§707-702 - Manslaughter.

§707-702  Manslaughter.  (1)  A person
commits the offense of manslaughter if:

(a) The person recklessly causes the death of another
person; or

(b) The person intentionally causes another person to
commit suicide.

(2)  In a prosecution for murder or attempted
murder in the first and second degrees it is an affirmative defense, which
reduces the offense to manslaughter or attempted manslaughter, that the
defendant was, at the time the defendant caused the death of the other person,
under the influence of extreme mental or emotional disturbance for which there
is a reasonable explanation.  The reasonableness of the explanation shall be
determined from the viewpoint of a reasonable person in the circumstances as
the defendant believed them to be.

(3)  Manslaughter is a class A felony. [L 1972,
c 9, pt of §1; am L 1987, c 181, §8; am L 1996, c 197, §2; am L 2003, c 64, §1;
am L 2006, c 230, §28]

Cross References

  Recklessness with respect to result of conduct, see §702-206.

COMMENTARY ON §707-702

  Manslaughter is traditionally considered as an offense less
heinous than murder, principally because the actor's state of mind is less
culpable.  The Code has followed the lead of other recent criminal law
revisions in making recklessness the standard of culpability for this
offense.[1]  The Code is also in accord with other revisions with regard to the
sentence.[2]

  The reduction of murder to manslaughter, when mitigating
mental or emotional disturbances are present, appears in the Model Penal Code
and most recent state revisions.[3]  This reduction is a clarification of the
common law on the subject.[4]  The Code adopts this approach in subsection (2).

  In the case of an intentional or knowing killing, where
mitigating circumstances are present, the prosecutor may, but need not, bring a
prosecution for murder.  The prosecutor may, if the prosecutor chooses, bring a
prosecution for manslaughter.  Since recklessness will be satisfied by proof
that the defendant acted intentionally or knowingly,[5] a charge of manslaughter
could be employed where a prosecutor, in the prosecutor's discretion, did not
wish to push for a murder conviction.

  Intentionally causing another to commit suicide is designated
manslaughter.  While other codes have treated this as a separate offense,[6]
the Code incorporates conduct causing this result into the definition of
manslaughter.  The harm sought to be prevented is largely the same, and,
although the conduct is intentional, rather than reckless, the dependence of
the result on the will of another justifies requiring a higher standard of
culpability than that which is required in cases of "direct"
causation.

  Previous Hawaii law defined manslaughter as any killing
"without malice aforethought, and without authority, justification, or extenuation."[7] 
The Code clarifies substantially the statutory requirements for a conviction of
manslaughter.

  The case law of Hawaii contains the typical common-law
provision for the reduction of murder in the first or second degree to
manslaughter when mitigating mental or emotional disturbances are present. 
Reduction of the offense for killing in the "heat of passion" has
been recognized[8] and something approximating the Code's more general approach
to mental and emotional extenuation had been accepted as early as 1853:

Whoever kills
another... under the sudden impulse of passion... of a nature tending to
disturb the judgment and mental faculties, and weaken the possession of
self-control of the killing party, is not guilty of murder, but manslaughter.[9]

The criterion of a general weakening of self-control was quite
an advanced and liberal approach for 1853.  However, there were the additional
requirements that the killing be without malice and that the passion be
provoked or caused by the victim.[10]  Such additional requirements tended to
subvert the otherwise liberal approach.

SUPPLEMENTAL COMMENTARY ON §707-702

  Act 181, Session Laws 1987, added language to this section to
reflect the recently created statutory murder crimes.  These crimes are murder
in the first and second degree.  Senate Standing Committee Report No. 1130.

  Act 197, Session Laws 1996, amended this section by raising
the crime of manslaughter from a class B to a class A felony.  The legislature
found that homicides, particularly homicides involving domestic violence
situations, have increased in the State.  A person convicted of manslaughter as
a class B felony may be sentenced to imprisonment for a maximum of ten years. 
The legislature believed that a maximum sentence of ten years imprisonment was
inadequate for the taking of a life.  Conference Committee Report No. 71.

