Appellants Reply Brief — Patterson v. New York

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In The

Supreme Court of the United States

October Term 1976

No. 75-1861

GORDON G. PATTERSON, JR..,

Appellant,

PEOPLE OF THE STATE OF NEW YORK,

Appellee.

On Appeal from the

New York Court of Appeals

BRIEF FOR THE APPELLANT

BETTY D. FRIEDLANDER

The Clinton House

Ithaca, New York 14850

VICTOR J. RUBINO

280 Park Avenue

14th Floor West

New York, New York 10017

Attorneys for Appellant

Daily Record Corporation Spaulding Law Printing

Rochester, New York (2409)

| Supreme Court, U. § :

FILED

Nec 3 1976

, MICHAEL RODAK, JR., CLERK

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TABLE OF CONTENTS

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ARGUMENT

POINT | — THE MAJORITY OPINION BELOW,

UPHOLDING THE VALIDITY OF THE NEW

YORK PENAL LAW REQUIREMENT THAT THE

DEFENDANT IN A MURDER PROSECUTION

MUST BEAR THE BURDEN OF PROVING THE

AFFIRMATIVE DEFENSE THAT HE WAS

“ACTING UNDER THE INFLUENCE OF EX-

TREME EMOTIONAL DISTURBANCE” IN

ORDER TO REDUCE MURDER TO MAN-

SLAUGHTER, IS IN DIRECT CONFLICT WITH

THIS COURT’S DECISIONS IN MULLANEY VP.

WILBUR AND IN RE WINSHIP. ................ 16

i SI cade cepcaies cdanenenhases 16

1. The New York Affirmative Defense Is Functionally

Identical To The Defense Declared Unconstitutional

DT <ccceccusuvunen ubuesGe nash s Geneaed 16

2. The Analysis of Winship By This Court In

Mullaney Applies with Equal Force To The New York

es oC Oca lct ou na lwedideee ses 17

3. The Majority Of States Do Not Shift The Per-

suasion Burden To The Defendant To Prove Facts

Which Reduce Murder To Manslaughter. ..........

B. THE OPINION BELOW .....................

1. A Formal “Elements Test” Was Rejected By This

Court In Mullaney, Insofar As Mitigation Defenses To

Murder Are Concerned. ...................00005.

2. The Liberal Scope of The Extreme Emotional

Disturbance Defense Does Not Justify Shifting The

SD. Sdn diaudun veeskukc bedsametesuusweees bens

a) Hardship of Proof Does Not Justify Shifting The

Persuasion Burden ......... 2.0.0... 00 ccc cece eee

b) A Laudable Purpose Does Not Justify Shifting

POD. “Sc clckuupldennbee 6kcgbasonveeeuset

C. THE EROSION OF MULLANEY .............

D. SHIFTING THE BURDEN OF PERSUASION

MADE A DIFFERENCE IN THIS CASE. ........

POINT If — THE INSANITY DEFENSE IS

CLEARLY DISTINGUISHABLE FROM THE

EXTREME EMOTIONAL DISTURBANCE

SEG « s b0 aN Gace stedcusencsheusdenceesucten

1. The Defenses are Separate and Distinct in the New

SEI op PE Mie SE FST aT ae

2. The Defenses are Different in Concept and Legal

I rte Oe ae et ee ee

3. There is a Qualitative Difference in the Hardship of

Disproving Each Defense. .....................0.4..

4. State Practices Do Not Support Shifting The Burden

On Extreme Emotional Disturbance. ................

5. New York Has Eschewed A Presumption Analysis

Of Extreme Emotional Disturbance. ................

POINT III — RETROACTIVITY IS NOT A BAR TO

CONSIDERATION OF THE PATTERSON CASE

WHICH REACHES THIS COURT ON DIRECT

| Peper rerTre Seecarecscarnwesvies

SD coedscN c¥ekeuevens dhvanedvesgeeess

APPENDICES

APPENDIX A — State Practices on Placing the Burden

of Persuasion on the Extreme Emotional Disturbance

ee ia te kk

APPENDIX B — The History of the Extreme Emotional

Rr 1. fool os ls Ss eeidabaeeeees

TABLE OF AUTHORITIES

Page

Cases:

Baldwin v. New York, 399 U.S. 66 (1970) ............ 19

Brotherton v. People, 75 N.Y. 159 (1878) ............. 37

Buzynski v. Oliver, 538 F.2d 6 (1st Cir. 1976) ......... 37, 40

Commonwealth v. McCusker, 448 Pa. 383, 292 A.2d

SOG (OGTR) . wos ce cccccccstencedeseans cneeee 41

Commonwealth v. York, 50 Mass. (9 Met.) 93 (1845)... = 27

Davis v. United States, 160 U.S. 469 (1895) ........... 30, 37

Duncan v. Louisiana, 391 U.S. 145 (1968) ............ 19

Ferry v. Ramsey, 277 U.S. 88 (1927) ................. 34

Gregg v. Georgia, 428 U.S. , 96 S.Ct. 2909 (1976) .. 18

In re Gault, 367 US. 1 (1967)... 2 cece ccc ccccceses 31

In re Winship, 397 U.S. 358 (1970) ......... 4,11, 16, 19, 31

Ivan v. City of New York, 407 U.S. 203 (1972) ........ 44

Johnson v. New Jersey, 384 U.S. 719 (1966) .......... 44

Jurek v. Texas, 428 U.S. ,96S8.Ct. 2950 (1976) .... 18

Lavine v. Milne. U.S. ,96S8.Ct. 1010(1976) ... 43

Leary v. United States, 395 U.S. 6 (1969) ............. 13, 34

Lee v. County Court, 27 N.Y.2d 432, 267 N.E. 452, 318

N.Y.S.2d 705, cert. denied, 404 U.S. 823 (1971)..... 30

Leland v. Oregon, 343 U.S. 790 (1952) ............ 14, 19, 37

Linkletter v. Walker, 381 U.S. 618 (1965) ............ 44

Memorial Hospital v. Maricopa County, 415 U.S. 250

| ee er eR 32

Page

Morrison v. California, 291 U.S. 82 (1934)............ 28, 31

Morrissette v. United States, 342 U.S. 246 (1952) ...... 26, 29

Mullaney v. Wilbur, 421 U.S. 684 (1975)........ 4,11, 16,19

People v. Caruso, 246 N.Y. 437, 159 N.E. 390 (1927) .. 24

People v. DiPiazza, 24 N.Y.2d 342, 248 N.E.2d 412,

300 N.Y.S.2d 545 (1969) .................0005055. 30, 41

People v. Felder, 32 N.Y.2d 747, 297 N.E.2d 522, 344

N.Y.S.2d 643 (1973), aff'g 39 App. Div. 2d 373, 339

N.Y.S.2d 992 (2d Dep’t 1972), appeal dismissed sub

nom. Felder v. New York, 414 U.S. 948 (1973) ...... 31, 42

People v. Lee, 29 App. Div. 2d 837, 287 N.Y.S.2d 607

es cc eek seccccevscevecess 41

People v. Moran, 249 N.Y. 179, 163 N.E. 553 (1928) .. 25

People v. Peetz, 7 N.Y.2d 147, 164 N.E.2d 384, 196

Ne ee ce cusececceces 40

People v. Patterson, 41 App. Div. 2d 1028, 344 N.Y.S.2d

EE i)

People v. Patterson, 39 N.Y.2d 288, 347 N.E.2d 898,

383 N.Y.S.2d 573 (1976) .................2-.055. 1, 7,18

People v. Shelton, Mise. 2d , 385 N.Y.S.2d

708, (Sup. Ct. N.Y. Co. 1976) ..................0.. 41

People v. Silver, 33 N.Y.2d 475, 310 N.E.2d 520, 345

Ne es ccc cscncsccces 30, 38

People v. Solari, 43 App. Div. 2d 610, 349 N.Y.S.2d 31

(3rd Dep't 1973), aff'd without opinion, 35 N.Y.2d

876, 323 N.E.2d 191, 363 N.Y.S.2d 953 (1974) ...... 24

Proffitt v. Florida, 428U.S. , 96 S.Ct. 2960 (1976).. 18

Page

Rivera v. State, 351 A.2d 561 (Del.}, appeal dismissed

sub nom. Rivera v. Delaware, U.S. , 45

RT rE PE IIS Os OE TA 37

Roberts v. Louisiana, 428 U.S. , 96 S.Ct. 3001

ED oo caboacccddectekeseninetiientiee 18

Romano v. United States, 382 U.S. 136 (1965)......... 34

Rossi v. United States, 289 U.S. 89 (1933) ............ 31

Speiser v. Randall, 357 U.S. 513 (1958) .............. 36

State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575

(1975), cert. granted, USS. , 45 U.S.L.W.

IETS Neg Sem ea oP er ts 35

State v. Lafferty, 309 A.2d 647 (Me. 1973) ........... 22

State v. Rollins, 295 A.2d 914 (Me. 1972) ............ 21,22

Stokes v. People, 53 N.Y. 164 (1873)... .............. 27

Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966) 44

Tot v. United States, 319 U.S. 463 (1943) ............. 13, 34

United States v. Austin, 533 F.2d 879 (3d Cir. 1976) ... 37

United States v. Eichberg, 439 F.2d 620 (D.C. Cir.

dt | Peer jdebdecdten seen eee 37

United States v. Fleischman, 339 U.S. 349 (1950) ...... 31

United States v. Hendrix, F.2d , N.Y.L.J. at 1,

col. 6 (10/25/76) (2d Cir. 1976) .................. 43

Williams v. Florida, 399 U.S. 78 (1969) .............. 30

Williams v. United States, 401 U.S. 646 (1971) ........ 44

Woodson v. North Carolina, 428 U.S. .96S8.Ct. 2978

SD. ococeuncuu pee deeecacscetnt ee 18

vil

Page

Constitution and Statutes Cited:

es coo ios ny cancdcdcestccceske 2

EE a ee ee 2

N.Y. Crim. Proc. Law §250.10 (McKinney 1971) ..... 30

N.Y. Crim. Proc. Law §250.20 (McKinney Supp. 1976) 30

N.Y. Penal Law §25.00 (McKinney 1975) ........... 4, 7, 30

N.Y. Penal Law §30.05 (McKinney 1975) ............ 3, 37

N.Y. Penal Law §35.00 (McKinney 1975) ............ 30

N.Y. Penal Law §60.06 (McKinney 1975) ............ 2

N.Y. Penal Law §70.00 (McKinney 1975) ............ 18

N.Y. Penal Law §125.20 (McKinney 1975).......... 3, 7,18

N.Y. Penal Law §125.25 (McKinney 1975) .......... 2,7, 18

N.Y. Penal Law §125.27 (McKinney 1975) ........... 2,18

Maine Rev. Stat. 17-A §204 (Supp. 1976) ............ 11,17

Other Authorities:

Allen, Mullaney v. Wilbur, The Supreme Court and the

Substantive Criminal Law — An Examination of the

Limits of Limited Intervention, 55 Tex.L.Rev. (No. 2

IRENE ISS a At 7p A De es eae 23

40 Am. Jur.2d Homicide §65 (1968) ................. 35, 43

Ashford and Risinger, Presumptions, Assumptions and

Due Process in Criminal Cases: A Theoretical Over-

view, 79 Yale L.J. 165 (1969) .................... 31, 34

Page

Chernoff and Schaeffer, Defending the Mentally III:

Ethical Quicksand, 10 Am. Crim.L.Rev. 505 (1972).. 39

Comment, Unburdening the Criminal Defendant:

Mullaney v. Wilbur, And the Reasonable Doubt

Standard, 11 Harv. C.R.—C.L.L.Rev. 390 (1976) 23, 34, 39

Fletcher, Two Kinds of Legal Rules: A Comparative

Study of Burden-of-Persuasion Practices in Criminal

Cases, 77 Yale L.J. 880 (1968) .................... 26

Gilbert's Criminal Law and Practice of New York (1967)

(Staff Notes, State Commission On Revision Of The

Penal Law and Criminal Code) .................... 27

Hart, Punishment and Responsibility (1969) .......... 26, 39

Hechtman, Practice Commentaries to N.Y. Penal Law

A GP DUD os cc seccccccececscacsucs 28,33

Hechtman, Practice Commentaries to N.Y. Penal Law

$30.05 (REcHinmey 1975) .... 2... cece eee eee 33

Hechtman, Practice Commentaries to N.Y. Penal Law

ee DT 8 re 27

LaFave and Scott, Handbook on Criminal Law (1972) ..22, 35

McCormick, Evidence (2d Ed. 1972)................. 34

Model Penal Code, §1.13 and Comment (Tent. Draft

II 2A eh Sr Oe ee en a oe ee 28, 33, 43

Model Penal Code, §3.01 and Comment (Tent. Draft

ss oe So) Se te es Pa eee 28, 33

Model Penal Code, §201.3 and Comment (Tent. Draft

PE <u cece dibanedeehtaerrrere 27, 28, 29, 40

Page

Note, Affirmative Defenses and Due Process: The

Constitutionality of Placing a Burden of Persuasion On

a Criminal Defendant, 64 Geo.L.J. 871 (1976) ...... 23, 43

Note, Constitutional Limitations on Allocating The

Burden of Proof Of Insanity To The Defendant In

Murder Cases, 56 B.U.L.Rev. 499 (1976) .......... 37

Perkins, A Re-examination of Malice Aforethought, 43

ee ie, abl an euch eekhedeénece es 22

Prevezer, The English Homicide Act, 57 Colum.L.Rev.

