What is "heat of passion" in Colorado murder and manslaughter cases?

Posted by Neil Shouse | Jan 23, 2019 | 0 Comments

A "heat of passion" killing is one where a person kills another in a fit of unpremeditated rage that a reasonable person would feel under the circumstances. "Heat of passion" killings used to be categorized as a kind of Colorado manslaughter crime. But now it is classified as a type of second-degree murder crime in Colorado.

Definition of "Heat of Passion" in Colorado

The classic example of a "heat of passion" killing is a person unwittingly walking in on his/her spouse in bed with another person, being overcome by emotion, and instantly killing them. There is no "cooling off" period between being provoked and inflicting the fatal blows. If there were a cooling off period, then the killing would become premeditated and calculated instead of merely fueled by unbridled passion.

Penalties for passion killings in Colorado

"Heat of passion" killings are a type of second-degree murder in Colorado. Formerly, "heat of passion" killings were a kind of manslaughter, which is punished less harshly than murder. However, "heat of passion" killings do carry lesser penalties than other types of second-degree murders:

Second-degree murder is typically classified as a class 2 felony, carrying a sentencing range of

  • 16 to 48 years in a Colorado State Prison (followed by 5-years mandatory parole), and
  • A fine of $5,000 to $1,000,000.

Meanwhile, killings done in the heat of passion are only a class 3 felony, carrying a sentencing range of:

  • 4 to 16 years in prison (followed by 5-years mandatory parole), and/or
  • A fine of $3,000 to $750,000.

Therefore, defendants convicted of second-degree murder who can show they killed in the "heat of passion" will get a lower sentence than those who had a sufficient cooling off period before the killing. In short, killing in the "heat of passion" is a mitigating factor in second-degree murder sentencings.

Defenses to passion killing allegations in Colorado

The specific facts of each case determine which defense strategies would be most efficacious. Depending on the circumstances, defendants charged with second-degree murder in Colorado may try to fight the charges with either of the following arguments:

  1. The killing was done in self-defense. Colorado law permits people to defend themselves against immediate physical threats as long as they are reacting with reasonable force. Killing someone in self-defense is permitted in Colorado if the aggressor is about to administer deadly or devastating physical force. If the defense attorney can show that the defendant acted in accordance with Colorado's self-defense laws, the murder charges should be dropped.
  2. The defendant was falsely accused. Sometimes innocent people get framed by others out of anger or revenge. Oftentimes, prior text messages between the accuser and defendant reveal that the accuser was motivated to lie. And sometimes there are eyewitnesses that can attest to the accuser's untruthfulness. As long as the prosecution cannot prove that the defendant killed beyond a reasonable doubt, murder charges cannot stand.
  3. The killing was an accident. A passion killing is an intentional act even though the person is acting solely out of emotion. If the death resulted from an accident, then the defendant committed no murder. Let us take the example of the person walking on his/her spouse with another lover. If the cuckolded spouse slams the bedroom door shut in a huff, which then causes the fan over the bed to fall on the lovers and kill them, the cuckolded spouse should not face criminal charges (assuming he/she did not mean for the fan to fall).

Note that it may be possible to plea bargain murder charges down to a manslaughter charge or criminally negligent homicide.

Legal References

Colorado 18-3-103 C.R.S.:

1) A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.

(2) Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree.


(a) Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person;  but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.

(4) A defendant convicted pursuant to subsection (1) of this section shall be sentenced by the court in accordance with the provisions of section 18-1.3-406 .

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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