64 CBJ 473. Defining Extreme Emotional Disturbance.

• Author: By JON C. BLuE (fn*)

Connecticut Bar Journal

Volume 64.

64 CBJ 473.

Defining Extreme Emotional Disturbance

473Defining Extreme Emotional DisturbanceBy JON C. BLuE (fn*)The American judiciary is uncommonly fond of articulating legal propositions in the form of multifaceted tests. The reports of both state and federal courts are replete with assertions that various constitutional and statutory provisions are to be understood in the form of so many "elements," "prongs," or "factors." This highly articulated legal system has significant advantages in channeling the discretion of lower courts and thus promoting the consistency with which the law is applied. But it has disadvantages as well. Sometimes a test can become so prolix as to obscure, and effectively alter, a relatively straightforward command of the law. Something like this has happened to the Connecticut law of extreme emotional disturbance. What the legislature has decreed and what the courts have articulated turn out, upon examination, to be two different things.

Our legislature has provided that it shall be an affirmative defense to murder: that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. (fn1)

Connecticut juries have for years been charged that this defense consists of three factual bases: (fn2) (1) The defendant's emotional disturbance was not a mental disease or defect that rises to the level of the affirmative defense of mental disease or defect, as that has been defined to you;

(2) The defendant was exposed to an extremely unusual and overwhelming state, that is more then mere annoyance or unhappiness; and 474(3) The defendant had an extreme emotional reaction to that state, as a result of which there was a loss of self-control, and his reason was overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions. (fn3)

The second and third factual bases set forth in this instruction are unproblematic. The first factual basis, however, is extremely problematic and, in spite of the fact that it derives from language in several Connecticut Supreme Court decisions, has no discernible statutory or policy basis. It is, in my opinion, a gratuitous and misleading addition to the law of extreme emotional disturbance and should be discarded altogether.

Why should a defendant claiming extreme emotional disturbance be compelled to prove that he is not insane? The answer to this question is by no means intuitively obvious. The standard instruction quoted above seems to have come into the world without a great deal of consideration. Its genesis lies in the well known New York case of People v. Patterson. (fn4) The issue in Patterson was the constitutionality of a statutory scheme which placed the burden of proving extreme emotional disturbance on the defendant. In explaining that such a scheme was indeed constitutional, the New York Court of Appeals stated: The purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them. (See Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COL[UM]. L. REV. 1425, 1446 [(1968)]).(fn5)

As it happens, the article by Professor Wechsler cited by the New York Court of Appeals says something quite different, namely that "[t]he purpose [of the extreme emotional disturbance defense] was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions, with the jury asked to show whatever

475empathy it can." (fn6) As it also happens, the Court which gave the just quoted Patterson formulation its birth effectively abandoned it a few years later in People v. Casassa. (fn7) Nevertheless, that same formulation has taken on something of a life of its own in Connecticut, being first enunciated (after Patterson but before Casassa) in the seminal case of State v. Elliott, (fn8) and repeated a number of times thereafter. (fn9) In no case, however, has this formulation been in any way scrutinized or explained by the Connecticut Supreme Court. For the reasons explained below, it does not withstand such scrutiny.

To begin, the distinctions between sanity and insanity, on the one hand, and between murder and manslaughter, on the other, are entirely different concepts with entirely different histories. Insanity, a defense created by the common law, excuses "any act amounting to crime if committed by a sane person." (fn10) The common law rule in Connecticut was: (1) that an accused, to be the subject of punishment, must have had mind, capacity, reason and understanding sufficient to have enabled him to judge of the nature, character and consequences of the act charged against him, that the act was wrong and criminal, and that the commission of it would justify and properly expose him to punishment; and (2) that, in committing the act, he was not overcome by an irresistible impulse arising from mental disease. (fn11)

In 1969, the legislature preempted the field with a statute that broadened the common law rule. (fn12) The test of insanity is now

476 whether the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. (fn13)

In 1983, insanity was made an affirmative defense. (fn14)

Manslaughter is, in contrast, a distinct crime, not a "defense." It has been a creature of statutory law since medieval times, (fn15) although the statutory...