I i cere conden deed dens deensaseeve 26

Royal Commission On Capital Punishment, Report,

ED 9 oa vv cnntieesuedeseseand du 26

Shapiro, Affirmative Defenses After Mullaney v. Wilbur:

New York’s. Extreme Emotional Disturbance, 43

I IIE eh. cic diceacdeccccsnu: 36

Tushnet, Constitutional Limitation of Substantive

Criminal Law: An Examination of the Meaning of

Mullaney v. Wilbur, 55 B.U.L. Rev. 775 (1975) ..... 23

Wechsler, Codification Of The Criminal Law: In The

United States: The Model Penal Code, 68 Colum. L.

ne ee eeu as 26

In The

Supreme Court of the United States

October Term 1976

No. 75-1861

GORDON G. PATTERSON, JR..,

Appellant,

Vv.

PEOPLE OF THE STATE OF NEW YORK,

Appellee.

On Appeal from the

New York Court of Appeals

BRIEF FOR THE APPELLANT

OPINION BELOW

The opinion of the New York Court of Appeals was rendered

on April 1, 1976. People v. Patterson, 39 N.Y.2d 288, 347

N.E.2d 898, 383 N.Y.S.2d 573 (1976). The opinion appears in

the Appendix filed with this Brief starting at page A. 96. No

other opinions were rendered by the lower courts.

JURISDICTION

The judgment of the New York Court of Appeals was filed

and entered April 1, 1976 (Appendix B-1 to Jurisdictional

Statement). A Notice of Appeal to this Court was filed on May

26, 1976 in the Steuben County Court, the Court possessed of

the record (Appendix C to Jurisdictional Statement). The

Jurisdictional Statement was filed on June 24, 1976; probable

jurisdiction was noted by this Court on October 4, 1976.

The jurisdiction of this Court is invoked under the provisions

of 28 U.S.C. §1257(2) (1970).

STATUTES INVOLVED

United States Constitution, Amendment XIV

‘*... nor shall any State deprive any person of life, liberty, or

property, without due process of law... .”

In pertinent part, the New York Penal Law states:

N.Y. Penal Law $125.25 (McKinney 1975) Murder in the

second degree*

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes

the death of such person or of a third person; except that in any

prosecution under this subdivision, it is an affirmative defense

that:

*In 1974, the Legislature added a new crime, murder in the first degree.

N.Y. Penal Law, §125.27 (McKinney 1975). This statute comes into

operation where the victim of the murder is a police officer, an officer in a

correctional facility or where the defendant was incarcerated for a life

sentence. A convicted defendant is to be sentenced to death. N.Y. Penal

Law, §60.06 (McKinney 1975). As part of this enactment, section 125.25,

which formerly defined the degreeless crime of murder, was retitled, without

a change in substance, murder in the second degree. (L. 1974, ch 367, $4.)

(a) The defendant acted under the influence of

extreme emotional disturbance for which there was a

reasonable explanation or excuse, the reasonableness of

which is to be determined from the viewpoint of a person

in the defendant’s situation under the circumstances as

the defendant believed them to be. Nothing contained in

this paragraph shall constitute a defense to a prosecution

for, or preclude a conviction of, manslaughter in the first

degree or any other crime;

* * *

Murder in the second degree is a class A-I felony.

N.Y. Penal Law §125.20 (McKinney 1975) Manslaughter

in the first degree

A person is guilty of manslaughter in the first degree when:

* * .

2. With intent to cause the death of another person, he causes

the death of such person or of a third person under cir-

cumstances which do not constitute murder because he acts

under the influence of extreme emotional disturbance, as

defined in paragraph (a) of subdivision one of section 125.25.

The fact that homicide was committed under the influence of

extreme emotional disturbance constitutes a mitigating cir-

cumstance reducing murder to manslaughter in the first degree

and need not be proved in any prosecution initiated under this

subdivision.

* * .

Manslaughter in the first degree is a class B felony.

N.Y. Penal Law §25.00 (McKinney 1975). Defenses;

burden of proof

* * *

2. When a defense declared by statute to be an “affirmative

defense” is raised at trial, the defendant has the burden of

establisliing such defense by a preponderance of the evidence.

QUESTION PRESENTED

Whether the statutory provisions of the New York Penal

Law, which placed the burden on Appellant at his trial for

murder to prove that he was “acting under the influence of

extreme emotional disturbance”’ in order to reduce murder to

manslaughter, on their face and as applied to Appellant, violate

the Appellant’s right to due process of law under the Fourteenth

Amendment to the United States Constitution as construed by

this Court in Mullaney v. Wilbur, 421 U.S. 684 (1975) and In

Re Winship, 397 U.S. 358 (1970).

STATEMENT OF THE CASE

This appeal arises from Appellant’s conviction for murder.

The uncontroverted facts are as follows:

Appellant, Gordon Patterson, and his wife, Roberta Rooks,

had a highly unstable courtship and subsequent marital

relationship, marked by recurring verbal arguments and

physical assaults (R.* 561-64), highlighted by five break-ups

during the engagement and four more break-ups during the

marriage (A.** 55).

Roberta Rooks was six months pregnant when she married

Appellant. Although neither Appellant nor the decedent, John

*R refers to pages in the transcript of the original Record on Appeal.

**A refers to Pages in the separately bound Appendix filed with the Brief in

this Court.

Northrup, was the father (A. 55), the child was given the

surname - Patterson (A. 55; R. 560, 892). After seven months

of marriage, Appellant’s wife left him permanently on August 5,

1970. She later commenced divorce ,ivceedings against Ap-

pellant (A. 55; R. 574-82).

After her separation from Appellant, Roberta resumed dating

the decedent, John Northrup, a neighbor to whom she had been

engaged prior to her marriage to Appellant (R. 442, 584). Be-

tween the final breakup in August, 1970 until the fatal shooting

of John Northrup by the Appellant on December 27, 1970, the

Appellant made strenuous efforts, mostly through a litany of

telephone calls, sometimes ten each night, to Roberta and her

relatives, to try to reunite with Roberta. Roberta talked with

him on some occasions and other times hung up (A. 56). These

efforts and calls reached a crescendo on the evening of

December 26, 1970 and early morning of December 27, 1970.

(A. 55, 58, 60; R. 321, 470, 471, 474, 475, 806, 807, 808).

On December 10, 1970, the Appellant went to his in-laws’

residence and found his wife in a compromising situation with

John Northrup and struck him (R. 589, 590, 598). On

December 15, 1970, Appellant called the Veteran’s Ad-

ministration in Bath, New York to request a neuropsychiatric

examination (A. 59; R. 861, 864). On Christmas Eve, Ap-

pellant’s wife and the child met at Appellant’s mother’s home

where Appellant gave Roberta many gifts, including a ring and

a yellow skirt. Roberta gave Appellant a watch (R. 469, 480).

On December 27, 1970 the Appellant attended a church

service at which the subject of the sermon was adultery and

which contained the following thought:

“You can only pent up true feelings just so long, then

you have to burst, something has to break.” (R. 828)

Later that day, Appellant drove to the home of a friend,

Murray Collins, to ask advice on the mechanical condition of his

car. After a discussion with Collins, he made arrangements to

have his car repaired the next day. Collins agreed to lend Ap-

pellant a car for his use while repairs were being made. Ap-

pellant also asked Collins to lend him a .22 caliber rifle which

was lying on a table. Appellant claimed he wanted to use the

rifle for target practice (R. 361-62, 365-67). Collins testified he

volunteered to furnish an undetermined amount of ammunition

which Appellant had not requested. Collins stated he did not

consider the request for the loan of the rifle to be an unusual one

since Appellant had borrowed guns from him on previous oc-

casions (R. 389-391).

Appellant, taking the borrowed rifle, drove by his father-in-

law’s residence and saw John Northrup’s car there. He parked

the auto he was driving, and with the rifle in hand, went to the

Rook’s house. He looked in through a door and window and saw

John Northrup, the baby and his wife Roberta. Roberta was

dressed in only a blouse and slip and was trying on the yellow

skirt Appellant gave her only two nights before (R. 480).

Thereupon he entered the house and shot Northrup twice in the

head, killing him. (A. 60; R. 480, 510).

Appellant called as a witness, Dr. William Libertson, a

psychiatrist, who when presented with a hypothetical question

which summarized the facts, stated his opinion that Appellant at

the time of the shooting was under the influence of extreme

emotional disturbance, his perceptions were warped, his acts

irrational and his ability to control himself defective (A. 24, 25).

At the request of the prosecution, Appellant was examined

before the trial by another psychiatrist, Dr. Martin Lubin of

New York City. The District Attorney, however, did not call Dr.

Lubin to testify and he conceded that Dr. Lubin’s testimony

would have supported the conclusions of Appellant's psychiatric

witness, Dr. Libertson (A. 62; R. 1129).

The facts of the marital relationship between Appellant and

Roberta and the physical facts of the killing were not in disupte

at the trial. As the trial court stated in its charge to the jury :

“What actually happened here is clear, although there

are some minor discrepancies between the stories told

from the witness stand.” (A. 73); see also, People v.

Patterson, 39 N.Y.2d 288, 291-92, 347 N.E.2d 898,

383 N.Y.S.2d 573 (1976); (A. 96, 97).

At the trial, Appellant raised the affirmative defense that at

the time of the alleged crime he was “acting under the influence

of extreme emotional disturbance for which there was a

reasonable explanation or excuse. ...’’ According to the New

York statutory scheme, Appellant had the burden to prove this

defense by a preponderance of the evidence in order to reduce

murder to manslaughter. N.Y. Penal Law §§25.00; 125.20;

125.25 (1) (a) (McKinney 1975). The jury was charged in

conformity with these statutes.

In part the judge stated to the jury:

This is what we call, and what the law has designated as,

an affirmative defense. That means that if you believe

that the defendant acted under extreme emotional

disturbance, and that there was reasonable explanation

for its existence at that time and place and under those

circumstances, you cannot find him guilty of murder.

You may, of course, on further examination of the

evidence, decide that there was manslaughter in the first

degree, as I shall instruct you, but you cannot find

murder if, indeed, you believe this. (A. 74)

* * *

In this connection, there is one other consideration. I

have already instructed you that, generally, the burden

rests on the prosecution to prove beyond a reasonable

doubt that the defendant is guilty of the crime charged.

In this respect, the defendant’s raising of an affirmative

defense makes a slight variation; although the rule still

stands, generally, as to proof of the whole case, the

burden of proving his affirmative defense — that indeed

his acts were under extreme emotional disturbance

which appears, reasonably, to be an explanation or

excuse — is placed upon the defendant himself. The

District Attorney is not required to deny this excuse.

The defendant must by his proof convince you both that

he was so emotionally influenced, and that it is

reasonable explanation and excuse for what he did. But

he need not prove it beyond a reasonable doubt, but

merely by a preponderance of the evidence. (A. 74, 75)

* * *

As to the preponderance of the evidence it is the quality

of the testimony and not its quantity which guides you in

your deliberations. By a preponderance of the evidence

we do not mean the greater number of witnesses, we

mean the greater weight of the believable (credible)

testimony and evidence which has been brought here

during the course of this trial as to the defense of ex-

treme emotional disturbance.

You might consider in determining this, if you will, an

imaginary scale, and after you have sifted out the

evidence, place the believable and credible evidence in

favor of the defendant as to the issue of this defense of

extreme emotional disturbance on the one side of the

scale and the believable and credible evidence in favor of

the prosecution on that particular issue on the other side

of the scale. And if in your judgment and your judgment

alone, the scale tips in favor of the defendant, then he

has sustained his burden of proof as to the defense of

extreme emotional! disturbance. On the other hand, if the

scale is evenly balanced, then the defendant has failed. to

establish his burden of proof as to that particular fact.

(A. 76)

The charge of the court is set forth in its entirety in the Ap-

pendix. (A. 46-95; see especially A. 73-80). The jury

deliberations took roughly fifteen hours over a period of two

days (A. 82, 85, 86, 87). The jury made four requests for

clarification of the charge. These requests were for a reading of

the portion of the charge pertaining to the definitions of the two

crimes charged — Murder and Manslaughter, in the First

Degree (A. 83-84); a second reading of those same portions of

the charge (A. 92); a copy of the defendants’ psychiatrist's

report (A. 83); and a copy of the defendant’s testimony (A. 86-

88).

