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V. CaliforniaCalifornia has a long history involving the concepts we have been discussing. Over the years this has included different versions of traditional insanity defenses (Glossary Item II B); plus concepts outside the traditional insanity defense framework involving variations of the mens rea model, including strict and diminished capacity mens rea (Glossary Items II D, II E and II F); movement towards diminished responsibility without specifically adopting it (Glossary Item II G); and statutes which are supposed to reduce admissibility of such concepts outside the insanity defense framework and focus only on whether or not the defendant "actually formed" the mens rea for the offense (Glossary Item II H). In spite of attempts to reduce admissibility of mental disability testimony and evidence on mens rea, there has continued to be erosion towards defense oriented concepts. 38
It is of particular interest that, with statutes, California has adopted an "actually formed" mens rea approach. The apparent purpose of this was to eliminate the diminished capacity concept and thus reduce admissibility of mental disability on mens rea outside the insanity defense framework. Although there are those who say that the statutes have been effective in reducing admissibility of such evidence to some extent, they have not adequately accomplished the "law and order" purpose for which they were purported to have been enacted.39
In a summary article of this type, it is not feasible to fully cover the developments over the years on this subject in California. Thus, the comments which follow will present only part of the picture, with emphasis on certain statutes. For purposes of this discussion Sections 25, 28 and 29 of the California Penal Code are of particular interest.40 Section 25(a) states that it abolishes the defense of diminished capacity. Section 25(b), in effect, enacts a version of the M’Naghten insanity defense (described in Glossary item II B in this article). Section 28(a) states: "Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." Section 28(b) states that "there shall be no defense of diminished capacity, diminished responsibility or irresistible impulse...." Section 29 states that experts testifying about the defendant’s mental condition "shall not testify as to whether the defendant had or did not have the required mental states..." and says that issue "shall be decided by the trier of fact."
As noted in various articles cited in note 39 herein, precluding evidence of diminished capacity and focusing on the "actually formed" approach has not eliminated the admissibility of mental disability evidence (including expert witness testimony) directly on mens rea in California. Also a problem is that the "actually formed" language, plus not being able to render opinions or testify about the mental capacity of the defendant, has placed mental health expert witnesses in an untenable position. They have expertise on the effect of mental disability on capacity for mens rea. However, under the California statutes they are not supposed to render opinions or testify in terms of mental capacity. Instead, they are asked to focus on the "actually formed" mens rea concept which, under usual rules of evidence, should not be permissible. This is because under traditional evidence rules they are not supposed to render opinions on the facts of mens rea (involved in the actually formed concept). Also, the fact that Section 29 of the California Penal Code precludes their opinions on the ultimate issue of "whether the defendant had or did not have the required mental state" does not completely solve the problem. This is because, under Section 28(a), evidence of mental disability (including expert testimony) is still admissible on "whether or not the accused actually formed" the requisite mens rea. The problem with this is that the testimony of expert witnesses, in effect, moves towards the province of the jury. The experts have to evaluate the evidence and testify concerning the seriousness of the mental disability as it relates to the facts (i.e. under the "actually formed" concept in Section 28) and yet not talk about mental capacity, which is their area of expertise. In addition to the fact that the statutes move expert witnesses towards an area concerning which the rules of evidence say they are not qualified, juries are placed in the position of not having the benefit of opinions of expert witnesses in the area of mental capacity where the mental health experts are arguably qualified.41 Understandably all of this is the reason there is confusion in California regarding these statutes.
From published reports, the legislature was trying to take a law and order position in developing the statutes discussed above. In this connection the writings of law professor Stephen J. Morse are of interest. His positions are significant because he participated as a witness at hearings prior to the legislation. Also, one of his articles and a draft of another are exhibits to those hearings. In addition, there are references in the literature to his influence in the development of the legislation.42
Over the years the writings of Professor Morse can be interpreted to mean that he has a conservative, law and order, approach to these issues. This is illustrated in the 1996 article by Doctors Weinstock, Leong and Silva who discuss the California legislation. For example, in that article they say: "Morse, who consulted with the legislators, recommended the abolition of diminished capacity but retention of a strict mens rea defense." They say that his views "had a strong influence on the subsequent legislation." Included in their comments is the statement that he favors "the all-or-none insanity defense, holding most defendants fully responsible if at the time of the offense they knew what they were doing and had any voluntary control whatsoever." They further say that he advocates "severely limiting mental health defenses to situations in which such control was totally absent because of cognitive disability."43
Weinstock, Leong and Silva express their preference for the earlier diminished capacity approach (rather than the actually formed concept in the statutes). They say that in California "[d]iminished capacity was an important and worthwhile alternative to an arbitrary all-or-none insanity defense." They further say that, in any jurisdiction authorizing mens rea defenses, forensic psychiatrists should become familiar with the variations in these issues in connection with rendering their opinions. They state that it is essential "to appreciate the California experience in order to place current law, the various mens rea defenses and the relevant literature into their proper context."44 I am in full agreement that a better understanding of the issues by mental health professionals is important. My purpose in making this summary-type article available as a web site is to help accomplish that goal. This is in addition to any assistance this study might be to the legal community.
Even though in some of his articles Professor Morse gives the impression of being in favor of a conservative approach, at various points in his writings he refers to the defense oriented ALI Model Penal Code Section 4.02(1) in a manner which could convey a more liberal position. In view of the consideration by legislators of the views of Professor Morse during the development of the legislation, this may give defense attorneys and treatment oriented mental health professionals an opening to interpret the California "actually formed" statutes in a more defense oriented manner than intended by many members of the legislature.
