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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27732
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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What factors are needed to claim a crime of passion as a

Customer Question

what factors are needed to claim a crime of passion as a defense for battery and terrorist threats false imprisonment and burglary(noone was hurt and nothing was stolen) and does it even help? or could it be temporary insanity? when you catch your spouse
in bed with someone else. Married 6 years together for 21 years.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.


Heat of passion in California has the following elements:

-- That you were provoked and

-- As a result acted under such an intense emotion that you lost your reason and judgment and

-- That the average person under the same circumstances would have also reacted without thinking.

You did, however, enter the house without permission or authority before you knew that you were going to find your husband in bed. So it's likely not going to be a complete defense to your situation.

Customer: replied 1 year ago.
But her kid let me in. And she has dropped the charges, why is the DA still going with it? Can I call her as a witness?
Customer: replied 1 year ago.
Seriously it was a 5 -10 minute max scuffle her son is stated in the police report as to not hearing anything except for me calling her a name. And she lives in a 60 foot trailer and he was in the living room no more than 20 to 30 feet away.
Expert:  Zoey_ JD replied 1 year ago.

As I already mentioned on your other question, the burglary charge looks very weak. The other charges are mitigated by what you saw.

Once the matter is in the hands of the authorities, the case no longer belongs to the complainant. It belongs to the prosecutor who can bring charges whether the complainant wants to go forward or not. The prosecutor will still have to call her as a witness, and she will be compelled to testify as to what happened or to face contempt charges. She's not going to be a defense witness, and the fact that she was wiling to drop charges doesn't mean that you didn't act as charged.

If the complainant is reluctant to go forward and doesn't really want to air her dirty laundry in public, however, this case can probably be resolved in some favorable way as to you.

Customer: replied 1 year ago.
why can't she be a defense witness? She deserved to get her ass kicked and should of never gotten the law involved. She was a confidant. A week or two prior to this she was telling me how i should leave my husband and how he was selfish and that she thought he was having several affairs and how i didn't deserve that and I was better than that and blah blah. I guess all I can hope for is that the jury can hear my side. I'm not the one who did anything wrong. I should have the right to protect my family, and adultery should be illegal. Is there not some kind of tort i can file?
Expert:  Zoey_ JD replied 1 year ago.

Your lawyer will get an opportunity to cross-examine the complainant if this case goes to trial. However, she is the complainant on the case which, by definition, makes her a witness for the prosecution. And she will testify to the acts that you got arrested for which isn't helpful to you. She may also testify on cross-examination as to how you looked extremely upset.that may be of some use to you. But you can't count on her being a friendly witness.

As for whether you did anything wrong, that will be up to a jury, but the very fact that you seem to know this requires some form of an insanity defense tells me that you know perfectly well you have no right to do what you did. It is NOT self-defense in protection of your family. This was a consensual act between two adults and you inserted yourself into the middle of it.

You may wish that adultery were a crime. It used to be one once upon a time. Now it is rarely prosecuted anywhere in the country. As for civil actions, heart balm cases are also no longer allowed. Your only civil remedy would be to file for divorce on the grounds of adultery.