Homicide: Legal Aspects

As the common law developed, manslaughter became a residual category that included homicides lacking the very high degree of culpability that characterized the capital offense of murder but not so lacking in culpability as to be noncriminal altogether. The need for an intermediate category of this kind reflects the special significance given to the taking of human life; whereas the criminal law might disregard other kinds of harm that was not fully intentional, it could not disregard a homicide accompanied by any substantial degree of fault.

Two general groupings of manslaughter are distinguished in the common law, although they were treated as a single crime and were punishable similarly. They can be described generally as voluntary manslaughter and involuntary manslaughter, labels that are sometimes used in statutes to refer to separate crimes carrying different penalties, with voluntary manslaughter as the more serious offense. There is considerable variation among current statutory formulas, some of which continue to rely on the understandings of the common law and refer simply to manslaughter without defining it. It is still convenient to consider the crime according to the groupings of voluntary and involuntary manslaughter, those terms being used descriptively, whether or not there is explicit statutory differentiation.

Voluntary manslaughter. The principal category of murder refers simply to a homicide committed with intent to kill, without taking account of circumstances that might mitigate culpability because they explain, and in some measure excuse, the actor's state of mind. Voluntary manslaughter is an intentional homicide that would be murder but for the existence of such mitigating circumstances. It is commonly described as an intentional killing accompanied by additional factors that negate malice aforethought. Occasionally, voluntary manslaughter is described as a homicide committed in circumstances that overcome and eliminate an intention to kill. Such statements rely on a concept of intention that includes a measure of reflection; they should not be understood to require the killing be unintentional in the ordinary sense.

Most often, the factor that reduces homicide from murder to involuntary manslaughter is some act of the victim that prompts the intent to kill. The usual rule is that an intentional homicide is manslaughter if the actor was provoked to kill by an adequate provocation and acted while provoked, before sufficient time had passed for a reasonable person to have "cooled off." It is not the provocative acts of the victim as such that reduce murder to manslaughter, but their effect on the actor. The most extreme provocation does not affect the result if it does not deprive the actor of self-control; one who responds to a provocation by cooling killing the person who provoked him is guilty of murder, not manslaughter.

Insisiting that conduct be judged by the standard of a reasonable person, the law tended to develop rather rigid rules about the kinds of provocative act that were adequate; a violent battery by the victim and discovery of the victim committing adultery with one's spouse were the paradigms of adequate provocation. Abuse by means of "mere words" was the paradigm of inadequate provocation. Other, less certain, categories were assault or a threat of assault on oneself or a battery or assault on a near relative. Whatever the nature of the provocation, it was not adequate if the actor responded by intentionally killing someone other than the source of the provocation. If, on the other hand, he directed his response against one whom he mistakenly believed to be the source of the provocation, or if accidentally or negligently he killed someone other than his intended victim, the provocation might be allowed. Rules of this kind are sometimes expressed as a general requirement that the homicidal response related to the nature and source of the provocation.

The cooling-off doctrine, as it is sometimes called, is yet another aspect of the requirement that provocation be adequate. A person is expected to regain control of himself within a reasonable period. Courts have sometimes applied this rule strictly and held that rage prolonged or renewed after enough time to cool off has elapsed does not reduce murder to manslaughter, whatever the actual provocation. Despite the argument that the passage of time and brooding over an injury might reduce rather than increase self-control, which may then be swept away by a slight reminder of the original injury, the evident judgment of the law was that only a sudden provocation adequate in itself should be taken into account.

The current direction of the law is to eliminate categorical restrictions of the provocation that may be adequate. The Model Penal Code eliminates all such restrictions and substitutes a general provision classifying as manslaughter "a homicide which would otherwise be murder [that] is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse" (§ 210.3(1)(b)). This provision leaves it to the trier of fact to determine whether the actor's loss of self-control is reasonably comprehensive, without prescribing in advance what sorts of provocation in what circumstances may meet that standard. A number of jurisdictions have adopted such an approach in whole or part, either by statute or judicial decision.

A distinct but related issue is whether the adequacy of provocation should be measured from the point of provocation should be measured from the point of view of an "ordinary reasonable person" or from the point of view of the actor, taking into account any idiosyncratic features he possesses. A defendant has sometimes claimed that provocation which would have been inadequate for an ordinary person was adequate in his case because of some factor peculiar to himself that made the provocative act unusually disturbing. Once again, the law has tended to relax its earlier insistence on an objective standard—without, however eliminating entirely the requirement that the actor's behavior be objectively comprehensible. The Model Penal Code, for example, provides that the reasonableness of the actor's explanation or excuse for his disturbance "shall be determined from the viewpoint of a person in the actor's situation" (§ 210.3(1)(b)). The commentary to this provision explains that the actor's physical handicaps are surely part of his "situation" but that idiosyncratic moral values are not; for the rest, the commentary observes, the reference to the actor's situation is deliberately ambiguous and leaves the issue to the common sense of the finder of fact.

A provoked intentional killing is the most common example of voluntary manslaughter. There are a number of other situations in which an intentional killing is not altogether excused but the circumstances diminish culpability enough to remove it from the category of murder. In general, such situations are those in which a recognized basis for excusing the killing fails to apply fully because one of its elements is absent; nevertheless, the partial applicability of the excuse mitigates the killing. Thus, for example, a person who kills another in what he believes is necessary self-defense against a threat of death or serious injury is excused entirely if his belief is reasonable. If his belief is unreasonable, the defense of self-defense is not available. Even so, the fact that he acted in response to what he believed was a deadly threat distinguishes the crime from an intentional killing not prompted by such fear. His fear seems as appropriate a basis for mitigation as passion or rage caused by provocation.

