II. Glossary

 A. Defense

The "defense" label has more than one meaning. This has caused confusion. One important meaning of "defense" involves the fact that elements of offenses may not be precise enough to exclude all who ought to be freed from criminal liability. Examples of this include infancy, duress and self defense. The traditional insanity defense is also included in this group (and will be discussed in more detail in the next item in this Glossary). Such defenses are used as excuses or justifications for otherwise criminal conduct.

In the context of this study there is another important meaning for the word "defense." It is used as a separate concept involving the presentation of mental disability evidence which may not meet the requirements of the traditional insanity defense. Such evidence is used in order to rebut the existence of one or more elements of the offense. It is used to prove that the defendant did not have the mental capacity for the state of mind which is an element of the offense. Thus, there can be a finding of a lower degree of the crime (or in some cases it can result in acquittal if all degrees are negated).⁹ The major focus of this article is on this second meaning of the word "defense." It involves variations of the "mens rea model" which will be discussed in detail in this study.

Item B of this Glossary discusses variations of the traditional insanity defense. After the finding of not guilty by reason of insanity of John Hinckley (involving his attempted assassination of President Reagan) there was a great deal of publicity regarding action to tighten or abolish the traditional insanity defense. The emphasis in this article is on the fact that not enough attention was given to mental disability evidence being admitted as evidence under the second meaning of "defense" as discussed in the immediately preceding paragraph.¹⁰

B. Traditional Insanity Defense

The traditional insanity defense provides a legal framework for evaluating mental disability evidence. This is a major function of such a defense in addition to protecting defendants with serious mental disabilities from conviction. It helps control mental disability testimony and evidence so that it does not move too far into the prerogatives of the law in decisions involving legal, social and moral judgments It does this by requiring a serious mental disease or defect, functional criteria and commitment if the person is found not guilty by reason of insanity. (There is a continuing debate regarding how serious the mental disability should be in order to cause insanity under the various legal tests.) The commitment phase is an attempt to protect the public if the person is dangerous. Also, jurisdictions can make the traditional insanity defense an affirmative defense, and place the burden of persuasion on the defendant for proving insanity.¹¹

Examples of traditional insanity defenses include variations of the following:

(1) M’Naghten says that there is no criminal responsibility if at the time of the offense the defendant was "laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."

(2) Irresistible Impulse says "that to acquit by reason of insanity the defendant must have had a mental disease or defect which kept him or her from controlling the conduct involved in the crime." (This is in spite of the fact that the defendant may have known the difference between right and wrong under M’Naghten.)

(3) American Law Institute states that "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law."¹²

C. Mens Rea

Mens rea refers to the guilty mind, wrongful purpose or criminal intent for the particular crime charged. In this study it is used in that "special sense" rather than in the broader "general sense" which some commentators say is contemplated regarding the traditional insanity defense¹³

D. Mens Rea Model

In a 1977 Columbia Law Review article law professor Peter Arenella (now with University Of California at Los Angeles Law School) used what he called the "mens rea model" in describing the issues we are considering here. He divided that model into two subdivisions: (a) strict mens rea and (b) diminished capacity mens rea; and distinguished them from "diminished responsibility" which is a different concept.¹⁴ In my writings I have adopted Professor Arenella’s analysis since, in my judgment, it offers the best way to explain the convoluted issues involved. His analysis will be used throughout this article. Strict mens rea, diminished capacity mens rea and diminished responsibility will be explained in Glossary items E, F and G, respectively.

E. Strict Mens Rea

Under my interpretation of Professor Arenella’s 1977 article (and for purposes of this study) strict mens rea is as follows: It contemplates admitting only severe mental disability into evidence which shows that the defendant fully lacked the mental capacity to have the requisite mens rea for the offense charged. This has the effect of demonstrating that the defendant did not have the mens rea. However, in order to be consistent with the purported expertise of mental health and medical expert witnesses it is better to consider (and discuss) their testimony in terms of capacity for the particular mens rea. (Under the rules of evidence they cannot be experts on the facts of mens rea.)¹⁵ This distinction will be further developed in item H of this Glossary which is entitled "Facts Of Mens Rea Versus Mental Capacity For Mens Rea."

F. Diminished Capacity Mens Rea

According to Professor Arenella’s analysis, diminished capacity mens rea allows evidence of almost unlimited mental disorder, since any showing that the defendant was less mentally capable than a normal person of having the requisite mental state for the offense is admissible.¹⁶ This concept is called "diminished capacity" in various cases, statutes, standards, policy statements and some of the literature. (In fact, since that is the most commonly recognized name, it is used in the title of this article.) It is sometimes given various other names, including "partial responsibility." ¹⁷ Also, at times there is confusion between diminished capacity and diminished responsibility (which will be discussed in item G of this Glossary). In any event, in order to avoid confusion, rather than "diminished capacity," throughout this study "diminished capacity mens rea" will be used. As developed in later discussions, there tends to be erosion from strict to diminished capacity mens rea . Thus, the use of Professor Arenella’s labels makes it easier to discuss that problem.

