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.
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 notmention “loss
of control” as a requirement for an EED defense, court
decisions often dostate that the EED defense should
be limited to situations in which the defendant under-
standably 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 crimi-
nal conduct if, at the time of such conduct, the defen-
dant 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 signifi-
cantly impaired ability to perceive reality; and if suc-
cessful with an insanity defense, the defendant will be
sent to a hospital, rather than prison, until the defen-
dant is no longer dangerous, at which time the defen-
dant (now a patient) would be released.
A severe, diagnosable, psychiatric impairment or a
severe lack of reality testing is not necessary for a suc-
cessful EED defense; but if successfulwith 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 ren-
dered 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 inten-
tional murder or attempted murder. For another, it pro-
vides 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 will-
ing to plea bargain than would otherwise be the case.
EED statutes do not specify which extreme emo-
tions would, or would not, justify a successful EED
defense. However, even though defendants do some-
times 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 discre-
tion 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
anydefendant 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 reasonable284 ———Extreme Emotional DisturbanceE-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 284