1     
MURDER DEFENSE AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Angela Romero

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill amends the circumstances under which special mitigation is applicable to
10     reduce the level of a criminal homicide offense.
11     Highlighted Provisions:
12          This bill:
13          ▸     establishes circumstances under which a defendant experiences extreme emotional
14     distress;
15          ▸     establishes circumstances under which special mitigation for extreme emotional
16     distress is not applicable to a defendant charged with criminal homicide;
17          ▸     provides that if a jury is unable to unanimously agree that special mitigation for
18     criminal homicide has been established, the jury shall convict a defendant of the
19     greater offense that was proven beyond a reasonable doubt; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          76-5-205.5, as last amended by Laws of Utah 2009, Chapter 206
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 76-5-205.5 is amended to read:
31          76-5-205.5. Special mitigation reducing the level of criminal homicide offense --
32     Burden of proof -- Application to reduce offense.
33          (1) Special mitigation exists when the actor causes the death of another or attempts to
34     cause the death of another:
35          (a) (i) under circumstances that are not legally justified, but the actor acts under a
36     delusion attributable to a mental illness as defined in Section 76-2-305;
37          (ii) the nature of the delusion is such that, if the facts existed as the [defendant] actor
38     believed them to be in the delusional state, those facts would provide a legal justification for
39     the [defendant's] actor's conduct; and
40          (iii) the [defendant's] actor's actions, in light of the delusion, were reasonable from the
41     objective viewpoint of a reasonable person; or
42          (b) under the influence of extreme emotional distress for which there is a reasonable
43     explanation or excuse.
44          (2) (a) Except as provided in Subsections (2)(b) and (c), an actor is under the influence
45     of extreme emotional distress for which there is a reasonable explanation or excuse under
46     Subsection (1)(b) if:
47          (i) the actor experiences:
48          (A) extremely unusual and overwhelming stress immediately after and solely as a result
49     of a highly provoking act of the victim; and
50          (B) a loss of self-control as a result of the stress described in Subsection (2)(a)(i)(A)
51     that is not regained before the actor commits the offense;
52          (ii) a reasonable person under the circumstances described in Subsection (2)(a)(i)(A)
53     would have experienced a loss of self-control; and
54          (iii) the time period after the circumstances described in Subsection (2)(a)(i) and before
55     the commission of the offense was not long enough for a reasonable person under the same
56     circumstances to have regained self-control.
57          (b) Under Subsection (1)(b), emotional distress does not include:
58          (i) a condition resulting from mental illness as defined in Section 76-2-305; or
59          (ii) distress that was substantially caused by the:
60          (A) actor's own conduct;
61          (B) victim's termination of or request to terminate the victim's relationship with the
62     actor; or
63          (C) victim's words or statements alone.
64          (c) An actor may not claim special mitigation under Subsection (1)(b) on the basis of
65     extreme emotional distress if the actor responded to the stress described in Subsection
66     (2)(a)(i)(A) by inflicting serious or substantial bodily injury on the victim over a prolonged
67     period of time, or inflicting physical torture on the victim, regardless of whether the victim was
68     conscious during the infliction of serious or substantial bodily injury or torture.
69          [(2)] (3) A defendant who was under the influence of voluntarily consumed, injected,
70     or ingested alcohol, controlled substances, or volatile substances at the time of the [alleged]
71     offense may not claim mitigation of the offense under Subsection (1)[(a)] on the basis of
72     mental illness or extreme emotional distress if the alcohol or substance caused, triggered, or
73     substantially contributed to the mental illness or extreme emotional distress.
74          [(3) Under Subsection (1)(b), emotional distress does not include:]
75          [(a) a condition resulting from mental illness as defined in Section 76-2-305; or]
76          [(b) distress that is substantially caused by the defendant's own conduct.]
77          [(4) The reasonableness of an explanation or excuse under Subsection (1)(b) shall be
78     determined from the viewpoint of a reasonable person under the then existing circumstances.]
79          [(5)] (4) (a) If the trier of fact finds that the elements of an offense as listed in
80     Subsection [(5)] (4)(b) are proven beyond a reasonable doubt, and also finds that the existence
81     of special mitigation under this section is established by a preponderance of the evidence, it
82     shall return a verdict on the reduced charge as provided in Subsection [(5)] (4)(b).
83          (b) If under Subsection [(5)] (4)(a) the offense is:
84          (i) aggravated murder, the defendant shall instead be found guilty of murder;
85          (ii) attempted aggravated murder, the defendant shall instead be found guilty of
86     attempted murder;
87          (iii) murder, the defendant shall instead be found guilty of manslaughter; or
88          (iv) attempted murder, the defendant shall instead be found guilty of attempted
89     manslaughter.
90          (c) If the trier of fact finds that special mitigation has not been established, the trier of
91     fact shall convict the defendant of the greater offense for which the prosecution has established
92     all the elements beyond a reasonable doubt.
93          [(6)] (5) (a) If a jury is the trier of fact, a unanimous vote of the jury is required to
94     establish the existence of the special mitigation.
95          (b) If the jury [does find] finds special mitigation by a unanimous vote, [it] the jury
96     shall return a verdict on the reduced charge as provided in Subsection [(5)] (4).
97          (c) If the jury finds by a unanimous vote that special mitigation has not been
98     established, [it] or the jury is unable to unanimously agree whether special mitigation has been
99     established, the jury shall convict the defendant of the greater offense for which the prosecution
100     has established all the elements beyond a reasonable doubt.
101          [(d) If the jury is unable to unanimously agree whether or not special mitigation has
102     been established, the result is a hung jury.]
103          [(7)] (6) (a) If the issue of special mitigation is submitted to the trier of fact, [it] the
104     jury shall return a special verdict indicating whether the existence of special mitigation has
105     been found.
106          (b) The trier of fact shall return the special verdict at the same time as the general
107     verdict, to indicate the basis for its general verdict.
108          [(8)] (7) Special mitigation under this section does not, in any case, reduce the level of
109     an offense by more than one degree from that offense, the elements of which the evidence has
110     established beyond a reasonable doubt.




Legislative Review Note
Office of Legislative Research and General Counsel