidence in interpreting "the actor's situation." For example, the Kentucky Supreme Court has held that the presence of mental illness is relevant to a subjective evaluation of the reasonableness of defendant's response to provocation. Fields v. Commonwealth, 44 S.W.3d 355 (Ky. 2001). For a similar view in New York see People v. Casassa, 6^th Ed, at 420. For Connecticut, see State v. Zdanis, 438 A.2d 696, 700 (1980), where the Supreme Court expressed the view that expert psychiatric testimony was of "utmost importance." What this has meant in particular prosecutions is suggested in Professor Singer's review, referred to above, of cases in the few jurisdictions that adopted the actor's situation standard, 27 B.C.L. Rev. at 298:

[P]sychiatric evidence has been admitted, though not always found credible, to explain why a high school counselor killed a student who threatened to expose the counselor's use of marijuana, why a husband shot his estranged wife after the last of many arguments, why a defendant walked into his brother's house one morning and shot him without saying a word, and why a boyfriend stabbed his former girlfriend with a steak knife when she refused his proffered gift of a bottle of liquor.

20. My view of this (actor's situation) feature of the MPC? Since your goal is to allow trial judge to escape from "the continuing nightmare" of the present state of the English law I could not recommend you follow the MPC here. As I said, the EED feature of the MPC might help both judges and juries understand better the role of reasonableness in the equation and so lighten the nightmare. But I can't say the same for the actor's situation feature. It leaves the jury with virtually no guidance except their bare visceral response in determining what abnormalities in the actor's situation should count and which not, and efforts by trial judges to develop some guidance (out of what?) would probably maintain the nightmarish experience you describe.
21. Another difficulty with the actor's situation standard is that it is not true to the rationale of this partial defense as I conceive it, and as the MPC itself conceived it: namely, to allow the jury to mitigate the severity of punishment for murder where they can say that given the circumstances in which the defendant found himself they or any other normally law abiding person who be enraged and sorely put to control himself. Indeed, this is the rationale Professor Wechsler, the draftsman and dominating intellectual influence of the MPC, had formulated in his classic 1937 article (A Rationale of the Law of Homicide, 37 Colum. L. Rev. 1261, 1281):

Provocation . . . must be estimated by the probability that [the provocative] circumstances would affect most men in like fashion. . . . Other things being equal, the greater the provocation, measured in that way, the more ground there is for attributing the intensity of the actor's passions and his lack of self-control on the homicidal occasion to the extraordinary character of the situation in which he was placed rather than to any extraordinary deficitncy in his own character.

22. By individualizing the standard to include an assessment of the actor's own situation, including in effect, his abnormalities, the MPC departs from that rationale in a major way. That is so because in leaving to the jury to decide on its own whether some non-ordinary or non-reasonable feature of the actor's personality bears on punishment, it asks, in effect, whether the jury regards it as just to mitigate the punishment in view of the actor's differences from the ordinary or reasonable person. This is related to tension I suggested just above between MPC's positions on provocation and diminished responsibility.
23. In short, I believe the EED feature of the MPC is worth your serious attention while the actor's situation feature would only deepen the nightmare you speak. So, since you appear to ask my opinion, I would suggest considering what many states have done, retaining the EED formulation but rejecting its highly subjective qualification.

