Concept
Actual Cooling Off
Common-law adequate provocation (heat of passion)
Actual Cooling Off
The fourth and last step turns from the ordinary person back to the defendant. Steps one through three have established that the event was adequate, that the defendant was in fact provoked, and that not enough time passed for a reasonable person's passion to subside. Step four adds a final requirement: the defendant must in fact not have cooled off between the provocation and the killing.1 The subject matter is the same as in step three, namely whether the passion had faded by the time of the fatal act, but the person being measured has changed. Step three measures a reasonable person's passion against the clock, and step four measures this defendant's.
Because the two cooling steps ask about different people, a defendant can clear one and fail the other, and the manslaughter claim survives only if both are cleared. The failures run in opposite directions:
- Step three fails when enough time passed for a reasonable person to cool, even though this defendant had not cooled.2
- Step four fails when this defendant had in fact cooled, even though a reasonable person would not yet have done so.3
The first failure closes the window on a defendant who keeps brooding past the point at which an ordinary person would have settled, and the second closes it on a defendant who settled sooner than an ordinary person would have. Even the minority view that abandons the reasonable-time test leaves this inquiry in place, since it makes the defendant's own failure to cool the whole question.4
The reason for the second failure follows from what the doctrine mitigates. A provoked killing is treated more leniently because a passion disturbed the control of reason, so the defendant must still have been under that disturbance when the blow fell. One who recovers from the affront with unusual quickness and then kills in full possession of his faculties has made a choice with reason in command, and it is no help to that defendant that an ordinary person would not have regained control in the same interval.5 The underlying rationale is that a person whose passions are no longer engaged merits the same condemnation and punishment as one who kills with no provocation at all.6 The objective steps fix what the law is willing to excuse in people generally, and the subjective steps then check that this defendant was in fact someone whose reason was overborne. That is why a person of exceptional restraint receives no discount and is held to a higher standard than a more excitable one.7
Step four also has to be kept apart from step two, since both examine the defendant's own mind. Step two asks whether a passion arose at all, and step four asks whether that passion was already gone by the time of the killing. A defendant who was enraged by the provocation but calm again before firing therefore passes step two and fails step four, with the same consequence as a defendant who was never enraged: the killing was done in cold blood, with time and capacity to premeditate and deliberate, so where murder is divided into degrees the defendant is a candidate for first-degree murder.8 The later section on applying the four steps takes up that grading in full.
Proof of actual cooling comes from the defendant's conduct and demeanor in the interval. Methodical preparation, an even tone, a pause to pick the moment, and calm statements of intent all suggest that reason had resumed control, while shaking, shouting, and an unbroken confrontation suggest that the passion was still running. The same conduct can support two separate arguments, one at step three about what a reasonable person would have done and one at step four about what this defendant did, and an answer should keep them apart. Step four also assumes that step three was cleared, so the facts that matter here are those showing that this defendant had regained control within an interval short enough that an ordinary person would still have been enraged.
The trap is stopping once a reasonable person would not have cooled. A student who concludes that ten minutes is too short for an ordinary person to calm down has answered step three and nothing more, and the stem often plants a detail of composure in the interval for the purpose of testing step four. The reverse point matters just as much: showing that the defendant was calm by the time of the killing ends the claim without any need to show that a reasonable person would also have calmed, because either failure alone leaves the killing murder.