The appellate panel continued in relevant part: We therefore deem it prudent that when in a murder prosecution the trial court determines to instruct the jury on self-defense, the court at the charge conference conducted pursuant to Rule 1:8-7(b) should also consider and make specific findings on the record on whether to instruct the jury on the lesser-included offense of passion/provocation manslaughter, regardless of whether that instruction was requested by either party. To that end, we recommend that the Model Criminal Jury Charges Committee consider the advisability of revising the model jury instructions for murder, aggravated manslaughter, reckless manslaughter, passion/provocation manslaughter, and self-defense to include a notation or footnote advising trial judges to consider whether to deliver the passion/provocation instruction in cases where the judge has determined to deliver a self-defense instruction.
We emphasize that our recommendation is designed to ensure that the decision whether to instruct the jury on passion/provocation manslaughter in addition to self-defense is made with the aid of the arguments of counsel and placed on the record to facilitate appellate review if that should become necessary. We stress that a passion/provocation instruction will not always be needed or appropriate in conjunction with a self-defense instruction. A trial court’s ultimate decision of whether to instruct on passion/provocation manslaughter will depend on a careful analysis of the specific circumstances of the case and the arguments of the parties. We also wish to make clear that we do not mean to alter the “clearly-indicated” standard that applies when the defendant has not requested the passion/provocation manslaughter charge or objects to it. When the parties to a criminal proceeding do not request that a lesser-included offense such as attempted passion/provocation manslaughter be charged, the charge should be delivered to the jury only when there is ‘obvious record support for such [a] charge. Accordingly, a trial court should apply the “clearly-indicated” standard if, at the charge conference, the defendant objects to a passion/provocation manslaughter instruction. The new practice we recommend is designed only to ensure that the applicable standard–whichever that may be–is applied in the first instance by the trial court before a verdict is rendered, rather than by an appellate court reviewing a cold record.
It is somewhat surprising that a passion provocation charge can be given over the defendant’s objection. The charge is only supposed to help the defendant by downgrading murder to manslaughter. The State would be disinclined to request the charge if they were confident in their murder case.