Diminished Responsibility

24. On diminished responsibility, you are quite right in your assumption that there is no American equivalent to Section 2 of the Homicide Act. However, the California Supreme Court once improvised a doctrine which served the same function of reducing murder to manslaughter. This is a bit of a discretion but you may find if of interest.
25. This doctrine was also called diminished responsibility (or capacity) but it was theorized differently: the lesser punishment was required where defendant's mental abnormality negated the mens rea of murder, not because it simply diminished his responsibility in any general sense. Under the California statute murder was (and is) defined as a killing done with "malice". The Court chose to interpret this ancient term in disregard of its long encrusted meaning, preferring instead to read it in its dictionary, non technical sense of moral turpitude. So, concluded the Court, where, because of a mental abnormality or intoxication, the defendant "is unable to comprehend his duty to govern his actions in accord with the duty imposed by law" he does not act with malice and may be held at most for voluntary manslaughter. People v. Conley, 411 P.2d 911 (1966). Most of us thought (I certainly do) that there was not much to be said for this remarkable interpretation, except perhaps that it served as a weapon in that Court's continuing battle against capital punishment. Only two or three states followed, but the end came with a California statute in 1982 (the result of a popular voter initiative!) declaring that "As a matter of public policy there shall be no defense of diminished capacity [or] diminished responsibility." California Penal Code Section 28(b). The whole episode is a chapter in the American struggle over capital punishment and perhaps of little concern to you beyond its general interest. Of course, you know that struggle, at least so far, but I should point out that both the diminished capacity of the defendant in the general sense (as well as his having acted with "extreme emotional or mental disturbance", I should add) are usually given in capital punishment statutes as mitigating factors for the jury to consider.
26. Back to the text, as it were. In my discussion of provocation I compared the provocation defense with the diminished responsibility defense (in its usual sense) and quoted the MPC's reasons for rejecting the latter. I believe it is implicit in what I said that, for what it is worth, I agree -- for the reasons given by the MPC Commentary, and as well because there is no reliable way to gauge degrees of responsibility. I do not believe that psychiatric evidence on this issue has been very useful, and I doubt that it ever could be in view of the intractable conceptual difficulty of defining degrees of responsibility.
27. You ask my opinion of the recommendation of Professors Macky and Mitchell to combine the defenses of provocation and diminished responsibility. Since I am not partial to the latter defense alone plainly I would not like it better in combination. Still, if diminished responsibility were to be retained I would think it better to keep it separate because to combine the defenses would tend to confuse their very separate underlying rationales that I tried earlier to describe.
28. You raise an interesting question when you imply that the "extreme emotional disturbance" language of the MPC may be seen as at least a kin to the diminished responsibility defense. I think that's right if one focuses just on that phrase and take it in its popular sense as a euphemism for mental abnormality. Some states have apparently been concerned about precisely this and therefore changed emotional disturbance to emotional distress; e.g., Oregon and Utah. But in view of the qualifying phrase that follows, "for which there is reasonable explanation or excuse," and the draftsman's explication of the theory of this defense in the Commentary it would appear that what was intended was an updated, more informative, and, may I say, cooler reformulation of heat of passion. I believe I am confirmed in this by the cases in jurisdictions which adopted the MPC language. Therefore the use of the phrase by Professors Macky and Mitchel is a significant variant of the MPC proposal indeed. I should add that the variant they use does appear in a number of capital punishment states as one of the mitigating factors juries should consider. Here, of course, the intent is to put an altogether subjective standard, unqualified by the need for there to be reasonable explanation or excuse for it.

Imperfect Self Defense

29. At page 813-14 of the Sixth Edition of my casebook you will find a note on the subject which you may find helpful. But I regret I can't say much to your question of how it has worked in those states that have accepted it. The case annotations from the states that adopted this approach are sparse and unhelpful, and very much the same is true of the literature on the subject. While the MPC's proposal put the issue in play in the 'sixties and 'seventies little attention has been devoted to reporting on how this defense has worked out in practice. All I can offer is these few observations from my own experience, which for your purposes I expect will be neither here nor there.
30. The defense has been offered in battered women cases of course (e.g., State v. Leidholm, 334 N.W.2d 811 (N.D. 1983), a sleeping husband case). While it would seem suited to such relatively sympathetic cases and one which defenders of battered women should welcome, a defense concern in this country has been that it can offer an easy compromise for a jury resistant to find a full justification in reliance on battered woman syndrome evidence. That would not be a problem in jurisdictions which do not accept this evidence, but I don't know the position of your courts on the subject; certainly in this country it has become widely accepted.
31. Where the imperfect self defense rule is accepted it becomes in effect a lesser included defense whenever self defense is raised. That can produce cases like the battered women cases, but also those like the notorious prosecution in the mid 'nineties in California of the Menendez brothers, two young men who laid in wait and shot and killed their parents, and then defended by claiming parental abuse over the years. Some jurors were strongly enough convinced to hold out for manslaughter under an imperfect self defense instruction the trial judge had offered. Only after a mistrial and a second prosecution were they convicted of murder. How much to fault this defense rather than the occasional weirdness of some juries (in California!) is open to question.
32. So I have to fail you on your first question. Let me go to your second, which I take to be to respond to your expressed reservations about such a defense. Your Consultation Paper well describes the case for it – the culpability of a person who kills out of a mistaken but genuine belief that he has to in order to save his life from an imminent threat is no murderer. If his belief were reasonable we say he was legally and morally justified, so his fault lies only in his misapprehending the situation.
33. Why then, you ask, should this person not be acquitted rather than held for manslaughter? Where criminal liability can be grounded on unreasonable mistake, as it can in this country, a principled answer is that given by the Model Penal Code – he may be held for a crime of negligent or reckless homicide. Where objective criminal liability of this kind is rejected I don't think there is a principled answer to your challenge. My best surmise, however, is that there would still be an answer, but it would be a practical one: absent the reasonableness of the actor's belief, too much would be left for the jury to make of the defendant's bare and unsupported self assertions of his beliefs. This would be enough to explain the law's traditional reluctance to permit an honest but unreasonable belief to exculpate.
34. However, should not this reasoning lead to disallowing a partial defense as well as a total one? That, I take it, is the thrust of your challenge and it seems to be a fair one. A response would perhaps have to rest on the distinction between exculpatory and mitigative defenses. So while the concern for abuse of the defense carries the day against principle when the risk is an unjust acquittal, it does not do so when the risk is only that of lesser though still significant punishment.

