美国刑法2.Intended killing-Provocation.docx

Intended killing-Provocation:NY schemeaffirmative defense of the second degree murder: under the influence of extreme emotional disturbance?Girouard(Maryland 1991):Facts: terrible relationship, an angry oral argument, verbal attack, stab 19 times, hide the knife behind the pillow, call the policeconvicted of second degree murderDs argument: provocation defense to mitigate murder to manslaughterhis wife’s words can be the basis of the provocation defenseThe provocation should not be limited to the traditional circumstances.Maryland provocation types:extreme assault or batterymutual combat?illegal arrestinjury or abuse of a close relativesudden discover of adulteryReasoning:For provocation to be adequate, it must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.Words can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm.Words alone are not adequate provocationThe standard to decide whether it is adequate provocation: reasonableness?Why mitigation?mitigate mens rea, but still intent to killD did not claim that he did not intend to kill his wife??Maher(Michigan 1862):Charged with an assault with intent to kill and murderD offered evidence to show an adulterous intercourse between his wife and the victim less than an hour before the assault, and before he entered the saloon he was told that his wife and the victim had had intercourse the day before.Trial court: ruled the evidence inadmissibleSupreme Courts reasoning:Under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, before a reasonable time has elapsed for the blood to cool and reason to resumeThe true general rule: Reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without