Van Wagner & Wood Home Page
Van Wagner & Wood Attorney Chris Van Wagner Attorney Tracey Wood
Madison WI   
Toll Free   
Not guilty! Not since the OJ Simpson trial has a verdict so shocked a community. Attorney Chris Van Wagner's client had all but admitted to homicide with a dangerous weapon. Meng had his own dream team packed into one Madison criminal defense attorney. Meanwhile, Chris Van Wagner humbly said, "We are relieved."
Repeatedly Voted Madison's Best Drug Crimes DefenseDrunk Driving OWI Defense AttorneysVery Serious Felony Charges (Murder, Sexual Assault, Drugs)Wisconsin State & Federal ChargesWhite Collar Crime DefenseWisconsin Attorneys - Criminal & DUI Defense

Mitigating Circumstances

Felony Murder, Negligent Homicide, Reckless Homicide, Intentional Homicide

Mitigating circumstances are affirmative defenses. If the defendant successfully claims that mitigating circumstances existed at the time of the homicide, first degree intentional homicide is reduced to second degree intentional homicide, or in some situations, the homicide is precluded from criminal prosecution because it lacks criminal liability. Mitigating circumstances are also present in sentencing guidelines and often presented to jury panels to reduce the amount of time that a person is sentenced to prison.

Application of Mitigating Circumstances

In State v. Thompson (172 Wis. 2d 257, 493 NW2d 729, Ct. App. 1992), the Wisconsin Court of Appeals held, "Whether a particular factor will be considered as a mitigating or aggravating factor will depend on the particular defendant and case."

Felony Murder Cannot Be Mitigated

A mitigating circumstances affirmative defense is not available to the charge of felony murder.

Intentional Homicide - mitigating circumstances

First Degree Intentional Homicide

Wisconsin law, Statute 940.01, First-degree intentional homicide. (1) Absent mitigating circumstances, any person who causes the death of another human being with intent to kill that person or another person, (2) or causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child, or another person is guilty of a Class A felony. [See also Wisconsin Law Intentional Homicide First & Second Degrees]

Mitigating Circumstances

Adequate Provocation

The affirmative defense of adequate provocation, sometimes called a "heat of passion crime", breaks down into three tests. The first determines if the acts actually existed that caused the defendant to become enraged. If the acts of the victim or another person existed, were those acts of the nature that they would provoke the defendant with such magnitude that a reasonable man or woman would be compelled to act in the same manner under the same circumstances. Lastly, did that provocation occur immediately before the defendant's act that caused the death. If all three of those tests are met, a defense may exist for adequate provocation, which would then result in a first-degree intentional homicide charge being reduced to second-degree intentional homicide.

Second-degree intentional homicide is often called voluntary manslaughter in other states, but Wisconsin legislatures eliminated the crime of voluntary manslaughter when the criminal statutes were codified.

Self Defense - Necessary and Unnecessary Defensive Force

If a death was caused because the actor believed he or she was in imminent danger of death or great bodily harm and the force used was necessary to defend the endangered person, then a first-degree intentional homicide may be reduced to second-degree intentional homicide, if either belief was unreasonable.

If the defensive force was necessary, then the homicide may be excused from criminal liability. The law defines the circumstances under which defensive force is necessary for individual protection, protection of another, and protection of society.

Self defense is not as simple to prove as the definition might indicate. When Chai Soua Vang asserted his self defense affirmative defense to first degree intentional homicide charges, the jury convicted him. "As a practical matter, no jury that is fair and unbiased can deny that four victims had bullet wounds in the back," Attorney Chris Van Wagner said.

Prevention of Felony

If a death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, and if that belief was unreasonable, then a first-degree intentional homicide charge can be mitigated to second-degree intentional homicide. If the belief was reasonable, then the charge may be noncriminal.

Coercion or Necessity

If a death was caused by a person who was coerced into committing an intentional homicide, or if a death was caused by a person who under extreme conditions believed a necessity existed to commit an intentional homicide, then a first-degree intentional homicide charge can be mitigated to second-degree intentional homicide. The justice system has long held extreme doubt of coercion or necessity to commit a homicide.

Burden of Proof

If the defendant enters evidence at trial presenting mitigating circumstances, then the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a guilty finding in law of first-degree intentional homicide.

Privileged Act Affirmative Defense

As with all affirmative defenses, the defendant admits to committing a crime. In a privileged act, the defendant is admitting to having caused a death (homicide), but the law has long defined certain and specific acts that under any other circumstances would be wrong, constitute a crime, and be punishable by both imprisonment and fines. For example, in a perfect self defense affirmative defense, the accused admits to having committed a homicide, but asserts a claim that the homicide was necessary and a defensive act was required to protect himself or another from imminent death or serious bodily injury. In other words, the defendant is asking the state to excuse him of criminal liability for the murder he committed.

A police officer who in pursuit of a fleeing felon shoots and kills the felon may be privileged under the law. Whether his act if privileged depends on many factors, but generally speaking, the act would be privileged if the felon posed a danger of imminent death to the officer or another person, but may not be privileged if the death was connected to a previous argument between the police officer and the victim. In other words, privileged acts have limits.

Free Initial Consultation

If you are under investigation for homicide or murder, if you have been charged with a murder or homicide, or if you have already been convicted but believe your conviction or sentencing were wrong, please call ( or locally, ), e-mail the attorneys at Van Wagner & Wood, or submit information about your case for a free review.

Related Topics:
First Degree Intentional Homicide | Second Degree Intentional Homicide | Felony Murder