The Effect of Intoxication as a "Mitigating Factor" for Murder and Manslaughter

The rule of law is, that although the use of intoxicating liquors does to some extent blind the reason and exasperate the passions, yet as a man voluntarily brings it upon himself, he cannot use it as an excuse, or justification or extenuation of crime. A man, because he is intoxicated, is not deprived of any legal advantage or protection; but he cannot avail himself of his intoxication to exempt him from any legal responsibility, which would attach to him, if sober.(1)

I.  Introduction

A person who voluntary intoxicates himself and commits criminal acts while intoxicated, cannot use voluntary intoxication(2) as a defense in order to excuse himself from criminal liability.(3) In specific-intent crimes,(4) however, evidence of intoxication can be a means of "negating" the requisite mental element of those crimes by reducing the likelihood that this element can be proven by the prosecution.(5) This "negating" effect occurs when evidence of intoxication is allowed to reach the jury, and the prosecution has failed to prove the crime charged beyond a reasonable doubt.(6) A person who is charged with committing a crime, therefore, may be able to utilize evidence of intoxication as a defense.(7) For example,

Assume . . . a murder charge that requires the state to prove that the defendant intended to kill a human being. The prosecutor can prove that the defendant aimed a gun at the victim and shot point-blank. If this is the only evidence, the jury will likely conclude beyond a reasonable doubt that the defendant did have the requisite intent. But what if the defendant presents evidence that he was so [intoxicated] when he did these acts that he thought he was shooting a bear? If the jury finds this evidence convincing, the prosecution will have difficulty proving beyond a reasonable doubt that the defendant intended to kill a human being after all.(8)

Notwithstanding the non-existence of a state statute that excuses a crime due to voluntary intoxication, evidence of intoxication nonetheless may negate the specific element of the crime charged, and in effect, reduce the crime to a lesser included offense.(9) Evidence of intoxication, therefore, is a major factor in determining whether the state has proved that the defendant possessed the requisite elements of the crime beyond a reasonable doubt.(10)

Murder is a specific-intent crime.(11) For a person to be charged with murder in the first(12) or second degree,(13) the defendant must possess the requisite mental state of malice aforethought.(14) Malice is the necessary element that turns an unjustified killing of another person into murder.(15) When a person charged with murder claims that he or she was too intoxicated to possess the requisite mental state to commit the crime, the evidence of intoxication may negate the malice element.(16) When malice is negated so that murder in the first and second degree cannot be proven beyond a reasonable doubt, a manslaughter instruction may be appropriate.(17) Manslaughter, as a lesser offense, requires no malice.(18) A problematic loophole is revealed when an instruction for manslaughter, either voluntary(19) or involuntary,(20) is not appropriate.(21) A manslaughter instruction is not always appropriate because the evidence and facts presented in the case may not warrant the instruction.(22) Furthermore, if a jurisdiction does not recognize diminished capacity as an affirmative defense or if that jurisdiction does not reduce a murder charge to manslaughter, if the requisite elements of murder are not met; imagine the possibilities. What happens if all of the elements of murder are not met?(23)

If there is no evidentiary basis for a manslaughter instruction, is it possible that a jury could actually acquit the defendant of murder?(24) What makes this issue more perplexing, is that even though it has been previously discussed by those jurisdictions that recognize the dilemma in this area in criminal law,(25) no sensible or convincing solution has been adequately raised. "If the jury acquits the accused of murder, it cannot logically convict him of voluntary manslaughter, because the acquittal of murder necessarily implies the absence of proof as to at least one element of voluntary manslaughter."(26) Furthermore, even without this theoretical loophole, evidence of intoxication in murder cases becomes more problematic and confusing when the case law seemingly broadens the spectrum in which this evidence plays a part.(27)

This Note discusses how evidence of intoxication is playing an increasing role in mitigating the malice requirement required for murder.(28) With this increasing role, evidence of intoxication significantly increases the chances of an acquittal because the apparent anomaly in the murder-voluntary manslaughter relationship has not yet been resolved.(29) If malice is negated due to the intoxication, and a manslaughter instruction is not appropriate, what other recourse under the law exists? Fortunately, courts and legislatures recognizing this dilemma have bypassed the confusion that surround the introduction of evidence of intoxication, by simply limiting its use on policy grounds.(30)

In Massachusetts, there is a confusing state of affairs with regard to intoxication as a mitigating factor in murder and manslaughter, because the courts have yet to establish a definitive stance on this issue.(31) The established rule in Massachusetts has been to keep evidence of voluntary intoxication from reaching the jury when evidence of an abnormal mental condition did not reach the level of insanity.(32) As times change and as evidence of intoxication increases in relevancy to the mental state of the defendant, however, a type of defense is seemingly created.(33)

