Criminal Jury Instructions Home

5.2-1  Affirmative Defense of Extreme Emotional Disturbance -- § 53a-54a (a) and § 53a-55 (a) (2)

Revised to December 1, 2007

The defendant has offered a defense to the charge of murder against (him/her).  The defendant claims, and has offered evidence in support of that claim, that at the time of the incident giving rise to this charge, (he/she) was acting under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.

This defense is called an affirmative defense.  The burden of proving extreme emotional disturbance by a preponderance of the evidence is on the defendant. The state does not have the burden of proving the nonexistence of this defense.  Nor does this defense serve to negate intent, but rather it is raised to establish circumstances that mitigate culpability.  In other words, a person charged with murder may raise this defense to lessen the charge from murder to manslaughter in the first degree.

To determine whether the defendant has established the affirmative defense of extreme emotional disturbance by a preponderance of the evidence, you must find: 1) that the defendant was exposed to extremely unusual and overwhelming stress; and 2) that the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions.  You should consider whether the intensity of these feelings was such that the defendant's usual intellectual controls failed and the normal rational thinking for that individual no longer prevailed at the time of the act.

It is your responsibility as the trier of fact to decide to what extent, if any, the defendant's emotions governed (his/her) conduct at the time of the death of <insert name of decedent>.  In reaching that decision you may consider all the feelings which you find, in fact, influenced the defendant's conduct, for example, passion, anger, distress, grief, resentment, fright, hatred, excessive agitation, or other similar emotions.¹  While the emotional disturbance need not necessarily have been a spontaneous or sudden occurrence, and indeed, may have "simmered" in the defendant's mind for a long period of time,² the disturbance must actually have influenced (his/her) conduct at the time of the killing.³

If you find that the defendant acted under the influence of emotional disturbance, then you must consider whether such emotional disturbance was extreme.  The word "extreme" refers to the greatest degree of intensity away from the normal state of the defendant.⁴  Any emotional disturbance must have been so severe and intense that although intending to cause death, the defendant was so overwhelmed that the defendant's usual intellectual controls failed and that (his/her) normal rational thinking no longer prevailed at the time of the death of <insert name of decedent>.

If you find the defendant acted under the influence of emotional disturbance and that it was extreme, you must then consider whether there was a reasonable explanation or excuse for such disturbance.  In determining the reasonableness of a defendant's explanation or excuse, you must measure the reasonableness from the viewpoint of a reasonable person in the defendant's situation, under the circumstances as the defendant believed them to be.

As stated earlier, extreme emotional disturbance is an affirmative defense and the burden is upon the defendant to prove the elements of this defense by a preponderance of the evidence.⁵  <See Affirmative Defense, Instruction 2.9-1.>

If you find that the defendant has sustained (his/her) burden of proving the defense of extreme emotional distress by a preponderance of the evidence, then you shall find (him/her) not guilty of murder.  Furthermore, if you also find that the state has proved beyond a reasonable doubt that the defendant intended to cause the death of <insert name of decedent>, and that (his/her) actions did proximately cause the death of <insert name of decedent>, but under circumstances that do not constitute murder because (he/she) was acting under the influence of extreme emotional disturbance, you shall find the defendant guilty of manslaughter in the first degree.  Finally, if you find that the defendant has not sustained (his/her) burden of proving this defense by a preponderance of the evidence, then you will reject the defense and determine whether the state has proved the elements of murder beyond a reasonable doubt.
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¹ In State v. Aviles, 277 Conn. 281, 313-14, cert. denied, 549 U.S. 840, 127 S.Ct. 108, 166 L.Ed.2d 69 (2006), the Court reiterated that "these illustrative examples are neither conclusive nor exclusive" and that the inclusion of other "similar emotions" allows the jury to consider a wide range of emotional responses to a given situation, specifically, that the defendant's physical pain may have influenced his conduct; see also State v. Person, 60 Conn. App. 820, 828 (2000), cert. denied, 255 Conn. 926 (2001) (specific reference to defendant's mental illness not required); State v. Kellman, 56 Conn. App. 279, cert. denied, 252 Conn. 939 (2000) (specific reference to intoxication not required).

² See State v. Aviles, supra, 277 Conn. 314-15; State v. Kaddah, 250 Conn. 563, 580 (1999).

³ See State v. Kaddah, supra, 250 Conn. 578 n.14 (this instruction adequately conveyed that the emotional disturbance need not be linked to a specific event, and did not require the defendant's requested instruction that explicitly said that the victim need not be the cause of it).

⁴ State v. Elliott, 177 Conn. 1, 10 (1979); State v. Hodge, 248 Conn. 207, 262, cert. denied, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999).

⁵ In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the U.S. Supreme Court held that it was not unconstitutional to place the burden of proving this defense on the defendant because it "does not serve to negate intent, but rather is raised to establish circumstances that mitigate culpability."  See State v. Elliott, supra, 177 Conn. 6. 

Commentary

The seminal case on this defense is State v. Elliott, supra, 177 Conn. 1.  The Court described the adoption of the defense by the Model Penal Code as a considerable expansion from the common-law "heat of passion" or "sudden provocation" defense.  "A homicide influenced by an extreme emotional disturbance, in contrast, is not one which is necessarily committed in the 'hot blood' stage, but rather one that was brought about by a significant mental trauma that caused the defendant to brood for a long period of time and then react violently, seemingly without provocation."  Id., 7-8.  While extreme emotional disturbance should not be limited by a "heat of passion" instruction, nothing precludes "a trier from finding a hot blood homicide to have occurred under extreme emotional disturbance."  State v. Asherman, 193 Conn. 695, 734 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985).  See also State v. Reid, 193 Conn. 646, 660-61 n.16 (1984) ("trial courts should not give the heat of passion instruction when charging the jury on the affirmative defense of extreme emotional distress.); but see State v. Casey, 201 Conn. 174, 181 (1986), in which the defendant requested an instruction  contrasting extreme emotional disturbance to the heat of passion.  The Court found that under the circumstances of the case and the use by the state in its closing argument of a "classic 'heat of passion' scenario" to discount the extremity of the defendant's reaction, it was prejudicial error for the trial court not to instruct as requested. 

