People v. Berry (1976)

Procedural History

–          Jury in lower court convicted Berry of murder.

–          Appealed that it was not murder in California Supreme Court.


–          Berry states that there was insufficient evidence for murder.

  • Judge erred by not allowing the jury to hear his voluntary manslaughter defense.
    • Berry stated that he had provocation.

–          The couple got married and three days later she left to Israel – when came back told Defendant that she had slept with another man.

–          She continuously provoked Berry and told him that she slept with someone else

–          At court:

  • Psychiatrist said that Rachel had wanted to be killed and was unconciousably suicidal and wanted the defendant to kill her.

–          Defendant, according to the shrink, was provoked into a state of rage and killed Rachel.

–          Prosecution states that it couldn’t be heat of passion because of the 20 hour “cooling” of his emotions while waiting for her at the hospital.


– Was the Defendant effectively provoked in order to have his sentence reduced to voluntary manslaughter (were the jury instructions wrong)?


– Yes.


– Provocation does not need to happen at one given point in time…If provoked over a period of time and killed in the heat of passion due to being provoked (versus revenge).


–          Two week period where Rachel could provoke rage.

  • Jealousy, pain, sexual rage in an ordinary man of average disposition such as to cause him to act rashly from his passion.
  • It is significant that the shrink and the Defendant both testified that it was under the heat of passion and that he was provoked….
  • Infidelity taunted towards the defendant….

–          Any violent, intense, high wrought or enthusiastic emotion by a series of events…

–          Verbal provocation with adultery is sufficient….


– Lower court decision was reversed. Must allow jury instructions because there is concrete evidence to show that it could have been “heat of passion.”

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