For example, at a December 1979 hearing in connection with the proposed changes in the California statutes, a draft of an article by Professor Morse, entitled Diminished Capacity: A Moral And Legal Conundrum was included as Appendix I I (page 364 of that hearing).45 At page 368 of the hearing he included the following in that draft: "Thus, evidence of mental disorder or any other factor material to the existence of an element is highly probative and should be properly admissible." In support of this, in footnote 20 in the draft he cites Section 4.02(1) of the Model Penal Code. As earlier discussed in Section III herein, A.L.I. Section 4.02(1) has a defense oriented history, and is consistent with the more recently adopted ABA Section 7-6.2 diminished capacity mens rea-type concept.46 In the publication of that draft as an article in the International Journal Of Law And Psychiatry Professor Morse includes the same statement, and the same reference to A.L.I Section 4.02(1).47
Consistent with this emphasis on A.L.I. Section 4.02(1), in a 1984 article (after enactment of the California statutes under consideration here) Professor Morse states: "Many courts and legislatures have been convinced of the fundamental fairness and consequent necessity of allowing defendants to attempt to cast doubt on the prosecution’s case using evidence of mental abnormality...." In support of that statement he cites A.L.I. Section 4.02(1) as an early proponent of this view. In that article he further states that he believes "that most, if not all, limitations on the mens rea variant are unconstitutional."48 (Compare the previous discussion, in Section IV herein, of how to handle this problem and avoid constitutional issues.49) Also, in a chapter written by Professor Morse in a 1993 book he states that the mens rea variant "is simply using evidence of mental abnormality, like any other evidence, to cast doubt on the prosecution’s prima-facie case." Again, he cites A.L.I. Section 4.02 (1) in support of that statement.50
On the other hand, it is of particular interest that in a 1982 article describing the California statutes referred to above,51 Professor Morse, and his co-author, Edward (Ned) Cohen, use the label "mens rea variant." They take the position that the California legislation, including Penal Code Section 28, adopted the "mens rea variant" but did not adopt what they labeled the "partial-responsibility" variant.52 (It appears clear that their label "mens rea variant" is, in effect, the "mens rea model" and that their label "partial responsibility variant" is, in effect, "diminished responsibility" as previously described herein with reference to the labels used by Professor Arenella.53) In any event, a major point for consideration here is that, in various publications, Professor Morse has used the defense oriented A.L.I. Section 4.02(1) as an example of his "mens rea variant"54 These references to A.L.I. Section 4.02(1) in the other writings of Professor Morse seem to be inconsistent with the 1982 Morse and Cohen article. That article describes the mens rea variant, which they say was adopted in California, in language indicating it could be considered a very tight law and order type concept. For example, they say that "in order to assert the mens rea variant successfully a defendant must show that because of his mental disability he completely lacked the culpable state of mind...."55 Later in their article they emphasize this again by saying that Penal Code Section 28(a) provides that "mental defect and mental disorder can be admitted ‘on the issue as to whether the criminal defendant actually formed’ the mental state required for the offense charged;"and further they state that coupled with Penal Code Section 28(b) "this means that evidence of mental disability only is admissible when it shows a complete lack of the culpable state of mind."56 This raises an obvious question. How does this very tight, law and order, interpretation of the California legislation by Morse and Cohen square with the fact that in other writings of Professor Morse he refers to the defense oriented A.L.I. Section 4.02(1) in describing his mens rea variant (which he says is the concept adopted in the California statutes)?
In addition to the fact that professor Morse refers to A.L.I. Section 4.02(1) in his writings regarding the mens rea variant (and in spite of what his interpretation of the California legislation might be) it appears that defense attorneys must have noticed the similarity between defense oriented A.L.I. Section 4.02(1) and California Penal Code Section 28(a). A.L.I. Section 4.02(1) says that "Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the offense."57 Penal Code Section 28(a) precludes evidence of mental capacity but says that "Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed..." the mens rea.58 Note also that A.L.I. Section 4.02(1) does not refer to mental capacity, thus lining it up even more closely with Penal Code Section 28(a).
It is of interest that the "actually formed" approach was apparently injected at a late point in the process of developing the legislation. This is indicated in the study by Stanford law professor Miguel Mendez.59 Also, in People v. Saille the Supreme Court of California discusses the statutes we are considering and confirms that amendments were continuously made. The Court stated: " The original version of Senate Bill No. 54 was far more sweeping in effect. It would have repealed the plea of not guilty by reason of insanity, abolished diminished capacity, and made mental illness and voluntary intoxication matters to be considered only in mitigation of punishment. The scope of the bill was narrowed as it went through the legislature. The last amendments made by the Assembly on August 11, 1981 resulted in the language we must interpret in Sections 22, 28, and 29. (Sen. Bill No. 54 as amended Aug. 11, 1981.)"60
In order to put into perspective what may have happened late in the process of developing and adopting the California statutes discussed above, it is of interest to consider comments in my 1993 Western State University law review article, as follows:
"In dividing the mens rea model into strict mens rea and diminished capacity mens rea, Professor Arenella’s article could be interpreted to mean that strict mens rea contemplates admitting only mental disability testimony and evidence regarding severe mental disability showing that the defendant fully lacked the mental capacity to have the requisite mens rea for the offense charged.... At other points his article...does not emphasize mental capacity but refers to evidence of mental disability directly on whether the defendant had the requisite mens rea. As discussed later, the mental capacity focus appears preferable because it is consistent with the expertise of mental health professionals."61 See also the discussions herein in Glossary Items II E and II H. It appears that in the late stages of the legislative process the California "actually formed" legislation, as discussed above, was inserted as the second approach mentioned in the above quotation (i.e. "evidence of mental disability directly on whether the defendant had the mens rea").
In summary, having in mind the foregoing discussion (plus Glossary items II E and II H) it is understandable why the statutes under consideration have not solved the "diminished capacity" problem in California. First, evidence of mental disability can still be admitted into evidence directly on mens rea (the elements of the offense). Second, under the statutes mental capacity purportedly is not supposed to be considered. Thus, there is no reference to any requirement that the mental disability involved needs to be severe. (Compare Glossary item II E herein, Strict Mens Rea.) Third, mental health expert witnesses have been moved away from their area of expertise (mental capacity) to a focus on the facts of mens rea (i.e. whether the defendant "actually formed" mens rea). Fourth, in spite of the tight "law and order" interpretation of the statutes by Professor Morse and Mr. Cohen in their 1982 article,62 other writings of Professor Morse arguably indicate that the legislation is similar to the defense oriented A.L.I. Section 4.02(1).63 Fifth, added to all this is that the language of California Penal Code Section 28(a) and A.L.I. Section 4.02(1) is very similar, and defense attorneys can make the most of this similarity.64 Sixth, in addition, the later adopted very liberal, defense oriented American Bar Association Criminal Justice Mental Health Standard 7-6.2 contains language similar to California Penal Code Section 28. Standard 7-6.2 states: "Evidence, including expert testimony, concerning the defendant’s mental condition at the time of the alleged offense which tends to show that the defendant did or did not have the mental state required for the offense charged should be admissible."65 This gives defense attorneys even further ammunition to argue that the legislation is more defense oriented than intended by many members of the California Legislature.
