Concept

Timing and Source of Disturbance

MPC extreme emotional disturbance

Timing and Source of Disturbance

The viewpoint clause settles whose perspective the factfinder takes when judging the explanation for a disturbance, but it leaves two other questions about the disturbance itself: how close in time it must be to the killing, and what must have produced it. The earlier discussion of heat of passion showed that the common-law formula answered both questions restrictively, by expecting a sudden reaction to a provocation offered by the person killed. Section 210.3(1)(b) contains neither requirement, because its text asks only whether the homicide was committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse, and it sets no interval between the triggering event and the killing and lists no events that qualify as triggers.¹

The reason for dropping both rules lies in how emotional collapse actually occurs. A fixed time limit and a fixed list of qualifying provocations each assume that a person is overcome in one particular way: all at once, and by the victim's own act. Real breakdowns follow no such script. Humiliation, grief, or shock can build over days, and what finally overwhelms a person may be an event the victim never caused. A rule that closed the inquiry at a fixed moment or at a fixed source would exclude those cases before the factfinder ever examined the defendant's actual condition and the actual cause of it. Under the Code, then, a long interval or an unusual trigger remains relevant evidence about whether the disturbance was genuine and whether it can be reasonably explained, but neither one ends the inquiry by itself. Students who carry the common-law limits into a Code analysis as though they were elements treat a cooling-off period or an outside trigger as a gate, when the statute makes each of them a fact to be weighed. The two subsections below take the timing question first and then the source of the disturbance.

No Cooling-Off Bar

The common-law heat-of-passion defense tied the effect of delay to a hypothetical person rather than to the defendant. A provocation that was adequate when it occurred stopped mitigating once enough time had passed for the reasonable person's passion to cool, and that held even when the defendant's own passion had not subsided.² Maine's jury instruction, reproduced in Mullaney v. Wilbur, put the same immediacy demand in terms of suddenness: heat of passion “will not avail unless upon sudden provocation.”³ The majority common-law rule applied the reasonable-person clock even to a defendant who was slower to cool than most people, while a minority view dropped the reasonable-time test and asked only whether the defendant had actually cooled.⁴ Both versions follow from the premise that mitigation concedes a weakness any ordinary person might share, so the permitted interval was set by how long an ordinary person's anger lasts.

Section 210.3(1)(b) removes that clock. Its text asks only whether the homicide was committed “under the influence of extreme mental or emotional disturbance” for which there is a reasonable explanation or excuse, and it names no interval between the triggering event and the killing, so the Code contains no cooling-off bar.⁵ The drafters had a specific reason. In State v. Dumlao, a Hawaii appellate court reproduced the Code commentary's reaction to the common-law rule: the drafters found it “shocking” that the common law disregarded the fact that the passage of time sometimes served only to increase rather than diminish outrage.⁶ The same court, drawing on New York decisions applying the Code-derived statute, observed in a footnote that the extreme-disturbance defense is broader than heat of passion because an intervening cooling-off period does not negate it, and that “[a] spontaneous explosion is not required.”⁷

New York's decisions describe how a long interval can coexist with a genuine disturbance. In People v. Patterson (39 N.Y.2d 288), a decision of New York's highest court that the Casassa court later quoted, the court reasoned that an action influenced by extreme emotional disturbance is not necessarily spontaneous, because a significant mental trauma may affect a defendant's mind for a substantial period of time, “simmering in the unknowing subconscious and then inexplicably coming to the fore.”⁸ People v. Shelton, as Dumlao quotes it, described the same process in nearly identical words.⁹ The same logic reaches a triggering event such as a bombing: because the Code requires no provocation and does not shut out those who brood, a jury could find disturbance days after the event and possibly years after it.¹⁰ In each description the delay is explained rather than read as calm, since an injury that is still working on the mind is still an influence on the act.

The reason for dropping the clock is that a fixed cooling-off rule assumes everyone's emotions fade on a common schedule. For some actors time deepens the injury: a person who brooded for weeks over a betrayal, or who kept discovering new parts of it, may be more disturbed on day twenty than on day one. A rule that treated delay as proof of calm would mislabel exactly those intense cases. The Code moves the question to the defendant's actual condition when he acted, and that inquiry is the same one that screens out the contrived claim, so a rigid time limit would add little protection against feigned disturbance while excluding genuine disturbance.

