Exploring Extreme Emotion: A Mitigating Factor?

Extreme emotion can be a mitigating factor in criminal cases, particularly in the United States, where it can be used to reduce charges or sentences. In the US, mitigating factors are often presented through clinical evaluations of the defendant and the circumstances, involving psychological or psychiatric analysis. Approximately half of the US states allow evidence of extreme mental or emotional distress as a mitigating factor, if accompanied by an evaluation that the defendant's ability to appreciate the criminal aspect of their offence was impaired.

The subjective element of the extreme emotional disturbance defence focuses on the defendant's state of mind at the time of the crime, requiring sufficient evidence that their conduct was influenced by an extreme emotional disturbance. This is generally associated with a loss of self-control. The objective element requires proof of a reasonable explanation or excuse for the emotional disturbance, which must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them.

However, the presentation of mitigating factors will not result in the acquittal of a defendant.

Extreme emotional disturbance as a mitigating factor in intentional homicide

Extreme emotional disturbance (EED) is a mitigating factor in intentional homicide charges. A mitigating factor, or extenuating circumstance, is any information or evidence presented to the court about the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence.

In the United States, a defendant charged with murder can seek to mitigate the charges against them by claiming and proving that they committed the murder under the influence of EED for which there was a reasonable explanation or excuse. The reasonableness of such an explanation or excuse is determined from the viewpoint of a person in the defendant's situation at the time of the crime, under the circumstances as they believed them to be. If successful, the defendant should be found guilty of the lesser crime of manslaughter.

The EED defence can be contrasted with the defence of provocation, which exists in other states. Under the defence of provocation, if a defendant charged with murder can prove that they killed their victim in response to an objective provocation that would cause an ordinary person to suffer a loss of control, and that an adequate time for "cooling off" had not passed, they should be found guilty of manslaughter rather than murder.

Unlike the provocation defence, the EED defence does not require that the defendant acted in response to certain, particular, provoking circumstances or that they did not have time to cool off. However, although EED statutes typically do not mention "loss of control" as a requirement, court decisions often state that the EED defence should be limited to situations in which the defendant understandably suffered a loss of control because of extreme stress and their ability to reason was overborne by emotion.

The EED defence should also be contrasted with the insanity defence. The insanity defence typically provides that defendants should not be considered responsible for their criminal conduct if, at the time of such conduct, they could not appreciate what they were doing or that it was wrong. To succeed with an insanity defence, a defendant usually has to prove that, at the time of their crime, they suffered from a severe psychiatric impairment and had a significantly impaired ability to perceive reality. If successful, the defendant will be sent to a hospital rather than prison until they are no longer dangerous.

A severe, diagnosable, psychiatric impairment or a severe lack of reality testing is not necessary for a successful EED defence. However, if successful, the defendant may still go to prison, although for a shorter period of time than if the defence had not succeeded. Nevertheless, the defence often warrants a mental health evaluation of the defendant to evaluate the presence of any mental disorders, other mental frailties, or any unique set of conditions that might have rendered the defendant more emotionally vulnerable to the stress than any other individual in the same or similar circumstances.

To establish an EED defence, some courts require evidence that the onset of the claimed extreme emotional disturbance was sudden, or caused by a triggering event, or evidenced a "mental infirmity not rising to the level of insanity," or led to a "loss of self-control or similar disability." Judges may preclude an EED defence before trial or, based on the evidence presented at trial, may refuse to allow the jury to consider it.

Even if an EED defence goes to a jury, to succeed, the defendant must prove not only that they acted under the influence of extreme emotional disturbance but also that there was a reasonable explanation or excuse for the disturbance. The reasonableness of such an explanation or excuse is determined from the viewpoint of a person in the defendant's situation, under the circumstances as they believed them to be.

There is evidence from a variety of sources that defendants pleading an EED defence are far more likely to succeed when they acted out of fear—even if mixed with anger—rather than out of anger alone.

Extreme emotional disturbance and insanity as affirmative defences

In criminal law, a mitigating factor is any information or evidence presented to the court about the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence. Mitigating factors are not legal defences, and their presentation will not result in the acquittal of a defendant. However, in the United States, the issue of mitigating factors is most pertinent in death penalty cases, where the judge or jury must be given the opportunity to consider all mitigating evidence before determining the sentence.

In the case of Commonwealth v. Rank, the defendant, a psychiatrist, was convicted of first-degree assault and sentenced to 15 years. The defendant moved to vacate his sentence on the basis of ineffective assistance of counsel, claiming that his lawyer failed to inform him of a possible defence of extreme emotional disturbance (EED), which could have lessened his sentence. The court of appeals granted a motion for an evidentiary hearing, and the Kentucky Supreme Court affirmed. The Supreme Court of Kentucky clarified that it is the responsibility of defence counsel to explore the defence of EED and discuss it with the defendant.