It is of interest to evaluate how the California Legislature may have developed the "actually formed" concept. We will use statements of Professor Morse as a framework for this discussion. In his testimony on December 4,1979 before California’s Joint Committee For Revision Of the Criminal Code he testified as follows: "Our first model of diminished capacity is what I referred to as the mens rea variant. This simply asks the standard criminal law question, whether the defendant in this particular case had the mens rea for the crime charged. Now, diminished capacity allows the defendant, at least in the mens rea variant, to demonstrate that because of mental disorder or defect, or intoxication, or the like, that he or she did not have the particular state of mind. It’s a very straightforward criminal law question. In other words, what you’re doing is you’re casting doubt on the prima facie case of the prosecution."66 In discussing the situation in California prior to enactment of the statutes Professor Morse further testified: "Now Wetmore [a Supreme Court of California case]certainly makes this clear, or at least seems to make this clear. You can show by reason of mental disorder or defect that you do not have the mens rea required for the particular crime charged."67 It is important to note in the statements quoted above that Professor Morse uses language such as he or she "did not have the particular state of mind," or "you do not have the mens rea required for the particular crime charged." With such language, he seems to mean that the mental disorder or defect should be severe enough so that the defendant completely or fully lacked the mens rea for the offense charged. This is consistent with the position taken by Professor Morse and Mr. Cohen in their 1982 article, interpreting the new California "actually formed" statutes to mean that the mental disability must show "a complete lack of the culpable state of mind."68
A fundamental consideration, however, is that there can be two approaches to showing "a complete lack of the culpable state of mind." One approach is to set up the "actually formed" concept, as has been done with the legislation in California. Related to that, would be attempts by Professor Morse, or those in a position to create legislative history, to use language "did not have" the mens rea etc. in attempts to show that what is meant is a complete lack of mens rea because of mental disability. The theory apparently is that such statements demonstrate that "actually formed" is a tight, law and order concept. However, it is not clear that this is adequate legislative history for this purpose. In particular this is because, as discussed below, there seems to be a vacuum regarding language specifically stating that the "actually formed" approach means complete lack of mens rea based on severe mental disability. Instead, as previously discussed, because of the similarity of language in the statutes to the defense oriented language in A.L.I. Section 4.02(1) there are openings for defense attorneys to argue that in the final passage of the legislation, the legislature may not have had in mind the tight approach discussed by Professor Morse and Mr. Cohen.69 (Also, defense attorneys can now strengthen their arguments by pointing to the similar language in the later adopted A.B.A. Criminal Justice Mental Health Standard 7-6.2)
Another approach (encompassed in my earlier reference to the Arenella article70) would be to use the strict mens rea concept. This contemplates admitting only expert testimony and evidence regarding severe mental disability which demonstrates that the defendant fully lacked the mental capacity for mens rea. In effect, this is the strict mens rea concept described in Section II E of the Glossary herein. (Also, compare Section II H of the Glossary.) It is true that this would still involve the mental capacity concept which the California statutes have eliminated, but the severe mental disability requirement causing complete lack of mental capacity would achieve the desired law and order result, and would also keep mental health expert witnesses focused on mental capacity, which is within their area of expertise under the usual rules of evidence. In my judgment, what seems to have happened is that the California Legislature depended too much on those who said that the actually formed concept was sufficiently law and order oriented, when in fact it left open the similarities to A.L.I. Section 4.02(1) and the later adopted A.B.A. Criminal Justice Mental Health Standard 7-6.2. In any event, if evidence on mens rea is to be admitted outside the insanity defense framework, it seems apparent that the tightest law and order approach is the strict mens rea concept involving severe mental disability, which causes complete lack of mental capacity. In this connection note the second alternative discussed early in the Introduction (Section I ) and also at various points in Section IV of this article. 71
As earlier noted, Stanford Law Professor Mendez has indicated that the "actually formed" language was injected at a late point in the development of the legislation. He notes that the legislation was developed in an attempt to tighten the system in an effort to solve some of the problems related to diminished capacity which had been revealed in the Dan White case.72 He says that when the bill was first introduced "it rendered inadmissible any evidence of a mental disorder to disprove the mental element of a crime unless the disorder deprived the accused of his cognitive powers at the time the crime was committed."73 However, he notes that "the bill’s attempt to abolish the [diminished capacity] doctrine largely failed and a modified doctrine resulted due to the addition of new language a few days before passage of the bill." He says that the "bill as enacted still prohibited the introduction of evidence of mental disorders to disprove the capacity to form a mental state." Nevertheless, he states that "a second clause now permitted the same evidence to be admitted on the question of whether the accused actually formed the mental state."74
Through correspondence and telephone conversations I have checked with representatives of the California State Archives in Roseville, California for legislative history-type items regarding this legislation. (The Archives are under the jurisdiction of the California Secretary of State.) In particular, I attempted to get information regarding this apparently late switch to the "actually formed" concept. The results of my inquiries are set forth below. If someone on the scene at the time (such as legislators, witnesses at hearings, staff personnel or researchers) can come up with better information regarding the legislative history it would be welcomed by me, and undoubtedly by others interested in the legislation.
