76-5-205.5.   Special mitigation reducing the level of criminal homicide offense -- Burden of proof -- Application to reduce offense.
     (1) Special mitigation exists when:
     (a) the actor causes the death of another under circumstances that are not legally justified, but the actor acts under a delusion attributable to a mental illness as defined in Section 76-2-305; and
     (b) the nature of the delusion is such that, if the facts existed as the defendant believed them to be in his delusional state, those facts would provide a legal justification for his conduct.
     (2) This section applies only if the defendant's actions, in light of his delusion, were reasonable from the objective viewpoint of a reasonable person.
     (3) A defendant who was under the influence of voluntarily consumed, injected, or ingested alcohol, controlled substances, or volatile substances at the time of the alleged offense may not claim mitigation of the offense under this section on the basis of mental illness if the alcohol or substance caused, triggered, or substantially contributed to the mental illness.
     (4) (a) If the trier of fact finds the elements of an offense as listed in Subsection (4)(b) are proven beyond a reasonable doubt, and also that the existence of special mitigation under this section is established by a preponderance of the evidence, it shall return a verdict on the reduced charge as provided in Subsection (4)(b).
     (b) If under Subsection (4)(a) the offense is:
     (i) aggravated murder, the defendant shall instead be found guilty of murder;
     (ii) attempted aggravated murder, the defendant shall instead be found guilty of attempted murder;
     (iii) murder, the defendant shall instead be found guilty of manslaughter; or
     (iv) attempted murder, the defendant shall instead be found guilty of attempted manslaughter.
     (5) (a) If a jury is the trier of fact, a unanimous vote of the jury is required to establish the existence of the special mitigation.
     (b) If the jury does find special mitigation by a unanimous vote, it shall return a verdict on the reduced charge as provided in Subsection (4).
     (c) If the jury finds by a unanimous vote that special mitigation has not been established, it shall convict the defendant of the greater offense for which the prosecution has established all the elements beyond a reasonable doubt.
     (d) If the jury is unable to unanimously agree whether or not special mitigation has been established, the result is a hung jury.
     (6) (a) If the issue of special mitigation is submitted to the trier of fact, it shall return a special verdict indicating whether the existence of special mitigation has been found.
     (b) The trier of fact shall return the special verdict at the same time as the general verdict, to indicate the basis for its general verdict.
     (7) Special mitigation under this section does not, in any case, reduce the level of an offense by more than one degree from that offense, the elements of which the evidence has established beyond a reasonable doubt.

Enacted by Chapter 2, 1999 General Session
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Last revised: Wednesday, July 23, 2008