New York’s “Extreme Emotional Disturbance” Defense

A Hybrid Creature of the Law at the Psycho-Legal Interface
  • Robert Lloyd Goldstein
Part of the Critical Issues in American Psychiatry and the Law book series (CIAP, volume 5)


The diagnostic criteria for New York’s “extreme emotional disturbance” defense1 will not be found in the DSM-III-R or in any future psychiatric manual of nosology. It is important for psychiatrists to understand the statutory and case law operational criteria for this hybrid creature of the law, as well as the distinctions between extreme emotional disturbance, diminished capacity, diminished responsibility, and the insanity defense. The ability of psychiatrists to make an effective and meaningful contri-bution to the legal process, when they participate in cases involving this affirmative defense, will be predicated on such an understanding as well as on their clinical psychiatric expertise. As a convenient resource, brief summaries of the leading New York cases on extreme emotional distur-bance, which are discussed in this chapter, are offered in the Appendix.


Criminal Liability Fact Finder Model Penal Code Insanity Defense Passion Defense 
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  1. 1.
    The term extreme emotional disturbance was adopted from the Model Penal Code. Several states have enacted identical or substantially similar statutes (see Conn. Gen. Stat. Ann. §53a–54, subd. [a], par. [1]; Del. Code Ann. tit. 11, §641; Hawaii Penal Code, §707–702, subd. [2]; Ky. Rev. Stat. §507.020, subd. [1], par. [a]; Mont. Rev. Codes §94–5–103; N.D. Cent. Code §12.1–16–02; Or. Rev. Stat. §163.115; Utah Code Ann. §76–5–205). Historically, the justification for the defense and its predecessor was to reduce criminal liability from a capital to a noncapital offense.Google Scholar
  2. 2.
    See, Notes of the Staff of the State Commission on Revision of the Penal Law and Criminal Code, 1967 Gilbert, Criminal Law and Practice of New York, pp 1C–1, 1C–61, 1C–62.Google Scholar
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    People v Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, affd, 432 U.S. 1977.Google Scholar
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    Id. at 582.Google Scholar
  9. 9.
    New York Penal Law §125.25, subd. 1, par. [a]; §125.27, subd. 2 par. [a] (1967).Google Scholar
  10. 10.
    People v Tabarez, 113 A.D.2d 461 (1985).Google Scholar
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    People v Patterson, 383 N.Y.S.2d 573.Google Scholar
  12. 12.
    In New York, the test of criminal responsibility is codified in Section 40.15 of the Penal Law: A person is not criminally responsible for conduct if “at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity to know or appreciate either: (1) The nature and consequence of such conduct; or (2) That such conduct was wrong.”.Google Scholar
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    People v Patterson, 383 N.Y.S.2d 573.Google Scholar
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    Although some European countries have adopted diminished responsibility, no American jurisdiction has explicitly done so (e.g., Parliament adopted a diminished responsibility defense in the English Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11).Google Scholar
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    383 N.Y.S.2d 573.Google Scholar
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    People v Shelton, 88 Misc. 2d 136, 385 N.Y.S.2d 708 (1976).Google Scholar
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    Id. at 710.Google Scholar
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    Id. at 710. The psychiatrists’ responses to the judge’s query in Shelton indicate an insufficient understanding of statutory and case law operational criteria for extreme emotional disturbance as well as inaccurate or idiosyncratic psychiatric interpretations of the psychopathology involved. For example, there is no requirement that the defendant have “no apparent mental disorder.”Preexisting or concomitant mental disorders may be (and often are) present. The requirement is merely that the defendant’s mental disorder(s) do not arise to the level of insanity. Likewise, the mental state required by the statutory defense does not make the defendant’s action any less intentional, but rather explains his intentional act, thereby making it less culpable. There is no psychiatric support for the prosecution psychiatrist’s conclusion that the defendant would have to be “totally spent” afterward and “would be apathetic, withdrawn, dull, exhausted and depressed about what had happened and would speak in a monotone, giving short, direct answers.... This reaction would last for some time until there had been a period of sleep” at p 711.Google Scholar
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    Id. at 711. Likewise the defense psychiatrist is inaccurate on a number of issues. He confuses extreme emotional disturbance with the heat of passion defense, under prior law, when he states that a cooling-off period for deliberation would be “antithetical and diametrically opposed to extreme emotional disturbance.” Likewise, there is insufficient psychiatric authority to support his contention that an affective sequence of rage, regret, self-criticism and exhaustion is required. (In a similar vein, the prosecution’s psychiatrist in People v Casassa, 427 N.Y.S.2d 769 (1980), erroneously contended that a mental disorder not arising to the level of insanity could not be considered to be extreme emotional disturbance within the meaning of the statute.).Google Scholar
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    The court in Shelton found that the defendant had not been exposed to an extremely unusual or overwhelming stress, and had demonstrated no loss of control. Having found that the defendant was not acting under the influence of extreme emotional disturbance at the time of the criminal offense, the court did not reach the second element of the defense (i.e., the reasonableness of the excuse or explanation). Both psychiatrists had testified that the defendant’s reaction to the situation had been unreasonable; however, they inaccurately concluded that this was properly a legal- factual rather than a psychiatric issue. (It makes “little sense, if any,” to contend that out of the entire universe of individuals who might have an opinion about the rationality or irrationality, reasonableness or unreasonableness, of behavior, that psychiatrists would “know so little” about the subject that they should be totally excluded from testifying on that issue. [I am paraphrasing here the Supreme Court decision in Barefoot v Estelle, 103 U.S. 3383 (1983).Google Scholar
