
	Where results make sense

Topic: Provocation (legal)

Related Topics

Abuse defense

Murder

In the News (Thu 24 Dec 09)

Northern Trust

Marvin Harrison

Peter Chernin

Gary Locke

Match Play

Penelope Cruz

Mickey Rourke

AR Rahman

Danny Boyle

Hugh Jackman

	Provocation (legal) Summary
		In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control (a permanent loss of control is in the realm of insanity) as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge.
		Provocation is generally the result of some conduct witnessed or experienced by the defendant.
		Provocation carries with it the assumption that a man has a right to punish his wife if she defies him.' Men who are deserted or challenged by their spouses will less likely refrain themselves from violence towards their spouses.
	www.bookrags.com /Provocation_(legal) (1528 words)

	1996 National Victim Assistance Academy
		Standing is a legal concept that basically refers to the ability of an individual to address his or her complaints to the court.
		A legal doctrine that suspends the running of statutes of limitations during periods of time in which the victims did not discover, or by the exercise of reasonable diligence, could not have discovered, the injuries that would lead to their causes of action against the defendant / perpetrator.
		A legal doctrine providing that one may be liable to another if he or she: 1) owes a legal duty to the other; 2) materially breaches that duty; 3) the breach is the proximate cause of the other's injury; and 4) the other person suffers damages.
	www.ojp.usdoj.gov /ovc/assist/nvaa/ch08civil.htm (8306 words)

	FT April 2001: What Is Law? (Site not responding. Last check: 2007-09-17)
		The legal realists’ insistence on the indeterminacy of law would, in our own time, be reasserted by advocates of “critical legal studies,” though this time in the service of a “new left” political agenda and with nothing like the realists’ faith in the objectivity and explanatory power of the natural and social sciences.
		To be sure, Hart observes that legal rules are inevitably “open textured” and, thus, in need of authoritative interpretation in their concrete application; and this entails a certain measure of judicial discretion and law—making authority as a matter of fact, even in those systems which exclude it in theory.
		Hart’s legal positivism is, in fact, completely compatible with the recognition that judges in some legal systems are invited or even bound under the positive law of the constitution to bring moral judgment to bear in deciding cases at law.
	www.firstthings.com /ftissues/ft0104/articles/george.html (5031 words)

	PROVOCATION AND SELF DEFENCE
		An argument for abolishing provocation is that women are being found guilty of manslaughter on the basis of provocation when they should be entitled to a full acquittal for acting in self-defence.
		Provocation is not an appropriate defence for women who kill to save themselves from life-threatening violence.
		Self-defence is a justification for killing, while provocation is seen in law to be an excuse for killing, it is only a partial defence to murder, reducing the conviction to manslaughter (which implies lesser culpability).
	www.zerotolerance.ca /2_b_provocation_and_self_defence.htm (851 words)

	74874 -- State v. Follin -- Allegrucci -- Kansas Supreme Court
		The provocation must be by the person killed and be sufficient to cause an ordinary person to lose control of his or her actions and reason.
		The provocation, whether it be 'sudden quarrel' or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason.
		In the other, the provocation furnishing an incentive to revenge, so far from extenuating the crime, is a circumstance to be looked to as evidence of malice; and especially would this be so if the prisoner, in consequence of the provocation, had made threats against the life of the deceased.
	www.romingerlegal.com /kansas/kansas_courts/74874.htm (8609 words)

	Provocation (legal) - Wikipedia, the free encyclopedia
		In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control (a permanent loss of control is in the realm of insanity) as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge.
		Provocation can be a relevant factor in a court's assessment of a defendant's mens rea, intention, or state of mind, at the time of an act of which the defendant is accused.
		Although not a traditional provocation circumstance, some states have laws that a non-violent homosexual advance constitutes sufficient provocation to reduce a charge of murder to manslaughter.
	en.wikipedia.org /wiki/Provocation_(legal) (707 words)

	When should a killer walk free? - theage.com.au
		If provocation were abolished as a defence to murder, some legal theorists contend that women such as Cheryl would have to prove they acted in selfdefence or risk being convicted of murder.
		The provocation must cause the loss of selfcontrol and the accused must be seen to have acted before they could regain their composure.
		While the rule of provocation is intended to be a concession to human frailty, in practice it is mostly a concession to male frailty, according to Chief Justice Murray Gleeson, of the High Court, as cited in the issues paper.
	www.theage.com.au /articles/2002/09/15/1032054709166.html (1420 words)

	THE PROVOCATION DEFENCE
		In their 1994 paper, Reforming the Defence of Provocation, Sheila Galloway and Joanne St. Lewis, argue that the provocation defence constitutes an anomaly in the law, because when violent offences result in injuries short of death, the argument of provocation cannot be used to mitigate the nature of the offence.
		In order for the statutory provocation defense to be invoked, the jury has to answer four questions with "yes." These are safeguard questions; their function is to further assess the legitimacy of the defence’s use for the case in question.
		Although the provocation defence was developed as a recognition of "human frailty", a thorough investigation of its history and development by Professor Jeremy Horder, in Provocation and Responsibility, demonstrates conclusively that the characterization of the purpose of the provocation defence is profoundly mistaken.
	www.zerotolerance.ca /2_provocation_def.htm (1553 words)