The jury returned a verdict of guilty of murder and a

judgment of conviction for murder was entered in the Steuben

County Court on July 6, 1971. Defendant was sentenced to a

term of 20 years to life imprisonment. The Supreme Court of the

State of New York, Appellate Division, Fourth Department,

unanimously affirmed the conviction without opinion, by a

judgment and order dated, May 18, 1973. People v. Patterson,

41 App. Div. 2d 1028, 344 N.Y.S.2d 836 (4th Dep’t 1973).

On April 1, 1976, the Court of Appeals, by a 4-3 vote, af-

firmed Appellant’s conviction for murder and upheld the

constitutionality of the New York Penal Law provisions which

required Appellant to prove that he was acting under the in-

fluence of extreme emotional disturbance in order to reduce

murder to manslaughter. The majority opinion held that ‘‘the

law of this State does not infringe the due process interests that

Mullaney sought to protect” (A. 104). The New York Court of

Appeals concluded that Mullaney is not applicable because,

unlike Maine, the New York affirmative defense in question

“does not negate intent” which “the prosecution is at all times

required to prove ...” (A. 111). The New York Court con-

cluded further that Mullaney was distinguishable on the

grounds that “the opportunity opened for mitigation differs

significantly from the traditional heat of passion defense” (A.

111). Yet, noting that the three dissenters formed a contrary

interpretation of Mullaney, the Court stated: “To be sure, the

issue is not free from doubt” (A. 112).

Even greater doubt was expressed by one of the 4-3 majority,

Judge Jones, who in a separate concurring opinion stated :

“Thus, | am not prepared ... to strike down the

provision here under review because on one analysis the

opinion of the United States Supreme Court in Mullaney

v. Wilbur, 421 U.S. 684, would appear to call for that

result. Another reading of the same opinion leads others

to a different conclusion. In that circumstance, I con-

clude that, until there has been an explicit determination

by the Supreme Court which permits us no alternative, it

serves better in this case to leave to the Court the ar-

ticulation of its views . . .’” (Emphasis added). (A. 117)

The separate concurring opinion of Chief Judge Charles

Breitel, favorably referred to in the majority opinion (A. 113),

reveals a basic disagreement with this Court’s decision in

Mullaney. He states:

“The placing of the burden of proof on the defense with

a lower threshold, however, is fair because of defen-

dant’s knowledge or access to the evidence other than his

own on the issue. To require the prosecution to negative

the ‘‘element”’ of mitigating circumstances is generally

unfair.” (A. 115)

Chief Judge Breitel further argued that requiring the

prosecution to bear the burden of proof on ameliorative defenses

might discourage their use.

The three dissenters would have voted to reverse Defendant's

conviction on the basis that Mullaney was ‘‘determinative” of

his due process claim (A. 121).

Significantly, the majority opinion specificaliy found that

“the People did not controvert the testimony of the defense

psychiatrist ...”” (A. 113).

SUMMARY OF ARGUMENT

Appellant challenges his murder conviction on the grounds

that the requirement of the New York Penal Law that he must

bear the burden of persuasion by a preponderance of the

evidence of the affirmative defense to murder, that he was acting

under the influence of extreme emotional disturbance in order to

reduce murder to manslaughter is in direct conflict with this

Court’s decisions in Mullaney v. Wilbur, 421 U.S. 684 (1975)

and In re Winship, 397 U.S. 358 (1970).

Appellant’s overall contention is that there is a total func-

tional identity between the extreme emotional disturbance

defense of New York and its common law forebear, the heat of

passion defense reviewed in Mullaney. Both defenses mitigate

the crime rather than exonerate the defendant. Both defenses

have specific reference only to the laws of homicide. Both

distinguish murder from manslaughter. Both operate on the

same premise that intentional killing resulting from loss of

control is less culpable than killing in cold blood. Both place the

burden of persuasion on the defendant aud require the same

quantum of proof by the defendant (i.e. preponderance of the

evidence).

Moreover, the three Winship factors analyzed by this Court

as critical in Mullaney are clearly present in the challenged New

York affirmative defense. The first factor, community con-

fidence in reliability of verdicts is even more crucial now because

under recent cases decided by this Court, murder is a crime for

which the death penalty can be imposed. As for the second

Winship factor, the New York Court of Appeals decision below

conceded that the punishment differentials between murder and

manslaughter are significant. Third, the stigma attached to

murder as opposed to manslaughter can be no less in New York

than in Maine or any other state.

The Patterson majority argued that New York law is

distinguishable since in Maine* a defendant had to negative the

element of intent. Appel!ent responds that this is a misreading of

Mullaney and clearly not the law in Maine. The presumption of

*Reference to Maine law is at the time of the Mullaney decision. Maine has

now adopted the extreme emotional disturbance defense and the persuasion

burden is on the prosecution. Maine Rev. Stat. 17-A, §204 (Supp. 1976).

“malice aforethought”’ in Maine was a policy presumption only,

not a fact to be proved and was thus only a way of expressing the

absence of heat of passion. Therefore, Appellant contends that

the application of Mullaney should not turn on the fact that

Maine had a phrase — ‘malice aforethought’’ — to describe the

absence of heat of passion, while New York has no particular

name to describe the absence of extreme emotional disturbance.

In both states an intentional and unjustified killing is proof of

murder, without more. In both states, proof of the mitigation

defense reduces murder to manslaughter. In substance (if not in

form) both affirmative defenses function identically.

The Patterson majority singled out the fact that the extreme

emotional disturbance defense is more liberal than its forebear,

the heat of passion defense, but the majority opinion does not

develop what relevance this has in terms of Winship and

Mullaney. In a separate concurring opinion, Chief Judge Breitel

articulated reasons why affirmative defenses should not, as a

general matter, be restricted in their formulation and ap-

plication by judicial limitations.

Chief Judge Breitel noted that affirmative defenses serve a

laudable purpose in the criminal law. If the burden of per-

suasion must remain on the prosecution with affirmative

defenses, Chief Judge Breitel argued that there may be

legislative retaliation eliminating such defenses altogether.

Appellant responds that a laudable purpose per se, does not

justify shifting the burden. Winship, supra. Also, the purpose of

avoiding legislative retaliation affords no recognized basis in law

for not applying constitutional due process standards. With

regard to the potential for legislative retaliation, Appellant

points out that most states that have adopted the extreme

emotional disturbance defense do not shift the burden to a

defendant. Furthermore, New York bases its extreme emotional

disturbance defense on the ALI Model Penal Code formulation

and that Code specifically does not make extreme emotional

disturbance an affirmative defense.

An implicit corollary to the above argument is that since a

state car eliminate a defense altogether, it should certainly be

allowed to shift the burden. This rule is sometimes referred to as

“the greater includes the lesser” rule and Appellant contends

this rule has been severely limited by this Court in Tot v. United

States, 319 U.S. 463 (1943) and Leary v. United States, 395

U.S. 6 (1969). To paraphrase what this Court stated in

Mullaney: if a state chooses to make a defense the

distinguishing factor between murder and manslaughter it bears

the burden of proving it. Mullaney v. Wilbur, supra, at 697,

698.

Chief Judge Breitel also advanced the “‘hardship of proof”

argument that mitigating circumstances are within the

defendant's knowledge, it is fair for him to prove them and

unfair to require the prosecution to prove them. This “hardship

of proof” argument was rejected in Mullaney. Furthermore, in

New York, the prosecution has the burden of persuasion on both

self-defense and more significantly, insanity. Thus, “hardship of

proof” is not a consistent argument for New York to make.

Appellant also demonstrates from the comments of the Model

Penal Code, the legislative history of the emotional disturbance

defense in New York and the plain meaning of the defense itself,

that the extreme emotional disturbance defense is based

ultimately upon an objective standard, (i.e. there must be a

reasonable explanation or excuse) even though the sufficiency of

the defense is judged from the viewpoint of a person in the

defendant's situation. Finally as to hardship of proof, Ap-

pellant contenc that nothing prevents a state from utilizing a

“notice of defense” requirement or a pre-trial psychiatric

examination of a defendant where the defendant intends to

utilize a psychiatrist at trial.

Appellant also demonstrates that shifting the burden of proof

to the defendant had crucial significance in this case in view of

the fact that the prosecution psychiatrist agreed with the defense

psychiatrist that Appellant was acting under the influence of

extreme emotional disturbance at the time of the killing. The

jury's questions to the Court during their deliberations indicated

their concern over the issue of the extreme emotional distur-

bance defense.

The Appellant in Point II distinguishes the insanity defense

because of Appellee’s contention in his Motion to Dismiss that

Patterson is consistent with cases which uphold placing the

burden of proving insanity on a defendant.

It must be stressed that the Patterson majority did not base

any part of their decision on a claim that extreme emotional

disturbance should be treated constitutionally in the same

manner as the insanity defense. These defenses are legally

distinct and in New York the prosecution has the burden on

insanity. Second, the analysis of Justice Rehnquist in his

concurring opinion in Mullaney applies to distinguish the ex-

treme emotional disturbance defense of New York from insanity

just as it did with the heat of passion defense of Maine. Unlike

insanity, both extreme emotional disturbance and heat of

passion do gap bear a necessary relationship to the required

mental elements of the crime (i.e. less culpable intent).

A third distinction from insanity is that extreme emotional

disturbance is “ultimately objective’ while insanity concerns

itself with much more subjective and behavioral criteria. This

distinction relates to the hardship of proof argument

discussed in Point I of the Brief. Extreme emotional disturbance

is objective because some tangible event or events must cause a

defendant's loss of control to provide the reasonable explanation

or excuse for his conduct whereas proof of insanity need show no

cause nor explain anything other than the insanity status of the

defendant without reference to tangible events or resonable

excuses.

Fourth, Appellant demonstrates that this Court looked to

state practice on placing the burden of insanity in Leland v.

Oregon, 343 U.S. 790 (1952). This state practices factor cuts

the other way with extreme emotional disturbance however

where New York is in the distinct minority on shifting the

burden to the defendant on the defense of extreme emotional

disturbance.

Finally, as to insanity, Appellant argues that the insanity

defense is bound up with a presumption of sanity and that New

York has specifically rejected a presumption analysis for the

extreme emotional disturbance defense.

Lastly, Appellant argues that as the Court of Appeals found

in Patterson, the decision in Mullaney should be applied

retroactively since it is based on the decision in Winship which

has been made fully retroactive by this Court.

In summary, this murder conviction should be reversed

because the challenged New York statutory scheme is func-

tionally identical to the rule declared unconstitutional by this

Court in Mullaney; the extreme emotional disturbance defense

of New York is historically grounded upon the heat of passion

defense ; and the analysis of Winship by this Court in Mullaney

applies with equal force to the challenged defense.

POINT I

THE MAJORITY OPINION BELOW, UPHOLDING

THE VALIDITY OF THE NEW YORK PENAL LAW

REQUIREMENT THAT THE DEFENDANT IN A

MURDER PROSECUTION MUST BEAR THE BURDEN

OF PROVING THE AFFIRMATIVE DEFENSE THAT HE

WAS “ACTING UNDER THE INFLUENCE OF EX-

TREME EMOTIONAL DISTURBANCE” IN ORDER TO

REDUCE MURDER TO MANSLAUGHTER, IS_ IN

DIRECT CONFLICT WITH THIS COURT'S DECISIONS

IN MULLANEY V. WILBUR AND IN RE WINSHIP.

A. INTRODUCTION

1. The New York Affirmative Defense Is Functionally

Identical To The Defense Declared Unconstitutional in

Mullaney.

This Court has explicitly established that the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution mandates the use of the reasonable doubt standard

in criminal cases. In re Winship, 397 U.S. 358 (1970). It is

further established that Winship requires the prosecution in a

murder trial to bear the burden of persuasion beyond a

reasonable doubt on proof of a fact which would reduce murder

to manslaughter, even though such a “critical fact in dispute”’ is

not considered by a state to be an element of the crime of

murder. Mullaney v. Wilbur, 421 U.S. 684, 701 (1975). In

Mullaney, this Court unanimously declared unconstitutional a

State’s requirement that a defendant in a murder trial bear the

burden of proving by a preponderance of the evidence that the

killing was done in the “heat of passion’’ in order to reduce

murder to manslaughter.

The New York statutory scheme challenged here required the

Appellant in his murder trial to bear the burden of proving by a

preponderance of the evidence that he was “acting under the

influence of extreme emotional disturbance for which there was

a reasonable explanation or excuse”’ in order to reduce murder

to manslaughter. On their face, the defense invalidated in

Mullaney and the challenged New York defense are functionally

identical. As in Maine,! the New York defense has particular

reference only to homicide. As in Maine, the New York defense

is one of mitigation, reducing murder to manslaughter rather

than providing for total exoneration. As in Maine, the New York

defense requires the defendant to bear the burden of persuasion

by a preponderance of the evidence. This identity is not ac-

cidental as the extreme emotional disturbance defense is

grounded upon the heat of passion defense. See Appendix B to

this Brief.

