Extreme Emotional Distress is NOT an Affirmative Defense. It is Special Mitigation

State of Utah v. White, 2011 UT 21 (Utah Supreme Court, April 19, 2011).

White charged with attempted murder, moved for a jury instruction regarding Extreme Emotional Distress.  The trial court denied the motion.  White Appealed.  The Court of Appeals affirmed.  The Supreme Court found that the Court of Appeals used the incorrect standard when deciding if the instruction should be given; requiring a highly provocative triggering event. 

The Supreme Court found the Court of Appeals erred because instructions as to affirmative defenses require only a reasonable basis for the instruction.  The reasonable basis must be based on whether a jury could conclude Defendant was exposed to extremely unusual and overwhelming stress from a reasonable person’s viewpoint.  Remanded to trial court to evaluate Defendant’s evidence of a reasonable basis for the instruction.

IMPORTANT NOTE: Extreme Emotional Distress is no longer an Affirmative Defense, but is special mitigation.  See State v. Drej, 2010 UT 35 ¶19 and U.C.A. § 76-5-205.5(1)(b).

Full Decision available at http://www.utcourts.gov/opinions/supopin/White2041911.pdf