Toward a Normative Conception
It is of the very nature of a free society to advance in its standards of
what is deemed reasonable and right.1
—U.S. Supreme Court Justice Felix Frankfurter
FOR A DEFENDANT to receive the provocation mitigation, the jury (or some other legal decision maker) must find that a reasonable person in the defendant's shoes would have been provoked into a heat of passion. For a defendant to receive an acquittal based on self-defense, the jury must find that a reasonable person in the defendant's shoes would have believed he was in imminent danger of death or grievous bodily injury. The reasonableness determination in both types of cases turns on juror beliefs and attitudes, which are a reflection of prevailing social norms.
The reasonableness requirement is not the only thing linking these two important defenses. The doctrines are interrelated in several less obvious ways. For example, while provocation is generally considered a partial excuse and self-defense a justification, both doctrines contain elements of excuse and justification. Second, the emotions at issue in provocation and self-defense cases—anger, outrage, and fear—reflect normative judgments of evaluation. These commonalities are significant because they inform the question of reform. The justificatory elements in provocation and self-defense and the evaluative nature of the emotions at issue in both types of cases support a normative conception of reasonableness.