2. The Analysis of Winship By This Court In Mullaney

Applies with Equal Force To The New York Affirmative

Defense.

When the New York affirmative defense of extreme

emotional disturbance is subjected to the analysis of Winship

engaged in by this Court in Mullaney, the result is identical.

This Court looked to three factors cited in Winship for deter-

mining whether the reasonable doubt standard should apply in

Mullaney, namely: (1) societal interest in the reliability of

verdicts in criminal cases; (2) the significant punishment

differentials between murder and manslaughter; and (3) the

stigma attached to murder as opposed to manslaughter.

The intervening death penalty cases decided in this Court

have highlighted the need for reliability in murder convictions

and other heinous crimes. Since murder is one of the limited

class of crimes to which many States, including New York have

1All references to Maine law are to the homicide laws as they existed at the

time Mullaney was decided. Maine has since adopted the ‘extreme

emotional disturbance” defense, but the burden of persuasion is now on the

prosecution. Maine Rev. Stat., 17-A, §204 (Supp. 1976).

made the death penalty applicable, it is a matter of supreme

importance that a defendant guilty only of manslaughter not be

convicted of murder and, thereby, be “eligible” for the death

penalty.2

It is significant that extreme emotional disturbance is an

affirmative defense in New York's death penalty statute, N.Y.

Penal Law §125.72(2!/a) (McKinney 1975). Even without

regard to the “eligibility” for death penalty consideration, there

is no difference between New York and the rule invalidated in

Mullaney insofar as reliability of verdicts is concerned.

As to punishment differentials between murder and man-

slaughter, New York has conceded that “the sentences that

might be imposed for these crimes differ significantly."’ People

v. Patterson, 39 N.Y.2d 288, 301, 347 N.E.2d 898, 383

N.Y.S.2d 573 (1976), citing New York Penal Law, §70.00° (A.

110).

With respect to the third factor, the stigma can be no different

in New York than in Maine. Mullaney v. Wilbur, supra at 700.

Thus, not only are the relevant New York and Maine

homicide laws functionally identical, but also, they have an

2New York Penal Law §125.27; Gregg v. Georgia, 428 U.S. , 965S.Ct.

2909 (1976); Jurek v. Texas,428US. ,965S.Ct. 2950 (1976); Proffitt

v. Florida, 428 U.S. , 96 S.Ct. 2960 (1976); Woodson v. North

Carolina, 428 US. , 96S.Ct. 2978 (1976); Roberts v. Louisiana, 428

US. ,96 S.Ct. 3001 (1976). It should be noted that in the penalty

phase, mitigating circumstances (including provocation) must be taken into

account, but are not to be weighed against factors of aggravation and thus

are not necessarily controlling. See especially, Jurek v. Texas, supra at

2965, n. 7. where this Court recognized a distinction between proving

provocation as a defense and having it considered in mitigation.

3The sentencing range for manslaughter in the first degree is from a

minimum of one year to eight and one-third years to a maximum of three to

twenty-five years. The sentencing range for murder in the second degree is

from a minimum of fifteen to twenty-five years to a maximum of life im-

prisonment. N.Y. Penal Law §§1 25.25, 125.20, 70.00 (McKinney 1975).

analytical identity with the Winship factors considered con-

trolling by this Court in Mullaney.

3. The Majority Of States Do Not Shift The Persuasion

Burden To The Defendant To Prove Facts Which

Reduce Murder To Manslaughter.

Concerning the heat of passion defense, this Court stated in

Mullaney, *... the clear trend has been toward requiring the

prosecution to bear the ultimate burden of proving this fact.”

421 U.S. at 696. This trend has been continued in those states

which have adopted the extreme emotional disturbance defense.

Most of these States place the burden of persuasion upon the

prosecution to prove this defense. See Appendix A to this Brief.

This modern trend has significant bearing on what the due

process standards may encompass. Leland v. Oregon, 343 U.S.

790, 798 (1952); Duncan v. Louisiana, 391 U.S. 145, 155

(1968); Baldwin v. New York, 399 U.S. 66 (1970); In re

Winship, 397 U.S. 358, 361-62 (1970); Mullaney v. Wilbur,

421 U.S. 684, 696 (1975).

Thus, the real issue on this appeal is whether there is anything

qualitatively different about the challenged provisions of the

New York Penal Law to take them out of the ambit of Winship

and Mullaney. Appellant contends that none of the arguments

put forth in the majority and concurring opinions below justify

not applying Winship and Mullaney to the New York extreme

emotional disturbance defense. Appellant further contends that

if for due process purposes, a relevant distinction is made be-

tween extreme emotional disturbance and heat of passion, which

are so closely related, the efficacy of Mullaney will be eroded.

B. THE OPINION BELOW

The basis for the decision of the 4-3 majority of the New York

Court of Appeals was that the challenged New York law of

homicide differed significantly from the Maine !aw of homicide

declared unconstitutional by this Court in Mullaney.+ The

majority viewpoint breaks down into two parts. One part deals

with the fact that the New York defense is more liberal to the

defendant than the Maine Law.

According to the majority view, another reason the New York

law differed from the Maine statute under review in Mullaney

was that the challenged New York defense did not require a

defendant to negative an element of the offense as defined by

state law. The Court reasoned that because the New York

statute required the prosecution to prove intent and extreme

emotional disturbance does not negate but only explains or

justifies that element of the crime, the burden of persuasion

could fairly be placed on a defendant.

1. A Formal “‘Elements Test’ Was Rejected By This Court

In Mullaney, Insofar As Mitigation Defenses To Murder

Are Concerned.

This Court in Mullaney specifically confronted and rejected

the argument that Maine could place the persuasion burden on

the defendant because heat of passion was not an element of the

generic crime of homicide. In fact, the reason Mullaney was

twice granted certiorari was to insure that the lower federal

courts accepted the State’s (i.e. Maine’s) interpretation of its

own law. Mullaney, supra, at 689. On reviewing Mullaney a

second time, this Court clearly stated that Maine shifted the

4The three dissenting judges sharply challenged their conclusions (39

N.Y.2d at 307 et seq, A.117-127), and Judge Jones in his concurring

opinion considered this issue to be tantamount to a toss-up (/d. at 307,

A.117). Even the majority conceded that the issue was “not free from

doubt” (/d. at 303, A.112).

burden to a defendant in a murder prosecution to prove heat of

passion only after the State proved all the elements of murder

including intent. Mullaney, supra, 691; see State v. Rollins,

(ME.), 295 A.2d 914, 918 (1972).

The Patterson majority, however, placed great stress on the

policy presumption in Maine law that malice aforethought was

presumed from an intentional killing and that this “element”

was what a defendant was required to negative by proof of heat

of passion. Patterson, supra, 302; (A. 110-111).

The Patterson majority stated, 39 N.Y.2d at 302:

“Under Maine law, malice and heat of passion are

reflective of the defendant’s intent, and the State could

not constitutionally provide the prosecution with a

presumption of malice and then require the defendant to

negate it with proof that he acted under the heat of

passion. (421 U.S., at 702).”’ Patterson, supra, 302; (A.

111).°

The Patterson majority view on malice aforethought accords

with the view of the initial Federal District Court’s opinion

described in Mullaney:

‘*... Winship requires the prosecution to prove malice

aforethought beyond a reasonable doubt; it cannot rely

on a presumption of implied malice, which requires the

Defendant to prove that he acted in the heat of passion

on sudden provocation.” Mullaney v. Wilbur, supra at

688.

This Court, in Mullaney however, rejected the District Court

analysis and made clear that its decision did not turn on treating

Significantly, the Patterson majority cited Mullaney, 421 U.S. at 702, to

bolster this view. At this point in the Mullaney opinion this Court was

discussing problems of proof stating that “... proving that the defendant

did not act in the heat of passion on sudden provocation is similar to proving

any other element of intent:. . ."’ This portion of the Mullaney opinion, was

not discussing the role of malice aforethought in Maine.

malice aforethought as an element of the crime of murder in

Maine.

“We reject at the outset Respondent's [e.g. Defendant's]

position that we follow the analysis of the District Court

and the initial opinion of the First Circuit, both of which

held that murder and manslaughter are distinct crimes

in Maine, and that malice aforethought is a fact essential

to the former and absent in the latter.” Mullaney v.

Wilbur, supra at 690.

Clearly, the Maine law accepted by this Court treated malice

aforethought as a policy presumption, connoting no substantive

fact required to be proved. Mullaney v. Wilbur, supra at 689

n.9. See State v. Lafferty (Me.), 309 A.2d 647, 664 (1973)

stating “*... malice aforethought is not, and never has been a

fact or probative of other facts”; LaFave and Scott, Handbook

on Criminal Law, 539 n.36 (1972). Maine’s highest court

described malice aforethought in Maine as “linguistically

designated” and “a summarizing characterization of the

proposition that the intentional killing of one human being by

another must bear the heaviest penalty unless extenuated by

other circumstances deemed by a wise public policy relevant to

the severity of the penalty’’. State v. Rollins, (Me.), 295 A.2d

914, 919, 920 (1972). In sum, the malice aforethought of

Maine is a vestigial orgar icsofar as burden of proof is con-

cerned. Mullaney v. Wilbur, supra at 693, n.15.

There is thus no substantive difference between the statutory

requirement of proof in New York and Maine at the time of

Mullaney. Both states require proof of an intentional killing —

without more — for murder. The mitigation defenses in Maine,

©See Perkins, A Re-examination of Malice Aforethought 43 Yale L.J. 537,

548 (1934). Perkins describes the term “malice aforethought” as “acci-

dental and confusing.” He states that historically the phrase simply referred

to an intentional killing without justification, excuse or mitigation.

New York, (and indeed most other states and in England)’

have an identical function in that they reduce murder to

manslaughter. These defenses are based on the same principle,

namely that intentional murder committed under sufficient loss

of control is less culpable than murder committed without such

loss of control.

This Court in Mullaney rejected an “elements test” for

determining the application of the rule of Winship.® Rather

than looking to what a State formally defines as an element of a

crime, this Court stated it would look beyond such form in

determining which facts in a criminal case the State must prove

beyond a reasonable doubt. This Court emphasized it would

concern itself with “... substance rather than this kind of

formalism.” 421 U.S. at 6999

Despite this clear rejection of an “elements” test for Winship

purposes, the New York Court of Appeals, nevertheless, applied

an elements test to take New York out of the ambit of Mullaney.

TSee Mullaney v. Wilbur, supra at 696.

8The so-called ‘elements test’ can be stated thus: in criminal cases a State is

only constitutionally required to prove beyond a reasonab.» doubt those

facts that the State characterizes as elements of a particular crime.

9 Because of this, some commentators view Mullaney as having potentially

broad application. Allen, Mullaney v. Wilbur, The Supreme Court and The

Limits of Legitimate Intervention 55 Tex. L. Rev. (No. 2. 1977)

(copies of page proofs are being prepared by the author for transmittal to

this Court); see also, Comment, Unburdening The Criminal Defendant:

Mullaney v. Wilbur And The Reasonable Doubt Standard, 11 Harv.

C.R.—C.L. L. Rev. 390 (1976); Note, Affirmative Defenses And Due

Process: The Constitutionality Of Placing A Burden Of Persuasion On A

Criminal Defendant, 64 Geo. L.J. 871 (1976).

Another commentator has taken the view that Mullaney may only be ap-

plicable to murder cases because the rationale of Mullaney is to mandate a

mens rea requirement in murder cases. Tushnet, Constitutional Limitation

of Substantive Criminal Law : An Examination of the Meaning of Mullaney

v. Wilbur, 55 B.U.L. Rev. 775 (1975).

As has been stated, the Patterson majority interpreted Maine

law as imposing a burden on the defendant in a murder case to

negative malice aforethought, an element of the crime of murder

in Maine, in contrast to New York which merely requires the

prosecution to prove intent beyond a reasonable doubt. Yet, as a

matter of logic and plain reading of the New York homicide

statutes, the definition of murder in New York necessarily in-

cludes the absence of extreme emotional disturbance. As the

Patterson dissenters stated:

‘Thus, nothing turns on the fact that Maine gives this

absence of the emotional factor a name and New York

does not.”” 39 N.Y.2d at 313, (A. 121).

Further, it is difficult to explain why a mitigating factor such

as heat of passion or extreme emotional disturbance reduces

murder to manslaughter without stating what facet of murder is

lacking when a mitigation is proved. In Patterson the trial judge

instructed the jury as follows:

“The point of such proof is to convince you . . . that

the defendant’s apparent intention to cause death ...

was not the result of a calm and calculating decision on

his part, but that it was influenced by extreme emotional

disturbance.” (A. 72, 73).