  Act 64, Session Laws 2003, amended this section by
establishing extreme mental or emotional disturbance as an affirmative defense
to murder or attempted murder.  Under existing law, a defendant charged with
murder or attempted murder need not raise extreme mental or emotional
disturbance as a defense, and may not legitimately have extreme mental or
emotional disturbance, but the prosecution must still disprove that the
defendant suffers from extreme mental or emotional disturbance. Establishing
extreme mental or emotional disturbance as an affirmative defense requires the
defense to prove by a preponderance of the evidence that the defendant suffers
from extreme mental or emotional disturbance. Conference Committee Report No.
56.

  Act 230, Session Laws 2006, amended subsection (1) by making
technical, nonsubstantive amendments.

Law Journals and Reviews

  Extreme Emotion.  12 UH L. Rev. 39.

  The Nature of the Offense:  An Ignored Factor in Determining
the Application of the Cultural Defense.  18 UH L. Rev. 765.

  Should The Right To Die Be Protected?  Physician Assisted
Suicide And Its Potential Effect On Hawai‘i.  19 UH L. Rev. 783.

  Extreme Mental or Emotional Disturbance (EMED).  23 UH L.
Rev. 431.

Case Notes

  In murder prosecutions where instructions on self-defense are
given, the court shall also instruct on manslaughter, subject to one
exception.  58 H. 492, 573 P.2d 959.

  In prosecution for murder, evidence of mental disease did not
raise the question whether offense was murder or manslaughter.  61 H. 193, 600
P.2d 1139.

  In prosecution for murder, no evidence to support reduced
charge of manslaughter.  69 H. 72, 734 P.2d 156.

  Reversible error where jury instruction required extreme
unusual and overwhelming stress for reduction from homicide to manslaughter. 
70 H. 173, 766 P.2d 128.

  Expert testimony about defendant being under influence of
extreme mental or emotional disturbance for which there is a reasonable
explanation is allowable since that disturbance can reduce murder to
manslaughter.  73 H. 109, 831 P.2d 512.

  No abuse of discretion where expert opinion testimony was
admitted on killer's degree of self-control to rebut manslaughter mitigation
defense.  74 H. 197, 840 P.2d 374.

  Circuit court's failure to provide burden of proof
instructions with regard to mitigating defense of extreme emotional disturbance
manslaughter constituted plain error.  79 H. 219, 900 P.2d 1286.

  Defendant charged with attempted murder, in violation of
§§705-500 and 707-701.5, may be convicted of attempted manslaughter, in
violation of §705-500 and subsection (2).  80 H. 27, 904 P.2d 912.

  Subsection (1)(a) combined with §705-500 does not give rise
to the offense of attempted manslaughter.  80 H. 27, 904 P.2d 912.

  No error for failure to instruct jury on attempted extreme
mental or emotional distress manslaughter where there was absolutely no
evidentiary support for this mitigating defense.  82 H. 202, 921 P.2d 122.

  Trial court determines whether record reflects any evidence
of a subjective nature that defendant acted under a loss of self-control
resulting from extreme mental or emotional disturbance; if record does not
reflect any such evidence, then trial court shall refuse to instruct the jury
on extreme mental or emotional disturbance manslaughter; if record does reflect
any evidence, then issue must be submitted to jury and court should instruct
jury on extreme mental or emotional disturbance manslaughter.  88 H. 325, 966
P.2d 637.

  As conviction for manslaughter due to an extreme mental or
emotional disturbance under subsection (2) is deemed an acquittal of murder,
double jeopardy barred defendant's reprosecution for second degree murder under
§707-701.5.  88 H. 356, 966 P.2d 1082.

  Prosecution not barred from reprosecuting defendant for
offense of reckless manslaughter under subsection (1)(a) as reckless
manslaughter is a lesser included offense of murder and remanding a case for
retrial on lesser included offenses not barred by double jeopardy.  88 H. 356,
966 P.2d 1082.

  Trial court did not err in giving jury instruction that the
presence or absence of self-control was a significant factor in determining
whether a defendant was under the influence of extreme mental or emotional
disturbance in such a manner as to reduce attempted murder to attempted extreme
mental or emotional disturbance manslaughter. 90 H. 65, 976 P.2d 379.

