Diminished Capacity

Depression and Murderous Intent
CourtTV, Jacob Davis case, Tennessee

The Nathaniel Abraham Case
CourtTV Online

West Virgina Cases:

State v. Joseph (W.Va. Sup.Ct.App., 2003)  
214 W. Va. 525; 590 S.E.2d 718; 2003 W. Va. LEXIS 172 [on-line text]

State v. Degraw (W.Va. Sup.Ct.App., 1996)
196 W. Va. 261; 470 S.E.2d 215 (1996) [on-line text]

Wickline v. Michael House, Superintendent, Pruntytown Correctional Facility (Sup.Ct.App.W.Va., 1992) [on-line text] (ineffective assistance of counsel where counsel fails
to raise diminished capacity issue)

When is a Defendant in a Diminished Capacity Jurisdiction Entitled to a Jury Instruction
on Diminished Capacity?

State v. Trombley, 174 Vt. 459; 807 A.2d 400 (2001) [on-line text]

State of Tennessee v. Vallejo, (Ct.Crim.App.Tenn., 1999) [on-line text]

State of North Carolina v. Wiggins (N.C. Ct.App., 2002) [on-line text]

State v. Griffin, 100 Wn. 2d 417, 670 P.2d 265 (1983) [on-line text]

Considersation of the Jury Instructions in Diminished Capacity Cases

State of Kansas v. Borman (Kansas Supreme Court) [on-line text] [commentary]

State of Tennessee v. Godsey (Ct.Crim.App.Tenn., 2001) [on-line text]
[intermittent explosive disorder]

Prosecution Objects to Expert on Post Traumatic Stress Disorder
The Forensic Echo: Behavnioral & Forensic Sciences in the Courts

Diminished Capacity and Downward Departures of the Federal Sentencing Guidelines

United States v. Leandre (U.S. Ct.App. D.C., 1997)

Diminished Capacity and the Federal Courts

Government's Trial Brief in the Kaczynski/Unabomber Case

Jurisdictions Rejecting the Diminished Capacity Defense

State v. Wicox, 70 Ohio St. 2d 182, 436 N.E.2d 523 (1982)

[See also: State v. Kincaid, 2002 WL 31513554 (Ohio App. 9th Dist., 2002)
(a trial court's misguided efforts to follow Wilcox)]

Chestnut v. Florida, 538 So.2d 820 (Fla., 1989)

State v. Carpenter, 464 Mich. 223, 627 N.W.2d 276 (2001)

Voluntary Intoxication

State v. Bush (W.Va. Sup.Ct.App., 1994) [on-line text]
191 W. Va. 8; 442 S.E.2d 437; 1994 W. Va. LEXIS 33

State v. Vernatter (W.Va. Sup.Ct.App., 1999) [on-line text]
207 W. Va. 11; 528 S.E.2d 207; 1999 W. Va. LEXIS 207

Alcoholic Blackout for Criminal Behavior
J Am Acad Psychiatry Law 2004 32: 364-370

Substance Abuse and Criminal Behavior:

Bipolar Disorder, Substance Abuse, and Criminal Behavior
J Am Acad Psychiatry Law 33:2:196-198 (2005)

Resource Readings:

The Diminished Capacity Defense
Institute of Justice, University of North Carolina-Chapel Hill

"Diminished Capacity" vs. "Not Guilty By Reason of Insanity"
Legal Information Institute, Cornell Law School

Diminished Capacity: Subterfuge or Just Defense?
Alan R. Felthous, American Academcy of Psychiatry and the Law Newsletter

Diminished Capacity Defense in Washington
Brett C. Trowbridge, The Trowbridge Foundation [The Trowbridge article discusses
cases in a Model Penal Code jurisdiction but the commentary suggests various
issues involving diminished capacity that might face the West Virginia Supreme
Court in the years ahead]

Dodging the Insanity Defense with Diminished Capacity

Resource Readings (Misc):

Is Diminished Responsibility Relevant?
Article by Brian Boettcher, Psychiatry On-Line
(associated with the The International Forum for Psychiatry)

Embezzler's Depression, Anxiety, and Impulse Control & Diminished Capacity
The Forensic Echo: Behavioral & Forensic Sciences in the Courts

