Wisconsin Statutes
Wis. Stat. § 939.44 (2026)
Adequate provocation
✓ current as of July 2026
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939.44(1)(a)(a) “Adequate” means sufficient to cause complete lack of self-control in an ordinarily constituted person.
939.44(1)(b)(b) “Provocation” means something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death.
939.44(2)(2) Adequate provocation is an affirmative defense only to first-degree intentional homicide and mitigates that offense to 2nd-degree intentional homicide.
939.44 NoteJudicial Council Note, 1988: Sub. (1) codifies Wisconsin decisions defining “heat of passion” under prior s. 940.05. Ryan v. State, 115 Wis. 488 (1902); Johnson v. State, 129 Wis. 146 (1906); Carlone v. State, 150 Wis. 38 (1912); Zenou v. State, 4 Wis. 2d 655 (1958); State v. Bond, 41 Wis. 2d 219 (1969); State v. Williford, 103 Wis. 2d 98 (1981).
939.44 NoteTraditionally, provocation had 2 essential requirements. State v. Williford, supra., at 113. The first reflected in sub. (1) (b), is subjective. The defendant must have acted in response to provocation. This necessitates an assessment of the particular defendant’s state of mind at the time of the killing. The 2nd requirement, reflected in sub. (1) (a), is objective. Only provocation sufficient to cause a reasonable person to lose self-control completely is legally adequate to mitigate the severity of the offense.
939.44 NoteSub. (2) clarifies that adequate provocation is an affirmative defense to first-degree intentional homicide. Although adequate provocation does not negate the intent to kill such that the burden of persuasion rests on the state by constitutional principles (Mullaney v. Wilbur, 421 U.S. 684, (1975), Wisconsin has chosen to place the burden of disproving this defensive matter on the prosecution beyond a reasonable doubt. State v. Lee, 108 Wis. 2d 1 (1982). Since adequate provocation is not an affirmative defense to 2nd-degree intentional homicide, its effect is to mitigate the severity of an intentional homicide from first to 2nd degree. [Bill 191-S]
939.44 AnnotationAdequate provocation includes both subjective and objective components. As to the subjective component, the defendant must actually believe the provocation occurred, and the lack of self-control must be caused by the provocation. As to the objective component, the provocation must be such that would cause an ordinary, reasonable person to lack self-control completely, and the defendant’s belief that the provocative acts occurred must be reasonable. State v. Schmidt, 2012 WI App 113, 344 Wis. 2d 336, 824 N.W.2d 839, 11-1903.
939.44 AnnotationTo place provocation in issue, there need be only “some” evidence supporting the defense. The defendant’s proffered evidence of provocation must be examined as a whole to determine whether the “some evidence” threshold is satisfied. It is an all-or-nothing determination as to whether the jury hears any evidence of the affirmative defense. The adequate provocation inquiry is fact-driven. If the victim’s prior acts could contribute to a reasonable person’s loss of self-control at the time of the crime, the acts are relevant to the objective component of the defense. State v. Schmidt, 2012 WI App 113, 344 Wis. 2d 336, 824 N.W.2d 839, 11-1903.
Notes of Decisions
Cited in 15
cases (4 in the last 5 years), 1995–2025 · leading case: State v. Schmidt, 2012 WI App 113 (Wis. Ct. App. 2012).
State v. Schmidt, 2012 WI App 113 (Wis. Ct. App. 2012). “Wis. Stat. § 939.44 (1). " 'Complete loss of self-control' is an extreme mental disturbance or emotional state.”
State v. Head, 2002 WI 99 (Wis. 2002). “" Wis. Stat. § 939.44 (1)(b) (emphasis added).”
Scott Schmidt v. Brian Foster, 911 F.3d 469 (7th Cir. 2018). “2012) (citing Wis. Stat. § 939.44 (1) ; State v. Felton , 110 Wis.”
State v. Chrystul D. Kizer, 2021 WI App 46 (Wis. Ct. App. 2021). “47 specifically state that first-degree intentional homicide is only mitigated to second-degree intentional homicide.”
State v. Morgan, 536 N.W.2d 425 (Wis. Ct. App. 1995). “2d at 170 ); adequate provocation (or heat-of-passion manslaughter) (§ 939.44, STATS.) (see Felton, 110 Wis. 2d at 508-09 , 329 N.”
Scott Schmidt v. Brian Foster, 891 F.3d 302 (7th Cir. 2018). “” In Wisconsin, adequate provocation is an af- firmative defense that mitigates intentional homicide from first to second degree for defendants who “lack self-control completely at the time of causing death.”
State v. Chrystul D. Kizer, 2022 WI 58 (Wis. 2022). “47 (necessity is a complete defense "except that if the prosecution is for first- degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide"); § 939.44(2) ("Adequate provocation is an affirmative defense only to first-degree intentional…”
State v. Martinson, 927 N.W.2d 153 (Wis. Ct. App. 2019). “§ 939.44 ]." ¶10 The parties also agreed to a lengthy stipulation setting forth the factual basis for the pleas.”
State v. Chrystul D. Kizer, 2022 WI 58 (Wis. 2022). “47 (necessity is a complete defense "except that if the prosecution is for first- degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide"); § 939.44(2) ("Adequate provocation is an affirmative defense only to first-degree intentional…”
Scott Schmidt v. Brian Foster (7th Cir. 2018). “” In Wisconsin, adequate provocation is an af- firmative defense that mitigates intentional homicide from first to second degree for defendants who “lack self-control completely at the time of causing death.”
Scott Schmidt v. Brian Foster (7th Cir. 2018). “” In Wisconsin, adequate provocation is an af- firmative defense that mitigates intentional homicide from first to second degree for defendants who “lack self-control completely at the time of causing death.”
Scott Schmidt v. Brian Foster (7th Cir. 2018). “” In Wisconsin, adequate provocation is an af- firmative defense that mitigates intentional homicide from first to second degree for defendants who “lack self-control completely at the time of causing death.”
— Wis. Stat. § 939.44(1) — 3 cases
State v. Schmidt, 2012 WI App 113 (Wis. Ct. App. 2012). “Wis. Stat. § 939.44 (1). " 'Complete loss of self-control' is an extreme mental disturbance or emotional state.”
State v. Grady Cornell Carson (Wis. Ct. App. 2020).
State v. Martinson, 927 N.W.2d 153 (Wis. Ct. App. 2019). “§ 939.44 ]." ¶10 The parties also agreed to a lengthy stipulation setting forth the factual basis for the pleas.”
— Wis. Stat. § 939.44(1)(a) — 1 case
State v. Martinson, 927 N.W.2d 153 (Wis. Ct. App. 2019). “§ 939.44 ]." ¶10 The parties also agreed to a lengthy stipulation setting forth the factual basis for the pleas.”
— Wis. Stat. § 939.44(1)(b) — 1 case
State v. Tommy Jay Cross (Wis. Ct. App. 2025).
— Wis. Stat. § 939.44(2) — 3 cases
State v. Chrystul D. Kizer, 2021 WI App 46 (Wis. Ct. App. 2021). “47 specifically state that first-degree intentional homicide is only mitigated to second-degree intentional homicide.”
State v. Chrystul D. Kizer, 2022 WI 58 (Wis. 2022). “47 (necessity is a complete defense "except that if the prosecution is for first- degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide"); § 939.44(2) ("Adequate provocation is an affirmative defense only to first-degree intentional…”
State v. Chrystul D. Kizer, 2022 WI 58 (Wis. 2022). “47 (necessity is a complete defense "except that if the prosecution is for first- degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide"); § 939.44(2) ("Adequate provocation is an affirmative defense only to first-degree intentional…”
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