Journal of Criminal Law and Criminology Volume 62 | Issue 3 Article 1 1972 Psychological Abnormality as a Factor in Grading Criminal Liability: Diminished Capacity, Diminished Responsibility, and the Like George E. Dix Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation George E. Dix, Psychological Abnormality as a Factor in Grading Criminal Liability: Diminished Capacity, Diminished Responsibility, and the Like, 62 J. Crim. L. Criminology & Police Sci. 313 (1971) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JoUaNA. OF CMNALr LAW, CRnUNOLOGY AND POLICE SCIENCE Vol. 62, No. 3 Copyright C 1971 by Northwestern University School of Law Printed in U.S.A. CRIMINAL LAW PSYCHOLOGICAL ABNORMALITY AS A FACTOR IN GRADING CRIMINAL LIABILITY: DIMINISHED CAPACITY, DIMINISHED RESPONSIBILITY, AND THE LIKE GEORGE E. DIX* INTRODUCTION degree murder; the next week the same jury im- During early 1969, the trial of Sirhan B. Sirhan posed the death penalty. 'qthink the jury took the for the killing of Senator Robert Kennedy pro- testimony of the psychiatrist and psychologist into vided a sixty day, $900,000 public demonstration consideration fairly", one juror told newsmen, "but of California's efforts to integrate creatively con- the feeling was that they contradicted each other temporary psychological knowledge with criteria and even themselves from time to time." ' for criminal responsibility. The demonstration The obvious difficulty, experienced by both did not prove an unqualified success. Testimony participants and observers in the Sirhan trial in by defense expert Doctor Martin M. Schorr, a evaluating testimony as to Sirhan's state of mind clinical psychologist, that Sirhan lacked the stems from the controversy surrounding Cali- capacity to entertain the state of mind required fornia's so-called diminished capacity rule' under under California law for murder was translated by which evidence of the defendent's state of mind a prosecutor for newsmen as, "If you hate a guy a was admitted. California's rule is, however, merely little bit and kill him it's murder; if you hate a one possible answer to a broader question that has guy a lot and kill him, you're sick."' When Doctor troubled the criminal law for many years: Is proof Bernard L. Diamond, well-known for his writings of the defendant's psychological abnormality, that on law and psychology and his personal partici- is, the manner in which he differs from the rational, 2 7 pation in leading California cases, presented his utilitarian man of the classical criminologists, theory that Sirhan had shot Senator Kennedy admissible other than for the purpose of establish- while in an abnormal state of mind induced by ing the "insanity" defense and may it be considered flashing lights and mirrors at the scene, he cau- by the trier of fact in assessing criminal liability? tioned the jury that his theory was "an absurd, The issue is, of course, intimately related to the preposterous story, unlikely and incredible, which in a unique case such as Sirhan's does raise the 5Arizona Republic, April 25, 1966, at 14, Col. 2. An gravest 3 interesting discussion of Sirhan's psychological condi- problems of clinical proof and credibility." tion as well as the trial testimony and tactics is KAnSER, In his dosing argument to the jury, the prosecutor R.F.K. MUST Dix! (1970). declared, "I have heard that Charles Dickens 6This is the position that evidence of psychological abnormality is admissible to disprove the state of mind wrote in a book that 'the law is an ass.' I think the required for the crime, adopted by the California Su- law became an ass when it let the psychiatrist get preme Court in People v. Wells, 33 Cal.2d 330, 202 his hand on it. It would be a frightening thing for P.2d 53 (1949). Wells is discussed in the text accom- panying note 29 infra, and the diminished responsi- justice to decide a case of this magnitude on bility rule is discussed in the text accompanying note 62 whether [Sirhan] saw clowns playing patty-cake fra. 7 This is not an indisputable or kicking each other in an ink blot test." 4 After definition of psychologi- cal abnormality. Many mental health professionals sixteen hours and forty-two minutes of delibera- would, of course, argue that the classical utilitarian tion, the jury returned a verdict of guilty to first man would not be "normal," if indeed he could be found at all. Some might argue that psychological ab- * Associate Professor of Law, Arizuna State Uni- normality, assuming it can be defined, should not be versity. legally