Concept

Two Components of the Defense

MPC extreme emotional disturbance

Two Components of the Defense

The disturbance clause in § 210.3(1)(b) is a single sentence, but it contains two separate questions. The first phrase requires that the homicide be committed "under the influence of extreme mental or emotional disturbance," and the second adds that the disturbance must be one "for which there is reasonable explanation or excuse," with reasonableness judged from the viewpoint of a person in the actor's situation under the circumstances as the actor believes them to be.¹ In People v. Casassa, the New York Court of Appeals construed New York's counterpart, a provision drawn from the Code that speaks of extreme emotional disturbance, and it turned to the Code's own commentary to explain the structure. The court described the defense as having two principal components: the particular defendant must have acted under the influence of extreme emotional disturbance, and there must have been a reasonable explanation or excuse for that disturbance.²

The two components ask different kinds of question. The first is wholly subjective: it asks whether this defendant in fact acted under extreme emotional disturbance, and whether the claimed cause of the action is genuine rather than contrived or a sham.³ The second asks whether there was a reasonable explanation or excuse for the disturbance, and Casassa described it as the harder component to state. The Code's commentary, which the court quoted, calls the ultimate test objective, because the explanation must be a reasonable one, yet the evaluation proceeds by looking at the defendant's internal situation and the external circumstances as he perceived them.⁴ The factfinder therefore moves from a fact about the actor's mind to an evaluation of whether that state is one the community can understand, and the evaluation arises only after the fact has been found. Courts using the Code's approach have also had to say how extreme the disturbance must be, and they agree it need not reach the outermost extremity, since that would amount to insanity.⁵

Dividing the defense this way lets each half answer a different risk. The subjective half guards against feigned claims: a defendant is the only witness to his own feelings and has every reason to describe them as overwhelming, so the law requires a finding that the disturbance was real and that the story offered to explain it is not manufactured. The objective half addresses the opposite problem. If sincerity alone sufficed, the intensity of a feeling would automatically lower guilt, and killers with the most unreasonable passions would receive the most generous treatment. Requiring a reasonable explanation or excuse keeps the focus on whether the disturbance is understandable, which is why the Casassa line of authority treats some extreme and unwarranted jealousies as insufficient.⁶

Hypothetical Illustration

A defendant kills a business partner, intending to, and claims at trial to have been overcome with grief and fury on learning that the partner had been disloyal. The evidence shows that weeks earlier the defendant bought a weapon, wrote out a plan, and took out an insurance policy on the partner. The claimed cause is a sham, so the first component fails and the factfinder never reaches the question of reasonableness.

Change the facts so the disturbance is real. A different defendant, in a documented frenzy confirmed by witnesses and medical records, kills a former friend who stopped returning calls. The first component is met. The factfinder now asks whether there was a reasonable explanation or excuse for that disturbance, judged from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believes them to be, and a lapsed friendship, however painfully felt, may leave that question answered no.

The first defendant fails at the gate of genuineness, while the second clears that gate and stops at the gate of reasonableness. The sequence matters on an exam answer, because students lose this issue when they stop after finding that the actor's feelings were genuine: a real disturbance with no reasonable explanation or excuse leaves the offense murder. The next two subsections take each component in turn, beginning with what it means to have actually acted under extreme emotional disturbance.

Actual Emotional Disturbance

The first component of § 210.3(1)(b) is a question of fact about one particular person: when the killing happened, was this defendant in fact acting under the influence of an extreme mental or emotional disturbance?⁸ In People v. Casassa the New York Court of Appeals, reading the Code's commentary, called this requirement wholly subjective. It involves a determination that the particular defendant did in fact act under extreme emotional disturbance and that the claimed explanation for the action is not contrived or sham.⁹ The inquiry therefore examines the defendant's actual mind and does not ask what a reasonable person would have felt. The statute's own wording explains why this question comes first. Its reasonableness requirement attaches to a disturbance "for which there is reasonable explanation or excuse," so a disturbance has to exist before there is anything to test for reasonableness.¹⁰

The kind of disturbance that qualifies reaches well beyond anger. The Code's commentary, as the court in People v. Shelton described it, devotes most of its attention to the second component and treats the first as nearly self-explanatory. Its illustrations are fright or terror, great distress, a recently suffered traumatic injury, and grief.¹¹ Shelton also offered a fuller description, which the Hawaii court in State v. Dumlao quoted when construing a statute derived from § 210.3. It describes an individual who has no mental disease or defect reaching legal insanity, who is exposed to extremely unusual and overwhelming stress, and who reacts so extremely that self-control is lost and reason is overborne by intense feelings such as passion, anger, distress, grief, or excessive agitation.¹² The definition turns on what the feeling does to the person, so anger is one qualifying emotion among several. That breadth follows from the purpose of mitigation. A person whose reason has been overwhelmed by intense feeling is less blameworthy than one who kills with a clear head, and fear and grief overwhelm people as readily as rage does, so a rule confined to anger would deny mitigation to defendants whose culpability is reduced for the same reason. New York's high court tied the differences between its statute and the older one to advances in psychology since 1881 and a growing willingness to reduce the responsibility of people whose capacity has been diminished by mental trauma.¹³ Common-law voluntary manslaughter had already stretched past rage to fright, terror, and wild desperation, while holding that a passion for revenge will not do.¹⁴ The comparison carries over, because a defendant who kills out of a settled wish for revenge is hard to describe as one whose reason has been overborne.