Actions Taken While One is Asleep
The Forensic Echo: Behavioral & Forensic Sciences in the Courts

Competency and Capacity in Fetal Alcohol Spectrum Disorder (FASD) Cases
Teresa Kellerman, April 20, 2002

Bibliography [in progress]:

Peter Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Colum. L. Rev. 827 (1977)

Stephen Morse, Diminished Capacity: A Moral and Legal Conundrum, 2 Int'l J.L.& Psychiat. 271 (1979)

____________, Undiminished Confusion in Diminished Capacity, 75 J. Crim. L. & Criminology 1 (1984)

Joshua Dressler, Reaffirming The Moral Legitimacy of The Doctrine of Diminished Capacity: A Brief Reply to Professor Morse, 75 J. Crim. L. & Criminology 953 (1984)

E. Selene Steelman, A Question of Revenge: Munchausen Syndrome by Proxy and a Proposed Diminished Capacity Defense for Homicidal Mothers, 8 Cardozo Women's L.J. 261 (2002)

J. Thomas Sullivan, The Culpability, or Mens Rea, "Defense" in Arkansas, 53 Ark. L. Rev. 805 (2000)

Notes:

1. There is no reference in the West Virginia criminal code provisions to a "diminished capacity" defense. However, after several cases in which "diminished capacity" has been discussed, the West Virginia court finally got around to officially sanctioning the defense (oddly enough, in a "per curiam" opinion) in State v. Joseph, 214 W. Va. 525; 590 S.E.2d 718; 2003 W. Va. LEXIS 172 (W.Va. Sup.Ct.App., 2003) [on-line text]  

2. In a diminished capacity defense, the defense seeks to place into evidence (and have the jury instructed) that an essential mental element of the crime charged is missing because of the defendant's "diminished capacity" to form the requisite intent. By raising the defense the defendant challenges the prosecution's reliance upon a presumption that the defendant has the capacity to possess a particular state of mind required by the statute (or by common law) for the commission of the crime charged. Thus, in a murder case, the defendant may offer a "diminished capacity" defense to prove that he was incapable of deliberating, premeditating, or acting with malice, as is required for a first degree murder conviction.

3. Generally, a diminished capacity defense is based on psychiatric or psychological testimony that establishes a mental disorder or mental defect which has significantly impaired the defendant's ability to form the requisite criminal intent.

4. The Supreme Court of Appeals of West Virginia frequently uses the term "diminished capacity" in cases in which the defendant uses alcohol or drug intoxication to mitigate a murder charge.

5. Diminished capacity may or may not be viewed as an affirmative defense. If it is not so viewed, and the defendant produces sufficient evidence to raise the issue, then it is the burden of the prosecutor to prove beyond a reasonable doubt that the defendant did not suffer from diminished capacity. (E.g., in a New Jersey case, the defendant was convicted of capital murder and weapons related offenses in the deaths of his pregnant wife and minor child. The court held that the trial court erred in instructing the jury that he had the burden of proof on the issue of diminished capacity. State of New Jersey v. Moore, 122 N.J. 420; 585 A.2d 864 (1991).

6. Even in jurisdictions which specifically recognize the diminished capacity defense, it may not be available as a defense to general intent crimes in contrast to specific intent crimes. When the diminished capacity defense is successful, the defendant may be found guilty of a lesser included offense (that is, a lesser homicide) which requires only general intent. Diminished capacity is, then, in this sense, a partial defense, in contrast to the insanity defense which (generally) results in exculpation of the defendant. This approach is suggested, but not fully established, by language in State v. Joseph (Sup.Ct.App.W.Va., 2003).

7. The diminished capacity defense is generally traced to two mid-20th century cases in California: People v. Wells, 202 P.2d 53 (1949) and People v. Gorshen, 336 P2d 492 (1959). Basically, diminished capacity is used by defendants whose mental problems are not severe enough to serve as the basis for an insanity defense but may be sufficient to raise questions about their ability to form the requisite specific intent necessary to commit particular crimes.