Similarly, one who uses deadly force in defense against an actual threat of death or serious injury may not be excused entirely if he provoked the attack or if he did not retreat as required before using deadly force. One may use deadly force to protect another person or to prevent commission of a felony, in circumstances that make these defenses not fully available. In these and similar cases of an imperfect excuse, the intention to kill is in a significant sense responsive rather than original with the actor. That element contradicts the extreme denial of the value of human life that characterizes murder. England and a few jurisdictions in the United States have recognized the possibility that a person's capacity to reflect and weigh the consequences of his conduct may be significantly less than normal, without being so abnormal that the defense of insanity is available. His "diminished capacity" may then provide a basis for reducing an intentional killing from murder to manslaughter. Even where this defense is recognized, it is allowed infrequently and in special circumstances only, lest all objective elements of the distinction between murder and voluntary manslaughter be swept away and replaced by an assessment of the actor's subjective culpability.

Involuntary manslaughter. As the name suggests, involuntary manslaughter comprises homicides that are not intentional and lack the special elements of culpability that qualify certain unintentional killings as murder but are nevertheless deemed too culpable to be excused entirely. The crime is recognized in all states in a variety of statutory formulations, which generally follow the common law pattern and may rely wholly on the common law definition. Whether or not it is explicitly differentiated from voluntary manslaughter by statute, involuntary manslaughter is regarded as a less serious offense and usually punished less severely.

A person whose criminal negligence causes the death of another is guilty of involuntary manslaughter. It is generally agreed that negligence sufficient for liability is considerably greater than what would suffice for civil or tort liability. Such negligence may be characterized simply as "criminal," "gross," or "culpable" negligence; as "recklessness"; or as "reckless" or "wanton" carelessness. The central element is unjustified creation of a substantial risk of serious injury or death. Sometimes it is also required that the actor be aware of and disregard the risk, in which case the standard of culpability is more aptly described as recklessness than as negligence. The standard is measurably lower than the extreme recklessness that suffices for murder.

An alternative basis of liability for involuntary manslaughter under the common law and most statutory provisions is commission of an unlawful act or an unlawful omission from which death results. Although the unlawfulness of the conduct may be indicative of negligence, under this theory it is the unlawfulness, rather than the nature of the risk created by the conduct, that establishes liability. In principle, liability might extend to conduct that is unlawful but not criminal, but in practice, liability us usually restricted to conduct that is criminal (but not a felony that will support felony murder). Where vehicular homicide has not been made a separate offense, violation of a traffic regulation is a common example.

Frequently described as misdemeanor manslaughter, this form of criminal homicide has been criticized on the same grounds as felony murder and limited along the same lines. Paralleling the restriction of felony murder to violent felonies, misdemeanor manslaughter is sometimes limited to offenses that are malum in se, lest liability be extended to all the conduct that has been made a misdemeanor by statute. Moreover, the requirement of causation has been applied strictly, courts distinguishing between the illegal aspect of the conduct as a causal factor in the homicide, and merely an attendant circumstance of an accidental death. The tendency of the law, not always stated explicitly in the cases, is to confine misdemeanor manslaughter to situations in which the actor's negligence provides a basis for liability, the illegal act having only evidentiary significance on that issue. Such a development reflects the same analysis that has led to the restriction or elimination of felony murder as a distinct category of that crime.

A homicide resulting from an unlawful battery or assault on the victim without intent to kill or injure seriously may be treated as manslaughter without express reliance on the misdemeanor manslaughter rule. The intention to injure the victim and the commission of an act to that end are evidently perceived, like criminal negligence, as a sufficient basis for liability if death results, without special emphasis on the illegality of the conduct. Since an unjustified attack is always at least a misdemeanor (malum in se), such cases might also be regarded as straightforward examples of misdemeanor manslaughter. (Even if, because of aggravating circumstances, the battery were felonious, the "independence" requirement would preclude application of the felony-murder doctrine.) The Model Penal Code, which rejects the misdemeanor manslaughter rule entirely, eliminates liability for manslaughter when death results accidentally from a battery.

Negligent or vehicular homicide. In much the way that the Pennsylvania degree formula differentiated types of murder in order to limit application of the death penalty, statutes in may jurisdictions provide for a lesser category of involuntary criminal homicide. Commonly called negligent homicide or something similar and treated as a separate offense, the category may also be distinguished simply as a lesser degree of manslaughter. A lower standard of culpability applies than that for manslaughter. In particular, recklessness or conscious disregard of the danger to others is not required. While negligence suffices, it is still more than is needed for civil liability. The precise standard of culpability both as set forth in a statute and elaborated by the courts is likely to depend significantly on the formula used to define involuntary manslaughter, with which it must be contrasted.

In some states, the lesser offense is made specifically applicable to motor-vehicle accidents and labeled "vehicular homicide." Even when a high degree of negligence can be established, juries have frequently been unwilling to convict a driver of manslaughter. The large number of traffic fatalities, often occurring in accidents for which liability is uncertain, has evidently made it easier to perceive such deaths as an ordinary, random incident of driving and has diminished the need to resort to the criminal law for explanation. Reduction of the criminality and the penalty attached to the offense acknowledges these changed attitudes and has made application of some criminal sanction more likely.