provocation

Provocation is an affirmative defense to first degree intentional homicide. An affirmative defense means that the defendant is admitting that he or she committed a crime. Provocation then asserts to the Wisconsin Circuit Court trying the case that the defendant admits that he or she committed a murder, but then claims that the murder was the result of the defendant being provoked into the act (usually by the victim).

If the defendant successfully asserts a provocation defense to a first degree intentional homicide charge, the defendant will then be found guilty of second degree intentional homicide. In essence, under common law, provocation mitigates a murder charge to manslaughter.

Provoking Party

The affirmative defense of provocation asserts that the victim provoked the defendant, and that the victim was the intended object of the defendant's actions. In some cases, a mistake of fact and the accidental killing of a third person has been used as an affirmative defense; the courts have looked closely at such claims, and rarely decided in favor of the "third person" defense.

Provoking actions

The act or acts that provoked the defendant into committing murder must have been so outrageous that even a reasonable man would take the same action. In most cases, the victim must have performed the act or acts causing the defendant to become enraged.

Sudden provocation = immediate actions

The defendant must not have had time to deliberate his actions. In other words, there could not have been a period of time in which the defendant was able to cool down from his rage.

extreme emotional distress

It is not enough that the defendant was upset, uncomfortable, or perplexed by the situation. The degree to which the emotional distress must rise is over and above the level at which a reasonable person could reason his acts.

Penalties

Provocation is a defense that a defendant might assert if the defendant caused the death of another person because of provoking acts. Provocation is not a charge, so it does not have penalties. However, it is an attempt to lessen penalties by reducing the charge of first degree intentional homicide to second degree intentional homicide.

Under Wisconsin laws, the penalty for first degree intentional homicide is a mandatory sentence to life imprisonment. The penalty for second degree intentional homicide is imprisonment for up to 60 years.

Manslaughter

Second degree intentional homicide was previously known as manslaughter under Wisconsin laws. However, the legislature redrafted the Wisconsin criminal code, and in so doing, replaced the crime of "manslaughter" with second degree intentional homicide. The effect was to broaden the scope of the crime and increase the penalties.

Criminal defense attorneys

Van Wagner & Wood's criminal defense lawyers, Attorney Chris Van Wagner & Attorney Tracey Wood, defend people who have been accused of crimes and drunk driving offenses. Attorney Chris Van Wagner is a three-time recipient of the Martin Hanson Advocate's Prize, a statewide honor bestowed upon a very few criminal defense lawyers for outstanding defense of a client charged with a very serious felony. In Attorney Van Wagner's case, he was awarded three Marin Hanson Advocate's prizes for numerous acquittals in very difficult murder cases.

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Van Wagner & Wood's attorneys provide a free initial consultation to anyone who has been accused of murder.