One commentator has suggested that the diminished capacity defense evolved, not from the insanity defense, but the use of intoxication to negate specific intent:

By the early part of the last century in England, it was acknowledged that voluntary intoxication might negate mens rea , the mental elements of guilt need for conviction in addition to the actus reus or proscribed act . To prevent complete acquittal of offenders simply because they were drunk, the doctrine of specific intent came about. By that expedient, only specified elements of mens rea could be negated by intoxication; "general" intent, mental elements not so specified, would not be susceptible to this defense and would, if proven, ensure a conviction on some lesser offense included in the original charge. [Charles R. Clark, Clinical Limits of Expert Testimony on Diminished Capacity , 5 Int'l J.L & Psychiat. 155 (1982)]

8. Some jurisdictions do not recognize a diminished capacity defense. See also: Michigan the courts have held that evidence of mental incapacity less than insanity cannot avoid or reduce criminal responsibility by negating specific intent. Only mental illness constituting insanity can negate intent, and mental illness or mental retardation not rising to the level of insanity provides no defense to the crime. The defense has also been rejected in Maryland. [See, Survey of Maryland Court of Appeals Decisions: Johnson v. State--Diminished Capacity Rejected as a Criminal Defense , 42 Md. L. Rev. 522 (1983)]

There have been judicial rulings to the effect that a state is not constitutionally required to recognize the defense of diminished capacity, and decisions that hold that abolition of the defense does not violate due process. (But note the suggestion in State v. Joseph (W.Va., 2003) that due process requires the recognition of "diminished capacity.")

9. The role of psychiatrists and psychologists in providing testimony in diminished capacity cases has been subjected to various criticisms and critiques:

9.1 One commentator contends

that the mens rea concept in law is based on assumptions predating the development of behavioral science and is fundamentally incompatible with contemporary mental health formulations. Though an expert witness may testify that a defendant was unable to form intent, no such inability is demonstrated; such testimony is nothing more than a ritualistic mouthing of magic words which grants the factfinder permission to mitigate guilt. In [this view], diminished capacity becomes an excuse to give the factfinder a full psychological explanation of the offense. Rather than showing that a requisite mental state was absent, the expert shows that both the defendant's mental state and his behavior are functions of psychological influences. [Charles R. Clark, Clinical Limits of Expert Testimony on Diminished Capacity , 5 Int'l J.L & Psychiat. 155, 160-61 (1982) (summarizing Dix, Psychological Abnormality as a Factor in Grading Criminal Liability: Diminished Capacity, Diminished Responsibility, and the Like , __ J. Crim. L., Crim. & Police Sci. 313 (1971))] [Clark is a forensic psychologist]

9.2 Another commentator argues "as California moved away from a strict mens rea approach to one that was broader, testimony began to be admitted that did not bear on the absence of intent as such, but rather on an explanation for the intent that was formed." [Clark, at 161, referring to Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage , 77 Col. L. Rev. 827 (1977)]

9.3 Clark notes that "[w]here the issue addressed is the nuanced quality of intent, and not just the presence or absence of some simpler form of intent, the forensic examiner appears to be out of his depth in trying to arrive at a conclusory opinion on whether the required capacity for intent was or was not present." [Id.]

Clark goes on to note that:

The argument of the defense may not be that the defendant was incapable of armed robbery, but that the intent formed was not voluntary because of some psychological abnormality affecting the defendant. Surely, courts or juries may wish to conclude that a defendant was incapable of forming an intent freely or volitionally, and that whatever mental operation he was engaged in could not therefore have been legal intent. It is hard to see how the expert witness could reach such a conclusion on clinical grounds, however. [Id.]

9.4 Clark concludes that: "In general, expert opinion that proceeds from a description of the quality of intent to a statement of whether intent met legal requirements is too heavily freighted with nonclinical assumptions about the nature of intent. " [Id. at 162]

It may be concluded, with respect to mens rea and specific intent, that the expert witness should generally have nothing to say about capacity for intent and little to say about the fact of intent. It is not our place as clinicians to advise the law as to the basis on which to make determinations of criminal responsibility or guilt. We must be willing, however, to define our own professional capacity to address questions raised by the law. Responsible exercise of forensic skill, must, above all, involve deferring opinion when opinion cannot be clinically supported. To fatuously answer pseudopsychological questions simply because we are asked to defeats the legitimate aims of both law and the behavioral sciences. Wittgenstein's dictum would serve us well: "What we cannot speak about we must pass over in silence." [Id. at 170]