Can Heat of Passion Be Used as a Defense?

In a word, yes.  Heat of passion is a recognized defense against charges of 1st and 2nd degree murder.  Florida Statute 782.03 states, “Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

Heat of passion is a mental state provoked by fear, rage, anger or terror that, combined with adequate provocation, is a defense to the crimes of first and second degree murder. Provocation, in order to be adequate, must be such as might naturally cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection.

Heat of passion defenses are not without their critics.  They argue that originally heat of passion defenses were allowed so that a defendant could avoid the death penalty.  Joshua Dressler, in his article, Rethinking Heat of Passion: A Defense in Search of a Rationale, argues that the defense is a muddled mess at best vacillating between it being employed as an excuse or a justification.

“Heat of passion is a defense that has been too little analyzed or clarified. Although initially created to avoid the death penalty, it was never sufficiently clear why the provoked killer should not be executed.Various rationales, often contradictory, have been suggested for the defense. Although more modern statutes often treat the defense as a form of excuse, the reasons why it is an excuse, and only a partial one, have remained largely uncertain. Also, the law often still combines common law rules of justification with what might otherwise be an excusing defense. Careful analysis of the defense, therefore, serves to clarify the law,and make the rules relating to this and other defenses more consistent.Such an analysis demonstrates that heat of passion is not a form of justification, but of excuse. Still more careful analysis demonstrates thatit should be either a partial or a full excuse, depending upon the degree of capability for self-control which the actor, and the ordinary person, possesses.”

Whether you agree with it or not, it is a recognized legal defense in Florida often used in cases of marital infidelity (see Villella v. State of Florida).

The defense may work for the high crimes of 1st and 2nd degree murder but with the lesser charge of manslaughter.


Leave a Reply