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To: David Rosen, Supervising Senior District Attorney
From: Jesse Berwanger, Legal Methods One Section 06: 315-62-127
Date: November 6th, 2015
RE: Defendant Olivia Pope; Case file HOMICIDE2015-B613
Question Presented
Under California law, does a defendant satisfy the elements for Heat of passion
Voluntary manslaughter if the victim inadvertently provokes them by declaring love for another
person, causing the defendant to immediately react and attack the victim without due deliberation
and resulting in the victim’s death?
Brief Answer
Most likely, yes. Under California law, the heat of passion element of a voluntary
manslaughter charge has two elements: (1) that there was sufficient provocation and (2) a lack of
a “cooling-off” period for the defendant to regain their reason and judgment. A court would find
that Olivia Pope’s words and conduct in the facts presented satisfies the elements for heat of
passion voluntary manslaughter. These same facts will likely show that there was no “cooling-
off” period between the provocation from Jake Ballard and Olivia Pope’s reaction to the
provocation, thus showing that she had insufficient time to regain her reason and judgment.
Facts
Olivia Pope, the defendant, was a well-known member of the musical band Scandal. She
was recently arrested for bludgeoning her lover and bandmate, Jake Ballard, to death. She
currently faces trial from the state of California for this killing. Pope and Ballard performed in a
famous band with another couple, Fitz Grant and Mellie Young. Before forming this musical
band, Pope and Ballard were in a serious relationship. Pope worked hard to support Ballard and
his two children while Ballard worked on musical compositions in an effort to be signed onto a
big paying musical recording contract.

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Pope’s work and support made her appear as a second mother to Ballard’s two children
who had high regards for her. Pope was very committed to her relationship with Ballard and both
had plans of much success and a lasting relationship with Ballard and his two kids. Ballard had
told Pope that once they got on their feet with his music career they would get married. The
couple became involved with another musical couple after Pope had negotiated a deal with Fitz
Grant and Mellie Young for her and Jake to record some tracks together. The two couples
recorded the tracks and they became instant hits. This lead to the band Scandal being formed. As
their success grew the problems for Pope and Ballard increased, although they were able to be
financially independent and were able to support their children they were under constant pressure
from their recording company to produce more hit tracks in an effort to generate more revenue.
The band started reacting to the stress by abusing a lot of drugs. Eventually the partying got out
of control and Pope had sexual intercourse with Grant, the other male in the band. Both felt great
remorse for their actions and never let it happen again. However, this event didn’t go over well
for Pope and Ballard due to Ballard blaming her directly and not the drugs for the events that had
happened. Pope then tried to show that it was an isolated event and that she and Ballard were on
good terms again, as time passed Pope discovered receipts for a very expensive diamond ring
and a booking for a honeymoon suite at a posh resort in the Bahamas for a month from the date
she discovered the receipts. Pope also noticed how Ballard’s overall demeanor was much more
positive than previously and she overheard him, without his knowledge, composing a love song
that had very emotionally warming lyrics.
On the Wednesday before the incident Ballard informed Pope that he had something
important to speak to her about. Pope became excited as her anticipations of marriage with
Ballard were apparently coming true and she had no doubt that he would be proposing at this

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discussion. Pope prepared for the event and was really looking forward to finally marrying the
person with whom she planned to spend the rest of her life with all this time.
Upon arriving at the venue they were performing at she approached Ballard’s dressing
room, Pope walked in to find Ballard and Mellie Young, the other girl in the band, kissing in
nothing but very exposing bathrobes. All Jake could say was “Liv, I told you we needed to talk.”
As the realization of what was happening started to become clearer, Pope was experiencing
fuzzy vision and enragement, she threw the Champaign bottle she had purchased for the
anticipated proposal at the wall and ran out of the room.
Pope then rushed to meet with her guru in order to cool down, she attempted to cancel the
show happening that night with the band but the manager wouldn’t let her and insisted on her
returning to perform. After Pope collected herself she felt calm and returned to the venue where
the concert was happening. She couldn’t get the image of Ballard and Young out of her head but
she kept herself under control and maintained herself.
As the band took the stage the concert was going as planned, but mid-way through the
performance Jake Ballard made a surprise announcement to the audience that he had news to
share with the fans. Jake then proceeded to perform his love song Pope had overheard him
composing for Young that she had thought was for her, he walked over while singing and was
expressing his love for Young right in front of Pope. Pope, standing five feet away, immediately
picked up the heaviest guitar and hit Ballard thus knocking him down. Ballard immediately
asked Pope what she was doing as he lay there, Pope stopped for a brief second, then picked the
guitar up again and bashed Ballard’s head in repeatedly until she was stopped by security. Olivia
Pope had bludgeoned Jake Ballard to death on stage.