In the voluminous materials sent to me by the California Archives I have found a nine page document which appears to be consistent with the comments of Professor Mendez, mentioned above, to the effect that the "actually formed" language was injected at a late date in the legislative process. According to the heading of the document, it is a Bill Analysis from the "Assembly Committee On Criminal Justice, Terry Goggin, Chairman." The name of the bill discussed is "Senate Bill 54." The Author is "Roberti." The Subject of the bill is "Diminished Capacity, Insanity, Psychiatric Testimony, Murder." The copy of the document sent to me by the Archives is stamped "File Copy" and it has large capital letters "DPAA" printed in ink on the first page. There are references to two earlier hearing dates at the top of the document which have been lined out, leaving a third date, June 30, 1981 as the apparent actual date of the hearing discussed in the document. For purposes of this discussion, it is significant that there are handwritten insertions on the first and second pages of the document. At the top of the first page there is the heading "Senate Bill 54 (as amended in Comm. Hea)." The "in Comm. Hea" is handwritten. It apparently refers to an amendment in the Committee Hearing on June 30, 1981.
Certain typed material is also lined out, and handwritten insertions are made in lieu thereof, on the second page of the document referred to in the foregoing paragraph. They are particularly significant with reference to this discussion. In point 1 under Description and under the subheading Diminished Capacity, a typed statement as it appeared before the line outs and without the insertions in ink reads: "Would provide that evidence of a mental illness, disorder or defect shall not be admissible on the issue of whether the defendant has a certain intent except when such evidence shows the defendant did not know what he was doing at the time of the offense." On the other hand, giving effect to the line outs and including the insertions in ink (underlined by me in the following quotation) the statement reads: "Would provide that evidence of a mental illness, disorder or defect shall not be admissible on the issue of whether the defendant has the capacity to for [sic] a certain intent. Permits such evidence that intent did not exist." It is apparent that the letter "m" was inadvertently omitted from what was intended to be the word "form" in this quotation. Additional typed material is crossed out and other inked insertions are made on page 2 of the document, but those described above are particularly relevant to this discussion.
My reviews of other documents furnished by the California State Archives, plus the handwritten changes described in the foregoing paragraph, tend to confirm the statements by Professor Mendez to the effect that when the legislation was first introduced (and up until the changes made at the June 30, 1981 hearing, as noted above) the intent of the legislation was to render "inadmissible any evidence of a mental disorder to disprove the mental element of a crime unless the disorder deprived the accused of his cognitive powers at the time the crime was committed." This is demonstrated by the typed language (prior to the handwritten insertions) on the second page of the document described above, stating that the evidence must show that "the defendant did not know what he was doing at the time of the offense."75 As will be discussed below, the "Permits such evidence that intent did not exist" language inserted in ink in that document to reflect an amendment in the June 30, 1981 hearing, was later developed into the "actually formed" language in the legislation as finally enacted.
Another significant document, is on the letterhead of the Senate Republican Caucus, Senator Kenneth L. Maddy, Chairman. It refers to "Assembly Amendments." The Bill Number is SB 54, and the Author is "Roberti, et al." Included in the heading are the words "Amended Copy," with the date "8/11/81." The important point for this discussion is that this is a further reference to the Bill, as discussed above, amended at the June 30,1981 Hearing. However, it is significant that the words "actually formed " are used in this document in a manner consistent with the language in Penal Code Section 28, as finally enacted.76 On the first page of the document there is a digest of the bill. It states that the bill abolishes the defenses of diminished capacity, diminished responsibility and irresistible impulse. It further states that evidence of mental disease, mental defect or mental disorder shall not be admissible to negate the capacity to form any mental state with which the accused committed the act. In this connection, it lists various mental states. Significantly, the document also includes the following language: "(Allows such evidence to be used on the issue as to whether the criminal defendant actually formed any such mental state.)" Again, it appears that for the first time this injects into the legislative materials the language which is included in Penal Code Section 28, as enacted. Significant questions, not answered in the legislative material items sent to me by the California State Archives are: What does this "actually formed" language really mean? What discussions occurred in which this language was developed (and who participated in them)? Did the Legislature intend to fully move toward a law and order approach such as could have been done if they had adopted the strict mens rea concept involving a severe mental disability which establishes complete lack of capacity for mens rea?77 Or, perhaps, did defense oriented groups or individuals influence the situation at this late date by pressing for the "actually formed" approach which would tend to leave openings to argue similarities to A.L.I. Section 4.02(1)?78
In an article which does not focus on the California actually formed legislation, law Professors Richard J. Bonnie and Christopher Slobogin make statements which are, in fact, relevant to this discussion. They refer to the difference between the severe mental disability creating complete lack of capacity to form mens rea approach, as compared with the A.L.I. Section 4.02(1) concept. In a discussion of "diminished capacity" they say that "lack of capacity due to mental disease - would admit little testimony other than that in support of an insanity defense. Commentators have noted that, in order to negate intent, evidence would have to show ‘severe mental disability that substantially interfered with the defendant’s reality testing functions.’" In a footnote they further state: "The Model Penal Code is significantly less restrictive than the usual common-law formulations. First, the mens rea concepts are more subjectively oriented than the common-law formulations, so evidence about the defendant’s mental condition is likely to be relevant, in theory at least, in more cases; second, and more important, Section 4.02(1) does not require a showing of lack of capacity to have the required state of mind."79 As noted in previous discussions herein, the language of California Penal Code Section 28 is similar to A.L.I. Section 4.02(1) and it does not refer to the need for severe mental disease demonstrating lack of capacity. In fact, the California statutes have eliminated mental capacity from consideration. Again, the question here is: Why was this approach used rather than leaving mental capacity involved and requiring a severe mental disability that would completely eliminate mental capacity? Was the "actually formed" language an attempt to move towards the less restrictive A.L.I. Section 4.02(1)?
With the foregoing questions in mind, I made telephone calls to various State agencies in California. They included the California State Archives; the Assembly Public Safety Committee (successor to the Assembly Committee On Criminal Justice); and the Legislative Publication Service of the Legislative Bill Room. I asked for a transcript of the June 30,1981 Hearing of the Assembly Committee On Criminal Justice,80 any other Hearing transcript around that date, or any document that would reveal the meaning of the "actually formed" language in the legislation. None of these entities could produce such a transcript or additional relevant material, beyond what had already been sent to me by the California State Archives. I was told that if a transcript of a hearing existed it would have been sent to the Archives. (My inquiries had developed the fact that the Archives did not have the transcript.) I was also advised that a transcript would not necessarily have been made. Again if legislators, witnesses or staff or researchers on the scene during this period in 1981 (or anyone else) have knowledge of information or documents that would throw light on this subject, it would be helpful to hear from them, and I can include any relevant material in future revisions of this web site.
