Newletter Masthead
January 2000 · Vol. 25, No. 1, pp. 10-11

Diminished capacity:

Subterfuge or just defense?

Alan R. Felthous MD

Diminished capacity: subterfuge or a reasonable approach to mental disorder and criminal culpability? This was the theme of the AAPL workshop, "Diminished Capacity and the Psychology of Intent." The logic of diminished-capacity-like defenses is that mental capacity to commit a crime, like mental illness, is not an all or none, black and white phenomenon in every case. Alan R. Felthous MD, moderator, emphasized the difficulty for fact finders in making accurate determinations as to whether, for example, a defendant was, because of mental disorder, unable to resist or control the impulse to commit a criminal act or simply unwilling to. This workshop examined the psychology of intent and self-control, legal concepts such as diminished capacity and related defenses, the California experience in particular, and pertinent recommendations for the psychiatrist who consults on cases wherein diminished capacity may be an appropriate consideration.

Discussing the current scientific thinking regarding the psychology of intent and self-control, Ernest Barratt PhD emphasized the remarkable surge in recent research on the psychology of intent and the nature of the "will". Presenting a rather unflattering view of mankind, Dr. Barratt cited recent work that found the intention to perform specific acts is explainable by physical causes and reasons. The amount of information about which an individual is aware is quite small compared to the tremendous amount of information that one is bombarded with every second. In this sense, "much of our behavior is much more unconsciously controlled than we realize."

In studying intent and control one must consider variables that directly relate to intent, and consider biological, psychological, and sociological models, and criterion measures. The belief that even in normal actions we have full awareness and control of why we are acting may be an illusion, given the power and number of potential unconscious determinants.

Recent research has shown that not all aggression is the same; specifically, impulsive aggression responds to anticonvulsant medication, whereas premeditated aggression does not. A third type of aggression is medically related (e.g., the aggressiveness shown by a post closed head injury patient who remains aggressive a few days after the event while the brain is still edematous). A significant difference between impulsive offenders and non-impulsive individuals is that the former tend to be much more deficient in their verbal skills. Dr. Barratt identified several dimensions of impulsive aggression that can be measured in distinguishing impulsive aggression from premeditated aggression; however, he stressed this is an area that demands further research.

The discussion clarified that most aggressive acts are actually neither purely impulsive nor premeditated but fall in between. It is nonetheless useful to distinguish those who fall into the 20 to 22 percent of more or less purely premeditated aggression wherein the psychopharmacological approach is unlikely to be effective.

Mens rea and intent

Ralph Slovenko JD PhD addressed the legal concept of mens rea and the legal rationale for excluding various mens rea defenses. He explained that while at trial mental "elements" (mens rea) as well as a voluntary criminal act (actus reus) must be proven, the criminal sentencing involves "factors" which go far beyond the elements of the crime. With sentencing guidelines, many matters that used to be considered as relevant to factors in the sentencing phase are being introduced into the trial phase.

In the United States, to oppose evidence on one of the mental elements of the crime, the defendant has to specially enter a plea of NGRI, which in turn gives notice to the prosecutor that psychiatric evidence will be forthcoming. Most states do not allow a mental defense without the parameters associated with an NGRI defense. The majority of states do not have the concept of the defense of diminished capacity. In 1942 the U.S. Supreme Court stated in Fisher v. United States that a stateís limit on how psychiatric testimony is to be presented does not violate the Constitution.

Under the doctrine of "lesser included verdict," jury or judge can always return a verdict that is included within the charged crime. This might be viewed as a variation in diminished capacity, but the question remains as to what type of evidence will be allowed. "Intoxication," Professor Slovenko noted, "is not mental illness," so information about intoxication can be introduced in order to negate a mental element, likewise for automatism or behavior in an unconscious state.

In a general intent crime, the defendant cannot offer psychiatric testimony "because there is no specific intent to be negated". In a recent case, U.S. v. Gonyea, bank robbery was considered a general intent crime "because the statute says so." In a general intent crime there is no need to prove specific intent, so "psychiatric testimony is irrelevant."

The California experience

Dr. Bernard Diamond for a time persuaded courts in California to allow psychiatric testimony to negate mental elements of a crime without having to plead insanity. Under the insanity plea, the type of psychiatric testimony is "channeled." In a well known California case, People v. Podar, the defense wanted to enter testimony of an anthropologist to explain Podarís killing as a function of his having come from a different culture.

