Lawmakers pass bill shifting burden of proof in homicides

A bill has cleared the Legislature that shifts the burden of proof in homicide cases involving "extreme emotional distress."

SB 85, sponsored by Sen. Steven Urquhart, R-St. George, removes the emotional distress defense from the murder statutes and places it in a special mitigation statute, where it could reduce the level of a homicide offense. The Utah Attorney General's Office is pushing the bill.

"Right now, all they have to do is raise the issue (of emotional distress) and we have to disprove that," said Creighton Horton, the chief of the attorney general's violent crimes and special prosecutions section. "It really makes sense for the defendants to prove that. We still have to prove beyond a reasonable doubt there was an unlawful killing."

Some criminal defense attorneys are wary.

Todd Utzinger, a public defender in Davis County, worried that the bill would create another hurdle that may make it difficult for defendants facing a murder charge.

"I think the burden on the defense in these types of cases is already very high," he said Monday. "To shift an additional burden to the defense, I think at this point creates such an unlevel playing field."

Already, 15 other states have adopted similar laws, Horton said. If a jury believed that a defendant was under distress, they would have to return a special verdict that would reduce the charge.

Utzinger said there are a number of cases along the Wasatch Front where mental health issues are critical parts of the case.

"The defense does have the burden on many mental health issues," he said. "This adds one more burden for the defense."

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