MANSLAUGHTER AND THE ADEQUACY OF PROVOCATION: THE REASONABLENESS OF THE

REASONABLE MAN
Copyright (c) 1958 by University of Pennsylvania [The law of provocation] is a compromise, neither
conceding the propriety of the act nor exacting the full penalty for it. This
being so, how can it be admitted that that paragon of virtue, the reasonable man, gives way to
provocation? 1 The law states that every killing of a human being, when committed by another human
being, is a homicide. 2 However, not
every homicide is a crime. In certain situations the taking of human life is justifiable since the killing is
done without fault. 3 Under other circumstances the homicide is said to be excusable, meaning that the
slayer is at fault, although he is not punished
for this act. 4 Those homicides which are neither excusable nor justifiable are considered to be felonious.
They are either murder or manslaughter.
Murder at common law was said to be the unlawful killing of a human being with malice aforethought,
express or implied. 5
Today, although some states have by statute retained the common-law definition of murder,6 or one similar
to it,7 most jurisdictions within the United States have divided the crime into degrees. Generally, murder in
the first degree requires that there be an actual intent to kill and the elements of premeditation and
deliberation be present or that the homicide be committed
in the perpetration of certain felonies. 8 Murder in the second degree most often includes the other
homicides which would be punished as murder at *1022 common law. 9 The line of demarcation between
first and second degree murder is generally drawn at the point where there is a failure of proof of
deliberation or premeditation. 10 It is therefore said to be second degree
murder when the slayer acts under great passion sufficient to show the absence of premeditation or
deliberation. 11 In this area, where there is evidence of passion and provocation, the definitions of murder in
the second degree and manslaughter come very close together. If passion is present in some measure, it
may be sufficient to reduce the crime from first degree to second degree murder. If it is present in greater
measure, the crime may be reduced to manslaughter.
Doctrinally, it is the absence of malice which distinguishes manslaughter from murder. 12 This simple
definition, which has
been codified by most state statutes, 13 produces difficulties which arise when an attempt is made to apply
the definition to a given state of facts. The determination of whether malice was present in the act of
homicide resolves itself into the question of whether the accused was subjected to such provocation by the
deceased as to cause sudden hot blood or passion, as a result of which his reason was so disturbed or
obscured that he acted rashly, without deliberation or reflection and from passion rather
than judgment. 14 In order to answer this question, a determination must be made with regard to three
factors implicit in the question itself: (1) was the provocation adequate to produce a state of passion in the
mind of the slayer; (2) was there time before the fatal act was committed for the passion to have cooled; (3)
did the slayer act because he was governed by that passion or was malice the propelling force in his action?
2015 Thomson Reuters. No claim to original U.S. Government Works.
1Leal, Norberto
9/16/2015 For Educational Use Only
MANSLAUGHTER AND THE ADEQUACY OF..., 106 U. Pa. L. Rev. 1021

The law states that the first factor, the adequacy of the provocation, must be determined by an objective
standardwas the provocation adequate to produce passion so overpowering as to cause a reasonable man
under the same circumstances to kill? It is the purpose of this Note to examine this factor, its standard, the
law which has flowed from it, and some recommendations for change.
*1023 THE REASONABLE MAN
The celebrated English case of Regina v. Welsh 15 saw the introduction of the reasonable man into the law
of homicide. 16 In order to reduce the killing to manslaughter by reason of provocation, the jury was
instructed by Justice Keating to determine whether the evidence pointed up facts from which the homicide
could be attributed to the violence of passion naturally arising
therefrom, and likely to be aroused thereby in the breast of a reasonable man. 17 This invasion of the
criminal law by an individual whose stature had previously been associated with tort liability in the field
of negligence, was quickly recognized
by the courts in the United States. 18

The century which has passed since the Welsh decision has seen a unanimous application by the American
courts of the reasonable man standard. Despite the fact that psychiatry has attained a recognized position in
other areas of the law, 19 the
criminal courts refuse to consider the application of a subjective test in determining the adequacy of
provocation. 20 The application by the courts of an objective doctrine has led to the establishment of certain
concrete standards of conduct which a reasonable man is said to adhere to. Unfortunately many of these
incidents have ossified into ironclad rules originally evolved in the nineteenth century. Under modern law,
the categories of things which provoked the nineteenth century reasonable man continue to provoke the
reasonable man of the twentieth century with the addition of a few new but rigid categories.
In general, he is said to be provoked into taking human life when he is violently assaulted; when an
unlawful attempt is made to
arrest him; when he kills in mutual combat; or when he sees his wife in an act of adultery and kills her or
her paramour. 21 On the other hand, he is said not to be provoked by insulting words or gestures, nor,
according to some authorities, is he provoked
byatrespassagainsthislandorgoods.22
Theoutcomeofthecasewhichclearlyfallswithinoneoftheserulesmaybepredicted with a high degree of
accuracy. However, the situations which develop are seldom clear cut. Some courts carefully scrutinize the
evidence to determine if the facts can be forced into any of the established categories; 23 if they *1024
cannot, the case is not one for manslaughter regardless of evidence of actual provocation or passion. The
result has been an unrealistic interpretation of the facts to fit an appealing case neatly within an established
category, thus leading to confusion as to the breath of the categories and lack of uniformity in the
application of the law. Other jurisdictions have refused to saddle themselves with the nineteenth century
four and have created some few new categories of adequate provocation as the cases arise. To make a
proper appraisal of this application of the law it is first necessary to examine in detail the contemporary
doctrines defining the types of provocation sufficient to submit a case of felonious homicide to the jury on
a theory of manslaughter.