In Thailand, there is no direct Supreme Court decision explaining the reasonable person standard. And all leading Criminal Law textbooks discuss this topic with reference to their US counterparts. In actuality, there is no controversy concerning the reasonable person requirement in Thailand. Nonetheless, after researching through cases, Thai Supreme Court applies the objective/subjective test. The sufficiency of the provocation is determined objectively and the mental state of the actor is excluded. Subjectivity is applied to test the reasonableness of an action of an ordinary prudent person in actor's situation. Generally, the Supreme Court tends to take age, gender, level of education, and profession of the defendant into consideration to establish a reasonable person standard. To what extent these variables are considered is decided on a case-by-case basis.

In order to establish reasonable person requirement, there is a consensus that defendant's characteristics such as gender, age, physical disability shall be considered. Howevet, there are two special circumstances of the actor which are subjected to debate.

(a) Culture
Culture should be considered because people from different backgrounds hold different values. One event may provoke one class of people but not another. To what extent the culture should be weighed is the jury question.

Some courts view cultural background as irrelevant to the issue of provocation. Appellant proposes a jury instruction in his opening brief: "The [defendant] [and] [or] [the prosecution] has introduced evidence that the defendant has a cultural background that may be unique to you. Such cultural evidence may be relevant to your evaluation of whether the provocation in this case was of such a character and degree as to cause a reasonable person in the position of the defendant to have lost self-control and to have acted upon impulse rather than deliberation and reflection. You should give this evidence whatever weight you think it deserves. However, you may not reject this evidence out of caprice or prejudice because the defendant has cultural beliefs or practices different from your own." However, The Court of Appeal of California held that The trial court did not have a sua sponte duty to modify CALJIC No. 8.42 to instruct that the jury should consider cultural evidence in determining the sufficiency of the provocation. People v. Kobayashi, 2003 Cal. App. Unpub. LEXIS 2929. The trial court prohibited the defense from presenting expert evidence regarding Cuban culture at the guilt phase of the trial. Defendant argued that the central role of children in Cuban culture was a factor the jury shoud understand when determining whether he was adequately provoked by the victim's threat to deny him access to his son. The appellate court held that the trial court correctly concluded that the proffered expert testimony was irrelevant to the issue of provocation and potentially misleading to the jury. State v. Gonzalez, 2003 WI App. 244, 268 Wis.2d 295 (Wis.Ct.App. 2003).

The defendant, a Vietnamese immigrant, asserted that he killed his wife because Her alleged infidelity caused him to lose face and honor and that his Vietnamese culture ought to be considered in determining whether there was killing under provocation that would reduce murder to manslaughter. The trial judge instructed that the provocation assessment was to be made as against an ordinary person standard. The cultural back­ground of and of the accused was held not to be relevant to the issue of the reasonableness of the provocation but a factor to be considered on whether the Defendant actually acted under the provocation before the time for his passion to cool had occurred. Regina v. Hoa Ming Ly, 33 CCC3d 32 (B.C.Ct.App. 1987).

Generally, in Thailand, there is a uniform Thai culture; Thailand is not a multicultural country. Though four southernmost provinces consist of Muslim majority, Thai culture exists in those areas as well. Therefore, it is a rare case that the defendant would assert his unique cultural background for a provocation defense to establish a reasonable person standard in Thai court.

b) Battered Women
Md. Code Ann., Cts. & Jud. Proc. § 10-916 (1991) permits a trial court, in the trial of a defendant charged with certain violent crimes, including murder and manslaughter, to admit evidence of repeated physical and psychological abuse of the defendant perpetrated by the victim of the crime, and expert testimony of the battered spouse syndrome, where the defendant claims that he or she was the victim of such abuse, and as a result was suffering from the battered spouse syndrome at the time of the alleged crime. Banks v. State, 92 Md. App. 422 (1992). The battered spouse or child syndrome, when applied in a proper setting, can, depending on the circumstances, support both the subjective honesty of the defendant's perception of imminent harm and the objective reasonableness of such a perception. State v. Smullen, 380 Md. 233, 844 A.2d 429 (2004).

Some courts see in the opposite direction. Evidence relating to defendant's status as a battered woman was "irrelevant on the question of whether the victim's conduct was adequately provocative because that inquiry requires application of the `reasonable person' test. State v. Felton, 110 Wis.2d. 485, 329 N.W. 2d' 161 (1983). The court, on appeal, ruled that because battered spouse syndrome was not recognized as a defense in Ohio, the exclusion of evidence related to it was proper, and that because the expert testimony sought to be admitted dealt with it, it was correct to exclude it. State v. Williams, 1983 Ohio App. LEXIS 16026.
In Thailand, there is a growing concern with respect to protection of women and children's rights. The battered women syndrome is increasingly discussed in public. I believe the Court would take a battered condition of a defendant as relevant to the application of reasonable person requirement because to be fully in the battered actor's situation, you have to take such circumstance into account.

3. Cooling time
3.1 Passage of Time
The extreme emotional disturbance defense is also broader than the heat of passion doctrine which it replaced, in that a cooling off period intervening between the fatal act and the disturbance does not negate the defense. People v. Parmes, 1 14 Misc.2d 451 N.Y.S.2d 1015 (N.Y. Crim. Ct. 1982). The common law view is that too long a lapse of time between the provocation and the act of killing will render the provocation inadequate "as a matter of law" and therefore deprive the defendant of the right to an instruction on voluntary manslaughter. Some courts, however, permit the jury to make the judgment whether sufficient cooling time has elapsed.¹³

Forty minutes after an initial confrontation, where the defendant had calmed own and was no longer visibly angry, the defendant, on finding victim, threatened and shot victim numerous times knowing victim was unarmed. The defendant had an adequate cooling off time and was properly convicted of murder Isom v State 501 N E 2d 1074 (Ind. 1986). The repeated humiliation of the defendant by his wife did not support the extreme emotional disturbance standard, under the Model Penal Code language, for the killing of the defendant's wife weeks later. Passage of time does not preclude the defense, but the evidence must show proof that a temporarily remote provocative act affected the defendant at the time of the homicide to the extent that it could be concluded the defendant acted under extreme emotional disturbance. People v. White, 79 N.Y.2d 900, 590 N.E.2d 236 (1992).

Likewise, in Thailand, a period of time between the provocation and the act of killing is the decisive factor whether the defendant could assert provocation defense. An act immediately or within a short period of time after being provoked would suffice this defense.

The deceased and his companions battered the defendant. The defendant ran home which was roughly nine hundred feet away from the scene. The defendant got a knife and came back to fight with the deceased and his friends. The defendant stabbed the deceased. Even though the defendant did not kill the deceased at the immediate moment he was provoked, his action was within continuous period from the provocation. He acted under the extreme emotional disturbance. (Supreme Court decision no. 17561 1996). The defendant learned that his wife was raped by the victim. But the defendant did not show any anger against the victim. Moreover, the defendant and the victim went fishing together afterwards. Three hours later, the defendant hit the victim. Provocation defense is not available to the defendant. (Supreme Court decision no. 2103/1994).

Footnotes

13. Kadish & Schulhofer, supra,at 413.