Digital Commons @ University of Georgia School of Law
Abstract
This Note argues for expanding the provocationdefense for criminal defendants by broadening theapplicability and recognition of both cooling time andrekindling. This expansion can be accomplished bytransforming cooling time and rekindling into subjectivestandards that focus on the unique internal and externalqualities of the defendant. Doing so would not only beconsistent with the underlying purpose of the defense butalso appropriate considering our modern understandingof the psychological effects of trauma and reactivity toprovoking stimuli. Accordingly, courts should practiceleniency with respect to cooling time and rekindling. Thebest approach to provocation is one that considers theconcept of cooling time as a means of evaluating the factsand circumstances of the defendant’s situation ratherthan a tool to bar the defense. This Note concludes thatbecause the provocation defense results only inmitigation and not acquittal, courts should abandon thecategorical approach to provocation and the objectivestandard of cooling time altogether to allow forflexibility across individual and cultural contexts