Another New York Court described it this way:

. an examination of the record in its entirety

reveals an abundance of evidence which would support a

finding that the defendant acted withest premeditation

and deliberatm=, and not in extreme emotional

disturbance . . ."” People v. Solari, 43 App. Div.2d 610,

612, 349 N.Y.S.2d 31, 35 (3d Dep't. 1973), aff'd

without opinion, 35 N.Y.2d 876, 323 N.E.2d 191, 363

N.Y.S.2d 953 (1974).

In a frequently cited case, People v. Caruso, 246 N.Y. 437,

446, 159 N.E. 390 (1927), the New York Court of Appeals held

that the then necessary element for first degree murder of

premeditation, was not proved where there was shown ‘sudden

and uncontrollable emotion”, “hot blood’’, or “immediate

provocation’’.!° Thus, while under the Revised Penal Law New

York has supposedly “‘discarded”’ the concepts of premeditation

and deliberation People v. Patterson, supra at 299, A. 107, it

has retained its mirror-opposite, heat of passion, albeit in the

“recast” form of extreme emotional disturbance. Id. at 307, (A.

117) (Jones, J. concurring).

Finally, reduction from murder to manslaughter due to

mitigating factors has had a long history in the common law

during which test mitigation has become inextricably linked to

the concept of blameworthiness.!! See the trial judge’s charge to

the jury in Patterson (A. 79).

Thus, while intent to kill is generally an element of both

murder and manslaughter, society has historically deemed

10The Caruso case is also instructive on another point. It shows that under

prior New York case law, heat of passion was a significant element

distinguishing murder in the first degree from murder in the second degree.

Thus, the implication in the Patterson majority opinion that under prior

New York law heat of passion was only relevant to involuntary man-

slaughter (i.e. no homicidal intent) is seemingly true only on the face of the

prior statutes, but not true when the controlling judicial decisions are

considered. People v. Patterson, supra at 300, (A. 108-109); see also,

People v. Moran, 249 N.Y. 179, 180, 163 N.E. 553 (1928).

114 significant factor in the history of the distinction between murder and

manslaughter was the definition of certain killings without malice as being

eligible for the benefit of clergy. These killings became manslaughter and

the distinction remained even after ecclesiastical jurisdiction was eliminated

for secular offenses. See Mullaney v. Wilbur, supra at 692-96. Tushnet,

suggests that Mullaney mandates the states to continue this historical

distinction in their homicide laws. Tushnet, supra. Such a historical basis

for the Mullaney decision would mean that Mullaney is not necessarily

applicable to such affirmative defenses as entrapment and the felony-

murder defense.

killing done under loss of control as a less culpable form of intent

than a killing done in cold blood.!?

At least in this situation where there is such a unique

historical relationship between the mitigation defense and the

murder-manslaughter dichotomy, it is important that the

“elements test’’ be rejected; otherwise punishment would be

meted out on the basis of formal definitional elements of a crime

which in effect become a “tautology”, separated from any in-

dependent moral basis to justify condemnation and punishment

for murder instead of manslaughter. See Fletcher, supra n.12 at

911. The interests sought to be protected in Winship (namely,

reliability of verdicts, the significant punishment differential

and the stigma attached to the crime) are clearly at stake when a

defendant must prove facts which would reduce murder to man-

slaughter regardless of whether as a formal matter these facts

when proved negative an element of the crime as defined by the

State. '3

It thereby follows that the mere classification by a State of

facts to be proved as “‘mitigation factors”, People v. Patterson,

supra at 302, (A. 110), rather than as elements of the crime does

not justify shifting the persuasion burden to the defendant in a

murder trial. Mullaney v. Wilbur, supra at 698-701.

12See Fletcher, Two Kinds of Legal Rules: A Comparative Study of Per-

suasion Practices in Criminai Cases, 77 Yale L.J. 880 (1968); Wechsler,

Codification of the Criminal Law in the United States; The Model Penal

Code, 68 Colum. L. Rev. 1425, 1446 (1968); Hart, Punishment and

Responsibility (1969) at 14-17; Royal Commission on Capital Punish-

ment, Report, CMD No. 8932 (1953), quoted in, Prevezer, The English

Homicide Act, 57 Colum. L. Rev. 624, 629-30 (1957). The Commission

stated the defect of the crime of murder is that “... it provides a single

punishment for a crime widely varying in culpability."’ Report, supra at

4 790. See Prevezer, supra; see also, Morrissette v. United States, 342 U.S.

246, 250 (1952).

13 Appellant does not argue that he has no burden of production, Mullaney v.

Wilbur, supra at 701 n.28. It is clear in this case that the defense was

properly raised. People v. Patterson, supra at 304, (A. 113).

A corollary of the above discussion is that nothing turns, per

se, on whether a State follows the rule of Commonwealth v.

York, 50 Mass. (9 Met.) 93 (1845). The Patterson majority

stressed that New York did not follow the York case in that New

York does not imply malice from the mere fact of intentional

killing. People v. Patterson, supra at 299, (A. 1 17)2* Yet it was

the effect of the York rule in shifting the persuasion burden of

mitigation to the defendant, and not the precise verbal for-

mulation of the York rule that was deemed relevant by this

Court in Mullaney. Mullaney v. Wilbur, supra at 694-696.

Thus, the fact that New York does not follow the York rule

does not support the result reached in Patterson.

2. The Liberal Scope of The Extreme Emotional Disturb-

ance Defense Does Not Justify Shifting the Burden.

The other major factor that the Patterson majority cited as a

reason for not applying Mullaney to the New York affirmative

defense of extreme emotional disturbance is that it is more

liberal than the common-law heat of passion defense.'> 39

14T he case cited by the Patterson majority was Stokes v. People, 53 N.Y. 164

(1873) 39 N.Y.2d at 299. Stokes held that mere proof of killing does not

imply premeditation. New York has since “discarded” the concept of pre-

meditation because it was “nebulous.” People v. Patterson, supra at 299,

‘A. 107); see also, People v. Caruso, supra.

15The Patterson majority referred to two major sources ivr its description of

the extreme emotional disturbance defense: Model Penal Code §201.3 and

Comment (Tent. Draft No. 9 1959) and the Notes of the Staff of the State

Commission on Revision of the Criminal Law and Penal Code, Gilbert's

Criminal Law and Practice of New York (1967). These are set forth in full

in Appendix B to this Brief.* These sources establish two crucial points.

First, the extreme emotional disturbance defense is firmly grounded in the

common-law heat of passion defense. Second, the phrase extreme emotional

disturbance attempts to represent a definitional improvement that is more

“logical and fair” to the defendant. These two points are related because the

logic and fairness arise from attempts to improve the application of the

common-law mitigation from murder to manslaughter, and not to create a

wholly new defense.

*Also included in this Appendix are relevant excerpts from Hechtman,

Practice Commentary to N.Y. Penal Law §1 25.20 (McKinney 1975).

N.Y.2d at 302, (A. 111). The reason why this liberality should

in essence be a quid pro quo for shifting the persuasion burden

to the defendant is not articulated in the majority opinion, but

the concurring opinion of Chief Judge Breitel does articulate

certain arguments relative to the liberality of affirmative

defenses generally. 39 N.Y.2d at 305-307, (A. 114-116).

a) Hardship of Proof does Not Justify Shifting The Per-

suasion Burden

Chief Judge Breitel argued that it is unfair to require the

prosecution to prove facts peculiarly within the knowledge of the

defendant, 39 N.Y.2d at 305-306, (A. 114, 115). This is the

more general justification for shifting the burden of persuasion

for affirmative defenses. See, Hechtman, Practice Commentary

to N.Y. Penal Law §25.00 (McKinney 1975) at 62-63; Model

Penal Code §1.13, Comment (Tent. Draft No. 4 1955) at 108-

114.'6 This was the argument of the State of Maine in

Mullaney and it was rejected. 421 U.S. at 701-702. The issue

thus becomes whether there is anything in the broadened scope

of the extreme emotional disturbance defense that mandates a

different result. !‘

It is clear that the prosecution has a difficult task to meet the

burden of proof in certain areas. The difficulties of proof are

evident in an area such as intent which the trial judge in Pat-

16Significantly the Model Penal Code does not shift the burden of persuasion

to a defendant on its extreme emotional disturbance defense. Model Penal

Code §201.3 (Tent. Draft No. 9 1959); Model Penal Code §3.01,

Comment (Tent. Draft No. 8 1958) (at 4); Model Penal Code §1.13 (Tent.

Draft No. 4 1955) at 108-114.

17The convenience of the parties or hardship of proof argument has been

criticized as a use of civil procedure which has no place in the criminal law

system where the paramount societal interest is in convicting for each

specific crime only those who are blameworthy rather than all those who

might be blameworthy. Fletcher, supra n. 12; cf. Morrison v. California,

291 U.S. 82 (1934).

terson aptly described as a “secret operation of the mind” (A.

71), or, as Mr. Justice Jackson described it — the “elusive

mental element”. Morrissette v. United States, 342 U.S. 246,

248 (1952). Yet difficulty of proof is not a justification for

shifting the burden on intent to the defendant. First there are

acceptable and easily comprehended methods of proof of inner

thought processes. One traditional method is an assessment of a

person's conduct and actions and the results which ensue. (See

trial Judge's charges in Patterson, (A. 69, 70) ). In this regard it

must be stressed that in determining whether or not a defendant

acts under the influence of extreme emotional disturbance, the

“ultimate test” is an objective one, even though the concept of

extreme emotional disturbance introduces a “larger element of

subjectivity” (i.e. reasonable explanation or excuse). Model

Penal Code, §201.3, Comment (Tent. Draft No. 9 1959) (at

41). See Appendix B to this Brief.!® The Patterson case is a

good example of this objectivity test to assess action and con-

duct. As the judge charged the jury about the facts “... what

happened is clear except for minor discrepancies,” (A. 73).

Mullaney cites two other factors which are relevant to the

validity of the hardship of proof argument. One is that “most

States require the prosecutor to prove the absence of passion.”

421 U.S. at 701. This consensus is also true of the States

adopting the extreme emotional disturbance defense. See Ap-

pendix A to this Brief.

The other factor this Court looked to in Mullaney was what

the State itself required in the way of apportioning the burden of

proof on other similar issues and noted that Maine required the

prosecution to disprove self-defense. Mullaney, supra, at 702.

18 Actually, Maine has characterized heat of passion, per se, as a “subjective

condition” which is ‘‘in the ultimo” objective because the provocation must

be “adequate.” State v. Rollins, supra at 920. This is a description

remarkably similar to the Comments of the Model Penal Code description

of extreme emotional disturbance. Model Penal Code §201.3, Comment

(Tent. Draft No. 9 1959) (at 41); see Mullaney, supra at 702.

With respect to self-defense, this is also true of New York. N.Y.

Penal Law §§25.00, 35.00 (McKinney 1975). More

significantly, New York traditionally places the ultimate burden

of persuasion of disproving insanity on the prosecution. N.Y.

Penal Law, §30.05 (McKinney 1975); People v. Silver, 33

N.Y.2d 475, 310 N.E.2d 520, 345 N.Y.S.2d 915 (1974); see

also, Davis v. United States, 160 U.S. 469 (1895).

As a practical matter, as is true of self defense, the extreme

emotional disturbance and heat of passion defenses by their

nature generally admit the major portion of the prosecution's

case. Of necessity, the assertion of such defenses requires an

admission from the defendant that he was present at the scene of

the crime and that he did, in fact, do the killing. This weakens

the force of the hardship argument.

Moreover, this Court made clear in Mullaney that the defense

must be properly presented and thus a requirement may be

imposed on the defendant that he give notice of the defense.

Williams v. Florida, 399 U.S. 78 (1969); See N.Y. Crim. Proc.

Law §§250.10 and 250.20 (McKinney 1971) (notice of in-

sanity defense and notice of alibi). Further, where the defense

intends to rely on psychiatric testimony, the defendant can be

required to submit to pre-trial examination by 2 prosecution

psychiatrist.!9 Lee v. County Court, 27 N.Y.2d 432, 267

N.E.2d 452, 318 N.Y.S.2d 705, cert. denied, 404 U.S. 823

(1971). People v. DiPiazza, 24 N.Y.2d 342, 248 N.E.2d 412,

200 N.Y.S.2d 545 (1969). Thus, nothing hinders the

prosecution from a full investigation into the source of the so-

called “subjective facts”, to wit, the defendant himself.

There are of course, some situations where because of dif-

ficulty of proof the burden may be shifted to the defendant. But

191n Patterson, the prosecution did in fact have its own psychiatrist examine

appellant prior to trial, but the expert witness was not called by the prose-

cution at trial because he would have supported Appellant's case (A.62; R.

