Publication Date
2020
Abstract
This Note argues for expanding the provocation
defense for criminal defendants by broadening the
applicability and recognition of both cooling time and
rekindling. This expansion can be accomplished by
transforming cooling time and rekindling into subjective
standards that focus on the unique internal and external
qualities of the defendant. Doing so would not only be
consistent with the underlying purpose of the defense but
also appropriate considering our modern understanding
of the psychological effects of trauma and reactivity to
provoking stimuli. Accordingly, courts should practice
leniency with respect to cooling time and rekindling. The
best approach to provocation is one that considers the
concept of cooling time as a means of evaluating the facts
and circumstances of the defendant’s situation rather
than a tool to bar the defense. This Note concludes that
because the provocation defense results only in
mitigation and not acquittal, courts should abandon the
categorical approach to provocation and the objective
standard of cooling time altogether to allow for
flexibility across individual and cultural contexts.
Recommended Citation
Pinsky, Ariel J.
(2020)
"Heating Up and Cooling Down: Modifying the Provocation Defense by Expanding Cooling Time,"
Georgia Law Review: Vol. 54:
No.
2, Article 9.
Available at:
https://digitalcommons.law.uga.edu/glr/vol54/iss2/9