	Quick Overview of Dog Bite Laws
		Recovery at law under this concept requires a showing by the injured party that there was a legal duty owed to the injured party by the animal owner /keeper and that the injury arose because of a breach of that duty.
		Provocation simply refers to a situation where a dog is incited, encouraged, or provoked into biting a person.
		A court will either determine provocation from the perspective of the injured party (i.e., did the person intend to provoke the animal or have knowledge that his or her actions would provoke the animal) or from the perspective of the dog.
	www.animallaw.info /articles/qvusdogbite.htm (1174 words)

	Legal Definition of Provocation
		Provocation simply, unaccompanied by a crime or misdemeanor, does not justify the person provoked to commit an assault and battery.
		But when the provocation is given for the purpose of justifying or excusing an intended murder, and the party provoked is killed, it is no justification.
		The unjust provocation by a wife of her hushand, in consequence of which she suffers from his ill usage, will not entitle her to a divorce on the ground of cruelty; her remedy, in such cases, is by changing her manners.
	www.lectlaw.com /def2/p197.htm (149 words)

	Homicide: First Degree
		"Provocation" means something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death.
		Adequate provocation is an affirmative defense only to first-degree intentional homicide and mitigates that offense to 2nd-degree intentional homicide.
		If you are in need of legal advice concerning a particular matter, you are encouraged to contact an attorney in your state.
	www.nvo.com /beaulier/firstdegreemurder (664 words)

	Provocation in English law - Wikipedia, the free encyclopedia
		In English law, provocation is a mitigatory defence alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder into manslaughter.
		The Act changed the common law which had provided that provocation must be more than words alone and had to be form of violence by the victim to the accused.
		Whether the provocative acts or words and the defendant's response met the 'ordinary person' standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self control was sufficient excusable.
	en.wikipedia.org /wiki/Provocation_in_English_law (1827 words)

	DOG BITE LAW - California
		Because this legal theory is the corollary of the one-bite rule, and because the fundamental purpose of the dog bite statute is to abolish the one-bite rule in most respects, there is no need to employ the scienter theory when the dog has bitten a person and the defendant is the dog owner.
		Legal provocation is not unlike self-defense; the proper test is whether the violent action of the dog was a justifiable response to something that the victim was in the process of doing to the dog.
		The undergirding legal principle of the rule is assumption of the risk, i.e., the "legal conclusion that the person who starts a fire owes no duty of care to the firefighter who is called to respond to the fire.
	www.dogbitelaw.com /PAGES/civil.htm (7136 words)

	[No title]
		The main opinion is mistaken in that it isolates provocation by the victim as the critical element of the heat-of-passion mitigation and does not recognize, but instead discounts to the point of virtual elimination, the heat-of-passion itself --- the mental disturbance in the defendant --- as the critical element of the mitigation.
		The correct law is that the heat-of-passion itself --- the mental disturbance in the defendant --- is the critical element of the mitigation, and the "lawful provocation" by the victim is merely the condition the law imposes on its willingness to recognize the mitigating effect of heat-of-passion.
		Provocation manslaughter is one of those, probably because the people sympathize with, but do not condone, the response.
	www.wallacejordan.com /decisions/Opinions2002/1010251.htm (3449 words)

	[No title]
		Voluntary manslaughter often occurs when the defendant acts in a heat of passion produced by legal provocation.
		Legal provocation exists when the victim's actions against the defendant rise to the level of an assault or threatened assault.
		92, 311 S.E.2d 26 (1984) (victim's charging at and wrestling with defendant was sufficient legal provocation to instruct the jury on voluntary manslaughter).
	www.ibiblio.org /pub/docs/nc-supreme-court/jul2994/camacho (2847 words)

	No Right Turn: "Provocation"
		Our ugly "provocation" defence has claimed another victim, with a man who beat his wife to death with a cricket bat in the belief that she was going to leave him for another being convicted of manslaughter rather than murder.
		Applying "provocation" in such cases essentially blames the victim for her own death, when the problem is clearly the killer's utter lack of self-control.
		Part of the problem with "provocation" as a defense is that it makes it special, rather than simply a contributing factor to an argument about lack of intent.
	norightturn.blogspot.com /2006/12/provocation.html (1591 words)

	[No title]
		The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof.
		Alabama courts have acknowledged such legal provocation in only two circumstances: (1) when the accused catches his/her spouse in the act of adultery; and (2) when the accused has been assaulted or was faced with what appeared to be an imminent assault.
		Thus, for an instruction on heat-of-passion provocation to be appropriate in this case the trial court had to conclude that the evidence of provocation had a tendency to prove a mitigating circumstance.
	www.eji.org /McGriff.htm (6127 words)