Although no transcript of the June 30, 1981 Hearing was found, the California State Archives did send me copies of newspaper clippings, relevant to that hearing. News articles are not considered legislative history. Nevertheless, since these were retained by the California State Archives as part of their files (and sent to me in answer to my inquiries regarding this legislation) I shall discuss them here in the absence of an actual transcript of the hearing or other official information. They give at least part of the picture (although not the meaning of the "actually formed" language).
There are news articles from the Los Angeles Times, the Sacramento Bee and the Sacramento Union, all dated July 1, 1981. They refer to approval on the previous day (which would be June 30,1981) by the Assembly Criminal Justice Committee of the legislation we have been discussing. (Note the June 30,1981 Hearing date of that Committee, previously discussed.81) All three articles refer to amendments made by the Committee at that Hearing. In the Sacramento Union article, for example, it is pointed out that Senator Roberti, the sponsor of the Bill, "agreed to amendments to his bill that were urged on the grounds that they were needed to preserve its constitutionality." Referring to the amendments at the Hearing, the article stated: "Among other things, they allow evidence indicating intent while still prohibiting evidence indicating a lack of capacity." Note that this is consistent with the line outs and handwritten insertions at that Hearing, previously discussed,82 but the information added by the news article is that the reason for the amendments involved worries about constitutional problems.
My comment here is that, in fact, the constitutionality problems could have been resolved without the move to preclude evidence on capacity; and without the change to the direct focus on intent (which then developed into the "actually formed" concept in the legislation as enacted).83 In fact, it could have been done without violating Constitutional principles by adopting the approach allowing the focus of severe mental disability on mental capacity, with the result that the defendant completely lacked the requisite mens rea. As previously noted herein, it involves using evidentiary reasoning; substantive law reasoning; policy considerations; or a combination of all of these approaches.84 Nevertheless, tightening up the system in this manner would not be easy. Beyond that, there would probably be a lot of opposition to it from defense oriented attorneys and mental health professionals. Perhaps this happened in 1981, and all of this was considered at the time the California legislation was being developed. It would be of interest, however, to know what positions were taken at that time, and by whom, if there was a debate in these terms. This could be helpful in determining what might be done to improve the current situation regarding these issues. In any event, some of this might explain why the California legislation we have been discussing might not be as law and order oriented as it seemed to be at the time it was enacted.
The Sacramento Union article also said that Doctor Captane Thomson, speaking for the California Psychiatric Association, recommended striking two sections of the bill, including "one, prohibiting expert testimony about whether the defendant had the capacity at the time to know what he or she was doing." As earlier noted herein, such language was in fact lined out at the June 30,1981 Hearing. According to the article, Doctor Thomson also said that "To ask somebody to be a witness but not to testify about the issue before the court seems unnecessarily harsh...." Although the news article does not give further details, perhaps he had in mind some of the points, previously made herein, regarding the fact that mental health professionals should testify in terms of mental capacity, which is their area of expertise.85 Beyond that, it would be of interest to know the position of the California Psychiatric Association on the tight law and order concept which would only authorize admissibility of mental disability evidence directly on mens rea if it is severe enough to show complete lack of mental capacity for mens rea.86
Another Los Angeles Times article, included in the material sent to me by the California Archives is dated August 21, 1981. It states that the day before (i.e. on August 20, 1981) the full California Assembly unanimously approved the Bill we have been discussing and sent it back to the Senate for approval, and that Governor Edmund G. Brown, Jr. was expected to sign the measure. According to a Legislative Counsel’s Digest (also received from the California Archives) that Bill (Senate Bill No. 54) was approved by the Governor on September 10, 1981 and filed with the Secretary of State on that date.
Again, having in mind the foregoing history, the "actually formed" concept was injected late in the legislative process (i.e. at the June 30, 1981 hearing); the Legislature approved the Bill on August 20,1981; and the Governor signed it on September 10, 1981. A basic question to be considered is whether, in the short period of time between those dates, all concerned, including all members of the legislature, were made aware of the fact that the legislation might be interpreted in a more defense oriented manner than indicated in the publicity concerning the legislation. As noted in the foregoing discussions, this would involve the potential for interpreting the legislation as being similar to A.L.I. Section 4.02(1), or the later adopted A.B.A. Standard 7-6(2).
With reference to this legislation, it is of interest to consider an "Enrolled Bill Memorandum To Governor" dated September 8, 1981 (prior to the September 10,1981 date when the Governor approved the legislation). Attached to that memorandum is an "Enrolled Bill Report" from the Legal Affairs Unit of the Governor’s Office. On page 3 it includes the following comments under the heading Intent v. capacity: "Thus, evidence of voluntary intoxication, mental disease, mental defect, or mental disorder [i.e. diminished capacity] may still be presented to the jury under this bill on the issue of whether the defendant actually formed a particular mental state. Notwithstanding the bill’s declaration that the defense of diminished capacity no longer exists, in sum and substance the same evidence and arguments will be presented to the jury on the same issues. It is for this reason that many of the experts who have reviewed these provisions of the bill believe it will have little direct impact other than to cloud the law and force development of a new body of appellate caselaw." (Brackets and emphasis in original.) Thus, even before the Bill was signed, at least in this general manner a problem of the type, discussed in detail in this study, was recognized in the Governor’s Office.