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The court is now examining whether there will be a better chance at proving that Olivia
Pope acted in the heat of passion which would warrant a conviction of voluntary manslaughter (a
lesser charge than murder). In order to do this, they must examine the event and decide if Olivia
Pope acted in the Heat of Passion when she killed Jake Ballard.
Discussion
The evidence is sufficient to prove that Olivia Pope committed heat of passion voluntary
manslaughter when she killed Jake Ballard. Heat of passion arises, when, at time of the killing
and provocation from the victim’s conduct, the accused’s reason was obscured or disturbed by
passion to such an extent that it would cause an ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection (cooling off period), and from
such passion rather than from judgment. People v. Barton, 906 P.2d 531 (1995). The prosecution
must prove whether the elements for heat of passion are satisfied beyond a reasonable doubt,
which would negate the element of malice for murder and would result in a conviction of
voluntary manslaughter. Id. at 531. The elements for Heat of passion are provocation and a lack
of cooling off period. Id. at 531.
A. Jake Ballard performing his newly written love song to his new love in front of
Olivia Pope provoked her and caused her to act rashly without deliberation and
reflection with the end result being her taking Jake Ballard’s life.
To determine whether a defendant has the requisite provocation to commit “heat of
passion” voluntary manslaughter, the court looks at the victim’s conduct and how that caused the
defendant to react to the provocation rashly. People v. Breverman, 960 P.2d 1094 (1998).
In looking at victim’s conduct, sufficient provocation can be physical or verbal actions
regardless of intent that caused the defendant to react rashly and would permit a reasonable jury
to infer that defendant was aroused to passion by sufficient provocation. Id. at 1107. These

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actions however, are subjected to a test by the court to be decided by the jury. Since there is no
clear rule in determining what actions constitute provocation, this test is subject to the
interpretation by the jury of the circumstances that occurred in the case. Najera, 41 Cal. Rptr. 3d
244 (2006). A provocation of slight and trifling character, such as words of reproach, however
grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient
provocation. Id. at 244.
Courts do however, look for outrageous and extreme causes by the victim that cause
defendant to act rashly without due deliberation when determining whether there was sufficient
provocation. Id. At 244. For example, in the Najera case, the victim was arguing with the
defendant and attempted to insult the defendant by calling him a pejorative term referring to
defendant’s sexual orientation. Defendant did not like being called that term and made it clear to
the victim. Id. At 245. The victim proceeded to continue insulting until a fight ensued in which
the defendant had stabbed the victim multiple times causing him to bleed to death. Id. At 245.
The court held that victim insulting the defendant was not sufficient provocation for defendant’s
reaction to the insults. Id. At 245. Because the pejorative term was insufficient to cause an
average person to lose reason and judgment under an objective standard, and thus acting rashly
without deliberation and reflection, the court reasoned that defendant does not have sufficient
provocation for heat of passion voluntary manslaughter. Id. At 246.
By contrast, when a victim trespasses onto defendant’s property and is invoking high-
wrought emotions, the court has found that to be sufficient provocation for heat of passion
voluntary manslaughter. Breverman, 960 P.2d 1103. For example, in Breverman, the victim’s
trespassed upon domestic property occupied by defendant and acted in a menacing manner
towards the defendant through intimidating conduct. The intimidating conduct included

