diminished capacity defense in Ohio

2008State v. Jackson (1972), 32 Ohio St.2d 203, 206 , 61 O.O.2d 433 , 291 N.E.2d 432 ; State v. Wilcox (1982), 70 Ohio St.2d 182 , 24 O.O.3d 284 , 436 N.E.2d 523 , paragraph one of the syllabus. {¶ 67} In State v. Wilcox, we set forth our reasons for not adopting the diminished-capacity defense.

2008State v. Jackson (1972), 32 Ohio St.2d 203, 206 , 61 O.O.2d 433 , 291 N.E.2d 432 ; State v. Wilcox (1982), 70 Ohio St.2d 182 , 24 O.O.3d 284 , 436 N.E.2d 523 , paragraph one of the syllabus. {¶ 67} In State v. Wilcox, we set forth our reasons for not adopting the diminished-capacity defense.

2008State v. Jackson (1972), 32 Ohio St.2d 203, 206 , 61 O.O.2d 433 , 291 N.E.2d 432 ; State v. Wilcox (1982), 70 Ohio St.2d 182 , 24 O.O.3d 284 , 436 N.E.2d 523 , paragraph one of the syllabus. {¶ 67} In State v. Wilcox, we set forth our reasons for not adopting the diminished-capacity defense.

2008State v. Jackson (1972), 32 Ohio St.2d 203, 206 , 61 O.O.2d 433 , 291 N.E.2d 432 ; State v. Wilcox (1982), 70 Ohio St.2d 182 , 24 O.O.3d 284 , 436 N.E.2d 523 , paragraph one of the syllabus. {¶ 67} In State v. Wilcox, we set forth our reasons for not adopting the diminished-capacity defense.

1994Within the range of individuals who are not ‘insane,’ the law does not recognize the readily demonstrable fact that as between individual criminal defendants the nature and development of their mental capabilities may vary greatly.” Wilcox, supra, 70 Ohio St.2d at 191-192 , 24 O.O.3d at 289, 436 N.E.2d at 528-529 , quoting Bethea v. United States (D.C.App.1976), 365 A.2d 64 .

1982App. 1976), 365 A. 2d 64 , wherein the court voiced persuasive objections to the diminished capacity doctrine.

2022I do not see violent crimes due to marijuana.” (Tr. 187.) “I see them due to alcohol, cocaine, PCP, methamphetamines and toluene spray paint, not cannabis.” Id.

2022Hamilton No. C- 200417, 2021-Ohio-4000, ¶ 46 ; accord State v. Ireland, 155 Ohio St.3d 287 , 2018- Ohio-4494, 121 N.E.3d 285, ¶ 16 (the court held that the state had waived its argument regarding the defendant’s diminished-capacity defense where the state “had ‘no objection’ to Ireland’s calling Dr. Reardon as an expert witness, affirmatively told the trial court that it was not requesting that the court strike Dr. Reardon’s testimony, and agreed that there was ‘no objection to anything on the standards.’ ”).

2021Further, the state asserts that appellant’s argument about his “unspecified cognitive disabilities” does not relate to the sufficiency of the evidence, but rather is an attempt to establish a diminished capacity defense. {¶ 31} Appellant cites State v. Hartman, 2016-Ohio-2883 , 64 N.E.3d 519 (2d Dist.), in support of his arguments.

2018Clermont No. CA2016-04-022, 2017-Ohio-246 , 2017 WL 283473 , ¶ 23-28, appeal not accepted , 150 Ohio St.3d 1452 , 2017-Ohio-8136 , 83 N.E.3d 938 (PTSD is not a stand-alone defense, and PTSD evidence may not be presented for purpose of negating mens rea by a defendant who is not asserting an insanity defense). {¶ 63} The lead opinion declines to address the nature of Ireland's diminished-capacity defense due to the state's waiver of certain issues at trial.

2018Clermont No. CA2016-04-022, 2017- Ohio-246, ¶ 23-28, appeal not accepted, 150 Ohio St.3d 1452 , 2017-Ohio-8136 , 83 N.E.3d 938 (PTSD is not a stand-alone defense, and PTSD evidence may not be presented for purpose of negating mens rea by a defendant who is not asserting an insanity defense). {¶ 63} The lead opinion declines to address the nature of Ireland’s diminished-capacity defense due to the state’s waiver of certain issues at trial.

2018Clermont No. CA2016-04-022, 2017-Ohio-246 , 2017 WL 283473 , ¶ 23-28, appeal not accepted , 150 Ohio St.3d 1452 , 2017-Ohio-8136 , 83 N.E.3d 938 (PTSD is not a stand-alone defense, and PTSD evidence may not be presented for purpose of negating mens rea by a defendant who is not asserting an insanity defense). {¶ 63} The lead opinion declines to address the nature of Ireland's diminished-capacity defense due to the state's waiver of certain issues at trial.

