involuntary intoxication); and see State v. Inglis, 304 N.J.
Super. 207, 210 (Law Div. 1997) (because driving while
intoxicated is not an offense under the New Jersey Code
of Criminal Justice, the Code’s defense of insanity is
inapplicable to such a charge).
V. MENTAL DISEASE OR DEFECT
A. Diminished Capacity
N.J.S.A. 2C:4-2, the diminished capacity statute,
provides: “[e]vidence that the defendant suffered from a
mental disease or defect 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.” Mental
disease or defect is a separate concept from insanity. See
State v. Nataluk, 316 N.J. Super. 336, 343 (App. Div.
1998).
Diminished capacity describes a disease or defect of
the mind that may negate the mental state that is an
element of the offense charged. State v. Delibero, 149 N.J.
90, 92, 98 (1997); State v. Reyes, 140 N.J. 344, 354
(1995); see also State v. Nataluk, 316 N.J. Super. at 343.
The jury considers evidence of diminished capacity in
relation to the State’s burden to prove the essential
elements of the crime. State v. Delibero, 149 N.J. at 98;
State v. Harris, 141 N.J. 525, 555 (1995). Thus,
evidence of diminished capacity is admissible whenever
relevant to prove that the defendant did not have the state
of mind, which is an element of the offense. N.J.S.A.
2C:4-2; State v. Delibero, 149 N.J. at 101. It permits the
introduction of evidence which is relevant to the question
of whether the State has proven the required mental state
beyond a reasonable doubt. State v. Johnson, 309 N.J.
Super. 237, 268 (App. Div.), certif. denied, 156 N.J. 387
(1998).
An insane defendant, by contrast, may act in
accordance with the elements required to commit an
offense, but the insanity absolves the defendant of
criminal responsibility. State v. Delibero, 149 N.J. at 99.
However, a verdict of not guilty by reason of insanity does
not result in the defendant being set free, but rather,
subjects the defendant to further commitment
proceedings; on the other hand, a verdict of not guilty
because of a defendant’s diminished capacity, would
result in the defendant’s freedom. Id. at 104-105. It
should be noted that evidence of diminished capacity and
insanity may overlap, i.e., facts adduced in support of one
claim may be relevant to the other. Id. at 101.
The determination that a condition constitutes a
mental disease or defect for purposes of the diminished
capacity statute is one to be made in each case by the jury
after the court has determined that evidence of the
condition in question is relevant and sufficiently accepted
within the psychiatric community to be found reliable
for courtroom use. State v. Galloway, 133 N.J. 631, 643
(1993). All mental deficiencies, including conditions
that cause a loss of emotional control, may satisfy the
diminished capacity defense if the record shows that
experts in the psychological field believe that the mental
deficiency can affect a person’s cognitive faculties, and if
the record also contains evidence that the claimed
deficiency did in fact affect the defendant’s cognitive
capacity to form the mental state necessary for the
commission of the crime. State v. Bey, 161 N.J. 233, 288
(1999), cert. denied, 120 S.Ct. 2693 (2000); State v.
Galloway, 133 N.J. at 647; see also State v. Bauman, 298
N.J. Super. 176, 197 (App. Div.), certif. denied, 150 N.J.
25 (1997). Moreover, the term “mental disease or
defect” under the diminished capacity statute does not
preclude evidence of mental condition consisting of a
borderline personality disorder; in fact, forms of
psychopathology other than clinically-defined mental
disease or defects may affect the mental process and
diminish cognitive capacity, and therefore, may be
regarded as a mental disease or defect in the statutory or
legal sense. State v. Galloway, 133 N.J. at 641, 643.B. Burden of Proof and Jury InstructionsUnlike insanity, diminished capacity is not an
affirmative defense. See State v. Delibero, 149 N.J. at 98-- The former version of the diminished capacity
statute imposed a burden upon the defendant of proving
diminished capacity by a preponderance of the evidence.
See State v. Breakiron, 108 N.J. 591, 611 (1987); see also
State v. Zola, 112 N.J. 384, 399-403 (1988), cert. denied,
489 U.S. 1022, 109 S.Ct. 1146 (1989). Under the
former statute, it required for the defendant to show the
existence of a mental disease or defect relevant to an
element of the offense. Ibid; see also State v. Delibero, 149
N.J. at 100-101.
However, in Humanik v. Beyer, 871 F.2d 432, 441-
43 (3d Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 57
(1989), the United States Court of Appeals for the Third
Circuit ruled that imposing such a burden on a defendant
violated federal due-process requirements. The Third
Circuit held that such a burden impermissibly imposed
a “filter” that relieved the burden of the state to prove
every element of the crime. Id. at 443; see also State v.