7 LONG TITLE
8 General Description:
9 This bill relates to special mitigation of the penalty for a criminal homicide offense.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ modifies the circumstances under which a defendant's extreme emotional distress is
14 special mitigation of the penalty for a criminal homicide offense;
15 ▸ modifies the consequences in a criminal trial if the jury is unable to unanimously
16 agree that special mitigation based on the defendant's extreme emotional distress or
17 mental illness is established; and
18 ▸ makes technical changes.
19 Money Appropriated in this Bill:
21 Other Special Clauses:
23 Utah Code Sections Affected:
25 76-5-205.5, as last amended by Laws of Utah 2009, Chapter 206
26 77-14-4, as last amended by Laws of Utah 2009, Chapter 206
27 77-16a-102, as last amended by Laws of Utah 2011, Chapter 366
28 77-16a-301, as last amended by Laws of Utah 2009, Chapter 206
30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 76-5-205.5 is amended to read:
32 76-5-205.5. Special mitigation for mental illness or provocation reducing the level
33 of criminal homicide offense -- Burden of proof -- Application to reduce offense.
34 (1) As used in this section:
35 (a) (i) "Extreme emotional distress" means an overwhelming reaction of anger, shock,
36 or grief that:
37 (A) causes the defendant to be incapable of reflection and restraint; and
38 (B) would cause an objectively reasonable person to be incapable of reflection and
40 (ii) "Extreme emotional distress" does not include:
41 (A) a condition resulting from mental illness; or
42 (B) distress that is substantially caused by the defendant's own conduct.
43 (b) "Mental illness" means the same as that term is defined in Section 76-2-305.
45 another or attempts to cause the death of another:
46 (a) (i) under circumstances that are not legally justified, but the [
47 under a delusion attributable to a mental illness [
48 (ii) the nature of the delusion is such that, if the facts existed as the defendant believed
49 them to be in the delusional state, those facts would provide a legal justification for the
50 defendant's conduct; and
51 (iii) the defendant's actions, in light of the delusion, [
52 objective viewpoint of a reasonable person; or
53 (b) except as provided in Subsection (4), under the influence of extreme emotional
54 distress [
55 the victim's highly provoking act immediately preceding the defendant's actions.
57 injected, or ingested alcohol, controlled substances, or volatile substances at the time of the
58 alleged offense may not claim mitigation of the offense under Subsection [
59 basis of mental illness if the alcohol or substance [
67 (4) A defendant may not claim special mitigation under Subsection (2)(b) if:
68 (a) the time period after the victim's highly provoking act and before the defendant's
69 actions was long enough for an objectively reasonable person to have recovered from the
70 extreme emotional distress;
71 (b) the defendant responded to the victim's highly provoking act by inflicting serious or
72 substantial bodily injury on the victim over a prolonged period, or by inflicting torture on the
73 victim, regardless of whether the victim was conscious during the infliction of serious or
74 substantial bodily injury or torture; or
75 (c) the victim's highly provoking act, described in Subsection (2)(b), is comprised of
76 words alone.
77 (5) (a) If the trier of fact finds that the elements of an offense [
78 Subsection (5)(b) are proven beyond a reasonable doubt, and also finds that the existence of
79 special mitigation under this section is established by a preponderance of the evidence, [
80 trier of fact shall return a verdict on the reduced charge as provided in Subsection (5)(b).
81 (b) If under Subsection (5)(a) the offense is:
82 (i) aggravated murder, the defendant shall instead be found guilty of murder;
83 (ii) attempted aggravated murder, the defendant shall instead be found guilty of
84 attempted murder;
85 (iii) murder, the defendant shall instead be found guilty of manslaughter; or
86 (iv) attempted murder, the defendant shall instead be found guilty of attempted
88 (c) If the trier of fact finds that special mitigation is not established under this section,
89 the trier of fact shall convict the defendant of the offense for which the prosecution proves all
90 the elements beyond a reasonable doubt.
91 (6) (a) If a jury is the trier of fact, a unanimous vote of the jury is required to establish
92 the existence of the special mitigation under this section.
93 (b) If the jury [
94 shall return a verdict on the reduced charge as provided in Subsection (5).
95 (c) If the jury finds by a unanimous vote that special mitigation [
97 mitigation is established, the jury shall convict the defendant of the greater offense for which
98 the prosecution [
101 (7) (a) If the issue of special mitigation is submitted to the trier of fact, [
102 fact shall return a special verdict indicating whether the existence of special mitigation [
104 (b) The trier of fact shall return the special verdict at the same time as the general
105 verdict, to indicate the basis for [
106 (8) Special mitigation under this section does not, in any case, reduce the level of an
107 offense by more than one degree from that offense, the elements of which the evidence [
109 Section 2. Section 77-14-4 is amended to read:
110 77-14-4. Insanity or diminished mental capacity -- Notice requirement.