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challenges to fight towards the defendant, along with the use of the blunt weapons to damage the
defendant's car that was parked in the driveway of his residence. Id. At 1106. Defendant and the
other occupants in the house all indicated that the “number and behavior of the intruders, which
the defendant characterized as a form of a mob, caused immediate fear and panic.” Id. At 1106.
This fear and panic resulted in the arousal of high-wrought emotions in defendant who reacted
rashly under these circumstances, which would lead a reasonable jury to infer that defendant was
aroused to passion, and his reason was thus obscured, by a provocation sufficient to produce
such effects in a person of average disposition. Id. At 1107.
It is likely that Olivia Pope will be found to have had the requisite provocation to be
convicted of heat of passion voluntary manslaughter. When looking at the circumstances as well
as Olivia Pope’s words and conduct, it is apparent that Jake Ballard’s (victim) actions were
sufficient to warrant the arousal of high-wrought emotions in the Olivia Pope who reacted rashly
by bludgeoning Ballard to death. Jake Ballard’s actions were extreme and outrageous in that he
knew how devoted Olivia Pope was and how big of an impact this would have on her life. Jake
Ballard could’ve warned Olivia Pope about his plans which could have eased the reaction from
Olivia Pope.
Similar to the defendant in Breverman, who had the same reaction to the extreme and
outrageous issue when an apparent mob of people was trespassing on his personal property, Jake
Ballard’s actions caused a fear and immediate panic within Olivia Pope, resulting in the arousal
of high-wrought emotions causing her to act rashly without reasoning or due deliberation.
There is an alternative possibility in that this wasn’t sufficient provocation due to Olivia
Pope having cheated on Jake Ballard in the time prior to this event. The difference between

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Olivia’s actions and Jake’s actions is that Olivia Pope never declared her love for Fitz Grant on
stage in front of Jake Ballard. Jake did sleep with another woman and Olivia Pope could work
through that due to her having performed similar actions, but witnessing him declare his love for
Young and knowing that the ring and honeymoon suite is planned for Young and not her was the
factor that obscured Olivia Pope’s reasoning and was sufficient to produce such effects in a
person of average disposition like Olivia Pope. Olivia Pope reacted due to her being faced with
the fact that her life was changing so dramatically that she couldn’t mentally comprehend it,
causing her to act rashly and kill Jake Ballard. This being sufficient provocation for Olivia Pope
to react rashly and kill Jake Ballard in the Heat of Passion.
B. The time between Jake Ballard provoking Olivia Pope and her reacting rashly to
the provocation was not a sufficient period of time to allow Olivia Pope to “cool
off.”
To determine if there was sufficient time between the initial provocation and the
defendant acting upon that provocation to “cool off,” the court looks at the circumstances and if
sufficient time has elapsed for one's passions to “cool off” and for judgment to be restored.
People v. Millbrook, 166 P.3d 217 (2014).
In examining if there was sufficient time, the court does not have a set standard to
determine sufficient time for a cooling off period, and instead looks to the intense and high route
emotions and determine if sufficient time has elapsed between the provocation and the fatal blow
for passion to subside and regain his or her clear reasoning and judgment. People v. Thomas, 160
P.3d 468, 480 (2013).

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Courts could also find that the intense and high-wrought emotions aroused by the initial
threat had not had time to cool or subside by the time defendant reacted. People v. Breverman,
960 P.2d 1094, 1107 (1998).
When a defendant or their property is being attacked, the time between the initial
provocation and the rash reaction to it is what constitutes if there is a cooling off period or not.
Id. at 1106. For example, in Breverman, upon seeing the group of intimidating victim’s trespass
onto his property and proceed to damage his car, defendant immediately ran in to inform the
other people in the house. Defendant noticed that the group appeared to be coming towards his
home for him and proceeded to grab his gun and fire through the window. Id. at 1107. Defendant
immediately after ran out to the front porch and fired at the victims until they ran away, striking
one of them and killing him. Id. at 1107. The court found that the intense and high-wrought
emotions aroused by the initial threat had not had time to cool or subside by the time defendant
fired the first volley of shots from inside the house, then emerged and fired the fatal second
volley of shots after the fleeing trespassers. Id. at 1107. The court also found that even though
there was a break in the shooting when defendant ran outside to continue shooting, defendant
still acted in one continuous, chaotic response to the riotous events outside his door. Id. at 1107.
By contrast, when a defendant is in an argument with the victim the night before and
proceeds to act on a threat issued by the victim, then there is a significant time period for
defendant to have cooled off. People v. Moye, 213 P.3d 652, 661 (2009). For example, in Moye,
the defendant and victim got in an argument that quickly escalated into a fistfight. At one point
the victim’s brother got involved, and twice hit the defendant in the back with a silver and blue
aluminum baseball bat he had retrieved from their car. Id. at 656. Two of defendant's associates
were also present and although they did not become directly involved in the fistfight, with their

