The following instructions describe the defenses of diminished capacity and intoxication.
- CR07-153. Diminished Capacity–Under the Influence (01/20/16)
- CR07-156. Diminished Capacity–Mental Condition (01/20/16)
- CR07-159. Evidence of Intoxication (01/20/16)
Evidence of intoxication, or other condition of impairment, may be relevant to a variety of claims. A defendant may claim, for example, (1) that he or she was legally insane at the time of the alleged acts, (2) that he or she suffered from a diminished capacity to form the requisite mental state, or (3) that, because of the impairment, he or she did not form the requisite mental state. The Vermont Supreme Court has explained the concept of “diminished capacity” as follows, in State v. Smith, 136 Vt. 520, 527–28 (1978):
The concept is directed at the evidentiary duty of the State to establish those elements of the crime charged requiring a conscious mental ingredient. There is no question that it may overlap the insanity defense in that insanity itself is concerned with mental conditions so incapacitating as to totally bar criminal responsibility. The distinction is that diminished capacity is legally applicable to disabilities not amounting to insanity, and its consequences, in homicide cases, operate to reduce the degree of the crime rather than to excuse its commission. Evidence under this rubric is relevant to prove the existence of a mental defect or obstacle to the presence of a state of mind which is an element of the crime, for example: premeditation or deliberation.
“Evidence of reduced mental capacity is not a defense on which a defendant bears a burden of proof. . . . The mental state of a defendant must be proved by the State.” State v. Duff, 150 Vt. 329, 333 (1988) (citing State v. Messier, 145 Vt. 622, 629 (1985)). However, if the defendant formed the requisite mental state before becoming intoxicated, and if he or she then drank to brace himself or herself to prepare for committing the act, or if he or she became intoxicated knowing that it would predispose him or her to violence, then the reduced mental capacity does not excuse the criminal conduct. State v. Pease, 129 Vt. 70, 76 (1970).
Often the judge must assess the evidence in deciding how to instruct the jury. See, e.g., State v. Kinney, 171 Vt. 239, 243–44 (2000) (court should normally give the charge, if it is supported by the evidence, but evidence of alcohol consumption will not by itself require the instructions). Where the evidence supports the elements of the crime charged, but where there is also evidence of diminished capacity that may cut against the State’s evidence of specific intent, the issue is properly decided by the jury verdict. State v. Kennison, 149 Vt. 643, 651–53 (1987); State v. Pease, 129 Vt. 70 (1970). The court may refuse to instruct on diminished capacity where there is insufficient evidence to justify it. State v. Duford, 163 Vt. 630 (1995).
The relevance of diminished capacity evidence requires examination of the mens rea element of the charge. “When specific intent is an element of a crime, evidence of either voluntary or involuntary intoxication may be introduced to show that the defendant could not have formed the necessary intent.” State v. Joyce, 139 Vt. 638, 639–40 (1981) (citing State v. D’Amico, 136 Vt. 153, 156 (1978)). In Joyce, the defendant was charged with a crime which included an element of specific intent, namely aggravated assault, by attempting to cause serious bodily injury to another, under 13 V.S.A. § 1024(a). In contrast, intoxication does not negate recklessness, which is often charged as the mental element of simple assault under 13 V.S.A. § 1023(a)(1). State v. Galvin, 147 Vt. 215, 216 (1986) (citing State v. Murphy, 128 Vt. 288, 293 (1970)). In State v. Bolio, 159 Vt. 250 (1992), the Supreme Court indicated that the defense of diminished capacity could be applied to a charge of aggravated assault (attempting to cause or purposely or knowingly causing bodily injury to another with a deadly weapon, under 13 V.S.A. § 1024(a)(2)), to possibly reduce the degree of crime to the lesser included offense of simple assault under § 1023, because the element of recklessness (which is not affected by diminished capacity) is necessarily included within the element of specific intent. Id. at 252–54.
Diminished capacity may be employed to negate the knowledge element found within a charge of simple assault on a police officer under 13 V.S.A. § 1028. State v. Galvin, 147 Vt. 215 (1986). On the other hand, diminished capacity does not apply to the mental element of aggravated assault when a defendant is charged with causing serious bodily injury recklessly under circumstances manifesting extreme indifference to the value of human life, under 13 V.S.A. § 1024(a)(1). State v. Allen, 169 Vt. 615 (1999).
Diminished capacity does not apply where the charge does not include an essential element of intent. State v. Gadreault, 171 Vt. 534 (2000) (cruelty to animals). It also does not apply to a charge of DUI, where diminished capacity is an essential element of the crime. State v. Godfrey, 137 Vt. 159 (1979).
In the homicide context, diminished capacity is recognized as a mitigating circumstance that may reduce a killing from murder to manslaughter. State v. Sexton, 2006 VT 55, 180 Vt. 34. However, diminished capacity cannot operate to reduce second-degree murder to voluntary manslaughter, because the mens rea elements for those two crimes are the same. State v. Congress, 2014 VT 129. “[A] defendant who defeats the State’s burden with respect to the state-of-mind element for second-degree murder cannot be convicted of any degree of homicide more serious than involuntary manslaughter. Id. ¶ 33 (original emphasis).
For discussion on the interaction between diminished capacity and insanity, see State v. Webster, 2017 VT 98, ¶ 20, 206 Vt. 178 (“Diminished capacity and insanity are related concepts pertaining to defendant’s state of mind at the time of the offense”; however, while defendant must prove affirmative defense of insanity, diminished capacity “is an attempt to defeat the State’s obligation to show the necessary intent to commit the crime”); State v. Bourgoin, 2021 VT 15, ¶¶ 25–27 (trial court did not err by not instructing jury on its own motion that State’s expert’s sanity opinion was irrelevant to defendant’s claimed diminished capacity, where “State never claimed . . . that [expert’s] ultimate opinion on defendant’s sanity was relevant to whether defendant had the requisite intent to commit second-degree murder” and where “both defendant . . . and the trial court . . . emphasized the distinction between determining whether defendant was insane and determining whether he had the requisite intent to commit second-degree murder”).