§ 26.01 "Diminished Capacity": A Term of Confusion

§ 26.01 "Diminished Capacity": A Term of Confusion¹

The term "diminished capacity" is used and misused by courts and commentators to describe two different concepts, neither one of which is adequately characterized by the term. Although the problem is less severe than in the past,² one scholar has aptly depicted the state of affairs in this field as "undiminished confusion in diminished capacity."³ Because of the confusion pervading this area of the law, any generalization about it is just that—a generalization subject to exceptions and inconsistencies.

With this caveat in mind, it may be said that "diminished capacity" is a term used to describe two categories of circumstances in which an actor's abnormal mental condition, short of insanity, will occasionally exonerate him or, far more often,⁴ result in his conviction of a less serious crime or degree of crime than the original charge.

First, there is a mens rea form of diminished capacity. As explained below, the mens rea model of diminished capacity functions as a failure-of-proof defense. That is, evidence of mental abnormality is not offered by the defendant in order to partially or fully excuse his conduct, but rather as evidence to negate an element of the crime charged,⁵ almost always the mens rea element.⁶

The second form of diminished capacity, which partially excuses or mitigates a defendant's guilt even if he has the requisite mens rea for the crime, will be called here "partial responsibility." This version of the defense is now recognized in only a few states, and only for the crime of murder, to mitigate the homicide to manslaughter.

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Notes:

^[1] See generally Peter Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Colum. L. Rev. 827 (1977); 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); Arlie Loughnan, Mental Incapacity Doctrines in Criminal Law, 15 New Crim. L. Rev. 1 (2012); Stephen J. Morse, Diminished Capacity, in Action and Value in Criminal Law 239 (Stephen Shute et al. eds., 1993); Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J. Crim. L. & Criminology 1 (1984).

^[2] Morse, Diminished Capacity, Note 1, supra, at 240 n.8.

^[3] Morse, Undiminished Confusion, Note 1, supra.

^[4] State v. Joseph, 590 S.E.2d 718, 723 (W. Va. 2003).

^[5] State v. Breakiron, 532 A.2d 199, 208 (N.J. 1987)...