In 1982 (Senate Bill No. 2035) and 1984 (Senate Bill No. 1693) there were amendments to the legislation. The amendments are not discussed in detail here since, in fact, the focus of the comments in this study is on the legislation as it now exists, including all amendments.87 Nevertheless, there is language relevant to this discussion in a document forwarded to me by the California State Archives as part of the legislative history of Senate Bill 2035 (1982). This is a memorandum dated May 3,1982 in support of Senate Bill 2035, from the office of Attorney General George Deukmejian, signed by Senior Assistant Attorney General Vance W. Raye, Legislative Affairs Unit. The memorandum states that the Bill is for the purpose of insuring that "Senator Roberti’s legislation to abolish the criminal defense of diminished capacity, enacted in 1981, is properly followed in the California courts." The memorandum further states: "SB 54 was enacted to ensure that criminal offenders cannot escape the responsibility for their offenses because of voluntary intoxication or mental disorder that did not amount to insanity. The Dan White murder case in San Francisco exemplified the absurdity of the diminished capacity defense, wherein a murder charge was reduced to manslaughter because the defendant ate too many twinkies. Although there is no question that the proponents and the legislature intended to curb such abuses in the criminal justice system, since the enactment of SB 54 defense attorneys have argued that the provisions actually expand the use of the diminished capacity defense and courts are somewhat confused over the meaning of its technical language. Senate Bill 2035 is intended to clean-up this confusion and ensure that the intent of SB 54 is carried out. The Attorney General’s office actively participated in the drafting of SB 54, but realizes that it’s meaning is not as clear as it should be."
According to documents sent to me as part of the legislative history, a major reason for the enactment of Senate Bill 2035 (1982) was to tighten SB 54 (Penal Code Section 28) so that it would apply only to specific intent crimes rather than being interpreted as also applying to general intent crimes. This is because of broad "any mental state" language in SB 54. That is apparently one of the points involved in arguments by defense attorneys "that the provisions actually expand the use of the diminished capacity defense" referred to in the above-quoted excerpt from the memorandum from the Attorney General’s Office. In fact, however, as previously discussed in detail herein, there is a significant additional opening available for use by defense attorneys which remains in the legislation as it presently exists. This is the "actually formed" language of Penal Code Section 28. As previously noted, this was recognized in the Enrolled Bill Report To the Governor from his own Legal Affairs Office prior to the time he approved SB 54 in September 1981 and Section 28 was enacted. It involves the potential for interpreting the "actually formed" language as being similar to A.L.I. 4.02(1), and the later enacted A.B.A. Standard 7-6.2. That problem is as extensively discussed herein.88
There were other technical amendments to the legislation in 1984 (Senate Bill 1693, approved by the Governor on September 25, 1984). Nevertheless, the "actually formed" language was left in place, and still remains in California Penal Code Section 28. Thus, all of the previous discussions herein of the problems with that language are currently applicable.
As a way of summarizing some of these issues, it is of interest to refer to a 1984 study by Kevin Seibert in the Pacific Law Journal. His excellent analysis of the problems has been recognized, and it is particularly significant that his article was prominently referred to by the Supreme Court of California in the 1991 Saille opinion.89 As a general background for Mr.Seibert’s comments, readers should particularly have in mind the distinctions between Strict Mens Rea (Item II E), Diminished Capacity Mens Rea (Item II F) and Diminished Responsibility (Item II G), as previously discussed in the Glossary and at other points in this study. These are the labels used by Professor Peter Arenella, and have been adopted in my earlier writings as well as this current article. An important point to consider is that the Mens Rea Model (Glossary Item II D) is divided into two subdivisions: strict mens rea, and diminished capacity mens rea. This distinction should be kept in mind, and readers should avoid lumping them together under "strict mens rea." As noted by Mr. Seibert, diminished responsibility is separate concept.
Mr. Seibert’s study is important since, in 1983 and1984, at a date fairly soon after the legislation we have been discussing was enacted, he attempted to track the legislative history. It is of particular interest that he had the same trouble I have had (many years later) in trying to determine what was intended by the "actually formed" language in the legislation. For example, Mr. Seibert says that in a telephone conversation on December 15, 1983 with Edward (Ned) Cohen (Project Director, Revision of the Penal Code Committee) he learned that "no legislative analysis was done on the final version of Senate Bill 54 because it was amended after leaving committee."90 This is consistent with my unsuccessful efforts to determine the exact intention of the Legislature with reference to the "actually formed" language which was inserted very late in the legislative process.91
Mr. Seibert does say that he obtained a bill analysis which was "completed on the amended version that immediately preceded the bill as enacted." He says that this was helpful in determining the "general" purpose of the bill in its final form.92 I did not receive that analysis in my attempts (as previously discussed) to get material from the California State Archives. Nevertheless, it is clear, from the entire thrust of Mr. Seibert’s article, that even with this additional analysis in hand he did not get an answer regarding what the Legislature intended by the "actually formed" language. This is demonstrated by the fact that in his article, in effect, he says he did not get that answer because of the confusing and ambiguous nature of the language in the legislation; and he felt it necessary to set forth various alternatives regarding its potential meaning. Finally, in his Recommendations and Conclusion he states that the Legislature should clarify the meaning of the legislation.93
In the absence of exact legislative history interpreting the legislation, Mr. Seibert attempts to interpret its meaning in a general manner, by focusing on various related sections of the legislation, all of which he says were designed to restrict use of mental disability in the guilt phase of bifurcated trials. Thus, he says that this will aid in discovering the intent of the bill generally, and of Section 28 particularly. (Section 28 includes the "actually formed" language we have been discussing.)94 Nevertheless, as previously stated, Mr. Seibert notes in his Recommendations and Conclusion, that the Legislature should clarify the meaning of the legislation.
In my judgment Mr. Seibert could have given further clarification of the meaning of "diminished capacity." 95 It is my belief that there should be more emphasis on labels such as those used by Professor Arenella. They are referred to throughout this study. They make a clear distinction between (1)strict men rea, (2)diminished capacity mens rea and (3)diminished responsibility.96 This makes this entire subject easier to handle.
In any event, it seems that in order to establish a tight, law and order approach (which many legislators seemed to want)97the approach suggested in this study is the answer. This involves admitting in evidence, outside the insanity defense framework, only expert testimony and evidence involving severe mental disability which establishes that the defendant completely lacked the mental capacity for the mens rea involved in the offense.98 In California this would require a move back to allowing a focus on mental capacity in this strictly defined and narrow sense. As noted earlier in this study, this also gets by the Constitutional issues mentioned by Mr. Seibert.99 This involves emphasis on evidentiary, substantive law and policy reasoning, and avoiding "insanity defense or nothing" language. (See generally Section IV of this study.) Furthermore, by moving away from the actually formed language in the statutes discussed herein; focusing on strict mens rea as contemplated in Professor Arenella’s 1977 article and discussed throughout this study (and avoiding diminished capacity mens rea and diminished responsibility as defined in the Glossary herein) the approach will be more in line with Wetmore and other California truly strict mens rea type cases.