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    People v Moye, 66 N.Y.2d 887 (1985) at 889.Google Scholar
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    The defendant had been extremely insecure about his masculinity and potency and had been led to believe that the victim would be able to allay his fears that he was turning into a homosexual (a friend had advised him “that if anybody can get you an erection, it would be Gloria”). When he was impotent with her, she persisted in taunting and ridiculing him. Such provocation as well as the defendant’s murderous explosive outburst constituted sufficient credible evidence to warrant a charge to the jury on extreme emotional disturbance.Google Scholar
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    People v Tabarez, 113 A.D.2d 461 (1985).Google Scholar
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    In Tabarez, the court is willing to give a substantial amount of weight to subjective factors, that is, to the defendant’s preexisting psychiatric difficulties and preexisting stresses, bearing no relationship to the provocation that triggered the criminal act. Although extreme emotional disturbance is a provocation defense, the court seemingly fails to require any decisive causal nexus between the victim’s provocation and the defendant’s violent response. The court explicitly states that the defendant’s emotional disturbance could have predated his confrontation with the victim. Does the defense apply in a situation when a defendant is provoked by A and then, days or even months or years later, kills B? Courts have consistently held that a killing under such circumstances does not qualify as manslaughter. The Model Penal Code, however, does not limit provocation to acts of the person killed (§210.3). Although paying lip service to the objective reasonable-man test requirement, the court seems to favor mitigation for an emotionally disturbed individual whose psychiatric impairment is preexisting and not directly or causally linked to provocation of the criminal act. This appears to be an example of the diminished responsibility model, permitting a fact finder to mitigate the punishment of a sane but mentally disturbed offender in any case where the fact finder believes he is less culpable than his “normal” counterpart who commits the same crime.Google Scholar
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    People v Walker, 64 N.Y.2d 741, affd, 100 A.D.2d 220 (1984).Google Scholar
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    People v Frank, 122 A.D.2d 620 (1986).Google Scholar
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    People v Casassa, 49 N.Y.2d 668, 427 N.Y.S.2d 769 (1980).Google Scholar
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    Id. at 776.Google Scholar
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    New York Penal Law, supra note 9, at pp. 107, 109.Google Scholar
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    Model Penal Code §20.3, Comment (Tent. Draft No. 9, 1959).Google Scholar
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    See, e.g., People v Tabarez, 113 A.D.2d 461.Google Scholar
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    Model Penal Code §201.3, Comment (Tent. Draft No. 9, 1959).Google Scholar
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    427 N.Y.S.2d 769.Google Scholar
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    Id. at 775.Google Scholar
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    It is in this regard that the Model Penal Code suggests that the ultimate test is objective. Reasonableness is not to be determined solely and entirely on the basis of the defendant’s own subjective belief that his disturbance had a reasonable explanation or excuse, but “from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be [viewing the]... subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been” (p. 775), and from such a perspective sincerely trying to understand the defendant’s response in empathic human terms. (Preexisting psychiatric difficulties, intrapsychic conflicts, and distortions of reality are factors to be taken into account.).Google Scholar
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    ALI Model Penal Code and Commentaries §210.3 [Official Draft and Revised Comments, 1980].Google Scholar
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    This Commentary appears to support the diminished responsibility model as set forth in Tabarez. Preexisting psychiatric difficulties, personal handicaps, and peculiarities are to be taken into account as well as external circumstances when assessing the reasonableness of the explanation or excuse for the defendant’s extreme emotional disturbance. See, e.g., People v Aphaylath, New York Law Journal, Oct. 30, 1986, at 17, col. 3 (The court may admit evidence of the psychological stress and disorientation engendered in a refugee’s attempting to assimilate into the American culture, which caused a significant mental trauma resulting in extreme emotional disturbance.); see, also, “Husband: Emotional Distress Led to Valhalla Murder-for-Hire”, The Daily Times (Mamaro- neck, NY), Jan. 29, 1987, at A-13, col. 1 (describing the “Helpless Little Schmuck” syndrome).Google Scholar
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    427 N.Y.S.2d 769.Google Scholar
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    Id. at 772.Google Scholar
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    66 N.Y.2d 887.Google Scholar
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    People v Solari, 349 N.Y.S.2d 31 (1973).Google Scholar
  54. 54.
    People v Shelton, 385 N.Y.S.2d 708.Google Scholar
  55. 55.
    Psychiatric testimony, however, is not controlling on the issue of extreme emotional disturbance and may be rejected by the fact finder even where the prosecution chooses to offer no psychiatric expert testimony in rebuttal. People v Schwertfeger, 401 N.Y.S.2d 657 (1978).Google Scholar
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    Stewart WA: Panel discussion of depersonalization. 12 7 Am Psychoanal Assoc 171 (1964).Google Scholar
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    Waltzer H: Depersonalization and self-destruction. 125 J Psychiatry 399 (1968).Google Scholar
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Copyright information

© Plenum Press, New York 1989

Authors and Affiliations

  • Robert Lloyd Goldstein
    • 1
  1. 1.Department of Psychiatry; College of Physicians and SurgeonsColumbia UniversityNew YorkUSA

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