1. Tanisha Hill-Jarrett Forensic Neuropsychology July 21, 2014 Diminished Capacity Standards

2. Elements of a Legal Crime A conclusion of criminal responsibility (guilt) for a criminal offense requires proof, beyond reasonable doubt of two elements: (1) Actus reus - the physical conduct associated with the crime (2) Mens rea - “guilty mind” the mental state, or level of intent, associated with the crime Dates back to 17 th century: “actus non facit reum nisi mens sit rea” Translation: “An act does not make a person guilty of a crime unless that person’s mind be also guilty” Prosecution’s responsibility to prove both elements

3. Diminished Capacity Diminished capacity: doctrine recognizes that although, at the time the offense was committed, accused was not suffering from a mental disease or defect sufficient to exonerate him or her from all criminal responsibility, the accused's mental capacity may have been diminished so that he or she did not possess the specific mental state or intent essential to the particular offense charged. Diminished capacity is a mens rea (“guilty mind”) defense Culpability is the issue at hand The accused often considered less culpable because of lesser intent Distinction between insanity and diminished capacity defense Insanity seeks to exculpate due to accused inability to appreciate nature and quality of crime Also not to be confused with “diminished responsibility” Mental “disorder” that does not produce insanity or inability to form mens rea

4. Gradation of Diminished Capacity Definition ranges from conservative to radical based on evidence that is considered admissible: (1) The presence of a mental disease or defect is admissible insofar as it impairs an individual’s capacity to form the requisite specific intent to commit the crime (2) Taking into account a vast number of personal characteristics of the individual – anything that bears on the capacity to control one’s actions (3) Considering the person’s entire life history as well as potential predisposing factors

5. Levels of Mens Rea Common Law terms General intent crime: require proof that perpetrator was/should have been conscious of physical actions and their consequences (e.g., manslaughter, battery, rape) Specific intent crime: prosecutor must prove that the defendant knowingly or purposefully committed act (e.g., “premeditated” murder, “aggravated” assault, assault “with intent to rape) Attempts to simplify the mens rea by specifying four different mental state “levels” (1) Purpose – awareness and intentionality (2) Knowledge – awareness of criminal nature, but unintended (3) Recklessness – disregard of risk (4) Negligence – unaware of risk

6. Operational Definition of Intentionality Malle & Nelson, 2003 What are the conditions for an action to be intentional? Problems with inference of a “mental state” Conceptual Inferential Philosophical models describe an action as intentional if it caused by the agent’s intention, which is itself based on the agent’s beliefs and desires Authors sought to develop an operational definition that is representative of layperson’s beliefs

7. Operational Definition of Intentionality Mental state Action (Intention independent of intentionality )

8. Awareness: The Issue of Automatism Semantic Ambiguity Legal: unconscious behavior (negating possibility of mens rea) Clinical: initially used in epilepsy literature to refer to set of repetitive, involuntary, and unconscious behavior during ictal or post ictal state (actus reus + mens rea) Can potentially encompass variety of situations: sleepwalking, during seizure, while unaware secondary to head injury, dissociative episodes Courts generally limit this defense when defendant should have taken precautionary/preventative action Burden is on defendant to establish the defense http://youtu.be/1O-JXXSTNkU (Dan White + “Twinkie Defense”) http://youtu.be/1O-JXXSTNkU Presumed unconsciousness – state of mind unknown Methodological obstacles of testing awareness

9. Automatism Defense

10. The Science of Conscious vs. Unconscious Action Is there a scientific ability to distinguish conscious from unconscious acts? At the crux of debate is human self control – are we slaves to our emotions vs. free will To what extent are aggressive acts premeditated (suggesting that they are intentional) and to what extent are they committed impulsively or reactively? Barratt & Felthous, 2003 suggest Impulsive or reactive Premeditated or proactive Aggression secondary to medical (including psychiatric) disorders

11. Voluntary Intoxication Most common basis for diminished capacity is intoxication NIDA: One-half of all violent episodes in country mediated in part by acute intoxication Montant v. Egelhoff (1996) Cannot introduce voluntary intoxication as evidence (always admissible, however, in capital sentencing) Voluntary intoxication was traditionally rejected as a basis for a criminal defense and, in fact, was often viewed as an aggravating factor for purposes of sentencing An exception to this rule is “pathological intoxication”

12. Voluntary Intoxication Defense 4 approaches to use evidence of voluntary intoxication to negate mens rea 23% (n=12) Bar the use of such evidence in all criminal cases to negate any element of the offense 38% (n=20) Have statutory language which permits evidence of voluntary intoxication, where relevant, to negate “an element of the offense” (i.e., applying mens rea component to general intent) 40% (n=21) permit evidence of voluntary intoxication to negate specific intent 6% (n=3) admit evidence of voluntary intoxication only in first degree murder cases