ANNEX A

Statutes Influenced by Model Penal Code's Provocation Proposals

ARIZONA

AR ST S 5-10-104 Manslaughter.

(a) A person commits manslaughter if:

(1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant's situation under the circumstances as he believes them to be;

CONNECTICUT

CT ST § 53a-54a. Murder

(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.

(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.

CT ST S § 53a-55. Manslaughter in the first degree: Class B felony

(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection;

DELAWARE

DE ST TI 11 § 632 Manslaughter; class C felony.

A person is guilty of manslaughter when:

(3) The person intentionally causes the death of another person under circumstances which do not constitute murder because the person acts under the influence of extreme emotional disturbance; or

DE ST TI 11 § 641 Extreme emotional distress.

The fact that the accused intentionally caused the death of another person under the influence of extreme emotional distress is a mitigating circumstance, reducing the crime of murder in the first degree as defined by § 636 of this title to the crime of manslaughter as defined by § 632 of this title. The fact that the accused acted under the influence of extreme emotional distress must be proved by a preponderance of the evidence. The accused must further prove by a preponderance of the evidence that there is a reasonable explanation or excuse for the existence of the extreme emotional distress. The reasonableness of the explanation or excuse shall be determined from the viewpoint of a reasonable person in the accused's situation under the circumstances as the accused believed them to be. Extreme emotional distress is not reasonably explained or excused when it is caused or occasioned by the accused's own mental disturbance for which the accused was culpably responsible, or by any provocation, event or situation for which the accused was culpably responsible, or when there is no causal relationship between the provocation, event or situation which caused the extreme emotional distress and the victim of the murder. Evidence of voluntary intoxication shall not be admissible for the purpose of showing that the accused was acting under the influence of extreme emotional distress.

GUAM

GU ST T. 9, § 16.50. Manslaughter Defined and Classified.

(a) Criminal homicide constitutes manslaughter when:

(1) it is committed recklessly; or

(2) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse (The reasonable ness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the defendant's situation under the circumstances as he believes them to be. The defendant must prove the reasonableness of such explanation or excuse by a preponderance of the evidence.);

HAWAII

HI ST § 707-702 Manslaughter.

(2) In a prosecution for murder or attempted murder in the first and second degrees it is an affirmative defense, which reduces the offense to manslaughter or attempted manslaughter, that the defendant was, at the time the defendant caused the death of the other person, under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. The reasonableness of the explanation shall be determined from the viewpoint of a reasonable person in the circumstances as the defendant believed them to be.

KENTUCKY

KY ST S 507.020 Murder

(1) A person is guilty of murder when:

(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime;

MONTANA

45-5-103. Mitigated deliberate homicide

(1) A person commits the offense of mitigated deliberate homicide when the person purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of the explanation or excuse must be determined from the viewpoint of a reasonable person in the actor's situation.

NEW HAMPSHIRE

NH ST S 630:2 Manslaughter.

I. A person is guilty of manslaughter when he causes the death of another:

(a) Under the influence of extreme mental or emotional disturbance caused by extreme provocation but which would otherwise constitute murder; or

NEW YORK

NY PENAL § 125.20 Manslaughter in the first degree

A person is guilty of manslaughter in the first degree when:

1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; or

NY PENAL § 125.25 Murder in the second degree

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; or

NORTH DAKOTA

ND ST 12.1-16-01 Murder.