2018Richland No. 2010-CA-0018, 2011-Ohio-309 , 2011 WL 304360 , ¶ 45-47. {¶ 65} Given that insanity is a statutorily recognized affirmative defense in Ohio, R.C. 2901.01(A)(14), a partial-insanity or insanity-related defense such as diminished capacity would be an affirmative defense as well.

2011Further, except in the mitigation phase, a defendant may not introduce expert psychiatric testimony unrelated to the insanity defense for the purpose of showing that due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a Richland County, Case No. 2010-CA-0018 14 particular crime or degree of crime Wilcox, supra, 70 Ohio St.2d. at paragraph two of the syllabus; State v. Fulmer, 117 Ohio St.3d 319 , 883 N.E.2d 1052 , 2008-Ohio-936 at ¶ 70; State v. Cooey (1989), 46 Ohio St.3d 20 , 544 N.E.2d 895 , paragraph one of

2008We stated that “the diminished capacity theory forcefully challenges conventional concepts of culpability and ‘involve[s] a fundamental change in the common law theory of responsibility.’ ” Id. at 198 , 24 O.O.3d 284 , 436 N.E.2d 523 , quoting Fisher v. United States (1946), 328 U.S. 463, 476 , 66 S.Ct. 1318 , 90 L.Ed. 1382 .

2008We stated that “the diminished capacity theory forcefully challenges conventional concepts of culpability and ‘involve[s] a fundamental change in the common law theory of responsibility.’ ” Id. at 198 , 24 O.O.3d 284 , 436 N.E.2d 523 , quoting Fisher v. United States (1946), 328 U.S. 463, 476 , 66 S.Ct. 1318 , 90 L.Ed. 1382 .

2008Here, there was no such showing, and the trial court properly instructed the jury. {¶ 71} Even if the diminished-capacity defense were viable in Ohio, the evidence before this jury could not support it. {¶ 72} In State v. Melchior (1978), 56 Ohio St.2d 15, 20 , 10 O.O.3d 8 , 381 N.E.2d 195 , we held that in order for a defendant to properly raise an affirmative defense, “ ‘evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source the evidence may come.’ Evidence is sufficient where a reasonable doubt of guilt has arisen based upon a claim of the de

2008Here, there was no such showing, and the trial court properly instructed the jury. {¶ 71} Even if the diminished-capacity defense were viable in Ohio, the evidence before this jury could not support it. {¶ 72} In State v. Melchior (1978), 56 Ohio St.2d 15, 20 , 10 O.O.3d 8 , 381 N.E.2d 195 , we held that in order for a defendant to properly raise an affirmative defense, “ ‘evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source the evidence may come.’ Evidence is sufficient where a reasonable doubt of guilt has arisen based upon a claim of the de

2008Here, there was no such showing, and the trial court properly instructed the jury. {¶ 71} Even if the diminished-capacity defense were viable in Ohio, the evidence before this jury could not support it. {¶ 72} In State v. Melchior (1978), 56 Ohio St.2d 15, 20 , 10 O.O.3d 8 , 381 N.E.2d 195 , we held that in order for a defendant to properly raise an affirmative defense, “ ‘evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source the evidence may come.’ Evidence is sufficient where a reasonable doubt of guilt has arisen based upon a claim of the de

2008Here, there was no such showing, and the trial court properly instructed the jury. {¶ 71} Even if the diminished-capacity defense were viable in Ohio, the evidence before this jury could not support it. {¶ 72} In State v. Melchior (1978), 56 Ohio St.2d 15, 20 , 10 O.O.3d 8 , 381 N.E.2d 195 , we held that in order for a defendant to properly raise an affirmative defense, “ ‘evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source the evidence may come.’ Evidence is sufficient where a reasonable doubt of guilt has arisen based upon a claim of the de

2008State v. Fulmer, Lake App. No. 2005-L-137, 2006-Ohio-7015 , 2006 WL 3833870 , ¶ 42 (Westcott Rice, J., dissenting).

2003We therefore hold that a defendant may not offer expert psychiatric testimony unrelated to the insanity defense * * * to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." Cooey , at 26. {¶ 72} Moreover, in State v. Wong (1994), 95 Ohio App.3d 39 , the Fourth Appellate District performed a thorough survey of whether exclusion of psychiatric testimony on the issue of mens rea or specific intent violates a defendant's constitutional rights.

2000See, e.g., State v. Mitts (1998), 81 Ohio St.3d 223 , 227 ("Moreover, the trial court could have excluded the testimony because, except in the mitigation phase, `a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime.'" (Citation omitted.)); State v. McCray (1995), 103 Ohio App.3d 109 , 118 ("Ohio does not recognize a partial defense of diminished capacity; a defendant may n

1994Appellant then notes that the Wilcox decision rejected the diminished capacity doctrine in part because of the notion that the then-existing insanity rule was broad enough to allow defendants “to present a meaningful insanity defense.” Id., 70 Ohio St.2d at 188 , 24 O.O.3d at 288, 436 N.E.2d at 527 .

