Florida's New and Improved Heat of Passion Manslaughter Instructions, by David A. Brener, Criminal Defense Attorney

In 2010, I wrote an article, which was published in "Res Gestae", the Lee County Bar Association magazine,  entitled "The Necessity for a Special Jury Instruction On Heat of Passion Manslaughter." (The article can be viewed on my profile at AVVO, on my website at www.justiceisourpassion.com, or at my old blog - Brenerscriminallawblog.blogspot.com).  In that piece, I advocated for the need for a jury instruction on heat of passion manslaughter, as the standard instruction gave the jury only the option of finding the defendant guilty of murder, or not guilty, and had no option to find the defendant guilty of the lesser crime of manslaughter. I noted that community standards of behavior had changed since the excusable homicide statute had been enacted, and that contemporary jurors were highly unlikely to completely exonerate a person who intentionally killed another, albeit under the influence of passion.  In addition, despite the existence of case law authorizing the use of the heat of passion doctrine to reduce the culpability and legal liability of one acting under such passion, the standard instruction provided no definitions or guidance as to the elements of this recognized partial defense, or as to the circumstances under which a jury could thus exercise its inherent "pardon power."

Recently, while preparing for trial in a murder case, I was pleased to see that the Supreme Court of Florida amended/revised the heat of passion instruction, included manslaughter as an authorized verdict if heat of passion existed at the time of the killing, and spelled out the necessary elements of the defense  for the bench, bar, and jury.

Florida Criminal Standard Jury Instruction 7.2, dealing with First Degree Murder, now reads in pertinent part:

An issue in this case is whether (defendant) did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation:

a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that caused death; and
e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that caused the death of (victim).

The second degree murder instruction contains the same heat of passion requirements, except that for second degree murder, such a mind state vitiates not only premeditation, but also the depravity which characterizes depraved mind murder.  Instruction 7.4 states, in relevant part:

An issue in this case is whether (defendant) did not have a depraved mind without regard for human life because [he] [she] was in the heat of passion. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] was in the heat of passion:


a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that would have resulted in death; and
e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that would have resulted in the death of (victim).


There are comparable provisions for attempted first degree murder and attempted second degree murder.  The Supreme Court of Florida went beyond merely approving  the giving of a special instruction on heat of passion manslaughter, and did even more than drafting a "special instruction", as I had asserted was necessary.  It inserted the appropriate language and preexisting legal standards into the existing "standard instructions" on homicide and attempted homicide, and firmly established the doctrine of heat of passion as a viable partial defense.