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Voluntary Manslaughter - The Theory of Mitigation

Case: People v. Walker, 204 N.E.2d 594 (1965) [p. 340-342]

Facts: Δ was approached by the victim, who was drunk and demanded that they gamble. When Δ refused, the
victim started becoming violent and attempting to cut Δ and others with his knife. There was a fight, and then Δ
threw a brick at victim's head, and he fell down. At that point, Δ took the victim's hand with the knife still in it,
and cut the victim's throat. Δ was convicted of murder. He now appeals, arguing that at the most, this was
manslaughter, not murder.

Holding: held that Δ guilty of voluntary manslaughter, and remanded with directions to enter a finding of guilty
of voluntary manslaughter, and impose a sentence appropriate. Idea is that murder requires malice aforethought
- an intent to kill. Here, the victim actually started it, and attacked the Δ first. Victim did actually cut the Δ, and
this was provocation, and during the course of the fight, it was a murder of passion. Δ did not have time to cool
off, it all happened very quickly, within 15 minutes. The offense is not murder, but manslaughter.

Class Notes
• There was intent, but because there was provocation.
• Self-defense - throwing brick was self-defense, but once he has victim's knife, no longer self-defense.
• Provocation – mitigation
o At CL, provocation negates malice. So no longer murder, but manslaughter


Notes: [p. 342-346]

• Reasons to reduce an unlawful intentional killing from murder to manslaughter

o Provocation
o When there is an unreasonable and mistaken belief that he must kill in self-defense
o When Δ kills in the face of an actual threat of death or serious injury where he himself was the
initiator or provoker of the threat from the victim
• The meaning of provocation - MPC § 210.3 commentaries
o CL required elements;
• Objective - a reasonable person would think the provocation to be adequate
• Provocation is adequate if it would cause a reasonable person to lose his self-
• Words alone never sufficient provocation
• Subjective - Δ must have been provoked; the Δ's state of mind
• Rationale for mitigation
o Partial Justification - provoked killer thinks he has a good reason to kill
• Retributive - deserves some punishment, but not as much as an unprovoked killer
• Utilitarian - don’t want to deter all action, still want ppl to self-defend, but still want to
deter them from going too far.
o Partial excuse - provoked killer is less culpable - so enraged his actions were slightly less
• Retributive - killing is less ascribable to malevolent character
• Utilitarian - less deterrable because of the rage from the provocation; but also less
dangerous in general, because it was partly an external force that motivated the killing.
• Burden of Proof
o CL - once the Δ bears the burden of production (showing plausible evidence of provocation),
government must disprove provocation or heat of passion beyond a reasonable doubt.
• MPC sec 1.12(2) also adopts this rule.
• But most states that use MPC's EED (extreme emotional disturbance) rule place burden
of proof on Δ to show provocation by a preponderance of evidence.

Class Notes
• Rationale
o Retributive
• Partial excuse - persons actions not reflective of their chracter, wrong doing. They were
out of control, they didn’t intend.
o Utilitarianism
• Can't do much - he didn’t think it through too much.
o Excuse v. Justification
• Insanity - as a defense, it’s an excuse. We don’t punish them because we don’t think they
have control over their conduct. We can't deter them, and its not reflective of their
character. We don’t like what they do, but we excuse it.
• Self-defense - justification. Not just excuse, there was justification
• Provocation - unclear whether excuse or justification
 Partial Excuse - lost control over facilities
 Partial justification - in part, what he did was justified. We want to deter it, but not
same as murder, so lesser punishment.
• Not as wrongful as a murder of an innocent (here, he asked for it)
• Burden of proof
o Mullaney v. Wilbur (not in reading) (1975)
• In ME, murder required malice. The statute defined malice as deliberate and unprovoked
• Jury instruction said: Δ presumed to have acted with malice unless he proved
provocation. Burden of proof on Δ.
 Unconstitutional - statute defined malice as unprovoked cruelty, so government
had to prove it.
o Patterson v. NY
• Statute provided all intentional homicides are murder. Also provided an affirmative
defense of provocation.
• Jury instruction: jury instruction - government proves intent. But Δ has to show
 Constitutional, because statute says provocation is an affirmative defense.
o Key: provocation negates malice.
• If statute says government has to prove malice, they also have to prove there was no
• If statute says all intentional homicides are murder, then ok to shift burden to Δ to prove
affirmative defense of provocation.