76-5-205.5.  Special mitigation for mental illness or provocation — Burden of proof — Charge reduction.


Terms Used In Utah Code 76-5-205.5

  • Act: means a voluntary bodily movement and includes speech. See Utah Code 76-1-101.5
  • Bodily injury: means physical pain, illness, or any impairment of physical condition. See Utah Code 76-1-101.5
  • Conduct: means an act or omission. See Utah Code 76-1-101.5
  • Conviction: A judgement of guilt against a criminal defendant.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Offense: means a violation of any penal statute of this state. See Utah Code 76-1-101.5
  • Person: means an individual, public or private corporation, government, partnership, or unincorporated association. See Utah Code 76-1-101.5
  • State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
  • Substantial bodily injury: means bodily injury, not amounting to serious bodily injury, that creates or causes protracted physical pain, temporary disfigurement, or temporary loss or impairment of the function of any bodily member or organ. See Utah Code 76-1-101.5
  • Verdict: The decision of a petit jury or a judge.
(a)  As used in this section:


(A)  “Extreme emotional distress” means an overwhelming reaction of anger, shock, or grief that:

(I)  causes the defendant to be incapable of reflection and restraint; and

(II)  would cause an objectively reasonable person to be incapable of reflection and restraint.

(B)  “Extreme emotional distress” does not include:

(I)  a condition resulting from mental illness; or

(II)  distress that is substantially caused by the defendant’s own conduct.

(ii)  “Mental illness” means the same as that term is defined in Section 76-2-305.

(b)  The terms defined in Section 76-1-101.5 apply to this section.

(2)  Special mitigation exists when a defendant causes the death of another individual or attempts to cause the death of another individual:


(i)  under circumstances that are not legally justified, but the defendant acts under a delusion attributable to a mental illness;

(ii)  the nature of the delusion is such that, if the facts existed as the defendant believed them to be in the delusional state, those facts would provide a legal justification for the defendant’s conduct; and

(iii)  the defendant’s actions, in light of the delusion, are reasonable from the objective viewpoint of a reasonable person; or

(b)  except as provided in Subsection (4), under the influence of extreme emotional distress that is predominantly caused by the victim’s highly provoking act immediately preceding the defendant’s actions.

(3)  A defendant who is under the influence of voluntarily consumed, injected, or ingested alcohol, controlled substances, or volatile substances at the time of the alleged offense may not claim mitigation of the offense under Subsection (2)(a) on the basis of mental illness if the alcohol or substance causes, triggers, or substantially contributes to the defendant’s mental illness.

(4)  A defendant may not claim special mitigation under Subsection (2)(b) if:

(a)  the time period after the victim’s highly provoking act and before the defendant’s actions was long enough for an objectively reasonable person to have recovered from the extreme emotional distress;

(b)  the defendant responded to the victim’s highly provoking act by inflicting serious or substantial bodily injury on the victim over a prolonged period, or by inflicting torture on the victim, regardless of whether the victim was conscious during the infliction of serious or substantial bodily injury or torture; or

(c)  the victim’s highly provoking act, described in Subsection (2)(b), is comprised of words alone.

(5)  If the trier of fact finds that the elements of aggravated murder, attempted aggravated murder, murder, or attempted murder are proven beyond a reasonable doubt, and also finds that the existence of special mitigation under this section is established by a preponderance of the evidence, the court shall enter a judgment of conviction in accordance with Subsection 76-5-202(3)(f)(i), 76-5-202(3)(f)(ii), 76-5-203(3)(b)(i), or 76-5-203(3)(b)(ii), respectively.

(6)  If the issue of special mitigation is submitted to the trier of fact, the trier of fact shall return a special verdict at the same time as the general verdict, indicating whether it finds special mitigation.


(a)  If a jury is the trier of fact, a unanimous vote of the jury is required to find special mitigation under this section.

(b)  If the jury unanimously finds that the elements of an offense described in Subsection (5) are proven beyond a reasonable doubt, and finds special mitigation by a unanimous vote, the jury shall return a general verdict finding the defendant guilty of the charged crime and a special verdict indicating special mitigation.

(c)  If the jury unanimously finds that the elements of an offense described in Subsection (5) are proven beyond a reasonable doubt but finds by a unanimous vote that special mitigation is not established, or if the jury is unable to unanimously agree that special mitigation is established, the jury shall convict the defendant of the greater offense for which the prosecution proves all the elements beyond a reasonable doubt.

Amended by Chapter 181, 2022 General Session