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Criminal Jury Instructions

Criminal Jury Instructions Home

2.7-5 Diminished Capacity

New, May 10, 2012

Evidence has been presented in this case indicating that the defendant was of limited or impaired mental capacity at the time of the incident.  If the defendant, because of this diminished capacity, was unable to form the intent necessary to the crime(s) of <insert the crimes to which the defense applies>, then the element of intent would not have been proven for (this / these) crimes.

An essential element of the crime of <insert offense>, with which the defendant is charged, is that (he/she) acted with <insert the appropriate type of intent:>1

  • the specific intent to cause a specific result.
  • recklessness.
  • criminal negligence.
  • the general intent to perform certain acts.

[<For specific intent:>
For the purposes of count __, <identify offense>, you must determine whether the evidence of diminished capacity is sufficient to raise a reasonable doubt as to the defendant's ability to form the specific intent necessary for <identify offense>.  <Refer back to the intent instruction(s) for the offense(s).>  You must be satisfied from the defendant's presentation that there is sufficient evidence of the effects of (his/her) various mental disorders on (his/her) capacity to form the specific intent to commit <identify offense>.]

[ <For recklessness:>
For the purposes of count __, <identify offense>, you must determine whether the evidence of diminished capacity is sufficient to raise a reasonable doubt as to the defendant's ability to be aware of and consciously disregard substantial and unjustifiable risks.  You must be satisfied from the defendant's presentation that there is sufficient evidence of the effects of (his/her) various mental disorders on (his/her) capacity to be aware of such risks. <Refer back to the intent instruction for the offense(s).>]

[<For criminal negligence:>
For the purposes of count __, <identify offense>, you must determine whether the evidence of diminished capacity is sufficient to raise a reasonable doubt as to the defendant's ability to perceive substantial and unjustifiable risks.  You must be satisfied from the defendant's presentation that there is sufficient evidence of the effects of (his/her) various mental disorders on (his/her) capacity to perceive of such risks. <Refer back to the intent instruction for the offense(s).>]

[<For general intent:>
For the purposes of count __, <identify offense>, you must determine whether the evidence of diminished capacity is sufficient to raise a reasonable doubt as to the defendant's capacity to form the intent to <identify the specific acts of the crime>.2]

In connection with this issue, you have heard testimony from <identify the expert witnesses>. In assessing these opinions, you will bear in mind the instructions I previously gave you concerning the weight to be accorded the testimony of expert witnesses, including the opinions based on hypothetical questions.

You may also give weight to such relevant testimony as you find credible from lay witnesses who have testified concerning the events surrounding the events that occurred.

The state has the burden to establish the element of the defendant's intent to commit <insert specific offense> beyond a reasonable doubt. The defendant does not have to prove that he did not have the intent. In deciding whether the defendant had the necessary intent, you must consider all the evidence bearing on that issue, including the evidence of the defendant's limited or impaired mental capacity and his conduct before, during and after the alleged incident. If you have a reasonable doubt on that issue, you must find (him/her) not guilty.


1 Diminished capacity, unlike intoxication, may be raised to negate either general or specific intent.  See State v. Gracewski, 61 Conn. App. 726, 736-37 (2001) (reckless indifference manslaughter and risk of injury to a minor); see also State v. Shine, 193 Conn. 632, 640-42 (1984).

2 For example, if the defendant is charge with risk of injury to a minor the defendant would have to form the intent to perform acts that are likely to impair the health of a child. See State v. Gracewski, 61 Conn. App. 726, 736 (2001).

Commentary

This instruction is adapted from instructions cited in State v. Bharat, 129 Conn. App. 1, 4 n.2 (2011); State v. Thurman, 10 Conn. App. 302, 322 n.18 (1987); State v. Gracewski, 61 Conn. App. 726, 736-37 (2001).

Diminished capacity differs from extreme emotional disturbance because the latter is an affirmative defense that does not negate intent but provides mitigation to a charge of murder. State v. Jordan, 129 Conn. App. 215, 226 n.5, cert. denied, 302 Conn. 910 (2011) (defendant's claim that rage comes within diminished capacity not accurate as it does not implicate the defendant's capacity for forming intent).

If the defendant is also raising an insanity defense, the court must be sure to clearly distinguish the two. See State v. Thurman, supra, 10 Conn. App. 325.

On the need for expert testimony on diminished capacity, see State v. Jordan, supra, 129 Conn. App. 226, State v. Pagano, 23 Conn. App. 447, 452, cert. denied, 217 Conn. 802  (1990); State v. Thurman, 10 Conn. App. 302, 323 n.19 (1987).  The Court in Pagano explained the difference in the type of evidence required to send the issue of diminished capacity to the jury and that for intoxication:

Nowhere in the testimony or exhibits did the defendant present any evidence of the effects of psychopathic, sociopathic, or antisocial behavior, organic brain disorder, seizures, depression, or cerebral palsy. In fact, these terms were not even defined for the jury. While a jury is entitled to infer impairment from intoxication because it is an effect which is common knowledge and is an inference which is clearly within the ability of the jurors, as laypersons, to draw based on their own common knowledge and experience . . . a jury should not be allowed to make a similar leap in reasoning when dealing with diminished capacity. Unlike the effects of intoxication, the effects of complex mental disorders are not commonly known to laypersons. . . . The trial court's refusal to instruct the jury on diminished capacity is justified, therefore, by the defendant's failure to provide direct evidence of the effects of his various mental disorders on his capacity to form intent.

 

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