  When considered in conjunction with the testimony of expert
witnesses, where there was substantial evidence adduced at trial that defendant
was not experiencing a loss of control during defendant's attack on victim and
was not acting under extreme mental or emotional distress, trial court did not
err in refusing to convict defendant of the included offense of manslaughter.  
93 H. 224, 999 P.2d 230.

  Trial court did not err in declining to provide extreme
mental or emotional disturbance defense instruction to jury where generalized
testimony that baby victim could cry a lot and that defendant sometimes lost
defendant's temper in stressful situations, without more, was not probative
that during the incident in question, defendant acted, even from a subjective
standpoint, under a loss of self-control resulting from extreme mental or emotional
disturbance.  97 H. 299, 36 P.3d 1269.

  Subsection (2) precludes multiple manslaughter convictions
based on a single count charging first degree murder under §707-701(1)(a).  99
H. 542, 57 P.3d 467.

  Where negativing of defendant's mitigating extreme mental or
emotional distress defense by prosecution was a material element of the offense
of first degree murder such that jury unanimity was a prerequisite to returning
any verdict, and trial court's special instruction expressly directed the jury to
convict defendant of manslaughter if a single juror believed that the
prosecution had failed to negative the mitigating defense, constitutional right
to unanimous jury verdict violated.  99 H. 542, 57 P.3d 467.

  Where evidence that child was a victim of battered child
syndrome was relevant to show that child's death was not an accident, but the
result of an intentional, knowing or reckless criminal act, giving rise to a
duty on defendant's part to obtain medical care for child pursuant to §663-1.6,
trial court did not err in admitting expert testimony that child was a victim
of battered child syndrome.  101 H. 332, 68 P.3d 606.

  A mother's prosecution for her own prenatal conduct, which
causes the death of the baby subsequently born alive, is not within the plain
meaning of subsection (1)(a), in conjunction with the general provisions of
penal liability found in the Hawaii Penal Code.  109 H. 115, 123 P.3d 1210.

  Trial court did not err in refusing to give jury instruction
on manslaughter due to extreme mental or emotional disturbance (EMED) where
evidence must show that that defendant was under the influence of an EMED at
the time defendant committed the crime; EMED defense was not supported by
evidence that when defendant returned to accomplice's apartment after allegedly
committing the murder, defendant was not oneself and in "kind of a
panic".  119 H. 74 (App.), 193 P.3d 1274.

  Evidence presented to grand jury was sufficient to support
indictment for manslaughter.  1 H. App. 396, 620 P.2d 740.

  Evidence that defendant supplied a knife to another knowing
that the other was about to engage in a fight with decedent who was killed with
the knife held sufficient.  2 H. App. 277, 630 P.2d 650.

  "Extreme mental or emotional disturbance" and
"reasonable explanation" construed; evidence of extreme mental or
emotional disturbance.  6 H. App. 173, 715 P.2d 822.

  Defendant not entitled to burden-of-proof instruction
regarding manslaughter, where no evidence supported manslaughter defense.  6 H.
App. 409, 723 P.2d 186.

  Crime of attempted manslaughter is an included offense of
attempted murder; includes both voluntary and involuntary manslaughter.  7 H.
App. 291, 757 P.2d 1175.

__________

§707-702 Commentary:

1.  M.P.C. §210.3; N.Y.R.P.L. §125.15; Prop. Del. Cr. Code
§411; Prop. Mich. Rev. Cr. Code §2010; Prop. Pa. Cr. Code §904.

2.  Id.

3.  M.P.C. §210.3(1)(b); N.Y.R.P.L. §125.25(1)(a); Prop. Del.
Cr. Code §414; Prop. Mich. Rev. Cr. Code §§2010(d), 2005(2); Prop. Pa. Cr. Code
§904(a)(2).

4.  See The King v. Greenwell, 1 Haw. 85 [146] (1853), and The
King v. Sherman, 1 Haw. 88 [150] (1853).

5.  Cf. §702-208.

6.  E.g., Prop. Mich. Rev. Cr. Code §2120; N.Y.R.P.L. §120.30.

7.  H.R.S. §748-6.

8.  The King v. Greenwell, supra, and The King v. Sherman,
supra.

9.  The King v. Greenwell, supra at 87 [149].

10. Id. at 87 [149].