1993Id. at 890 .

1982It is no coincidence that California, which pioneered the diminished capacity defense, for many years adhered to a strict M’Naghten standard. 8 Justice Mosk of the California Supreme Court explicitly acknowledged the ameliorative effect of California’s diminished capacity defense in People v. Kelly (1973), 10 Cal. 3d 565, 579-80 , 516 P. 2d 875 (Concurring opinion): “Efforts to ‘get around’ the M’Naghten rule were undertaken in New Hampshire as long ago as 1870 (State v. Pike, 49 N.H. 399, 429 ), by Judge Bazelon in 1954 in Durham v. United States, 214 F. 2d 862 , by Chief Judge Biggs of the T

1982It is no coincidence that California, which pioneered the diminished capacity defense, for many years adhered to a strict M’Naghten standard. 8 Justice Mosk of the California Supreme Court explicitly acknowledged the ameliorative effect of California’s diminished capacity defense in People v. Kelly (1973), 10 Cal. 3d 565, 579-80 , 516 P. 2d 875 (Concurring opinion): “Efforts to ‘get around’ the M’Naghten rule were undertaken in New Hampshire as long ago as 1870 (State v. Pike, 49 N.H. 399, 429 ), by Judge Bazelon in 1954 in Durham v. United States, 214 F. 2d 862 , by Chief Judge Biggs of the T

1982It is no coincidence that California, which pioneered the diminished capacity defense, for many years adhered to a strict M’Naghten standard. 8 Justice Mosk of the California Supreme Court explicitly acknowledged the ameliorative effect of California’s diminished capacity defense in People v. Kelly (1973), 10 Cal. 3d 565, 579-80 , 516 P. 2d 875 (Concurring opinion): “Efforts to ‘get around’ the M’Naghten rule were undertaken in New Hampshire as long ago as 1870 (State v. Pike, 49 N.H. 399, 429 ), by Judge Bazelon in 1954 in Durham v. United States, 214 F. 2d 862 , by Chief Judge Biggs of the T

1982It is no coincidence that California, which pioneered the diminished capacity defense, for many years adhered to a strict M’Naghten standard. 8 Justice Mosk of the California Supreme Court explicitly acknowledged the ameliorative effect of California’s diminished capacity defense in People v. Kelly (1973), 10 Cal. 3d 565, 579-80 , 516 P. 2d 875 (Concurring opinion): “Efforts to ‘get around’ the M’Naghten rule were undertaken in New Hampshire as long ago as 1870 (State v. Pike, 49 N.H. 399, 429 ), by Judge Bazelon in 1954 in Durham v. United States, 214 F. 2d 862 , by Chief Judge Biggs of the T

1982While a number of states followed California’s lead in adopting one form or another of the diminished capacity defense, see Annotation, 22 A.L.R. 3d 1228 , the Brawner court may have overstated the case when it found that the doctrine was being “adopted by the overwhelming majority of courts that have recently faced the question.” 471 F. 2d at page 1000 . 5 A post- Brawner student note determined that the supposed trend detected in Braimer was continuing, stating that “in recent years a growing number of jurisdictions have recognized the concept of diminished capacity.” Note, Diminished Capaci

1982The test for insanity in Ohio is set forth in State v. Staten (1969), 18 Ohio St. 2d 13 , paragraph one of the syllabus, as follows: “One accused of criminal conduct is not responsible for such criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he does not have the capacity either to know the wrongfulness of his conduct or to conform his conduct to the requirements of law. * * *” (Citations omitted.) While this standard is arguably less expansive than that espoused by the drafters of the Model Penal Code, see Section 4.01, 9 it is considerably more flexi

1982See, e.g., People v. Wolff, supra; People v. Goedecke (1967), 65 Cal. 2d 850 , 423 P. 2d 777 ; People v. Nicolaus (1967), 65 Cal. 2d 866 , 423 P. 2d 787 ; People v. Bassett (1968), 69 Cal. 2d 122 , 443 P. 2d 777 (brutal murders reduced in degree pursuant to California’s diminished capacity rule).

1982See, e.g., People v. Wolff, supra; People v. Goedecke (1967), 65 Cal. 2d 850 , 423 P. 2d 777 ; People v. Nicolaus (1967), 65 Cal. 2d 866 , 423 P. 2d 787 ; People v. Bassett (1968), 69 Cal. 2d 122 , 443 P. 2d 777 (brutal murders reduced in degree pursuant to California’s diminished capacity rule).