2. A person is guilty of murder, a class A felony, if the person causes the death of another human being under circumstances which would be class AA felony murder, except that the person causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse must be determined from the viewpoint of a person in that person's situation under the circumstances as that person believes them to be. An extreme emotional disturbance is excusable, within the meaning of this subsection only, if it is occasioned by substantial provocation, or a serious event, or situation for which the offender was not culpably responsible.

OREGON

OR ST S 163.115. Murder, affirmative defenses; felony murder; sentence

(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder:

(a) When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance;

OR ST S 163.135. Extreme emotional disturbance; expert testimony; psychiatric examination

(1) It is an affirmative defense to murder for purposes of ORS 163.115 (1)(a) that the homicide was committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be. Extreme emotional disturbance does not constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.

(2) The defendant shall not introduce in the defendant's case in chief expert testimony regarding extreme mental or emotional disturbance under this section unless the defendant gives notice of the defendant's intent to do so.

UTAH

UT ST 76-5-203 Murder.

(4) (a) It is an affirmative defense to a charge of murder or attempted murder that the defendant caused the death of another or attempted to cause the death of another:

(i) under the influence of extreme emotional distress for which there is a reasonable explanation or excuse; or

(ii) under a reasonable belief that the circumstances provided a legal justification or excuse for his conduct although the conduct was not legally justifiable or excusable under the existing circumstances.

(b) Under Subsection (4)(a)(i) emotional distress does not include:

(i) a condition resulting from mental illness as defined in Section 76-2-305; or

(ii) distress that is substantially caused by the defendant's own conduct.

(c) The reasonableness of an explanation or excuse under Subsection (4)(a)(i) or the reasonable belief of the actor under Subsection (4)(a)(ii) shall be determined from the viewpoint of a reasonable person under the then existing circumstances.

(d) This affirmative defense reduces charges only as follows:

(i) murder to manslaughter; and

(ii) attempted murder to attempted manslaughter.

ANNEX B

The Ohio and Maine Reversal

Ohio flip-floped on the MPC formulation of provocation. Their statute currently reads:

2903.03 Voluntary manslaughter

(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another or the unlawful termination of another's pregnancy.

(B) Whoever violates this section is guilty of voluntary manslaughter, a felony of the first degree.

But the notes to the statute indicate that prior to 1982 a MPC formula was used:

Publisher's Note to H 511 Comment: A 1982 amendment of this section changed the language "while under the influence of extreme emotion stress" to "while under the influence of sudden passion or in a sudden fit of rage." The Committee Comment to H 511 should be read in light of this amended language.

Maine also flip-flopped on the MPC formulation. The current statue reads:

§ 204. Aiding or soliciting suicide

1. A person is guilty of aiding or soliciting suicide if he intentionally aids or solicits another to commit suicide, and the other commits or attempts suicide.

2. Aiding or soliciting suicide is a Class D crime.

But prior to this formulation, the MPC formulation was in place and even survived an amendment process:

1975 Amendment.

Laws 1975, c. 740, § 41, repealed and replaced par. B of subsec. 1, which prior thereto read:

"B. Causes the death of another human being under circumstances which would be criminal homicide in the first or 2nd degree except that he causes the death under the influence of extreme emotional disturbance or extreme mental retardation. The defendant shall prove by a preponderance of the evidence the presence and influence of such extreme emotional disturbance or mental retardation. Evidence of extreme emotional disturbance or mental retardation may not be introduced by the defendant unless the defendant at the time of entering his plea of not guilty or within 10 days thereafter or at such later time as the court may for cause permit, files written notice of his intention to introduce such evidence. In any event, the court shall allow the prosecution a reasonable time after said notice to prepare for trial, or a reasonable continuance during trial."

1977 Amendment.

Laws 1977, c. 510, § 41, repealed and replaced this section, which prior thereto read:

"§ 204. Criminal homicide in the 4th degree.

"1. A person is guilty of criminal homicide in the 4th degree if he:

"A. Recklessly causes the death of another human being; or

"B. Causes the death of another human being under circumstances which would otherwise be criminal homicide in the first or 2nd degree except that the actor causes the death while under the influence of extreme mental or emotional disturbance upon adequate provocation.

"2. Criminal homicide in the 4th degree is a Class B crime, provided that it is a defense which reduces it to a Class C crime if it occurs as the result of the reckless operation of a motor vehicle."

Professor S Kadish

February 10, 2004