Robert Weinstock, M.D., who favors the diminished capacity defense, asserted that the former diminished capacity defense in California made much more sense than the current diminished actuality approach. Not allowing evidence on diminished capacity represents a bias against the mentally ill, because if mental illness is relevant to an element of the crime, why then should evidence regarding mental illness not be allowed? The insanity defense is not an adequate substitute because it has different criteria and is "all or none." A successful diminished capacity defense negating an element of the crime can lead to a verdict of a lesser-included crime with correspondingly reduced punishment. "Treatment is still a possibility" with a diminished capacity verdict. There were valid criticisms of diminished capacity but these could have been rectified by changes in the law "without dismantling the whole thing."

Dr. Weinstock agreed that the difference between specific intent crimes and general intent crimes is sometimes difficult to understand. To go back to Old English law as the source of common sense, however, is illogical because some antiquated principles and definitions are "totally counter-intuitive." For example, "having malice without malice."

Most states with this type of defense probably have something closer to diminished actuality than Californiaís earlier diminished capacity. Diminished capacity meant a lessening of the mental capacity required to commit the crime "and the psychiatrist could testify as to the ultimate issue." The psychiatrist could explain to the jury why the defendant acted in violation of the law and how mental illness or intoxication lessened the personís intent.

Californiaís present diminished actuality concerns whether the accused actually formed the required intent. Among the many changes, a very important one is that "the psychiatrist can no longer testify as to the ultimate issue." The psychiatrist can address the ultimate issue in the forensic report and can provide relevant testimony, leaving to the attorney to "tie it all together."

Changes limiting this approach were brought about at a time during a backlash against unpopular diminished capacity decisions. The most specific case that led to the popular rejection of diminished capacity was the Dan White trial. Dan White, who had been a city supervisor in San Francisco, was released from his job and then not returned to his position by the mayor. He entered the city hall, accosted the mayor, asked to be reinstated in his job, and when this demand was not immediately granted he shot and killed the mayor. He also shot and killed Harvey Milk, a supervisor who he blamed for having influenced the mayor in his decision not to rehire Dan White.

In his trial, Dan White asserted the diminished capacity defense and the prosecution offered no rebuttal of psychiatric testimony. One witness had testified that Dan White was distraught, as manifested by his preoccupation with eating Hostess Twinkies and this was distorted in the media so as to suggest that the Twinkies made him do it. In this way diminished capacity was ridiculed as the "Twinkies Defense". In reaction to this successful diminished capacity defense, the law was changed both by voter initiative and by the legislature, which resulted in a dismantling of diminished capacity. What was left was diminished actuality.

"California had and has a bifurcated trial," Dr. Weinstock explained, therefore insanity and mens rea are not considered in the same phase of the proceedings. Mens rea issues are relevant in the guilt phase of the trial. Although according to the Supreme Court, states can limit psychiatric testimony during the adjudication of guilt, this seems "arbitrary and prejudicial" against mental illness. The mens rea defense is very difficult to obtain with the Old English common law concepts. This was the biggest change in diminished actuality.

In California, diminished capacity had a long history of intoxication serving to reduce the defendantís criminal capacity. The Wells case introduced the possibility of mental illness causing diminished criminal capacity.

Advice for experts

In terms of practical advice, in California and in other states with analogous mens rea defenses, it is important to think of this as an issue. Depending upon his or her level of sophistication, the attorney may be unaware of the issue. In some cases the question is what plea the defendant wishes to make. It probably is not a good defense tactic for the defendant to argue, "I didnít do it, but if I did do it, I didnít have the required specific intent, but if I did have the required specific intent, I must have been insane." Thus, some attention should be given to what makes sense in the particular case.

Secondly, the psychiatrist should become familiar with the law, as this is a potentially complicated matter, particularly with regard to whether the offense is a specific intent crime. Then the psychiatrist must consider what evidence is particularly relevant to specific intent. In any event the psychiatrist should consider the possibility of a diminished capacity or mens rea type defense which, according to Dr. Weinstock, may in a given case make much more sense than earlier English common law definitions or even specific somewhat arbitrary insanity defenses.