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Almost always a Manslaghter at trial will be a defense or mitigation to first or second degree murder charge.  Rarely is manslaughter charged by itself as a charge brought by the District Attorney. 

Having tried more than 5 First Degree Murder cases, and having personally handled more than 20 more murder cases, and 10 Attempted Murder, cases I know the ins and outs of a Homicide trial.  I wrote earlier about the law of Homicide I will keep this article more to the crime of manslaughter and how that charge relates to the crime of Murder.


First as stated above, the District Attorney will usually charge someone on First Degree Murder charge.  As  a result if there is no question that the accused intentionally killed the deceased an argument will ensue to have the case pled to a charge of manslaughter.

If the defendant’s argument is that someone else killed the deceased that is a very different defense. But lets say you are accused of First Degree Murder and you are going to trial, the District Attorney has rejected your offer of pleading guilty to manslaughter and the case is now at trial.

Many times I will simply tell the jurors up front they are here to decide wether the accused should be held liable for first degree murder, second degree murder, or manslaughter.


will wil admit that the defendant killed the deceased but wil say there was either one of three things present.

1. Provocation

2. Imperfect Self Defense

3. Heat of Passion

it should be noted that Self Defense, is a different defense. Meaning you or someones elses life was in danger of death or serious bodily injury and that is a complete defense to Homicide. We will have a seperate article regarding self defense.


Under Jury Instruction 522 Sufficient Provocaction can reduce a Murder from First Degree Murder to Second Degree Murder and Second Degree Murder to Manslaughter. 

This is because if you were provoked you acted out of the provocation in committing the intentional murder not deliberation and premeditation.  Contrary to Jury Instruction 570 which we will discuss below, the provocation does not have to be found reasonable just sufficient.  This is because if you are acting out of provocation then you will not be acting with malice which is needed for Second Degree Murder. 

Therefore the provocation shows you were not acting with deliberation and premiditation, and you were not acting with Malice.  Again this is a stand alone Jury Instruction, meaning it does not need a  lot of other Jury Instructions to explain it and must be argued properly to the Jury without mixing it up with the 570 Heat of Passion Instruction.  That is exactly why you need an Attorney that has tried Homicide cases.


The Heat of Passion Jury Instruction is Instruction Number 570. 

Heat of passion means that a person intentionally killed another person, however, when they did this they acted out of heat of passion with adequate provocation and before the passions had cooled.  You see in our criminal justice system we look at what the person did wrong and what there mental state or what they were thinking when they did what they did.   And our legal system believes that if someone kills someone before the passions have cooled then they should be treated as less culpible then say someoen that premiditates a killing. 

Jury Instruction 570 has two elements

Subjective Element was the person provoked, and acted due to that provocation and

Objective Element A reasonable person would have been provoked under the same circumstances. 

The standard explanation is if you walk in on your wife having sex with another man immediately grab a gun and kill the man.  This could lead to a manslaughter conviction because the person acted immediately before the passions had cooled and a reasonable person would be provoked to act without due caution and circumspection at a man sleeping with his wife.


Imperfect Self Defense is another way to have a Homicide reduced from First Degree to Second Degree and reduced to Manslaughter. 

Imperfect self defense has two different elements.


2. That that belief was unreasonable

so there is no reasonableness requirement.  In other words just as long as the persons belief was reasonable that he needed to use deadly force then the crime is manslaughter under the imperfect self defense doctrine. 


you are at a bar and a menacing looking person is staring at you.  At one point he even makes a comment a to you.  You decide to leave.  He follows you outiside.  Once outside he appears to reach for a weapon, you shoot and kill him.  It ends up  that he only was going for his keys to leave.  However the jury believes that you honestly believed in your need to defend yourself even though that belief was unreasonable you would not be guilty of first degree murde, because you were acting out of your unreasonable belief no premiditation and deliberation. 

You would not be guilty of Second Degree Murder because you were not acting out of malice you were acting out of your belief in the need to protect yourself with deadly force. Therefore you would be guilty of Manslaughter. 

Gerald Schwab, Jr.


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Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704 View Map
Phone: 559.441.1418