Extreme Emotional Disturbance

A number of states in the United States provide by statute that defendants charged with murder or attempted murder may seek to mitigate the charges against them by claiming, and proving, that when they intentionally murdered or attempted to murder their victim, they did so under the influence of an extreme emotional disturbance (EED) for which there was a reasonable explanation or excuse. Typically, such statutes provide that the reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the defendant’s situation at the time of the crime, under the circumstances as the defendants believed them to be. If successful with the EED defense, a defendant charged with murder should be found guilty of the lesser crime of manslaughter.

The EED defense can be contrasted with the (also partial) defense of provocation, which exists in other states. Under the defense of provocation, if a defendant charged with murder can prove that he or she killed his or her victim in response to an objective provocation that would cause an ordinary person to suffer a loss of control—and that an adequate time for “cooling off” had not passed—the defendant should likewise be found guilty of manslaughter, rather than murder.

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Unlike the provocation defense, the EED defense does not require that the defendant acted in response to certain, particular, provoking circumstances or that the defendant did not have time to cool off. However, although EED statutes typically do not mention “loss of control” as a requirement for an EED defense, court decisions often do state that the EED defense should be limited to situations in which the defendant understandably suffered a loss of control because of extreme stress and that his or her ability to reason was overwrought by emotion. However, according to court decisions, the defense also allows for a defendant to proffer a claim of EED for emotions that may have been “simmering in the unconscious.”

The EED defense should also be contrasted with the insanity defense. The insanity defense varies from state to state but typically provides that defendants should not be considered responsible for their criminal conduct if, at the time of such conduct, the defendant could not appreciate what he or she was doing or that it was wrong. To succeed with an insanity defense, a defendant usually has to prove that, at the time of his or her crime, he or she suffered from a severe psychiatric impairment and had a very significantly impaired ability to perceive reality; and if successful with an insanity defense, the defendant will be sent to a hospital, rather than prison, until the defendant is no longer dangerous, at which time the defendant (now a patient) would be released.

A severe, diagnosable, psychiatric impairment or a severe lack of reality testing is not necessary for a successful EED defense; but if successful with an EED defense, the defendant may still go to prison, although for a shorter period of time than if the EED defense had not succeeded. Nevertheless, the defense often warrants a mental health evaluation of the defendant. The assessment would be conducted to evaluate the presence of any mental disorders, other mental frailties, or any unique set of conditions that might have rendered the defendant more emotionally vulnerable to the stress than any other individual who might have been subject to the same or similar circumstances.

The EED defense is not raised very often in criminal cases. For one thing, it applies only to charges of intentional murder or attempted murder. For another, it provides a defendant with no benefit if the prosecutor is willing to offer the defendant a plea bargain, which allows the defendant, charged with murder, to plead guilty to manslaughter. On the other hand, the existence of the EED defense may make prosecutors more willing to plea bargain than would otherwise be the case.

EED statutes do not specify which extreme emotions would, or would not, justify a successful EED defense. However, even though defendants do sometimes go to trial with an EED defense based on a claim of overwhelming anger, a number of court decisions hold that acting out of extreme rage, alone, would not allow a defendant to qualify for, or even to raise, an EED defense. And there is evidence from a variety of sources that defendants pleading an EED defense are far more likely to succeed when they acted out of fear—even if mixed with anger—rather than out of anger alone. Clearly, however, a great deal of discretion is, intentionally, left to juries (when they are the finders of fact) in EED cases. “In the end,” as the New York Court of Appeals put it, the purpose of the EED defense is “to allow the finders of fact to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows.”

Yet, as previously noted, courts are reluctant to let any defendant charged with murder plead an EED defense (and obtain, perhaps, a mitigation of their deserved penalty). Thus, to establish an EED defense, some courts require evidence that the onset of the claimed extreme emotional disturbance was sudden, or caused by a triggering event, or (without requiring psychiatric testimony) evidenced a “mental infirmity not rising to the level of insanity,” or led to a “loss of self control or similar disability.” Judges, in their sound discretion, may preclude an EED defense before trial or, based on the evidence presented at trial, may refuse to allow the jury to consider an EED defense.

It should also be emphasized that even if an EED defense goes to a jury, to succeed with the defense, the defendant must prove not only that he or she acted under the influence of an extreme emotional disturbance but also that there was a reasonable explanation or excuse for the disturbance. As noted above, the reasonableness of such explanation or excuse should be determined, under the law, from the viewpoint of a person in the defendant’s situation, under the circumstances as he or she believed them to be. It is clear, however, that having killed while in the throes of an extreme emotional disturbance does not necessarily merit the EED defense. If the trier of fact determines that the defendant’s extreme emotions—for example, a defendant’s extreme rage—were not reasonable under the circumstances, then the EED defense should be, and probably will be, denied.

Expert testimony supporting an EED defense is not required to maintain the defense. However, mental health professionals may and do testify as experts in EED cases to help the trier of fact determine the precise nature of the defendant’s claimed EED at the time of the crime(s) charged. It is questionable, however, whether expert witnesses should address the issue of whether a defendant’s EED was reasonable. Arguably, at least, whether a defendant’s extreme emotional reaction was reasonable under the circumstances is not an issue regarding which mental health professionals have any special expertise and should best be left to the trier of fact.

In evaluating a defendant’s emotional state at the time of a crime, mental health professionals should conduct the evaluation in the same manner as other types of “mental state at the time of the offense” evaluations. Subjective information gathered from the defendant and more objective, third-party sources should be considered. The clinician should attempt to identify the emotions that the defendant was experiencing at the time and whether the emotions were indeed intense. The evaluator also should assess which personality factors and/or mental conditions may have contributed to the defendant’s supposedly aroused feelings and how the situation(s) which the defendant found himself or herself in may have elicited, or contributed to, his or her emotionally aroused state (if any) at the time of the charged criminal act.


  1. Baze v. Parker, 371 F.3d 310 (6th Cir. 2004).
  2. Hall, H., Mee, C., & Bresciani, P. (2001). Extreme mental or emotional disturbance (EMED). Hawaii Law Review, 23, 431—477.
  3. Kirschner, S. M., & Galperin, G. J. (2002). The defense of extreme emotional disturbance in New York County: Pleas and outcomes. Behavioral Sciences and the Law, 20, 47-50.
  4. Kirschner, S. M., Litwack, T. R., & Galperin, G. J. (2004). The defense of extreme emotional disturbance: A qualitative analysis of cases in New York County.
  5. Psychology, Public Policy, and Law, 10, 102-132.
  6. People v. Cassasa, 49 N.Y.2d 668, cert. denied, 449 U.S. 842 (1980).
  7. People v. Lyttle, 408 N.Y.S.2d 578 (1976).
  8. People v. Patterson, 39 N.Y.2d 288 (1976), aff’d, 432 U.S. 197 (1977).
  9. People v. Roche, 98 N.Y.2d 70 (2002).

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