1128).

none of these are analogous to the extreme emotional distur-

bance defense. These cases deal with specific matter which

would normally be only in the defendant’s possession and which

the defendant is required to produce or lose on that issue. Rossi

v. United States, 289 U.S. 89 (1933) (defendant must produce

bond and registration); United States v. Fleischman, 339 U.S.

349 (1950) (evidence of good faith in complying with sub-

poena); see also, Morrison v. California, 291 U.S. 82 (1934);

People v. Felder, 32 N.Y.2d 747, 297 N.E.2d 522, 344

N.Y.S.2d 643, aff'g. 39 App. Div. 2d 373, 339 N.Y.S.2d 992

(2d Dep’t (1972), appeal dismissed sub nom, Felder v. New

York, 414 U.S. 948 (1973) (defendant must prove weapon not

loaded or inoperable.) Cases of this kind have been analyzed as

situations which bear almost no possibility that an innocent

defendant may be convicted for failure of proof on the issue in

question and it is this reliability factor which allows the burden

to be shifted. Ashford and Risinger, Presumptions, Assumptions

and Due Process in Criminal Cases: A Theoretical Overview,

79 Yale L.J. 165, 180-81 (1969).

The above line of cases and the Ashford and Risinger analysis

which justify them do not apply to extreme emotional distur-

bance any more than to the heat of passion defense for the

reasons stated above.

b) A Laudable Purpose Does Not Justify Shifting The

Burden

Chief Judge Breitel also makes reference to the “salutary

criminological purposes served by the development of af-

firmative defenses, even where the burden of proof rests on the

defendant.” People v. Patterson, supra at 305, A. 114. By itself,

a laudable purpose should not justify shifting the persuasion

burden to the defendant. This Court has rejected such an

argument where the prosecution had the burden of proof, but by

a lesser standard than reasonable doubt. In re Winship, 397

U.S. 358, 365-66 (1970); see also, In re Gault, 387 U.S. 1, 27,

36 (1967). Since the foregoing cases are set in the context of

juvenile proceedings which are saturated with benefical in-

tentions, a laudable purpose argument would have even less

force in the context of adult crimes.

The laudable purpose test is, however, coupled with the

“political considerations” argument which states that laudable

affirmative defenses will not be enacted into law unless

legislators can be given a trade-off on the burden issue. People v.

Patterson, supra at 305-306, A. 114-115. There are two things

wrong with this argument. First, it is by itself not based on any

principle of law.?° See Fletcher, supra at 928-29. In a related

line of cases this Court has rejected such political arguments. As

Justice Marshall has stated:

A State may not employ an invidious discrimination

to sustain the political viability of its programs. As we

observed in Shapiro, supra, at 641, 89 S.Ct., at 1335,

“[plerhaps Congress could induce wider state par-

ticipation in school construction if it authorized the use

of joint funds for the building of segregated schools,”

but that purpose would not sustain such a scheme. See

also Cole v. Housing Authority of City of Newport, 435

F.2d 807, 812-813 (CA 1 1970).”’ Memorial Hospital v.

Maricopa County, 415 U.S. 250, 267 (1974).

Second, this “political considerations” argument is not

supported factually. Most of the States adopting the defense of

extreme emotional disturbance do not shift the persuasion

burden to the defendant. (See Appendix A to this Brief).

Also with regard to the “political considerations argument,

the Model Code treatment of entrapment is advanced by Chief

Judge Breitel as an example of how a compromise on the burden

20If we assume complete retroactivity on this issue, as the Patterson majority

did, ten this argument, by itself, allows “sacrifice” of appellant and all

others convicted of murder since 1967 who raised this defense on the mere

possibility that the legislature might deprive future defendants of this

defense in murder cases.

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issue can yield beneficial results (i.e. the passage of an

‘“ameliorative defense”). People v. Patterson, supra at 306, A.

116. The point is that the defense of extreme emotional!

disturbance challenged here was also created by the ALI to

ameliorate some of the illogical limitations on the scope of the

heat of passion defense. Certainly this was a benefit for a

defendant and yet the Model Penal Code clearly did not shift the

burden of persuasion to the defendant as the price of the im-

provement in the law.?! Beyond this, New York until the

passage of the 1967 Revised Penal Code did not require a

defendant to carry the burden on any defense including insanity,

self-defense, excusability, etc. See Hechtman, Practice Com-

mentary to N.Y. Penal Law §25.00 (McKinney 1975) at 62.

Significantly, such defenses were judge-made law, but there was

no legislative “retaliation” such as is hypothesized in the

Patterson decision. See id. More particularly, the insanity

defense was liberalized in 1965 without any quid pro quo shift

of the burden of proof. See Hechtman, Practice Commentary to

N.Y. Penal Law §30.05 (McKinney 1975) at 69-70.

A related argument made by Chief Judge Breitel is the

suggestion that if a laudable defense which places the burden on

the defendant in order to pass the legislature is subsequently

declared unconstitutional, the legislative reaction ““would be to

2! The Patterson majority, 39 N.Y.2d at 301, A.109, stated that “the Model

Penal Code does not, expressly state that the burden of establishing

mitigating circumstances is upon the Defendant.” It should be pointed out

that the structure of the Model Penal Code is such that the burden shifts to a

defendant only when a defense is denominated “affirmative.” Extreme

emotional disturbance was not denominated as “affirmative defense’’ by the

ALI. See Model Penal Code §3.01, Comment (Tent. Draft No. 8 1958) (at

4), where it is also made clear that there was a concern about inroads on the

principle that guilt must be established beyond a reasonable doubt. This

was in 1958, twelve years prior to Winship. See also Model Penal Code

$1.13, Comment (Tent. Draft No. 4 1955) (especially comments at 109,

111-12). Thus, not expressly stating that extreme emotional disturbance is

an affirmative defense is stating that the persuasion burden does not shift.

define particular crimes in unqualifiedly general terms, and

leave only to sentence the adjustment between offenses of lesser

degree,’ People v. Patterson, supra at 305, A. 114-115. This

argument has been characterized as “the greater includes the

lesser” rule. See Ashford and Risinger, Presumptions,

Assumptions and Due Process in Criminal Cases; A Theoretical

Overview 79 Yale L.J. 165, 177-178 (1969). In essence, the

argument is that since a state can punish intentional killing as

murder without including any mitigation defense (i.e. the

greater), if the state allows a mitigation defense it can shift the

burden of persuasion to the defendant on this added beneficial

factor (i.e. the lesser).

This argument as stated in Ferry v. Ramsey, 277 U.S. 88

(1927), a civil case, has, however, been rejected in criminal.

cases by this Court in Tot v. United States, 319 U.S. 463, 472

n.14 (1973) and Leary v. United States, 395 U.S. 34-56e69 6 32,056

33,34, nn. S7-b/ ned 1969); see also Romano v. United States, 382 US.

136, 144 (1965); McCormick, Evidence (2d ed. 1972) 812-

813 n.21, 818 n.20; Ashford and Risinger, supra at 178 n.21;

Comment, Unburdening the Criminal Defendant: Mullaney v.

Wilbur, and the Reasonable Doubt Standard, 11 Harv. C.R.-

C.L.L. Rev. 390, 398-400 (1976). In any event this Court in

Mullaney, without specific reference to the above line of cases,

also implicitly rejected this argument in crimes of murder and

manslaughter, 421 U.S. at 697-698.

In sum, Appellant contends, assuming arguendo, that New

York could eliminate its mitigation defense to murder, the

answer is it has not chosen to do so. Tot v. United States, supra;

Leary v. United States, supra. Moreover the possibility of

legislative redefinition of crimes to take the issue of mitigation

from the jury does not provide a reason for distinguishing the

New York rule from the rule declared unconstitutional by this

Court in Mullaney.

ne ee ee ee

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C. THE EROSION OF MULLANEY

Finally, if this Court seeks to distinguish between the closely

related “heat of passion” and “extreme emotional disturbance”

defenses it will erode the efficacy of Winship and Mullaney.

Once constitutionally relevant distinctions are made between

defenses which have a functional, historical and analytical

identity, every State with a slightly different interpretation of

such words as “passion”, ‘‘provocation”’, “hot blood”’, “cooling

off”, “distress”, “disturbance”, “sudden’’, etc. will have a

justification to avoid applying Mullaney.22 See LaFave and

Austin, Handbook on Criminal Law, 572-582 (1972). The

Patterson majority stated that with the extreme emotional

disturbance defense the “opportunity for mitigation differs

significantly from the traditional heat of passion defense. 39

N.Y.2d at 302, A. 111. There was no articulation, however, of

why being more liberal or fair or logical translates into any

reason for shifting the burden. It is submitted there are no valid

reasons for shifting the burden to the defendant where the

defense is extreme emotional disturbance instead of its common

law antecedent heat of passion. See Appendix B to this Brief.

D. SHIFTING THE BURDEN OF PERSUASION MADE A

DIFFERENCE IN THIS CASE.

The love triangle situation is one of the classic contexts for

considering the provocation issue. 40 Am. Jur. 2d Homicide

§65 (1968). The Patterson fact pattern clearly fits this situation

and there is no question that the defense of extreme emotional

disturbance was squarely presented to the jury. People v

Patterson, supra at 304, A. 113. Bieseover, a the tele jndes

221f self-defense or justification is held to be within the ambit of Winship and

Mullaney the same problem will occur because some state definitions of

justification are “broader” and more liberal than others. See State v.

Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), cert. granted

US. , 45 U.S.L.W. 3292 (1976).

indicated in his charge to the jury, the basic facts were not

subject to dispute (A. 73). Most importantly, the psychiatrist

hired by the prosecution, who did not istify, agreed with the

conclusions of the defense psychiatrist who did testify on the

extreme emotional disturbance issue (A. 62; R. 1128), and the

jury was instructed that they could “strongly infer” that he

would have agreed with the defense psychiatrist (A. 62).

Shifting the burden of proof in this case also stands out in

bold relief because this was a close case about which the jury had

considerable doubts.?> This is attested to by the facts that: (1)

the deliberations took roughly fifteen hours over a period of two

days (A. 82, 85, 86. 87); and (2) the jury made four requests for

clarification of the charge. These requests were for a reading of

the portion of the charge pertaining to ihe definitions of the two

crimes charged — Murder and Manslaughter, in the First

Degree (A. 83, 84); a second reading of those same portions of

the charge (A. 92); a copy of the defendant's psychiatrist's

report (A. 83); and a copy of defendant's testimony (A. 86-88).

As Mr. Justice Brennan wrote for the Court in Speiser v.

Randall, 357 U.S. 513, 525-26 (1958):

“there is always in litigation a margin of error,

representing error in factfinding, which both parties

must take into account. Where one party has at stake an

interest of transcending value — as a criminal defendant

his liberty — this margin of error is reduced as to him by

the process of placing on the other party the burden .. .

of persuading the factfinder at the conclusion of the trial

of his guilt beyond a reasonable doubt.”

The margin of error in this case was unconstitutionally

enlarged, to Appellant's detriment, and, therefore, this con-

viction must be reversed.

23See Shapiro, Affirmative Defenses After Mullaney v. Wilbur: New York's

Extreme Emotional! Disturbance, 43 Brook. L. Rev. 171 (1976).

—-

POINT II

THE INSANITY DEFENSE IS CLEARLY

DISTINGUISHABLE FROM THE EXTREME

EMOTIONAL DISTURBANCE DEFENSE.

The Appeliee has cited cases upholding the requirement that

the defendant bear the burden of proving insanity in support of

the proposition that Patterson is consistent with other

jurisdictions in applying Mullaney (Point A (5) of Appellee’s

Motion}. The implication of Appellee’s reliance upon insanity

cases is that placing the burden of proving insanity upon the

defendant is constitutional.?4A ppellant submits that the defense

of emotional disturbance cannot be equated with the insanity

defense.

1. The Defenses are Separate and Distinct in the New York

Statutes.

The Patterson majority did not base any part of their decision

on a claim that extreme emotional disturbance should be treated

constitutionally in the same manner as the insanity defense.

Extreme emotional disturbance and insanity are two legally

distinct defenses in New York; and, most significantly, New

York does not shift the persuasion burden on insanity as it does

with extreme emotional disturbance. N.Y. Penal Law §30.05

(McKinney 1975); Brotherton v. People, 75 N.Y. 159 (1878);

24Se Mullanzy, supra, 704-706 (Rehnquist, J. with Burger, C.J., con-

curring); Leland v. Oregon, 343 U.S. 790 (1952); Rivera v. State, 351

A.2d 561 (Del), appeal dismissed sub nom. Rivera v. Delaware,

US. ,45 U.S.L.W. 3279 (1976); but see, Davis v. United States, 160

U.S. 469 (1895); Buzynski v. Oliver, 538 F.2d 6 (1st Cir. 1976); United

States v. Eichberg, 439 F.2d 620, 624 (D.C. Cir. 1971) (per curiam)

(Bazelon, C.J. dissenting); United States v. Rustin, 533 F.2d 879, 890,

n.33 (3rd Cir. 1976) (Adams, J., dissenting); see also, Note, Constivutional

Limitations on Allocating the Burijen of Proof of Insanity To The

Defendant In Murder Cases, 56 B.U.L. Rev. 499 (1976).

