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Provocation under reform rules

Case: People v. Berry, 18 Cal. 3d 509 (1976) [p 358-361]

Facts: Δ, a 46 yr old man, married a 20 yr old girl from Israel. 3 days after their marriage, she went alone to
Israel for almost 2 mos. When she came back, she told Δ that she had fallen in love with another man, and
wanted a divorce from him. Δ ended up strangling her to the point of unconsciousness, but when she got out of
the hospital, they still lived together. She continued to taunt Δ about the other man constantly, and was
demanding sex and then rejecting him. This lead to Δ getting into an uncontrollable rage and strangling her to
death. He was convicted of murder, and appeals arguing there is sufficient evidence to show that he committed
the murder in a state of uncontrollable rage.

Holding: The supreme court reversed the murder conviction since trial court erred in failing to instruct jury on
voluntary manslaughter since the evidence showed the killing was done upon sudden quarrel or heat of passion.
Although there was a "cooling period" the court notes that there was a long course of provocatory conduct by
his wife, and it reached its final culmination when his wife started screaming. Sufficient provocation is to be
determined by the jury, who would decide if the provocation was sufficient to create that passion in the
reasonable person.

Class Notes
• Why is psychologist testimony relevant?
o Because she was suicidal, she was doing it on purpose. So she was actually trying to provoke
him, and he was reasonably provoked.
• Conviction reversed - because he needs to get an instruction as to the provocation. Not left up to
judge/courts to decide what provocation is. Rather, its up to the jury to decide, on a case by case basis,
of what is reasonable provocation.
• Using categorical CL approach, the psychologist testimony wouldn’t be relevant, because he never
caught her in the act of adultery. However, under MPC rules, the jury can decide whether the
circumstances would reasonably provoke, and a psychologist might help to make the Δ look more
• MPC is not categorical.
o Not rule-based. Rather, it is standard-based - "standard" of reasonableness
• A lot of uncertainty when you use the standard-based rule.
o Modern trend with provocation cases is to use standard.
o Problem with MPC approach - outcome can be different depending on what jury thinks is

(1) Criminal homicide constitutes manslaughter when . . .

(a) 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 actors situation under the
circumstances as he believes them to be.

• Who decides whether a reasonable explanation or excuse? - the jury.

o Advantages of MPC:
• May be more fair because it takes account of all circumstances that are sympathetic, but
would have been left out of CL categories.
o Disadvantage of MPC (of the flexibility):
• Δ may be able to trick the jury… Can we trust juries?
• If we trust juries - then MPC good. But if we don’t trust juries, may be unfair.
• Very uncertain outcome.
"The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in
the actors situation under the circumstances as he believes them to be."

• Under old CL, had to be objective reasonableness.

• Under MPC, it all depends on the circumstances - and from Δ's viewpoint, and the reasonableness
according to that.
o Under MPC, it's still an objective test that the disturbance needs to be reasonable. But who is
reasonable??? That’s very subjective. The reasonableness determined from Δ's viewpoint, and
the circumstances.

• What happens to cool down under EED (extreme emotional distress)

o Whether he was subjectively reasonable (someone in the Δ's situation) in still being inflamed.