111 (1) If a defendant [
112 as a result of insanity or that the defendant had diminished mental capacity, or [
113 intends to offer evidence in mitigation of a criminal homicide or attempted criminal homicide
114 offense under Subsection 76-5-205.5[
115 prosecuting attorney with written notice of the intention to claim the defense at the time of
116 arraignment or as soon afterward as practicable, but not [
118 (2) If the court receives notice that a defendant intends to claim that the defendant is
119 not guilty by reason of insanity or that the defendant had diminished mental capacity, the court
120 shall proceed in accordance with the requirements described in Section 77-16a-301.
121 Section 3. Section 77-16a-102 is amended to read:
122 77-16a-102. Jury instructions.
123 (1) If a defendant asserts a defense of not guilty by reason of insanity, the court shall
124 instruct the jury that [
125 (a) guilty;
126 (b) guilty with a mental illness at the time of the offense;
127 (c) guilty of a lesser offense;
128 (d) guilty of a lesser offense with a mental illness at the time of the offense;
129 (e) not guilty by reason of insanity; or
130 (f) not guilty.
131 (2) (a) When a defendant asserts a mental defense pursuant to Section 76-2-305 or
132 asserts special mitigation reducing the level of an offense pursuant to Subsection
134 instruction, the [
135 finds a defendant guilty by proof beyond a reasonable doubt of [
136 included offense, [
137 finds that the defendant had a mental illness at the time of the offense.
138 (b) If the jury finds the defendant guilty of the charged offense by proof beyond a
139 reasonable doubt, and by special verdict finds the defendant had a mental illness at the time of
140 the offense, [
141 time of the offense."
142 (c) If the jury finds the defendant guilty of a lesser offense by proof beyond a
143 reasonable doubt, and by special verdict finds the defendant had a mental illness at the time of
144 the offense, [
145 mental illness at the time of the offense."
146 (d) If the jury finds the defendant guilty of the charged offense or a lesser included
147 offense and does not find that the defendant had a mental illness at the time of the offense, the
148 jury shall return a verdict of "guilty" of [
149 indicating that the jury did not find that the defendant had a mental illness at the time of the
151 (e) The special verdict shall be returned by the jury at the same time as the general
152 verdict, to indicate the basis for [
153 (3) (a) In determining whether a defendant should be found guilty with a mental illness
154 at the time of the offense, the [
155 standard of proof applicable to a finding of mental illness is by a preponderance of the
156 evidence. [
157 (b) The court shall also instruct the jury that the standard of preponderance of the
158 evidence does not apply to the elements establishing a defendant's guilt, and that the proof of
159 the elements establishing a defendant's guilt of [
160 reasonable doubt.
161 (4) (a) When special mitigation based on extreme emotional distress is at issue
162 pursuant to Subsection 76-5-205.5[
163 general verdict, return a special verdict.
164 (b) The special verdict shall be returned by the jury at the same time as the general
165 verdict, to indicate the basis for [
166 Section 4. Section 77-16a-301 is amended to read:
167 77-16a-301. Mental examination of defendant.
168 (1) (a) When the court receives notice that a defendant intends to claim that the
169 defendant is not guilty by reason of insanity or that the defendant had diminished mental
170 capacity, or that the defendant intends to assert special mitigation under Subsection
172 examine the defendant and investigate the defendant's mental condition.
173 (b) The person or organization directed by the department to conduct the examination
174 shall testify at the request of the court or either party in [
175 testimony is otherwise admissible.
176 (c) Pending trial, unless the court or the executive director directs otherwise, the
177 defendant shall be retained in the same custody or status the defendant was in at the time the
178 examination was ordered.
179 (2) (a) The defendant shall be available and shall fully cooperate in the examination by
180 the department and [
182 (b) If the defendant fails to be available and to fully cooperate, and that failure is
183 established to the satisfaction of the court at a hearing prior to trial, the defendant is barred
184 from presenting expert testimony relating to the defendant's defense of mental illness at the
185 trial of the case.
186 (c) The department shall complete the examination within 30 days after the court's
187 order, and shall prepare and provide to the court prosecutor and defense counsel a written
188 report concerning the condition of the defendant.
189 (3) Within 10 days after receipt of the report described in Subsection (2)(c) from the
190 department, but not later than five days before the trial of the case, or at any other time the
191 court directs, the prosecuting attorney shall file and serve upon the defendant a notice of
192 rebuttal of the defense of mental illness, which shall contain the names of witnesses the
193 prosecuting attorney proposes to call in rebuttal.
194 (4) The [
195 admissible as evidence upon stipulation of the prosecution and defense.
196 (5) (a) This section does not prevent [
197 testimony as to the mental condition of the defendant. [
198 (b) An expert witness who is not appointed by the court [
199 compensation under Subsection (7).
200 (6) This section does not require the admission of evidence not otherwise admissible.
206 (7) (a) The department shall pay the expenses of an examination ordered by the court
207 under this section.
208 (b) The department shall charge the county where the prosecution is commenced for
209 travel expenses associated with an examination incurred by a defendant.
210 (c) The department shall charge the entity commencing the prosecution for an
211 examination of a defendant charged with a violation of a municipal or county ordinance.