significant in determining criminal liability un- I N.Y. Times, March 12, 1966, at 24, Col. 3. less it is of a given degree of severity, i.e., enough to 2See the discussion of People v. Gorshen, 51 Cal.2d constitute "mental illness." But since the matter is 716,336 P.2d 492 (1959), at note 81 infra. wide open in this regard and the criminal law assumes 3N.Y. Times, March 28, 1966, at 19, Col. 1. the rational utilitarian man, psychological abnormality 4Id., April 15, 1966, at 18, Col. 1. seems best defined as any deviation from this model. GEORGE E. DIX [Vol. 62 o - grading of offer Pnd amounts to an attempt to not entitled to evidentiary significance despite integrate grading and the psychology of the of- earlier language in their decisions suggesting that it fender. The question may arise when such evidence would properly be considered 1 On the other hand, is offered by a defendant, when instructions are one state court has apparently assumed that con- requested directing the jury to consider such evi- stitutional considerations required that proof of dence and telling them how to do so, and when a psychological abnormality be given full evidentiary defendant challenges the sufficiency of the evi- significance in regard to the state of mind of the dence to support a verdict. defendant at the time of the alleged offense' 2 The attempt to integrate grading of offenses and Despite the significant amount of literature on the psychology of the offender is by no means a the subject," the recent flurry of attention the recent development; it has received relatively ex- problem has received in the popular press as well tensive consideration by both courts and com- as in the case law and legal commentaries suggests mentators. In its only consideration of the matter,9 that a reexamination is in order. the United States Supreme Court in 1946 refused Doctrinal work in this area must be done with to overturn, either as a matter of evidentiary law frank acknowledgement of the difficulty of relating or in the exercise of its supervisory powers, the 1 Painter v. Commonwealth, 210 Va. 360, 171 decision of the Court of Appeals of the District of S.E.2d 166 (1969) (Offer of psychological evidence as Columbia that a trial court in a homicide prose- to whether defendant acted with malice aforethought or whether he premeditated properly refused) (Does cution had not erred in refusing to instruct the not mention language in Dejarnette v. Commonwealth, jury to consider the accused's mental illness in 75 Va. 867, 880-81 (1881): there are, doubtless, cases in which, whilst the determining whether he had harbored "malice prisoner may not be insane.., yet he may be in aforethought" at the time of the alleged killing. that condition from partial aberration or enfeeble- Suggesting that experience had not clearly demon- ment of intellect which renders him incapable of the sedate, deliberate and specific intent necessary strated the fallacy of the position taken by the to constitute murder in the first degree); Court of Appeals, the Supreme Court declined Curl v. State, 40 Wis. 2d 474, 162 N.W.2d 77 (1968), to express an opinion on the merits of the issue and cert. denied, 394 U.S. 1004 (1969) (disapproving any suggestion in Hempton v. State, 111 Wis. 127, 86 N.W. relegated the matter to legislative action or the 596 (1901), that mental abnormality short of insanity discretionary powers of the lower courts."0 was relevant to guilt). Cf. Hashfield v. State, 247 Ind. The issue seems, however, to have experienced a 95, 210 N.E.2d 429 (1965), cert. denied, 384 U.S. 921 (1966), making clear that language in Sage v. State, recent revival in the state appellate courts. Several 91 Ind. 141 (1883) (A defendant has a right to have courts, for example, have recently held such proof his mental condition at the time of the crime put before the jury) did not authorize a defense of "partial in- 8It has been suggested that insofar as the matter sanity." has been litigated in American courts, it applies only to 12Shaw v. State, 106 Ariz. 103,471 P.2d 715 (1970), homicide cases. State v. Gilmore, 242 Ore. 463, 469 n. cert. denied, 39 U.S.L.W. 3313 (U.S. Jan. 18, 1971). In 2, 410 P.2d 240, 243 n. 2 (1966). It has also been sug- dicta, the Arizona Supreme Court indicated that the gested that the "diminished responsibility" doctrine is, bifurcated trial procedure, which separated the trial in fact, applied only in capital cases as a means of void- of "guilt" from that of "insanity," violated the due ing a death penalty not voidable on other grounds.