diminished guilt, a legal doctrine that relieves an accused person of part of responsibility for his offence if he suffers from a mental abnormality such that his responsibility for having committed or participated in an alleged offence is significantly diminished. The doctrine of diminished guilt provides a mitigating defence in cases where the mental illness or disability is not of such magnitude that criminal liability is completely excluded. The next proposal that has been put forward is the idea of abolishing the diminished defence of liability altogether. The mental state would then be transferred to the element and intent of Mens Rea. However, this does not allow for comment on the final question, which is addressed only to the judge or jury, and it is very difficult to watch the open discussion and cross-examination without discussing the final question with the psychiatrist. There is also the problem that it is easy to have an intention and still be quite disturbed, but at the same time not reach the required level in a crazy defense. You can express very clearly the intention to kill someone and have a specific intention, but be pretty crazy. It is the reasons for intent that are important in the question of diminished liability. In Montana and some other states in the United States, the concept of reduced capacity has been abolished by law. That is, insanity and competence are not recognized as components of guilt or innocence. Psychiatric testimony is still used, but official psychiatric reports are limited to the jurisdiction of the accused to assist in his or her defence.
If it is determined that he is not as competent, he is taken to the public hospital for treatment. It is interesting to note that the public hospital believes that it cannot force such a patient to undergo treatment. However, the administrator of the public hospital in the United States has granted the request of at least one judge that an accused must be treated because of the threat to spend the night in detention after a contempt charge is laid. When you talk to psychiatrists in those states, it seems they believe that this system has worked quite well. They believe that judges and prosecutors seem to have a good understanding of what constitutes a disability and what is not, and that, therefore, the flexibility required in this system for the compassionate function in the law remains primarily in pre-trial manoeuvres. Could such a system be successfully replicated outside of a conservative and sparsely populated jurisdiction like Montana, which had two board-certified forensic psychiatrists at the time of writing? They also commented that in the U.S. they had a problem not only with preventing personality disorders and defending against multiple personality disorders, but also with claims of reduced capacity based on alleged stories of “abuse.” Curiously, the public is disgusted with both the criminal justice system and psychiatric testimony, while being unable to convict defendants in jury format in high-profile cases that make these defenses with sufficient legal firepower. In Montana, no such problem has arisen since the Montana legislature abolished the non-obligation exception. Eliminating personality disorder would not do much in the American experiment, and they thought such suggestions underestimated the wisdom of lawyers! 7 This kind of approach seems to me to be a step backwards, as it opens the door to class influences, racism and gender prejudice in the eyes of the public and in the secrecy of negotiations.
It was a step forward in ensuring that these issues were dealt with in due process, and that is where they should remain, in the hands of judges and jurors. In fact, many people seem to think that it is not enough to rely on sentencing and are not in favour of putting the case in the hands of lawyers, even if it is a judge. I assume that personality disorder has been eliminated from the psychiatric disorders accepted for reduced capacity in Oregon. In criminal law, impaired guilt (or diminished capacity) is a possible excuse defence used by defendants to argue that, although they have broken the law, they should not be held entirely criminally responsible because their mental functions have been “impaired” or impaired. U.S.S.G. Section 5K2.0 allows a deviation from minimum sentences for “extraordinary mental state.” Unlike 5K2.13, this section does not explicitly limit the gap to nonviolent crimes. Most recently, the Court of Appeals for the Ninth Circuit explicitly recognized that 5K2.0 creates a “diminished capacity” argument for violent crimes. These theoretical and practical issues have angered feminists who see things such as the battered woman syndrome as being originally associated with diminished responsibility, as well as the more obvious use in provocation.
Stubbs/Tolmie say: “Our concerns appear to have some merit, as evidenced by the number of cases where abused woman syndrome has been used to support a manslaughter conviction or to mitigate the sentence in circumstances where a full acquittal would have been more appropriate. There are few cases where the judge has given us insight into the impact of the abused woman syndrome testimony on their reasoning, and in the other cases we can only speculate on what the outcome might have been without such evidence. 4 White`s lawyers argued for a decrease in capacity. They claimed that a diet consisting solely of junk food had caused a chemical imbalance in White`s brain (the “Twinkie defense”), and that he was depressed because he had lost his position as city leader.