Voluntary manslaughter is the intentional killing of another under circumstances that mitigate but do not excuse the killing. Malice aforethought that is a prerequisite in a murder charge is not present in voluntary manslaughter.
The elements of voluntary manslaughter are met when the defendant (1) unlawfully kills (2) another person (3) through an act or an omission and (4) at the time of the killing the defendant intended to kill or inflict great bodily harm on the person killed.
The most common type of voluntary manslaughter includes the intentional killing of another in the heat of passion caused by adequate provocation. Heat of passion may result from both fear and rage. A killing is committed in the heat of passion if the defendant was provoked into acting.
For provocation to be adequate three elements must be satisfied; (1) There must have been provocation that is considered legally adequate; (2) The killing must have been done in the heat of passion, which means that the killing must have followed the provocation before there was opportunity for the person provoked to cool off (3) There must have been a connection between the provocation, the passion, and the killing.
“Legally adequate” provocation includes adultery of a spouse, attempted battery or mutual combat (when both parties “agree” to fight). In deciding whether the killing was committed in the heat of passion there is both an objective and a subjective test. The objective test determines whether the provocation would have caused an average (reasonable) person to lose his temper and act unreasonably out of passion. The subjective test determines whether the particular person in question was in fact provoked. For example if the person in question has a cooler temperament than the average person he might not feel provoked in a situation where an average person would already lose his temper. Both the objective and subjective test have to be satisfied in order for a provocation to be found legally adequate. In other words the provocation has to be such that both an average person and the person in question would lose his temper as a result.
It is important to note that even if the killer was adequately provoked but he had actually cooled off prior to the killing (for example a longer stretch of time has passed between the provocation and the killing) then the killing was not committed in the heat of passion in the eyes of the law.
In a heat of passion voluntary manslaughter case as described above the defendant has to meet all four elements of voluntary manslaughter, all three elements of provocation and the “objective”/”subjective” test of whether an act was done in the heat of passion. Once all of these elements and tests are met will the defendant the lesser charge of manslaughter as opposed to being found guilty of murder.
Voluntary manslaughter charges also come up in imperfect self defense cases. Imperfect self defense means that a person who originally had the right of self defense has either somehow exceeded this right or did not meet all the requirements for self dense and is now guilty of manslaughter. As an example if a person believed that he had the right of self defense but the situation did not qualify or if he used unpermitted excessive force to defend himself, such as deadly force. In both situations the person who believed to be defending himself could be held guilty for voluntary manslaughter.