Recommendations For California
(1). Continue with M’Naghten as the insanity defense.100
(2). Establish the strict mens rea concept (as defined herein) as the rule. This would involve admitting in evidence, outside the insanity defense framework, only expert testimony and evidence involving severe mental disability which demonstrates that the defendant completely lacked the mental capacity for the mens rea involved in the offense.101 This is consistent with the recommendation of Professor Peter Arenella in his 1977 Columbia Law Review article.102 Professor Arenella points out that severe mental disability evidence under the strict mens rea concept would probably also establish the defendant’s insanity under M’Naghten or the A.L.I. insanity test. He states: "Thus, our analysis suggests that if courts administer the mens rea model honestly and only admit evidence that the defendant did not entertain the requisite mental state, the strict mens rea variant will rarely serve any purpose not satisfied by the insanity defense."103 I agree. This is the reason that defense attorneys, treatment oriented mental health professionals and other defense and treatment oriented entities and individuals disagree with this approach. Nevertheless, it is consistent with the general position I am taking in this article that there should be a reduction of the use of minor mental disorders directly on mens rea. In any event my position on this is that it can be done as discussed in Section IV of this article. Again, however, I am recommending that the constitutionally questionable "insanity defense or nothing" type of language should be avoided. Instead, evidentiary, policy and substantive law reasoning should be used.
(3). Legislative history with reference to statutes (and courts in their opinions) should be specific in stating that A.L.I. Model Penal Code Section 4.02 (1) and American Bar Association Criminal Justice Mental Health Standard 7-6.2 (or variations thereof) are not the strict mens rea concept involving severe mental disability which fully negates mental capacity ( involved in Recommendation (2) above).104
(4) Courts should require hearings outside the presence of the jury in order to determine the severity of the mental disability. Unless the Court is satisfied that the severe mental disability requirement causing complete lack of mental capacity for mens rea has been satisfied, the jury should not be allowed to hear mental disability testimony or have access to any evidence on that issue.
Additional Considerations
(a). A major problem, built into any system contemplated by the foregoing recommendations, is the difficulty of determining from opinions and testimony of mental health professionals how severe the mental disability may be. Is it really severe enough so that the defendant completely lacked the mental capacity for mens rea? With the differing schools of thought, disputes regarding diagnoses, and different agendas (prosecution, defense or treatment orientation) of mental health professionals there are bound to be major disagreements in trial situations. Add to this the adversary nature (prosecution versus defense) of the criminal justice system and it is understandable why placing these recommendations into effect will not be easy. Perhaps the most that could be expected is that the admissibility of minor metal disorders on mens rea will be reduced. This would be caused by use of the terms "severe" mental disability which causes "complete" lack of mental capacity for mens rea. In any event, in my judgment this would be an important improvement.
(b). The effort here is to place a heavier focus on A.L.I. Section 4.02(1) and A.B.A. Standard 7-6.2. They are concepts, recognized by major legal organizations, which continue to give credence to defense oriented positions in handling these matters. In my judgment there should be more public recognition that they exist and are concepts affecting the criminal justice system. Perhaps, such public recognition would tend to cause those legal organizations to review them in the framework of more protection for the public. (See generally Sections III and IV of this study and a later discussion in Section X, infra.) I am a realist, and recognize that the major influence of defense attorneys, plus some mental health professionals and defense oriented groups and individuals, is so strong that my recommendations may not have much effect. I recognize that the issues are complicated and involve groups and individuals (legal, medical and mental health) with numerous agendas. Nevertheless, as a basis for discussion, having in mind those who seriously want to tighten the criminal justice system, I have created this web site. This is an area where the problems are so complicated that they may never be fully solved. Nevertheless, there might be improvement with reference to at least some of the problems referred to by Professors Wilson, Dershowitz and Ms. Weintraub in the Introduction to this study.
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Notes
38 See supra notes 11-19 and accompanying text. See also references to the California situation in Arenella 1977, supra note 14 at 827- 865; HUCKABEE 1980, supra note 13 at 30-33, 65; Huckabee 1987, supra note 1 at 3-4, 8-15, 32; Huckabee 1993, supra note 1 at 453, 481, 508; MODEL PENAL CODE supra note 20 at 219; and WILSON 1997, supra note 5 at 22-28.
39 Huckabee 1987, supra note 1 at 8-15; Huckabee 1993, supra note 1 at 453, 481, 508; Kevin Seibert, Comment, Admissibility of Psychiatric Testimony in the Guilt Phase of Bifurcated Trials: What’s Left After The Reforms of the Diminished Capacity Defense?, 16 Pacific Law Journal 305, 318-33 (1984) [hereinafter Seibert 1984]; Gregg L. Prickett, Mental Defenses in California or"Still Crazy After All These Years, 18 Western State University Law Review 71, 81-84 (1990); Miguel A. Mendez, Diminished Capacity in California: Premature Reports of its Demise, 3 Stanford Law & Policy Review 216-226 (1991) [hereinafter Mendez 1991]; Laura E. Reece, Comment, Mothers Who Kill: Postpartum Disorders And Criminal Infanticide, 38 UCLA Law Review 699, 732-38 (1991); Andrew J. Thorpe and Donald E. Baumeister, The Death Of Diminished Capacity And The Birth Of Diminished Actuality: A Recent California Review, 12 American Journal Of Forensic Psychiatry 49, 52-68 (1991); Susan Horan, The XYY Supermale And The Criminal Justice System: A Square Peg In A Round Hole, 25 Loyola Of Los Angeles Law Review 1343, 1364-68 (1992); Jeff Brown, Proposition 8: Origins And Impact--A Public Defender’s Perspective, 23 Pacific Law Journal 881, 917-25 (1992)[hereinafter Brown 1992] ; Hank M. Goldberg, Proposition 8: A Prosecutor’s Perspective, 23 Pacific Law Journal 947, 951-55 (1992); Robert Weinstock, MD, Gregory B. Leong, MD, J. Arturo Silva, MD, California’s Diminished Capacity Defense: Evolution and Transformation, 24 Bulletin of the American Academy of Psychiatry and the Law 347-66 (1996)[hereinafter Weinstock, Leong and Silva 1996].
