Diminished Capacity – “It’s Possible”

By Monte E. Hester; April 2000

     In the defense of a criminal case, if you find that there are no traditional safe defense harbors available, i.e., self-defense, alibi, or consent, it might be appropriate to consider diminished capacity.

     The law has recently been clarified and simplified by a couple of cases. At one time it was necessary to jump through multiple hoops before the argument could be made that the client was not guilty because he was unable to form the requisite mental state of recklessness, knowledge, intent, or premeditation.

     In a nutshell, the nine “Edmon Factors” (State v. Edmon, 28 Wn.App. 98, 621 P.2d 1310 (1981)) are no longer an obstacle.  It is now sufficient if you establish via a qualified expert that your client was suffering from a mental disorder at the time of the occurrence of the event for which he or she is charged and that said disorder had a forensic application to the charged conduct. 

     The diagnosis of the disorder and its existence at the time of the charged conduct must be established by a reasonable medical, psychological or scientific certainty.  See State v. Ellis, 136 Wn.2d 498, 963 P.2d 843 (1998); State v. Greene, 139 Wn.2d 64, 74, FN3, 984 P.2d 1024 (1999).

     After establishing the existence of the condition, it is only necessary that the condition may have had an affect on the defendant’s mental capacity.

     In State v. Mitchell, No. 42044-5-I (Feb. 14, 2000), Division I of the Court of Appeals, in analyzing proof standards applicable to diminished capacity, found that it was enough that a qualified expert testified that he was 100% certain that the defendant suffered from a mental disorder.  He testified that  “with a reasonable medical certainty Mitchell suffered from a severe mental disorder at the time of the incident and that this disorder would have the potential to interfere with his knowledge.”  He further testified that he could not testify with reasonable certainty that the mental disorder actually caused his capacity to be diminished at the time of the incident, but only that it was possible.  Division I held that this was sufficient and that the jury could make the final determination based on the expert’s testimony in conjunction with other evidence elicited at trial.

     These are big steps in clarifying the standards applicable to evidence regarding diminished capacity, making the trial of the cases much less cumbersome.