When defendant is entitled to the instruction
"[A] defendant is entitled to a requested instruction on the affirmative defense of extreme emotional disturbance only if there is sufficient evidence for a rational juror to find that all the elements of the defense are established by a preponderance of the evidence."  State v. Person, 236 Conn. 342, 353 (1996) (distinguishing "any evidence" standard applicable to general defenses from "sufficient evidence" standard applicable to affirmative defenses).

The defense "may be raised either by the defendant by way of an affirmative defense or by the state where it is warranted by the evidence."  State v. Asherman, supra, 193 Conn. 731.  "The fact that the defendant may rely on the mitigating circumstance as an affirmative defense to murder does not mean that by his contrary election he may also circumscribe the homicide offenses which the jury may consider."  Id., 732.  Even if the defendant testifies that (he/she) was not upset, (he/she) is entitled to the instruction if there is sufficient evidence to warrant it.  State v. Person, supra, 236 Conn. 350.

A court may instruct the jury on extreme emotional disturbance over the defendant's objection.  State v. Asherman, supra, 193 Conn. 729-33.  The court need not, however, instruct the jury, sua sponte, on the defense of extreme emotional disturbance.  State v. Thomas, 62 Conn. App. 356, 364, cert. denied, 256 Conn. 912 (2001). 

Standard of reasonableness
The reasonableness of the explanation or excuse is not to be determined from the viewpoint of the defendant, but rather, from the viewpoint of a reasonable person in the defendant's situation under the circumstances as the defendant believed them to be.  State v. Raguseo, 225 Conn. 114, 126-28 (1993); State v. Ortiz, 217 Conn. 648, 651-58 (1991).

"[T]he defense does not require a provoking or triggering event; or that the homicidal act occur immediately after the cause or causes of the defendant's extreme emotional disturbance; or that the defendant have lost all ability to reason.  Further, the reasonable man yardstick is only used to determine the reasonableness of the explanation or excuse of the action of the defendant from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be.  Thus, the statute sets forth a standard that is objective in its overview, but subjective as to the defendant's belief."  State v. Elliott, supra, 177 Conn. 7.

The Court in Elliott then set forth guidelines to apply in determining whether the defendant has proved the affirmative defense of an extreme emotional disturbance.  "[T]he jury must find that: (a) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the Penal Code; (b) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (c) the defendant had an extreme emotional reaction to it, as of which there was a loss of self-control, and reason was overborne by extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions.  Consideration is given to whether the intensity of these feelings was such that his usual intellectual controls failed and the normal rational thinking for that individual no longer prevailed at the time of the act."  Id., 9-10. 

Note that many cases refer to these guidelines as the "elements" of the defense.  See, e.g., see State v. Blades, 225 Conn. 609, 628 (1993), State v. D'Antuono, 186 Conn. 414, 420 (1982); State v. Zdanis, 182 Conn. 388, 390-91 (1980), cert. denied, 450 U.S. 1003, 101 S.Ct. 1715, 68 L.Ed.2d 207 (1981).  The Supreme Court, in State v. Forrest, 216 Conn. 139, 148 (1990), stated that this was a mischaracterization of the discussion in Elliot.  "Section 53a-54a describes the two elements of that defense as: (1) the defendant committed the offense under the influence of extreme emotional disturbance; and (2) there was a reasonable explanation or excuse for the defendant's extreme emotional disturbance.  When we adopted the three criteria set forth in Elliott, we did not rewrite § 53a-54a, nor did we substitute our own 'elements' for those specified by the legislature.  We merely interpreted the meaning of the phrase 'extreme emotional disturbance,' and . . . enumerated 'understandable guidelines' for 'instructing a jury' in determining the presence or absence of that mental condition. . . .  These guidelines also serve to focus the presentation of evidence on three factual bases that we have deemed essential to support the inference that a defendant suffered from extreme emotional disturbance at a particular time."  (Citations omitted.)  Id., 148; see also State v. Person, supra, 236 Conn. 351.

The Supreme Court has consistently rejected defendants' arguments that the inquiry into the reasonableness of the defendant's beliefs should be from the defendant's viewpoint rather than a reasonable person in the defendant's situation.  "If the reasonableness of the explanation or excuse for a defendant's extreme emotional disturbance were determined by ascertaining whether the disturbance was reasonable to him, his subjective scheme of moral values would become a consideration in the 'reasonableness' inquiry, a result plainly not intended by the drafters [of the Model Penal Code].  Such an approach would also eliminate the barrier against debilitating individualization of the standard that the drafters intended to create by requiring that the explanation or excuse for a defendant's extreme emotional disturbance be reasonable."  (Internal quotation marks omitted.)  State v. Ortiz, supra, 217 Conn. 656-57; see also State v. Dehaney, 261 Conn. 336, 368-71 (2002), cert. denied, 537 U.S, 1217, 123 S.Ct. 1318, 154 L.Ed.2d 1070 (2003) (defendant requested an instruction that "the jury must consider not only the factual situation in which the defendant found himself, but also his unique mental and emotional characteristics and the impact of those factors on his perception of the circumstances").