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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
[<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.
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.