Hypothetical Illustration

Hale learns that the executor of his late wife's estate has quietly stolen the money set aside for Hale's children. Over the next three weeks Hale barely sleeps, replays the discovery constantly, and grows more distraught with each new notice from the bank, and on the twenty-second day he kills the executor. If the factfinder believes Hale was in fact overwhelmed by that distress when he acted, the three-week interval is part of the story of how the disturbance grew, and it supplies no bar to the defense.

Change one thing. In the same three weeks Hale sleeps normally, consults a lawyer about civil remedies, buys a rifle, and studies the executor's daily schedule before killing him. The factfinder may conclude that the disturbance had passed and that Hale acted deliberately. The defense then fails at the first component, because the evidence shows Hale was no longer acting under the influence of disturbance, and no cooling-off rule has been applied.

Dropping the bar does not make the interval irrelevant. The first component asks whether the particular defendant did in fact act under the influence of extreme emotional disturbance, and whether the claimed cause is genuine rather than contrived or sham.¹¹ A long stretch of calm, deliberate conduct is therefore evidence that the disturbance had ended or never existed. Under the Code the passage of time is one factor and is not determinative, so long as the defendant is still acting under the extreme disturbance.¹² The difference from the common law lies in who sets the schedule: the common law consulted the reasonable person's rate of cooling, and the Code consults the defendant's actual state. A defendant who clears the first component has still to satisfy the reasonable-explanation component, and the factfinder keeps its discretion over the final result. The usual error is to apply a reasonable-person cooling-off test to a Code problem, and the opposite error is to conclude that, because there is no bar, the interval proves nothing.

Exam Analysis Steps

Because delay is a question of fact under the Code and a question of a hypothetical person's rate of cooling at common law, a delay problem is best run by deciding first which question is being asked. The steps are these:

Identify the triggering event or events and the interval before the killing, including any later developments that kept the injury alive.
Set aside any question whether a reasonable person's passion would have cooled in that interval, because the Code contains no such test.
Ask whether the evidence of the defendant's conduct during the interval shows that he was in fact still under the influence of extreme disturbance when he acted, or had calmed and was acting in cold blood.
If the answer to the third step is yes, move to whether there was a reasonable explanation or excuse for the disturbance, treating the interval as one fact among others.

Triggers Beyond the Victim

The timing question asks how long a disturbance may last before the killing, and this one asks where the disturbance may come from. At common law the permitted sources were narrow, because only a limited range of aggravations led to mitigation, usually those resulting from direct provocation by the victim himself.¹⁴ That limit tracks a particular way of understanding the doctrine. If the loss of control is treated as a partial justification, so that the victim in some sense brought the reaction on himself, then the victim's own conduct has to be the trigger, since only the provoker can be said to have invited the response. If it is treated as a partial excuse resting on the defendant's mental state, the identity of whoever set off the trauma matters far less, because the defendant's condition is the same whoever caused it.¹⁵ The text of § 210.3(1)(b) points toward the second view, because it asks only whether the homicide was committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse, and it says nothing about who caused the disturbance.¹⁶

The dissent in Patterson v. New York, a burden-of-proof case taken up later in this chapter, records why New York adopted the Code's formula for its own murder statute. The dissent recounts the view that actors whose emotions were stirred by other forms of outrageous conduct, even conduct by someone other than the ultimate victim, should be punished as manslaughterers rather than murderers, and it notes that the New York statute, which tracks the Code's wording, permits mitigation when emotional disturbance results from situations other than direct provocation by the victim.¹⁷ That passage describes the New York statute and the reasons behind the Code's formula, and it is not a holding about the Code itself. Its usefulness here is that the New York statute repeats the Code's operative words, so what those words permit in New York is a fair guide to what they permit in the Code.