G. Diminished Responsibility

Diminished responsibility refers to use of mental disability evidence to reduce the degree of crime. There is no attempt to specifically correlate the disability to the mens rea elements under evidentiary rules. It contemplates that the person is less culpable than an ordinary defendant. It considers the mental disability as a mitigating factor, having the effect of reducing the degree of the crime for the purpose of reducing the punishment.

An important point is that diminished responsibility is not an evidentiary concept such as the mens rea model and its subdivisions - strict mens rea and diminished capacity mens rea (as described in Glossary Items D, E and F above). Instead, it is a lesser form of a traditional insanity defense (described in Glossary item B above). Although it does not establish complete lack of responsibility (which can be done under the traditional insanity defense), diminished responsibility can be used to show that the defendant is only partly responsible and should be punished less severely. It is even more defense oriented than diminished capacity mens rea (Glossary Item F above). This is because, under the diminished responsibility approach, there is no requirement to show a specific evidentiary relationship to the exact mens rea element of the offense.

The diminished responsibility concept has not been officially adopted in federal or state jurisdictions in the United States (although it has been adopted in other countries). Nevertheless, there has been erosion towards it in California, and efforts in recent years to stop such erosion (as discussed in Section V of this study). Also, there is confusion in other jurisdictions regarding the difference between diminished responsibility and diminished capacity mens rea. Adding to the labels confusion is the fact that diminished responsibility is sometimes called "partial responsibility" or "partial insanity." Even the label "diminished capacity" is sometimes used for the diminished responsibility concept.

Similar to the traditional insanity defense, if in fact diminished responsibility is adopted it could arguably be considered an affirmative defense. Thus, the burden of persuasion could be placed on the defendant. This should be distinguished from the mens rea model (and its subdivisions) which is an evidentiary concept, that cannot be made an affirmative defense. Diminished responsibility and the various labels for it are mentioned in this Glossary merely to have readers distinguish it from the mens rea model and its subdivisions (strict mens rea and diminished capacity mens rea) as described in Glossary items D, E and F, which are the main focus of this study.¹⁸

H. Facts Of Mens Rea Versus Mental Capacity For Mens Rea

As will be developed more in detail in Section V of this study, a California statute says that evidence of mental disability shall not be admitted with reference to mental capacity for mens rea. Instead, the statute says that it shall be admitted only to show whether or not the defendant "actually formed" the mens rea for the offense. An argument against this is that mental health and medical professionals are not competent under the legal rules of evidence to render opinions on the facts of mens rea since this may involve intrusion by the expert witness into the province of the jury.

Precluding expert opinions on ultimate issues (as suggested by some commentators) does not fully resolve the problem. The reason for this is that, even if opinions on ultimate issues are precluded, the facts of mens rea (actually formed) approach may cause the expert witness to move into nonclinical factual matters that are before the jury (including weighing the credibility of factual witnesses). It is true that by answering hypothetical questions, which assume certain facts, in that sense expert witnesses may properly render opinions involving facts. However, the judge will instruct the members of the jury that they are judges of the facts. Thus, they will have to be convinced that the facts in the hypothetical question are correct. Nevertheless, as will be further developed in Section V of this study, the California statute muddies the water.¹⁹

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Notes

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⁹ AMERICAN BAR ASSOCIATION supra note 1 at 7-314; ROBINSON 1984 supra note 1 at 273, and MOSKOVITZ-GRALL Supp. 1998 at 37.

¹⁰ Huckabee 1993, supra note 1 at 441.

¹¹ Id. at 442-44

¹² Id. at 442-43.

¹³ Id. at 445; BLACK’S LAW DICTIONARY 985 (Sixth Edition 1990); see also HARLOW M. HUCKABEE, LAWYERS, PSYCHIATRISTS AND CRIMINAL LAW: COOPERATION OR CHAOS 30-31 (1980) [hereinafter HUCKABEE 1980].

¹⁴ Peter Arenella, The Diminished Capacity And Diminished Responsibility Defenses: Two Children Of A Doomed Marriage, 77 Columbia Law Review 827-31 (1977) [hereinafter Arenella 1977].

¹⁵ Huckabee 1993, supra note 1 at 445-47.

¹⁶ Arenella 1977, supra note 14 at 830-31; Huckabee 1993, supra note 1 at 446; Huckabee 1987, supra note 1 at 1-2. Compare supra notes 3-4 and accompanying text.

¹⁷ Huckabee 1993, supra note 1 at 447.

¹⁸ Id. at 447-49.

¹⁹ Id. at 446-47, 453, 481.