	Duhaime's Canadian Law Dictionary : M
		But there are many other legal rights which a minor does not have such as, in some states, the right to own land, to sign a contract or to get married.
		For example, assault, though provoked, is still assault but provocation may constitute mitigating circumstances and allow for a lesser sentence.
		The person lending the money and receiving the mortgage is called the mortgagee; the person who concedes a mortgage as security upon their property is called a mortgagor.
	www.duhaime.org /dictionary/dict-m.aspx (1349 words)

	Dog Bite Case
		If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.
		As to whether the victim had a legal right to be present, walking on the pathway from the exhibit, this issue has been upheld in many cases.
		The courts have implied that even unintentional provocation still constitutes provocation under the statute unless the reaction involved a vicious attack, which was out of all proportion to the unintentional act.
	www.msu.edu /user/spectorg/writingDOG.html (1285 words)

	Converted WP file /web/download/n/opinion/Holding/02sc-007
		The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition." UJI 14-222 NMRA 2002.
		In this case there is a version of the facts, from Defendant's testimony and some permissible inferences from his conduct, that he did not provoke the victim with the predetermined intent of killing him, and that when he encouraged his companions to come after the victim he was afraid of him.
		The evidence of provocation was not overwhelming, and a jury could easily determine that Defendant's testimony concerning his intentions was untrustworthy, and that his actions support an inference that he intended to kill from the beginning of the encounter.
	www.supremecourt.nm.org /pastopinion/VIEW/02sc-007.html (5905 words)

	OSCN Found Document:MORGAN v. STATE
		The evidence adduced at the trial on behalf of the State established a clear case of premeditated murder, by which the defendant brutally shot and killed the deceased, without provocation, while he was attempting to flee to safety and lay helpless and prostrate upon the floor.
		Provocation sufficient to produce a heat of passion and a resulting absence of malice may give such character to a homicide as to make it manslaughter; the same provocation may, under slightly varied circumstances, justify a person in killing in self-defense.
		Since the legal definition of "malice" differs from lay usage of the word, it is unfortunate to introduce it to the jury when the statutes at issue in no way require that it be used.
	www.oscn.net /applications/oscn/DeliverDocument.asp?citeID=474 (3892 words)

	Article for translators: Two Legal Systems and the Term Homicide
		These are the terms that I will attempt to translate as precisely as possible by means of a perfunctory analysis of the Brazilian and English legal systems and by outlining in general terms the crime of homicide in both legal systems.
		It is interesting to note that the crime of murder is not described in legal text, or rather, in a law or a code.
		Luciana Carvalho Fonseca Corrêa Pinto is an author, legal translator and interpreter, lawyer and specialist in law with a degree from the Pontifical Catholic University of São Paulo (PUC/SP).
	www.translationdirectory.com /article1052.htm (1932 words)

	Mohammed A. Diwan, Conflict Between State Legal Norms And Norms Underlying Popular Beliefs: Witchcraft In Africa As A ... (Site not responding. Last check: 2007-09-17)
		Provocation is defined as "[s]omething (such as words or actions) that arouses anger or animosity in another, causing that person to respond in the heat of passion.
		The judge did not explicitly state whether provocation based on a death threat that involves witchcraft was reasonable, however, by taking into account the defendant's genuine belief in witchcraft, and the accused party's perception of his grandfather's threat as real, the judge found the defendant was reasonably provoked.
		Legal reasoning in the common law tradition places significant importance on the concept of reasonableness, or what is "[f]air, proper, or moderate under the circumstances."
	www.law.duke.edu /journals/djcil/articles/djcil14p351.htm (11972 words)

	82174 -- State v. Mitchell -- Abbott -- Kansas Supreme Court
		Whether a provocation is legally sufficient is an objective rather than a subjective determination.
		To be legally sufficient to intentionally kill an individual, a provocation must consist of more than mere words or gestures, and if assault or battery is involved the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death.
		We hold that the trial court did not err when it refused to give an instruction on voluntary manslaughter when there was no evidence of provocation in the moments just prior to the killings or any facts from which Mitchell could have formed an honest belief that circumstances existed that justified deadly force.
	www.romingerlegal.com /kansas/kansas_courts/82174.htm (4319 words)

	No. 03SC229. Cassels v. People. - June 28, 2004 - Colorado Supreme Court Opinions (Site not responding. Last check: 2007-09-17)
		We hold that the trial court should have instructed the jury on provocation and the doctrine of no-retreat because there was sufficient evidence in the case to support each instruction.
		While a defendant may not be legally barred from submitting alternate and inconsistent theories to a jury, he is not entitled to have the jury instructed in a manner that is inconsistent with his own testimony.
		Whether the trial court committed reversible error and violated the petitioner’s right to due process of law by refusing the petitioner’s tendered instruction informing the jury that, where he is not the initial aggressor, a defendant is under no duty to retreat to a position of no escape before he may act in self-defense.
	www.cobar.org /opinions/opinion.cfm?OpinionID=4684 (4485 words)

Try your search on: Qwika (all wikis)