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assistance defendant came into possession of a kitchen knife and began chasing victim with the
knife. Id. at 656. When someone yelled that the police were coming, the fight ended for that
night. Id. at 656. The next day however defendant and his friends thought they heard the victim
make obscene and threatening remarks to them and went to look for them to attack them for the
other night, the defendant and his associates found the victim upon which the victim kicked
defendant’s car. Id. at 657. Defendant and his associates proceeded to beat him horribly and
leave him there to die. Id. at 657. The court held that there was a long cooling-off period after the
first act (hitting defendant with the baseball bat in the fight the night before), and that the second
act (kicking defendant's car on the day the victim was killed) was not, on its own, sufficiently
provocative to cause defendant to act without due deliberation. Id. at 669. Defendant had
testified that by Sunday morning he had “cooled off” and was no longer upset about the previous
evening's fight. Id. at 661. The court ultimately decided that neither the fight on the previous
night, nor the car-kicking incident on Sunday morning shortly before the homicide, themselves
constituted sufficient legal provocation without the necessary cooling-off period to warrant a
heat of passion conviction. Id. at 661.
It is likely that the court will find that Olivia Pope did not have sufficient time between
the provocation from Jake Ballard and the fatal blow for passion to subside and regain her clear
reasoning and judgment. As already established in the discussion, the provocation occurred when
Jake Ballard started singing his new love song to Mellie Young in front of Olivia Pope during
the performance. Olivia Young reacted immediately and hit Jake Ballard with the guitar.
Although Jake had time to say to Olivia “Olivia, what are you doing?!”, she only stopped for that
question and continued until she was stopped by security and Jake Ballard was dead. Like in
Breverman, Olivia Pope’s slight disruption in her reaction makes no difference and is not

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sufficient to establish a cooling off period because Olivia Pope acted in one continuous, chaotic
response to the provocation.
The court could possibly find that seeing the sexual encounter was provocation and the
fact that Olivia Pope went to her guru, where she made no mention of harming Jake Ballard, and
proceeded to calm herself. The evidence points out though that although she did cool off after
seeing the sexual encounter, the love song is the sufficient provocation that caused her to react
rashly and thus had no cooling off period after being provoked when she killed Jake Ballard.
Conclusion
In conclusion, after examining the elements for heat of passion voluntary manslaughter
along with the evidence of the events, a court would likely find that Olivia Pope killed Jake
Ballard in the heat of passion. The evidence shows that Olivia Pope had sufficient provocation
when Jake Ballard declared his love for Mellie Young and made Olivia Pope realize that the
wedding ring Jake had bought along with the honeymoon plans were for Mellie. These actions
were extreme and outrageous and caused Olivia Pope to experience high-wrought emotions that
caused her to act rashly without reasoning or due deliberation. The evidence also shows a lack of
a cooling off period due to Olivia Pope immediately reacting to the provocation by hitting Jake
with a guitar, stopping for a brief second and proceeding to bludgeon him to death with the
guitar. The slight disruption does not constitute a cooling off period because Olivia Pope,
although stopping for that brief second, acted in a continuous and chaotic manner when killing
Jake Ballard. Olivia Pope satisfies the elements for heat of passion and will be more likely to be
convicted of heat of passion voluntary manslaughter.