People v. Silver, 33 N.Y.2d 475, 310 N.E.2d 520, 345

N.Y.S.2d 915 (1974).

2. The Defenses are Different in Concept and Legal

Function.

Other responses to an attempt to lump extreme emotional

disturbance with insanity proceed along different analytic lines.

One is that extreme emotional disturbance, like its forebear heat

of passion, is the distinguishing element between two of the

gravest common law crimes — murder and manslaughter. Thus,

for burden of proof purposes, as a matter of substance, these

defenses go necessarily to a mental element (albeit a negative

one) of the crime of murder (when put in issue), regardless of

what formal label (i.e. mitigation) a state may give it. Mullaney

v. Wilbur, supra at 699. At least insofar as the concurring

opinion in Mullaney is concerned, this analysis of the heat of

— defense distinguishes it from insanity because :

. legal insanity bears no necessary relationship to the

existence or nonexistence of the required mental

elements of the crime.” Id. at 706. 25

Like the heat of passion defense, extreme emotional

disturbance warrants the same analytic distinction from the

insanity defense. The function of both the heat of passion and

extreme emotional disturbance defenses is identical — both

defenses warrant reducing murder to manslaughter because of a

less culpable form of intent. Insanity, on the other hand,

25See Note, supra, 56 B.U.L. Rev. at 499 et seq., where it is pointed out that

because of the diversity of state-by-state interpretations of insanity the

proposition quoted above, may be applicable only to those state rules where

in fact there is no necessary relationship to the required mental! element. In

any event, where proof of a fact distinguishes manslaughter from murder,

this fact necessarily goes directly to the required mental element of murder ;

otherwise there is no reason for the distinction. Therefore, it is the very

concept of heat of passion and extreme emotional disturbance, not a state-

by-state analysis that is determinative.

exonerates a defendant from criminal liability entirely. A

defendant convicted of a reduced crime of manslaughter is not

exonerated, but rather he may be given a lesser penai sanction

than would have been imposed for a conviction for murder.

When insanity is proved, the defendant does not receive a penal

sanction because incarceration will have no deterrent or

rehabilitative effect on a person who is insane. The criminal

process in such a case fulfills no purpose. See Chernoff and

Schaeffer, Defending the Mentally Ill: Ethical Quicksand, 10

Am Crim. L. Rev. 505, 506 (1972); Wechsler, supra.

The difference in the focus of the inquiry between insanity

and heat of passion /extreme emotional disturbance is critical.

With heat of passion/extreme emotional disturbance, the

inquiry centers on establishing the “required mental element” ”°

for the crime of murder or manslaughter; with insanity, the

inquiry is directed to the defendant's mental status for the

purpose of determining whether or not any penal sanction is

appropriate. See Comment, Unburdening the Criminal

Defendant; Mullaney v. Wilbur and the Reasonable Doubt

Standard, 11 Harv. C.R.-C.L.L. Rev. 390, 405 n. 65 (1976);

Hart, Punishment and Responsibility, 188-209 (1968).

3. There is 2 Qualitative Difference in the Hardship of

Disproving Each Defense.

There is another analysis of the insanity defense which

arguably affects the extreme emotional disturbance defense as

distinguished from the heat of passion defense. Proponents of

the “hardship of proof” argument note that since insanity is a

much more subjective defense requiring proof concerning the

defendant's state of mind and behavior, it is fair to place the

26See People v. Patterson, supra at 304, A.113, where the majority stated:

“. . . the defendant had not established that his intent was formulated under

the influence of an extreme mental trauma.”

burden on the party asserting it. See Buzynski v. Oliver, 538

F.2d 6 (1st Cir. 1976).7* Appellant's general response to the

hardship of proof argument is set footh in Point 1.B (2-a).

Specifically with reference to a comparison to insanity,

defendant contends that extreme emotional disturbance like

heat of passion is ultimately based on an objective standard

while insanity is subjective. Mullaney v. Wilbur, supra at 702.

The issue with insanity is whether or not the defendant

himself is insane, without regard to any external triggering

mechanism or provocation. The reasons why a defendant is

insane are not, per se, relevant. The focus is thus of necessity

internal and subjective. Extreme emotional disturbance, on the

other hand, refers not on!y to the reasons why the defendant lost

control, but also asks whether there is “reasonable explanation

or excuse” for the defendant's conduct. It is true that “the

reasonableness . . . is to be determined from the viewpoint of a

person in the defendant's situation under the circumstances as

he believed them to be,” and this introduces some subjectivity, **

but in the words of those responsible for the formulation of the

extreme emotional disturbance defense, the “ultimate test” is

objective. Model Penal Code §201.3 Comment (Tent. Draft

No. 9 1959) (at 41, 46-48); (Appendix B-1 — B-3 of this

Brief).

The Patterson case is a good example of the ultimate objective

standard applied to an extreme emotional disturbance defense.

The definition of the defense provided to the jury by the court

27Since New York places the ultimate burden of persuasion for insanity on the

prosecution, it is difficult to see how this argument carries weight insofar as

New York is concerned.

28 As defendant has already pointed out even Maine has described heat of

passion as basically subjective. but made objective because the ultimate test

is the adequacy of the provocation. State v. Rollins, supra, 919, 920. Under

former law, New York has described “heat of passion” as “primarily being

a state of mind.” People v. Peetz, 7 N.Y.2d 147, 151, lo4 N.E.2d 384, 196

N.Y.S.2d 83 (1959).

ODE DR AREA em he

was starkly simple — “self evident in meaning” People v.

Patterson, supra at 293, (A.99). The Court instructed the jury

that the basic facts upon which they were to make their

determination of the affirmative defense were not in dispute

(A.73). These facts and events included the stormy marital re-

lationship, the discovery by appellant of his wife’s illicit affair

with the victim, the exchange of Christmas presents, the fateful

sermon two days later, and finally the discovery by Appellant

later that evening of his wife half undressed in the presence of

her lover are all relevant and essentially objective circumstances.

The psychiatric testimony in Patterson was laced with

reference to facts and events which were the subject of proof at

trial (A.3-37).29 This is to be compared with the conclusions of

psychiatrists in cases of insanity such as “psychopathic per-

sonality”, ‘psychopathic trait disturbance’’ and “schizophrenic

paranoid”. People v. DiPiazza, 24 N.Y.2d 342, 349-50, 248

N.E.2d 412, 300 N.Y.S. 2d 545, 551 (1969); People v. Lee, 29

App. Div. 2d 837, 277 N.Y.S. 2d 607, 608 (4th Dep’t 1968).

Thus, as a matter of proof, extreme emotional disturbance is

clearly more within the ambit of the heat of passion defense

(Mullaney v. Wilbur, supra at 702) than the subjective be-

havioral criteria applicable to a determination of insanity. *°

29The mere fact that psychiatric testimony was presented can be of no par-

ticular significance since psychiatrists are also used in “heat of passion”

cases. Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286, 287 n.1

(1972).

30Extreme emotional disturbance has no psychiatric diagnostic classification.

People v. Shelton, Misc.2d =, 385 N.Y.S.2d 708, 715-716 (Sup. Ct.

N.Y. Co. 1976).

“In order to arrive at a definition of ‘extreme emotional disturbance’ to

apply to defendant's actions in this case, I asked both forensic psychia-

trists to state their understanding of the term. (Both are very experi-

enced witnesses who have given expert testimony in hundreds of

“They agreed that this term is a creature of law and has no

diagnostic classifi. ation in the Diagnostic and Statistical Manual of

the American Psychiatric Association.”

4. State Practices Do Not Support Shifting The Burden On

Extreme Emotional Disturbance.

A fourth response to the attempt to lump extreme emotional

disturbance with insanity is that the inquiry into state practices

so important to sustaining the shift in burden on insanity in

Leland (Leland v. Oregon, supra at 798) cuts the opposite way

with the defense of extreme emotional disturbance. Appendix A

to this Brief shows that most states adopting the ALI Model

Penal Code defense place the burden on the prosecution. More-

over, since the Model Penal Code defense is firmly grounded in

the common law heat of passion defense, the state practice on

this defense is also relevant and the clear trend is “‘toward

requiring the prosecution to bear the ultimate burden of proving

this fact.’ Mullaney v. Wilbur, supra at 696.

5. New York Has Eschewed A Presumption Analysis Of

Extreme Emotional Disturbance.

Finally, it should be noted that the burden of proof issue on

the insanity defense is bound up with the presumption?! of “all

English-speaking courts” that all men are sane. Leland v.

Oregon, supra at 799. In this regard it is important to note that

New York has eschewed a presumption analysis with regard to

extreme emotional disturbance. People v. Patterson, supra at

299, (A.107).32 Nor did Mullaney proceed on a presumption

analysis. Mullaney v. Wilbur, supra, at 702 n. 31. In fact, it is

difficult to perceive how a killing in the “‘love triangle” context

could be presumed not to be in the heat of passion when the

context is the most common one for asserting the heat of passion

311m fact this was referred to as a “doctrine” in Leland. Leland v. Oregon,

supra at 796.

32Compare People v. Felder, 32 N.Y.2d 747, 297 N.E.2d 522, 344 N.Y.S.2d

643 (1973), aff'g. 39 App. Div. 2d 373, 339 N.Y.S.2d 992 (2d Dep't

1972), appeal dismissed sub nom. Felder v. New York, 414 U.S. 948

(1973). This decision was based on a presumption analysis.

. ee

type of defense. 40 Am. Jur. 2d Homicide §65 (1968). See also,

Model Penal Code §1.13, Comment (Tent. Draft No. 4 1955).

Further a presumption analysis cannot justify shifting the

persuasion burden to the defendant. In the terms used by Ash-

ford and Risinger, supra, such a shift would be denominated an

“assumption” (i.e. a presumption that in fact does more than

require a defendant to show “some evidence” to rebut the

presumption). This clearly is in conflict with the persuasion

burden required by Mullaney. Mullaney v. Wilbur, supra at

702-703 and n.31; see also Lavine v. Milne, USS. , 96

S.Ct. 1010, 1016 n.10 (1976).

Thus, no factor which supports shifting the burden of per-

suasion for the insanity defense supports a similar shift for the

extreme emotional disturbance defense.

33See Note, Affirmative Defenses and Due Process: The Constitutionality of

Placing a Burden of Persuasion on a Criminal Defendant, 64 Geo. L.J. 871,

883 (1976); see also, United States v. Hendrix, F.2d ,N.Y.L.J. at 1,

“ col. 6 (10/25/76) (2d Cir. 1976) where the court stated:

‘We have, in matters involving other presumptions, consistently held that a

true presumption is a procedural device, not evidence; and that, when proof in

rebuttal is introduced, the presumption is out of the case. (citations omitted)

“This is the so-called ‘“Thayer”’ Rule which has been adopted by the

American Law Institute in its Medel Code of Evidence, Rule 704(2),

and is favored by most authorities in the field of evidence. See 9

Wigmore, Evidence, Section 2491 at 289 (1940); H. Weihofen,

Insanity as a Defense in Criminal Law, 162 (1933); Richardson on

Evidence, Section 63 (10th ed. 1973); Reaugh, Presumptions and the

Burden of Proof, 36 IIL L. Rev. 703, 833 (1942); but cf. McCormick,

Evidence, Section 316 at 665 et seq. (1954).” United States v.

Hendrix, supra, at p. 17, col. 3.

POINT Ill *s

RETROACTIVITY IS NOT A BAR TO CON.

SIDERATION OF THE PATTERSON CASE WHICH

REACHES THIS COURT ON DIRECT APPEAL.

The New York Court of Appeals, in order to reach the

constitutional issue in Patterson, explicitly held that Mullaney

should be given retroactive effect. People v. Patterson, supra at

296, (A.103). The charge to the jury was given in Patterson on

June 7, 1971, Id. at 294, (A.100), but the case was decided on

direct appeal and comes before this Court on direct appeal. The

dispositive argument favoring complete retroactivity®* is that

Mullaney was based on Winship which was held by this Court to

have complete retroactive effect in Ivan v. City of New York,

407 U.S. 203 (1972). Mullaney v. Wilbur, supra at 296,

(A.103).

Yet even without this fairly clear indication in Mullaney

itself, the issue presented by this appeal passes the test set forth

for determining retroactivity. This test has been stated in

various ways, but devolves to this threshold question: Does the

new ruling to be applied @ffect the very integrity of the fact

finding process? Linkletter v. Walker, 381 U.S. 618 (1965);

Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966);

Johnson v. New Jersey, 384 U.S. 719 (1966).