40 Huckabee 1987, supra note 1 at 8-15; cf. Huckabee 1993, supra note 1 at 453, 481; see also generally Mendez 1991, supra note 39 at 216-226.
41 Huckabee 1993, supra note 1 at 446-47; Huckabee 1989, supra note 1 at 596-97; Huckabee 1987, supra note 1 at 12-15.
42 California Legislature, Hearings On The Role Of Psychiatry In Determining Criminal Responsibility, Joint Committee On Revision Of The Penal Code, Senator David A. Roberti, Chairman (April 11 and 12, 1979), testimony of Professor Morse at pages 47-61 of April l2 Hearing, and an article by him included as Appendix E to that Hearing; California Legislature, Hearing On The Defenses Of Diminished Capacity And Insanity, Joint Committee For Revision Of The Penal Code, Senate Committee On The Judiciary, Assembly Criminal Justice Committee, Senator David A. Roberti, Chairman (December 4 and 5, 1979), testimony of Professor Morse at pages 51-70 of December 4 Hearing, and draft of an article by him included as Appendix I-I to that Hearing. Seibert 1984, supra note 39 at 307 n.16; Brown 1992, supra note 39 at 917 n.222; Weinstock, Leong and Silva 1996, supra note 39 at 363. Cf. Huckabee 1987, supra note 1 at 9-11.
43 Weinstock, Leong and Silva 1996, supra note 39 at 363.
44 Id. at 365.
45 See supra note 42 and accompanying text
46 See supra notes 20-28 and accompanying text.
47 Stephen J. Morse, Diminished Capacity: A Moral And Legal Conundrum, 2 International Journal Of Law And Psychiatry 271, 275 (1979) [hereinafter Morse 1979].
48 Stephen J. Morse, Undiminished Confusion In Diminished Capacity, 75 The Journal of Criminal Law & Criminology 1, 6-7 and n. 17 (1984) [hereinafter Morse 1984].
49 See supra notes 29-37 and accompanying text.
50 Stephen J. Morse, Diminished Capacity in ACTION AND VALUE IN CRIMINAL LAW 239, 241 and n.14 (Stephen Shute, John Gardner and Jeremy Horder ed. 1993) [hereinafter Morse 1993].
51 See supra notes 39-40 and accompanying text.
52 Stephen J. Morse and Edward (Ned) Cohen, Diminishing Diminished Capacity In California, 2 California Lawyer, 24-26 (1982)[hereinafter Morse and Cohen 1982].
53 See supra notes 14-18 and accompanying text.
54 See supra notes 45-50 and accompanying text.
55 Morse and Cohen, supra note 52 at 24 (2d Column).
56 Id. at 25 (2d Column).
57 See supra note 20 and accompanying text.
58 See supra note 40 and accompanying text.
59 Mendez 1991, supra note 39 at 220.
60 People v. Saille, 820 P.2d 588, 592-93, including n. 4 (Cal. 1991) (en banc).
61 Huckabee 1993, supra note 1 at 445-46 (citations omitted).
62 See supra notes 51-56 and accompanying text.
63 See supra notes 45-50, 54 and accompanying text.
64 See supra notes 57-58 and accompanying text.
65 See supra notes 23-28 and accompanying text.
66 December 4, 1979 Hearing, supra note 42 at 52.
67 Id. at 53.
68 See supra notes 55-56 and accompanying text.
69 See supra notes 45-58 and accompanying text.
70 See supra note 61 and accompanying text.
71 See supra notes 1-4, 29, 35-37 and accompanying text.
72 See supra notes 59-60 and accompanying text.
73 Mendez 1991, supra note 39 at 219.
74 Id. at 220
75 See supra notes 72-74 and accompanying text.
76 See supra note 40 and accompanying text.
77 See supra notes 70-71 and accompanying text.
78 See supra note 69 and accompanying text.
79 Richard J. Bonnie and Christopher Slobogin, The Role Of Mental Health Professionals In The Criminal Process: The Case For Informed Speculation, 66 Virginia Law Review 427, 474, including note 147 (1980).
80 See supra note 75 and accompanying text.
81 Id.
82 Id.
83 Cf. supra notes 72-78 and accompanying text.
84 See generally Section IV of this article.
85 See supra notes 39-41 and accompanying text
86 See supra notes 70-71, 77 and accompanying text.
87 See supra notes 40-41 and accompanying text.
88 See supra notes 45-79 and accompanying text.
89 Seibert 1984, supra note 39; Brown 1992, supra note 39 at 917, note 222; People v. Saille, 820 P.2d 588, at 592, and 594 note 6 (Cal. 1991).
90 Seibert, 1984, supra note 39 at 321, including note 117.
91 See supra notes 59-60, 72-74, 78 and accompanying text. See also the two paragraphs following the insertion of supra note 86 in the text.
92 Seibert 1984, supra note 39 at 321, including note 118.
93 Id. at 305-06, 318-33.
94 Id. at 322, 324. See also id at pages 325-32.
95 Id. at 327-29.
96 See supra notes 14-18, 33-34, 53 and accompanying text; and Glossary Items II D,
II E, II F and II G.
97 Seibert 1984, supra note 39 at 324.
98 See supra notes 2, 70-71, 86 and accompanying text. See also Glossary Section II E; and Section IV of this article.
99 Seibert 1984, supra note 39 at 325.
100 California Penal Code Section 25(b). See supra note 40 and accompanying text.
101 See supra notes 2, 70-71, 86 and accompanying text. See also Glossary Section II E; and Section IV of this article.
102 See supra notes 14, 34-35 and accompanying text. Arenella, supra note 14 at 863.
103 Arenella, supra note 14 at 835 (footnotes omitted).
104 See supra notes 45-58, 62-65, 70-71, 78-79, 88 and accompanying text.