Moore, 122 N.J. 420, 431 (1991); State v. Oglesby, 122
N.J. 522, 528 (1991).
Subsequently, the Legislature amended the
diminished capacity statute. See N.J.S.A. 2C:4-2. The
current statute does not impose a burden of proof; rather
evidence of diminished capacity is admissible “whenever
it is relevant to prove that the defendant did not have a
state of mind which is an element of the offense.” N.J.S.A.
2C:4-2; see also State v. Delibero, 149 N.J. at 101.
Accordingly, New Jersey courts no longer instruct the
jury that a defendant asserts an affirmative defense when
presenting evidence of diminished capacity. Id.; see also
State v. Harris, 141 N.J. at 551.
In Delibero, the Supreme Court held that trial courts
should explicitly instruct juries that in considering the
prosecution’s burden to prove every element of an offense
beyond a reasonable doubt, the jury must consider all
evidence of a defendant’s mental state, including that
offered as evidence of diminished capacity or of insanity.
Id. at 106. Thus, when the issue of diminished capacity
is raised, the trial court is required to instruct the jury to
consider relevant evidence tending to show that the
defendant did not have the requisite state of mind to
commit the offense that is charged. State v. Johnson, 309
N.J. Super. at 268.
For cases where a defendant pleads both insanity and
diminished capacity and a discussion regarding the
proper instructions incorporating these concepts, see
State v. Delibero, supra, and State v. Harris, supra. In
Harris, the Supreme Court found that it was permissible
to instruct the jury that it should consider the insanity
defense first before considering the issue of diminished
capacity. 141 N.J. at 553-57. As a whole, the jury
instructions conveyed to the jury that it had to consider
evidence of diminished capacity in relation to the State’s
burden and was told to ignore evidence of diminished
capacity only if it found the defendant not guilty by
reason of insanity. Id. at 555-57. In Delibero, the
Supreme Court upheld the reverse situation, i.e., an
instruction was given which charged the jury to consider
diminished capacity first before a determination of
insanity. 149 N.J. at 102. The instruction in Delibero
was proper because it correctly explained to the jury that
it must consider evidence as to a defendant’s mental state
in determining whether or not the State had proven
beyond a reasonable doubt the defendant’s mental state
in relation to the elements of the crime, regardless of
whether the jury believed that the defendant had proven
diminished capacity. Id. Thus, whether or not there is
evidence of a diminished capacity, the State remains
obligated to prove that the defendant acted with the
requisite mental state, and the defendant bears no
burden. State v. Nataluk, 316 N.J. Super. at 343.Where evidence is presented in support of an insanity
defense which also clearly supports a diminished capacity
defense, the jury must be charged as such, even where
there is no request to charge. See State v. Juinta, 224 N.J.
Super. 711, 720 (App. Div.), certif. denied, 113 N.J. 339
(1988); see also State v. Jasuilewicz, 205 N.J. Super. 558,
574-75 (App. Div. 1985), certif. denied, 103 N.J. 467
(1986). A charge will not be given on whether a
defendant suffered from a diminished capacity unless
there is some evidence that the defendant’s mental
condition was such that the defendant’s ability to form
the requisite culpable state is in question. See State v.
Oglesby, 122 N.J. at 531; State v. Pitts, 116 N.J. 580, 607-
10 (1989); State v. Moore, 113 N.J. 239, 283-84 (1988);
see also State v. Reyes, 140 N.J. at 364-65; State v. Kotter,
271 N.J. Super. 214, 221 (App. Div.), certif. denied, 137
N.J. 313 (1994); State v. Watson, 261 N.J. Super. 169,
178 (App. Div. 1992), certif. denied, 133 N.J. 441
(1993); State v. Carroll, 242 N.J. Super. 549, 557 (App.
Div. 1990), certif. denied, 127 N.J. 326 (1991); State v.
Glover, 230 N.J. Super. 333, 339 (App. Div. 1988), certif.
denied, 121 N.J. 621 (1990). Moreover, if the record
cannot support a diminished capacity defense,
application of the incorrect Breakiron standard may still
constitute harmless error. See State v. Reyes, 140 N.J. at
362; State v. Smith, 322 N.J. Super. 385, 397-98 (App.
Div.), certif. denied, 162 N.J. 489 (1999); State v. Watson,
261 N.J. Super. at 178-81; State v. Carroll, 242 N.J.
Super. at 557.For cases involving the issue of whether a court
should provide a diminished capacity charge, see, State v.
Jasuilewicz, 205 N.J. Super. at 574-75 (the trial court’s
failure to charge the jury on the defense of diminished
capacity, in the absence of a request to charge, was error
in a murder trial, even though the defendant failed to give
pretrial notice required by R. 3:12, because evidence
adduced at a hearing on the issue of the defendant’s
competence to testify at trial clearly indicated that the
defendant’s mental condition was a crucial issue in the
case); State v. Serrano, 213 N.J. Super. 419, 424 (App.
Div. 1986), certif. denied, 107 N.J. 102 (1987) (the
failure to charge the jury on the defense of diminished
capacity was held to be reversible error where the defense
expert testified that the defendant suffered from a mental
“disease” which rendered the defendant incapable of
acting purposely or knowingly and the State’s expert
testified that the defendant suffered from a mental
“disorder” or “dysfunction”); State v. Juinta, 224 N.J.