The disturbance must be extreme, yet extreme does not mean insane. The Hawaii court in Dumlao warned against confusing the defense with insanity: it supplies a basis for mitigation that differs from a finding of mental defect precluding criminal responsibility, and it refers to a loss of self-control due to intense feelings.¹⁵ Casassa described the purpose of the defense from the other direction, as letting a defendant show that his act came from a mental infirmity short of insanity and that he is therefore less culpable. The limits on that idea, which keep the defense from covering every infirmity short of insanity, come later in this chapter.¹⁶ Courts applying the Code agree that the disturbance need not reach the outermost possible extremity, since that would be insanity.¹⁷ The word extreme still does work, because an ordinary event of everyday life will probably not qualify.¹⁸ A capital-sentencing case makes the line concrete. In Strickland v. Washington, a challenge to counsel's performance, the evidence the defendant said counsel should have offered showed at most that a psychiatrist and a psychologist believed he was under considerable emotional stress that did not rise to the level of extreme disturbance, and the Supreme Court observed that such reports would have contradicted his claim of the mitigating circumstance.¹⁹ That setting involved a sentencing factor and not the Code's homicide provision, but it shows the same line between serious stress and extreme disturbance. Because the disturbance is a fact about the defendant's mind, defendants often prove it through psychiatric or psychological testimony, and many courts require it.²⁰

The order of the two questions appears in Casassa itself. The trial court there accepted as a factual matter that the defendant killed Miss Lo Consolo while under the influence of extreme emotional disturbance, and the Court of Appeals described that finding as a threshold question that must be answered in the affirmative before any test of reasonableness is required.²¹ Only then did the trial court consider the mitigating factors the defendant offered, including a claimed mental disability. It concluded that the excuse was so peculiar to him that it was unworthy of mitigation, and the appellate court could not say as a matter of law that this was error.²² A finding that the disturbance was real therefore opens the reasonableness question and does not decide it.

Hypothetical Illustration

A convenience-store clerk is held at gunpoint and badly beaten in a robbery. For the next week the clerk barely sleeps, flinches at every sound, and shakes whenever a customer approaches the counter. When the robber, free on bail, walks in and leans over the counter, the clerk fires and kills the robber, intending to. Terror and acute distress of this kind are the sort of disturbance the Code's commentary describes, and if the factfinder believes the clerk's state was that overwhelming, the first component is met and the question becomes whether there was a reasonable explanation or excuse.

Change the clerk's week. The clerk sleeps normally, tells friends that the robber will pay, buys ammunition, and waits behind the counter. The evidence now describes a person whose reason stayed in command, and the factfinder may find that the claimed disturbance is a story built to explain a planned killing. If so, the first component fails and the reasonableness question is never reached.

The two clerks differ in one respect that matters: whether the evidence shows reason overborne by feeling or a killing carried out with a clear head. Keeping the questions in the statute's order keeps each one clean. An answer that uses the first component to measure the ordinary person's reaction brings the objective element in too early, because the first component never asks what a reasonable person would have felt. It asks only whether this defendant was in fact overcome. The next subsection takes up the reasonableness question that follows once that fact is established.

Reasonable Explanation or Excuse

Once the factfinder has found that the defendant in fact acted under extreme mental or emotional disturbance, § 210.3(1)(b) adds a second requirement: the disturbance must be one "for which there is reasonable explanation or excuse."²⁵ That requirement attaches to the disturbance itself, so it asks whether the circumstances behind the defendant's overborne state make that state understandable. In People v. Casassa the New York Court of Appeals, working from the Code's own commentary, called this the component that is more difficult to describe.²⁶ The difficulty is predictable, because the first component can be answered by examining one person's mind, while this one asks the community to evaluate what that examination found.

