« on: June 11, 2009, 11:19:34 PM »
Geez, lady, I was havin' a burrito.
Not vegan. Mwa ha ha ha ha ha.
ANYWAY. Diminished actuality is a bad name for a non-terrible concept that may actually help defendants more than it hurts them (mwa ha ha ha HA California Legislature). It replaced "diminished capacity" after Dan White got vol mansl for killing Moscone & Milk. Dim. cap. was some sort of quasi affirmative defense thing, where you could lack the capacity to form a necessary specific mental state or intent, and thereby negate the most serious charge against you (or perhaps the whole shebang, if you don't have any lesser-includeds that are just gen.intent crimes--but usually it just got you off the hook for the top charge, like att. murder going down to ADW or similar). The rub was that it seems that perhaps your capacity to have the intent didn't have to be wholly absent, but rather only "diminished," (hence the name), and so it was worried that this was letting people off too easily. (Although I don't think it ever shook out this way, and the CA legislature's debates on the abolition of dim.cap. don't strike me as particularly well-reasoned, see, e.g., one legislator ranting whilst waving a Twinkie around in the air.)
So. Sec. 25 of the Penal Code abolishes Diminished Capacity. I think the CA Legislature does part of it and part of it is through a prop. Whatever. Not very important for our opining purposes.
Sec 28 of the Penal Code says (paraphrasing): no diminished capacity, so no evidence about how you lack the capacity to form a required mental state or intent. BUT: you CAN put on evidence, if you're charged with a specific intent crime, that you ACTUALLY lacked, at the time of the incident, the requisite mental state or intent which is an element of the crime.
(of course, CA insanity is M'Naghten, including temporary insanity, but still. f-ing M'Naghten.)
In theory, I think, it is harder to prove that you lack the capacity to ever premeditate a murder because of your florid psychosis, than that on December Whatever, you were floridly psychotic, and therefore did not premeditate this murder. According to this theory, the latter is completely subsumed by the former (Venn-diagram-wise, your actual intent on this night should be the yolk in the larger egg-white of your capacity to form that intent more generally)--if you lack the capacity to form an intent, then obviously, on the night in question, you did not have that intent.
Nevertheless, the CA treatises form the argument differently, analogizing to diminished visibility: we can all agree that visibility is diminished if the night is rainy and foggy, but we are still ultimately going to be interested in what you actually saw before you hit that bicyclist with your car.
Again, I don't think this is how dim.cap. was actually getting applied in courts, but admittedly, I've mostly been looking at dim.act cases, so I could be wrong.
So, in Section 28, you can see that the Code uses the word "actually."
Somewhere along the road, someone who sucked at naming things decided to get cute, fashion a new name for this concept along the lines of the old one, even though the concepts did not map linguistically AT ALL, and decided to call this new concept "diminished actuality."
This is f-ing stupid. The question is not whether your f-ing actuality is f-ing diminished, it is whether your mental state actually existed or not. (Or "vel non," which I came across today in a case and would name a dog.) (I think the best names for male dogs are the ones that make them sound like old Southern convicts. Clarence, Claude, Del, etc. Vel, middle name Non, fits right in.) (Also it's funny, because if you're like, "Come here, Vel Non," that means "Come here, or not," which is how dogs behave most of the time anyway.)
Anyway, in a lot of cases, it's going to be easier for a jury to try to understand the intent/mental state issue better if you give them a discrete moment in time to think about, and not have to @#!* it up by traveling through the capacity-box (cf. Fisher, I love you, honey, you made Evidence not suck.) I think, at least.
The other limitation is Sec. 29, which prevents your expert from testifying as to their opinion on the ultimate issue of whether the def in fact had (VEL NON) the required mental state/intent.
This is stupid for the general reason that ultimate issue limitations are stupid, which is that they are justified as being unnecessary and therefore time-wasters (because we can't reveal the real reason we have them, which is of course that we are worried juries are too stupid and lazy to take anything but the bottom line, which is fair, I guess, but if you trust them, then you trust them, n'est-ce pas?), but they generate so much more litigation (talk about time-wasters) and f-ing around in court with in limines and sidebars and similar about how close you can get to the line, what about hypotheticals, back and forth and back and forth that the justification of "saving time" and "avoiding surplusage" quickly becomes kafka-esque.
Furthermore, as a strategic matter, you can get real close. One expert testified that the shooting was "nearly involuntary." Another said that without the mental illness, he wouldn't have done it. So on and so forth. You're getting all the really good stuff (equity stuff too) anyway, so why @#!* it up and risk having the jury feel like the expert is horning in on their territory? Save it for argument, and you get to be on the jury's side and help them put the pieces together.
So yeah. Diminished actuality is an incredibly stupid name for a not-actually-terrible limitation on criminal defendants.