People v. Casassa supplies the reasoning from the Code's side. Reading New York's statute against the Code's comments, the court explained that the reasonable-explanation formulation was designed to sweep away “the rigid rules that have developed with respect to the sufficiency of particular types of provocation,” and that it “avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation.”¹⁸ A rule confining mitigation to the victim's own conduct is exactly such a limitation, since it sorts causes by who did the provoking and ignores how overwhelming or understandable the disturbance was. The Hawaii court in Dumlao applied the same reading to its own Code-based statute and rejected the State's argument that the provocation must emanate from the victim.¹⁹

The reason for opening the trigger is that the cause of a loss of control is not always the person who ends up dead. Grief, trauma, or outrage from another source can be just as overwhelming and just as understandable as a victim's insult or blow, and a trigger list drawn around the victim would exclude those cases before the factfinder ever examined them. Common-law courts had already felt this pressure at the edges. A defendant who is reasonably provoked and believes that B is responsible, when the provocation actually came from C, commits manslaughter by killing B, and so does one who shoots at the provoker and hits an innocent bystander, because in each case the defendant's purpose was directed at the person thought to be responsible.²⁰ The hard case is the defendant who, actually and reasonably provoked, strikes out at a person known to be only an innocent bystander. Courts have quite consistently refused mitigation there, apparently assuming that a reasonable person would never be so provoked as to lash out at an innocent, while the Code does not draw that line, reasoning that the cause and intensity of the emotion may sometimes say less about moral depravity than a homicidal response to a blow to one's own person would.²¹ That is the rule on triggers beyond the victim: the Code does not require provocation at all, and any impetus for the disturbance can be considered, from an inflammatory taunt to a public catastrophe, though the disturbance must still be extreme and an event of everyday life would probably not suffice.²²

Hypothetical Illustration

Ruiz watches a hit-and-run driver kill his young daughter and speed away. Minutes later, nearly incoherent with grief, Ruiz shoots Tomlin, an onlooker at the scene who Ruiz knows had nothing to do with the crash. At common law the claim would fail, because Tomlin provoked no one and courts have consistently refused mitigation when a provoked defendant strikes out at a known innocent bystander. Under § 210.3(1)(b) no rule disqualifies the trigger because someone other than the victim supplied it. The factfinder asks whether Ruiz in fact acted under extreme disturbance and whether the loss of a child, viewed from his situation, gives a reasonable explanation or excuse for that disturbance, and the factfinder keeps the power to decline a reduction.

Change the trigger rather than the target. Vega, a coworker, takes the last open seat in the break room and, when Ruiz mutters about it, shrugs and says she was there first. Ruiz, irritated all afternoon, later shoots a delivery driver who had nothing to do with the dispute. The trigger is again someone other than the victim, and the broader rule does not help, because a lost seat gives no reasonable explanation for an extreme disturbance, and an everyday annoyance is unlikely to be extreme in the first place.

The reasonableness requirement is the check that takes over the screening work the old trigger list used to do. Casassa states that the ultimate test remains objective, so there must be a reasonable explanation or excuse for the actor's disturbance, whatever its source.²³ Extreme but unwarranted jealousy is the standard illustration of a disturbance that does not qualify, which shows that a genuine and intense reaction to a trigger can still fail.²⁴ The check does real work because opening the triggers moves the screening from fixed categories to the factfinder. In one study of intimate-partner homicide cases, roughly a quarter of the claims that reached juries in Code jurisdictions involved a partner's departure, attempted separation, or rejection, while no claim of that kind reached a jury in the common-law jurisdictions studied.²⁵ Whether such a rejection supplies a reasonable explanation for an extreme disturbance is the question the second component keeps asking, and an affirmative answer is never automatic. Students go wrong by treating an open trigger as a presumption of reasonableness, assuming that because the victim need not be the provoker, any genuine upset suffices. The opposite error is to carry the common-law requirement of provocation by the victim into a Code problem and end the analysis before either component is applied.

Exam Analysis Steps

Because the trigger question removes a screen the common law applied and leaves the two components untouched, it is best run as a short sequence that keeps the source of the disturbance separate from its reasonableness. The steps are these:

Identify what produced the defendant's disturbance, whether the victim's conduct, another person's conduct, or an event with no wrongdoer at all.
Set aside any rule that the provocation must come from the person killed, because the Code names no required source.
Ask whether the defendant in fact acted under extreme mental or emotional disturbance, treating a contrived or merely ordinary upset as a failure at this first component.
Ask whether, from the actor's situation and the circumstances as he believed them to be, the trigger gives a reasonable explanation or excuse for that disturbance, remembering that the factfinder may still decline to reduce the charge.