The insanity defence is classified as an affirmative defence, rather than a partial defence. In an insanity defence, the defendant admits the action but asserts a lack of culpability based on mental illness. The insanity defence is not the same as diminished capacity, which is a partial defence, as it is a full defence to a crime, and is the equivalent of pleading not guilty. The insanity defence is often accompanied by a psychological evaluation, and it requires the defendant to prove that, at the time of the commission of the acts constituting the offence, they were unable to appreciate the nature and quality or the wrongfulness of their acts due to a severe mental disease or defect.

In the United States, approximately half of the states allow evidence that the defendant was under extreme mental or emotional distress as a mitigating factor, if it is accompanied by an evaluation that the defendant's ability to appreciate the criminal aspect of their offence or control their behaviour to meet the requirements of the law was impaired. However, research indicates that the acceptance of various mental health conditions by the capital jury does not effectively mitigate against a capital sentence.

Extreme emotional disturbance and mental illness

Approximately half of U.S. states allow evidence that the defendant was under extreme mental or emotional distress as a mitigating factor, but this must be accompanied by an evaluation that the defendant's ability to appreciate the criminal aspect of their offence (mens rea) or control their behaviour to meet the requirements of the law was impaired.

A study examining the effects of mental disorders as mitigating factors on capital sentencing outcomes in North Carolina found that, with the exception of learning disabilities, the diagnosis of various mental health conditions did not effectively mitigate against a capital sentence. Furthermore, jury rejection of a diagnosis of mental illness or emotional disturbance as a mitigating factor significantly increased the odds of a death penalty recommendation by 85-200%.

The effects of emotional distress can vary from person to person and can be caused by a wide range of triggers, including traumatic events, financial difficulties, and work-related stress. It can lead to symptoms such as feelings of depression, anxiety, emotional numbness, changes in sleep and eating patterns, physical symptoms like fatigue and headaches, and difficulty with daily tasks. While emotional distress is not a mental health diagnosis, it can still feel overwhelming and impact daily functioning.

Extreme emotional disturbance and the heat of passion

A crime of passion is a crime committed in the "heat of passion" or in response to provocation, rather than a premeditated or deliberated act. Provocation can serve as a partial defence, as it may downgrade the degree of the crime and the associated punishment. For example, successfully arguing that a killing occurred in the heat of passion may result in a murder charge being reduced to manslaughter.

The provocation behind a crime of passion must be significant enough to provoke a spontaneous reaction from a reasonable person. While the specific criteria vary by jurisdiction, the Model Penal Code (section 210.3) states that a murder can be downgraded to manslaughter if it was:

"...committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse."

In New York, the offence of murder can be reduced to manslaughter if the defendant acted in the heat of passion, thus negating the element of malice required for murder. This requires an inquiry into whether the defendant's passion obscured or disturbed their judgment to the extent that a reasonable person would have acted from passion rather than judgment.

In California, the standard includes a subjective aspect, requiring that the defendant was adequately provoked and that the resulting crime was directly in response to that provocation. This standard denies the defence to those who act out of revenge or for reasons unrelated to the provocation.

Extreme emotional disturbance and criminal culpability

Extreme emotional disturbance is a mitigating factor in criminal culpability. In the US, it is one of the most important mitigating factors in death penalty cases. In such cases, the judge or jury must be given the opportunity to consider all mitigating evidence before determining the sentence.

In the state of Oregon, extreme emotional disturbance is an affirmative defence to murder. It is defined as:

> "It is an affirmative defence to murder for purposes of ORS 163.115(1)(a) [intentional murder] that the homicide was committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation."

The three components of extreme emotional disturbance are:

• Did the defendant commit the homicide under the influence of an extreme emotional disturbance?
• Was the disturbance the result of the defendant's own intentional, knowing, reckless, or criminally negligent act?
• Was there a reasonable explanation for the disturbance?

The first element of the extreme emotional disturbance defence is a purely subjective inquiry. It asks whether the defendant was in fact acting under the influence of an extreme emotional disturbance when committing the homicide. The defendant is entitled to the defence only if the defendant was acting under such a disturbance.

The third element of the extreme emotional disturbance defence is objective. Although a defendant may actually have acted under the influence of an extreme emotional disturbance when committing a homicide, they are not necessarily entitled to the defence of extreme emotional disturbance. After a defendant proves the first element of the defence, they still must prove the third element of the defence, i.e., that there was a "reasonable explanation" for the disturbance.

In the US, approximately half of the states allow evidence that the defendant was under extreme mental or emotional distress as a mitigating factor, if it is accompanied by an evaluation that the defendant's ability to appreciate the criminal aspect of their offence (mens rea), or their ability to control their behaviour to meet the requirements of the law, was impaired.

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