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Diminished Capacity

Diminished capacity is a mental impairment. Occassionally, people might refer to diminished capacity as insanity or to the resulting crime as an excusable homicide. However, diminished capacity is a lesser mental defect than criminal insanity. And Wisconsin law does not recognize the term excusable homicide. Rather, if a defendant successfully asserts a diminished capacity defense, then the resulting homicide is excused. If a homicide is excused, then it is not a criminal homicide.

Under Wisconsin law, a person cannot be held criminally liable for his conduct, even if the conduct resulted in a homicide, if at the time that the crime was committed he had a mental defect that caused him to lack substantial capacity either to understand and appreciate the wrongfulness of his conduct or conform his conduct to lawful behavior. (WI Statutes 971.51(1)). However, the defendant bears the burden of proving mental defect.

Diminished Capacity & The Burden of Proof

In order to convict a person of a homicide, the state must prove its case beyond a reasonable doubt. While it may sound as though that is a difficult task, juries often convict innocent people of very serious crimes, including homicide.

Additionally, the Wisconsin State Supreme Court has held that the defendant's Constitutional rights are not violated by the court putting the burden of proof of the defense of diminished capacity on the defendant. Wisconsin law provides that the defendant must establish the evidence of diminished capacity to a reasonable certainty by a greater weight of the credible evidence, which is a standard of proof exceeding "a reasonable doubt".

Diminished Capacity & Incompetence

Diminished capacity defenses and incompetency defenses differ in both timing and effect. A diminished capacity claim applies to the time at which the crime was committed; conversely, a compentency claim applies to the time at which the defendant is tried for criminal homicide.

A diminished capacity claim asserts that the defendant lacked the capacity to commit the homicide at the moment that he is accused of committing it. A compentency claim asserts that the defendant is not mentally compentent to stand trial.

A diminished capacity claim must be proven in a court of law during a trial by the evidence and a substantial certainty by the jury that the evidence proves the mental defect. A compentency claim must be proven to a court.

Beyond Diminished Capacity To Insanity

If a defendant asserts insanity, he is asking the Court to declare him legally insane. The process whereby a defendant is declared legally insane differs from one in which the defendant must prove diminished capacity. To prove diminished capacity, the defendant must be competent to stand trial. To lack compentency means a defendant cannot stand trial.

Van Wagner & Wood - Homicide & Murder Defense Attorneys

Attorney Christopher T. Van Wagner has been three times awarded the Martin Hanson Advocate's Prize for his exceptional defense of people and numerous homicide and murder acquittals (not guilty verdicts). Attorney Chris Van Wagner is a former US Attorney (federal prosecutor, Madison, Wisconsin) and former state prosecutor (Trenton, New Jersey). Previously, he successfully defended people against criminal charges in Chicago, Illinois. Recently, he was named a Super Lawyer for Wisconsin in recognition of his career accomplishments. And he has repeatedly been voted as one of Dane County (Madison's) Best Criminal Lawyers. Last week, he won an outright acquittal on multiple counts of sexual assault.

Free Initial Case Review

If you are under investigation for homicide, if you have been charged with homicide, or if you have been convicted and believe your conviction or sentence wrong, please call (Wis statewide: , Madison: ) or e-mail the attorneys at Van Wagner & Wood.

Related Topics:
Murder | Felony Murder | Homicide | Second-degree Intentional Homicide