The component was built to replace a system of fixed categories. Where common-law provocation operates as a list, a provocative act outside the recognized categories will not mitigate a killing however much passion it actually or even reasonably produced, and most jurisdictions with such a list hold that words alone, however insulting, cannot qualify.²⁷ According to the Code's commentary as quoted in Casassa, the reasonable-explanation component was meant to sweep away the rigid rules about the sufficiency of particular types of provocation, the words-alone rule among them, and to avoid a merely arbitrary limit on the kinds of antecedent circumstances that may justify mitigation.²⁸ The objection to a list is practical. Those who draw it cannot foresee every circumstance that would overwhelm a person, so it shuts out reactions that are understandable only because no one thought to write them down, and it makes the label on the trigger matter more than what actually happened to the actor. A general standard of reasonable explanation removes the label as gatekeeper, so words, grief, or trauma can each be weighed. State v. Dumlao, construing Hawaii's version of the provision, identified this prong as the place where the Code most changed the law of manslaughter and adopted Casassa's formulation for deciding it.²⁹ The change has practical reach, since cases exist in which extreme emotional disturbance goes to the jury although common-law provocation probably would not have.³⁰

Hypothetical Illustration

A father learns, from the spoken words of a family acquaintance and nothing else, that his young daughter's coach has been abusing her for years. Overwhelmed by anguish and horror, the father kills the coach, and the factfinder accepts that he was genuinely overcome. Under a rule that words alone never suffice, the inquiry would end there. Under § 210.3(1)(b) it continues, and the factfinder can readily conclude that the news supplies a reasonable explanation for the disturbance.

Change what the words convey. A different defendant, no less sincerely enraged, kills a driver who remarked that the defendant's parking was sloppy. The trigger is again words alone and the feeling is again genuine. The Code does not bar the claim, but the factfinder is free to find no reasonable explanation or excuse for a disturbance set off by a remark that mild.

The two cases differ in what the words conveyed, and that difference carries the result. Removing the categorical bar decides only who gets to argue reasonableness to the factfinder; the argument itself still has to be won on its merits.

Dropping the categories does not make the standard purely subjective. The Code's commentary states that the ultimate test is objective, and Casassa quoted it that way.³¹ The commentary adds that the reasonable-explanation language preserves the essentially objective character of the inquiry and guards against "debilitating individualization of the legal standard."³² The mechanism is easy to trace. The first component already confirms that the feeling was real and overwhelming. If the second component asked only whether the defendant found the feeling understandable, it would add nothing to the first, and the more idiosyncratic the explanation, the stronger the claim to mitigation would be. An objective element lets the community decide which explanations count as understandable human responses. Casassa described the drafters' aim as a standard with both subjective and objective elements, which broadens heat-of-passion doctrine to a wider range of circumstances while retaining some element of objectivity.³³

The object of the judgment also deserves precision. A dissent in State v. Raguseo, quoting a New York appellate decision that followed Casassa, stressed that the question is not whether the killing was a reasonable response, since it clearly was not in that case, but whether the explanation offered for the defendant's extreme emotional reaction was reasonable.³⁴ Students lose points here when they ask whether the killing was justified, because the statute asks about the explanation for the disturbance.

The standard is loose by design. Casassa acknowledged that its description gives no precise guidelines and leaves room for judgmental evaluation by the jury, and it read that as the draftsmen's intent, quoting their aim of having "the jury asked to show whatever empathy it can."³⁵ The court saw the statute's chief virtue in this discretion, which operates without a detailed catalogue of qualifying circumstances.³⁶ Flexibility is the price of abandoning the list, because any rule precise enough to decide cases in advance would bring back the categories the Code set aside. A factfinder who asks whether an explanation is reasonable can therefore answer no, and the Code leaves that answer open.

Casassa itself shows the answer coming out no. The trial court, sitting as factfinder, accepted that the defendant killed while under extreme emotional disturbance, then went on to the reasonableness question and considered each mitigating factor he offered, including a claimed mental disability.³⁷ It found the excuse so peculiar to him that it was unworthy of mitigation, and it concluded that the killing was the product of his malevolence rather than "an understandable human response deserving of mercy."³⁸ The trial court had made a sincere effort to understand the defendant's situation and the circumstances as he believed them to be, so the failure was not a refusal to enter his viewpoint. Even from inside that viewpoint, the explanation did not read as one the community could recognize as a human weakness calling for leniency. The Court of Appeals could not say as a matter of law that the trial court erred, and it added that holding otherwise would subvert the purpose of the statute.³⁹ The grieving father in the hypothetical and the defendant in Casassa thus stand at opposite ends of one inquiry: the father's explanation is one others can recognize without sharing his act, while the Casassa defendant's, as the factfinder judged it, could be credited only by the defendant. The pattern also fits the nutshell proposition that some extreme and unwarranted jealousies will not suffice.⁴⁰

Exam Analysis Steps

Because the second component sits on top of a genuine disturbance and tests it against a community standard, it is best run in a fixed order. The steps are these:

Confirm that the first component has been found, since reasonableness is asked only about a disturbance that actually exists.
Identify the circumstances that produced the disturbance, without screening them against any fixed category of adequate provocation such as the words-alone rule.
Ask whether those circumstances make the disturbance understandable as a human response, measured by an objective community standard rather than by the defendant's own sincerity.
Treat the judgment as one for the factfinder, who may find the explanation too peculiar to the defendant to merit mitigation, and remember that a reviewing court will not reverse unless the conclusion was wrong as a matter of law.