In Williams v. United States, 401 U.S. GB. 646, 653 (1971),

the test was stated as follows:

“... Where the major purpose of new constitutional

doctrine is to overcome an aspect of the criminal trial

that substantially impairs its truth-finding function and

so raises serious questions about the accuracy of guilty

verdicts in past trials, the new rule has been given

complete retroactive effect. Neither good-faith reliance

34Since this matter comes to this Court on direct appeal Appellant need not

prevail on complete retroactivity. See, Linkletter v. Walker, 381 U.S. 618

(1965).

~ 4

by state or federal authorities on prior constitutional law

or accepted practice, nor severe impact on the ad-

ministration of justice has sufficed to require prospective

application in circumstances.” (footnote omitted).

Since the Mullaney ruling deals with the application of the

reasonable doubt standard which forms the framework for

determining guilt or innocence for specific crimes, it should by

this standerd be given retroactive effect.

CONCLUSION

In conclusion, defendant contends that Winship and

Mullaney control this appeal. The New York affirmative

defense of extreme emotional disturbance is functionally

identical to the Maine heat of passion defense declared un-

constitutional because of the shifting ~“f the burden in Mullaney.

Substance should control form and thus Maine's use of the

phrase ‘malice aforethought"’, found by this Court to be a policy

presumption only and not a fact to be proved, should have no

weight in distinguishing the New York defense. The more liberal

wording of the New York defense similarly provides no reason

for allowing the burden to be shifted to defendant, particularly

since the defense is based on the ALI Model Penal Code defense

which does not shift the burden. Further, the Winship analysis

by this Court in Mullaney applies with equal analytic force to

the extreme emotional disturbance defense. Finally, if a

qualitative distinction between these functionally identical

defenses is found which justifies not applying Mullaney, then

Mullaney itself will be eroded because of the variety of practices

among the states in defining and applying the heat of passion

defense.

For the reasons stated in this brief, it is respectfully submitted

that the decision of the New York Court of Appeals should be

reversed and a new trial should be ordered.

Dated: December, 1976

Respectfully submitted,

Betty D. Friedlander

Victor J. Rubino

Attorneys for Appellant

(affidavit of service omitted in printing)

APPENDICES

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State Practices on Placing the Burden of

Persuasion on the Extreme Emotional Disturbance Defense APPENDIX B

- = - = The History of the

2 see: £23 oo Extreme Emotional Disturbance Defense

eee souk *bp fist Taken from Model Penal Code §201.3, Comments (Tent.

E 2 a a Steg peed Draft No. 9 1959) at 41, 46, 48:

ee Sats 8 ~—gtsHs é- Finally, the class of cases which would otherwise be murder

S - as ~~ sE2a27 35 but may be reduced to manslaughter under the present law

§s & eee ae be because the homicidal act occurred “in heat of passion” upon

oa on 24 = z cS 8 2s 3 sn “adequate provocation” is substantially enlarged by paragraph

e ¢ CES | o. § .ane (1)(b). The draft reframes entirely the decisive question, asking

Lf < SPE: ES ES TEL whether the homicide was committed “under the influence of

5 OS 3eis “5222355 ainiee nen ws suited Sean he Wb tae

- O 3 ‘s oS nw Sa. reasonable explanation or excuse’ and adding that

.* 4 g sae . BFE ~o & “reasonableness of such explanation or excuse shall be deter-

me - Saas 3 “33 $s-"° mined from the viewpoint of a person in the actor’s situation

2 See s § en er ° : ° ”

= g2253 33% . -— as under the circumstances as he believes them to be.

We thus treat on a parity with provocation cases.in the classic

& sense, situations where the provocative circumstance is

eS _ - Be ? something other than an injury inflicted by the deceased on the

.< <3 at _ a actor but nonetheless is an event calculated to arouse extreme

== 32 ae Bes mental or emotional disturbance. We also introduce a larger

ES Ca zx ese element of subjectivity in the appraisal, though it is only the

7 $52 34K tines actor’s “situation” and “the circumstances as he believes them

S eS & “oo rae to be”, not his scheme of moral values, that are thus to be

3 Or o & os Ss moe considered. The ultimate test, however, is objective: there must

= be “reasonable” explanation or excuse for the actor’s distur-

<2 2 2 2 bance. This is, we think, to state in fair and realistic terms the

es § s = criteria by which men do and should appraise the mitigating

Ey: - ” - import of mental or emotional distress when it is a factor in so

grave a crime as homicide. The major difficulty with the

criterion of premeditation and deliberation as a decisive test, is,

indeed, that taken seriously it would rest decision on the fact of

the disturbance, without attention to its cause; that probably is

State

Ohio

Oregon

Utah

B-2

The History of the

Extreme Emotional Disturbance Defense

why it is so generally nullified in practice. (Citations omitted)

Comments, supra at 41.

* * *

5. Mental or Emotional Disturbance. Paragraph (1)(b)

widens, as we have said, the class of homicides which may be

reduced from murder to manslaughter under existing law

because they are committed when the actor suffers from extreme

emotional disturbance, the “heat of passion” of the common

law.

In the first place, the draft does not confine the mitigation to

cases of provocation in the ordinary meaning of the term, i.e., an

injury, injustice or affront perpetrated by the deceased on the

actor. While the traditional concept has been -xtended by some

courts to cases where the actor was mistaken in believing that his

victim was responsible for the provocative injury or even that the

injury occurred, the extension hardly can go far enough to

comprehend the actor provoked by A who strikes at B in blind

distress. There may be difficulty also with the case where the

actor is distressed by witnessing or learning of an injury to

someone else or even by erroneous belief in its occurrence. Such

excluded cases may, however, be among the strongest for the

mitigation, since both the cause and the intensity of the actor’s

emotion may be relatively less indicative of depravity of

character than a homicidal response to a blow. By referring to

“extreme mental or emotional disturbance for which there is

reasonable explanation or excuse’ rather than to provocation,

the draft avoids a merely arbitrary limitation on the nature of

the antecedent circumstances that may justify a mitigation when

the homicidal actor was in great distress.

Secondly, the formulation sweeps away the rigid rules that

have developed with respect to the sufficiency of particular types

B-3

The History of the

Extreme Emotional Disturbance Defense

of provocation, such as the rule that words alone can never be

enough. Given evidence of extreme mental or emotional

disturbance, the question whether it is based on “reasonable

explanation or excuse’’ may be confronted, as we think it should

be, in the light of all the circumstances in the case.

Thirdly, and most importantly, the formulation seeks to

qualify the rigorous objectivity of the prevailing law insofar as it

judges the sufficiency of provocation by its effect on the

reasonable man. To require, as the rule is sometimes stated, that

the provocation be enough to make a reasonable man do as the

defendant did is patently absurd; the reasonable man quite

plainly does not kill. But even the correct and the more common

statement of the rule, that the provocative circumstance must be

sufficient to deprive a reasonable or an ordinary man of self-

control, leaves much to be desired since it totally excludes any

attention to the special situation of the actor. Not only is the

actor’s temperament deemed immaterial or the fact that he was

drunk but, as the House of Lords has recently declared, “‘in-

firmity of body or affliction of the mind’ are both irrelevant.

The same position holds respecting “cooling time’’, which also

must be judged by the time required for relief from tension by

the hypothetical reasonable man.

Though it is difficult to state a middle ground between a

standard which ignores all individual peculiarities and one

which makes emotional distress decisive regardless of the nature

of its cause, we think that such a statement is essential. For

surely if the actor had just suffered a traumatic injury, if he were

blind or were distraught with grief, if he were experiencing an

unanticipated reaction to a therapeutic drug, it would be

deemed atrocious to appraise his crime for purposes of sentence

without reference to any of these matters. They are material

because they bear upon the inference as to the actor’s character

B-4

The History of the

Extreme Emotional Disturbance Defense

that it is fair to draw upon the basis of his act. So too in such a

situation as Gounagias, supra, where lapse of time increased

rather than diminished the extent of the outrage perpetrated on

the actor, as he became aware that his disgrace was known, it

was shocking in our view to hold this vital fact to be irrelevant.

“We submit that the information in the draft affords

sufficient flexibility to differentiate between those

special factors in the actor’s situation which should be

deemed material for purposes of sentence and those

which properly should be ignored. We say that there

must be a ‘reasonable explanation or excuse’ for the

extreme disturbance of the actor: and that the

reasonableness of any explanation or excuse ‘shall be

determined from the viewpoint of a person in the actor’s

situation under the circumstances as he believes them to

be.” There will be room, of course, for interpretation of

the breadth of meaning carried by the word ‘situation’,

precisely the room needed in our view. There will be

room for argument as to the reasonableness of the ex-

planations or excuses offered; we think again that

argument is needed in these terms. The question in the

end will be whether the actor’s loss of self-control can be

understood in terms that arouse sympathy enough to call

for mitigation in the sentence. That seems to us the issue

to be faced.” (Footnotes and citations omitted.)

Comments, supra, at 46-48.

The Revised New York Penal Law of 1967 which adopted

the ALI Model Penal Code defense of “extreme emotional

disturbance” was the product of the State Commission on

Revision of the Penal Law and Criminal Code. The Staff

Notes of this Commission describe the defense as follows:

B-5

The History of the

Extreme Emotional Disturbance Defense

“Subdivision 2 also presents an offense grounded in

the common law but new to New York. The common

law enunciates the seemingly sound doctrine. known as

voluntary manslaughter and adopted in most American

jurisdictions, that murder by intentional killing is

reduced to manslaughter by a mitigating factor

variously termed ‘heat of passion,’ ‘sudden passion,’

‘provocation’ and the like. New York and a few other

jurisdictions having similar statutory patterns evidently

were vaguely aware of this doctrine but confused and

destroyed it in the creation of their manslaughter

provisions, all of which apply only where there is no

‘design to effect death’ (existing P.L. §§1050, 1052).

While, therefore, the Penal Law contains two man-

slaughter provisions speaking of a killing ‘in the heat of

passion’ [existing §§1050(2), 1052(2)], neither is

applicable to intentional killings, the very basis of the

whole doctrine. Instead of enunciating the traditional

principle that murder by intentional killing is mitigated

and reduced to manslaughter by ‘heat of passion,’ these

provisions define a narrow and rather meaningless

offense which is committed by a fatal assault without

homicidal intent and ‘in the heat of passion.’ Thus, ‘heat

of passion’ is erroneously predicated not as a mitigating

factor reducing a homicide from murder to man-

slaughter but as an affirmative element of the specified

form of manslaughter.

“The proposed provision eliminates this hybrid of-

fense and replaces it with the traditional crime em-

bracing the principle of mitigation. In the process, the

phrase, ‘in the heat of passion,’ is abandoned as the

criterion of mitigation in favor of the phrase, ‘under the

influence of extreme emotional disturbance for which

B-6

The History of the

Extreme Emotional Disturbance Defense

there is a reasonable explanation or excuse.’ This

standard, adopted from the equivalent manslaughter

provision of the Model Penal Code [§210.3(b) |, is, in

the Commission's opinion, superior to ‘heat of passion’

and other traditional criteria from the standpoint of both

logic and general fairness (see Model Penal Code

Commentary, Tentative Draft No. 9, pp. 28-29).”

Gilbert's Criminal Law and Practice of New York

(1967), pp. 1C-61 - 1C-62.

B-7

The History of the

Extreme Emotional Disturbance Defense

criterion of mitigation in favor of the phrase, ‘under the

influence of extreme emotional disturbance for which

there is a reasonable explanation or excuse’ (§

125.25|1a]). The latter standard is adopted from the

Model Penal Code of the American Law Institute (§

210.3[b]), and the reasons prompting this change are

fully ex~>unded in the Institute's commentaries (Model

Penal Code Commentary, Tent. Draft No. 9, pp. 28-

29)."

The Practice Commentaries to New York Penal Law

$125.20 (Hechtman, Practice Commentaries to N.Y. Penal

Law $125.20 (McKinneys 1975) State inter alia at 391, 393:

“The common law enunciates the seemingly sound

doctrine, known as ‘voluntary manslaughter’ and

adopted in most American jurisdictions, that murder by

intentional killing is reduced to manslaughter by a

mitigating factor variously termed ‘heat of passion,

‘sudden passion,’ ‘provocation,’ and the like (1 Warren

on Homicide [Perm. Ed.] § 85, pp. 416-417). The

theory of the principle is one of extending a degree of

mercy to a defendant who, though intending to kill,

acted out of some kind of emotional disturbance rather

than in cold blood.”

* * *

“Subdivision 2, in conjunction with a provision of the

revised murder statute (§ 125.25[la]), restores to New

York the aforementioned common law doctrine of

reduction from murder to manslaughter on the basis of

‘heat of passion.’ In the restoration process, however,

the phrase ‘in the heat of passion’ is abandoned as the

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