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Standard Jury Instruction: [none]
then you must find the defendant not guilty of [_____________________], and then consider whether the defendant may be guilty of the lesser offense of [_____________________].
Commentary 1. In a diminished capacity defense case, the criminal defense attorney seeks to place into evidence and concomitantly have the jury instructed that an essential mental element of the crime charged is missing because of the defendant's diminished capacity to form the requisite intent. Generally in American jurisprudence, a diminished capacity defense is premised upon psychiatric or psychological testimony that establishes a mental disorder or mental defect that significantly impairs the defendant's ability to form the requisite criminal intent. By raising the defense, the defendant challenges the prosecution's reliance upon a presumption of sanity and the notion that the defendant has the capacity to possess a particular state of mind required by the statute or by case law for the commission of the alleged crime. Thus, in a murder case, the defendant may offer a diminished capacity defense to show that the defendant was incapable of deliberating, premeditating, or acting with malice, as is required for a first degree murder or second degree murder conviction. 2. Evidence of diminished capacity is generally established by expert testimony. 3. The Court explains in State v. Simmons, that when treating psychiatrists are not asked questions regarding a defendant's mental capacity to form specified element of intent the defense of diminished capacity may be excluded. State v. Simmons, 172 W.Va. 590, 309 S.E.2d 89 (1983). In Simmons, the Court concluded that the expert testimony offered by the defendant did not meet the standard for a diminished capacity defense where "the defendant did not offer any psychiatric testimony to the effect that by virtue of some mental disease or defect, she was incapable of forming the specific intent required either for first degree murder, i.e. premeditation, deliberate intent to kill, or for second degree murder, i.e. malice aforethought." The defense of diminished capacity was excluded where the expert "was not asked whether [the defendant's] mental condition rendered her incapable of forming a specific intent to kill." 309 S.E.2d at 99. 4. The Court has noted that "[t]he reason for allowing a defendant to assert the defense of diminished capacity is to permit the jury to determine if the defendant should be convicted of some lesser degree of homicide because the requisite mental intent to commit first degree or second degree murder is not present by virtue of the defendant's mental disease or defect." State v. Simmons, 172 W.Va. 590 S.E.2d 89 (1983). 5. The Court frequently uses the term "diminished capacity" in cases in which the defendant uses alcohol or drug intoxication to mitigate a murder charge. A review of West Virginia case law reveals that the West Virginia Supreme Court had all but expressly recognized the use of evidence of a diminished capacity resulting from a mental disease or defect to negate the mental state of the crime charged before the Court's decision in State v. Joseph. In State v. Keeton, for example, the Court allowed evidence of voluntary intoxication to show that a defendant was incapable of forming the required mental state for first degree murder. 166 W.Va. 77, 82 83, 272 S.E.2d 817, 820 (1980). In Keeton the Court observed that "[w]hile it is true that voluntary drunkenness does not ordinarily excuse a crime . . . it may reduce the degree of the crime or negate a specific intent." In State v. Simmons, Justice Miller discussed the diminished capacity doctrine but found it was unnecessary to adopt its principles under the circumstances presented, as the evidence did not support the defense. However, The Court's discussion, in State v. Simons demonstrates an interpretation of the doctrine of diminshed capacity which corresponds with all the authorities cited earlier in this commentary. The Simmons Court explained the diminished capacity doctrine as follows:
172 W.Va. at 599, 309 S.E.2d at 98. The Court elaborated that "[t]he reason for allowing a defendant to assert the defense of diminished capacity is to permit the jury to determine if the defendant should be convicted of some lesser degree of homicide because the requisite mental intent to commit first degree or second degree murder is not present by virtue of the defendant's mental disease or defect." 309 S.E.2d at 98.
Relevant Cases: State v. Joseph, 214 W.Va. 525, 534, 590 S.E.2d 718, 727 (2003), State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), State v. Keeton, 166 W.Va. 77, 82 83, 272 S.E.2d 817, 820 (1980), State v. Simmons, 172 W.Va. 590, 309 S.E.2d 89 (1983), State v. Brant, 162 W.Va. 762, 252 S.E.2d 901 (1979), State v. DeGraw, 196 W.Va. 261, 470 S.E.2d 215 (1996), State v. McFarland, 175 W.Va. 205, 332 S.E.2d 217 (1985).
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West Virginia Homicide Jury Instructions Project