This Note also discusses and focuses on how evidence of voluntary intoxication can affect the crimes of murder and manslaughter to such degree that a criminal defendant can be acquitted.(34) Part II discusses the concept of "intent" and its various interpretations.(35) This discussion clarifies how evidence of intoxication confuses the criminal process, and results in an increased possibility of acquittal.(36) Part III examines the historic trend of voluntary intoxication(37) in Massachusetts case law, and demonstrates how it has progressively become a defense in this perplexing area of criminal law.(38) Part IV considers the possible solutions to the murder-voluntary manslaughter theoretical anomaly and demonstrates how evidence of intoxication can exacerbate the process.(39) Finally, solutions will be offered in an attempt to find a balance between the defendant's interest in introducing relevant evidence, and the state's interest in keeping dangerous murderers incarcerated.(40) A conclusion follows in Part V.(41)

II.  Evidence of Intoxication Highlights the Confusing Distinctions of Intent

"[M]ost jurisdictions would want to retain a mens rea element in the definition of all true crimes."(42) However, the potential of negativing a required element of a crime is greater when ambiguities exist among the "`mental state' words."(43)

A.  Mens Rea

The underlying reason courts have created the confusion general/specific intent categorization is to deal with claims of intoxication. . . . Courts commonly confuse the mens rea(44) and partial responsibility(45) variants of such claims or they fear the negation of mens rea by intoxication. . . . [Courts] commonly confuse a moral issue--when should the law allow mens rea to be negated?--with an empirical issue--when can mens rea be negated in fact?(46)

The majority of jurisdictions allow the jury to consider evidence of voluntary intoxication to determine whether a defendant charged with a specific-intent crime(47) was capable of forming the requisite intent.(48) Only a minority of jurisdictions do not allow this evidence to reach the jury on this issue.(49) In order to appreciate how evidence of intoxication can potentially negate the malice element of murder, the specific mental state element must be distinguished from general intent.(50)

Currently, there is no "diminished capacity" defense in Massachusetts.(51) Although a defendant may be voluntary intoxicated during the act of killing, that does not always negate the jury's finding that specific intent to kill was present.(52) There are Massachusetts cases, however, that demonstrate how voluntary intoxication may be used as a defense if it negates the requisite state of mind necessary to establish specific intent.(53)

Whatever the logical justification for such a distinction, the courts of most jurisdictions have agreed that although voluntary intoxication may not be shown for the purpose of negativing general criminal intent, where the prosecution is for a specific intent crime, intoxication, although voluntary, which precludes the formulation of the necessary intention, may be shown as a defense.(54)

Thus, in crimes that require only a "general intent," courts have been unwilling to recognize voluntary intoxication as a defense.(55) Massachusetts is among those jurisdictions that follow this general rule. Although the Massachusetts courts have recognized voluntary intoxication as a relevant factor in mitigating specific-intent crimes,(56) the Massachusetts courts are unwilling to recognize voluntary intoxication as a defense to general-intent crimes.(57) Despite its unwillingness, evidence of intoxication is becoming more readily admitted at trial, and playing a greater role in negating the malice requirement of murder (third prong of malice requires only an act of general intent).(58)

B.  Affirmative Defense vs. Negativing Defense: How Intoxication Plays into the Confusion

"[T]he increased emphasis on subjective guilt as a prerequisite for criminal conviction and the insistence upon prosecutorial proof of the elements of a crime beyond a reasonable doubt . . . may be responsible for some increase in the freeing of dangerous people."(59)

There are conceptual differences between the use of the terms "affirmative defense" and "negativing defense."(60) With an affirmative defense the state has "chosen to place the burden of persuasion on the defendant, irrespective of whether or not that defense serves to negative any facts of the crime which the state must prove in order to convict."(61) "Negativing defenses" are those defenses, "if believed, preclude the existence of elements of the offense."(62) Evidence of intoxication is potentially negativing in that, if allowed to reach the jury, it can in effect negate the malice requirement of murder.(63) A manslaughter instruction will not be automatically given if the facts of the case do not warrant the instruction.(64) Thus, evidence of intoxication will increase the chances of exploiting a murder-manslaughter anomaly.

[I]f the defense is permitted to introduce negativing evidence of . . . intoxication, and that evidence is believed by the factfinder, the prosecution's task necessarily will include overcoming whatever doubts the defense evidence has raised about the existence of the required mental state. . . . If the prosecutor failed, the consequences could be severe: A person whose mental . . . intoxication had resulted in dangerous behavior might be out on the street and capable of again causing harm.(65)

Determining whether the defendant possessed the requisite mental state while intoxicated is a factual question best answered with the help of an expert, who can discuss the effects of different levels of intoxication.(66) Because convincing evidence of intoxication is still evolving, it is difficult to determine the full extent of its power to negate an essential element of the heinous crime of murder.(67)

III.  Intoxication as a Criminal Defense in Massachusetts

A.  Murder and Malice Requirements of Culpability

To convict a defendant of first degree murder in Massachusetts, the Commonwealth must prove beyond a reasonable doubt one of three elements: (1) that the murder was committed with deliberately premeditated(68) malice aforethought(69); (2) that the murder was committed with extreme atrocity or cruelty; or (3) that the murder was committed during the commission or attempted commission of a crime punishable by death or life imprisonment.(70)

The increasing use of relevant evidence of intoxication is creating a trend, whereas the malice requirement, essential to convict a defendant for murder, is becoming more difficult for the prosecution to prove beyond a reasonable doubt.(71) The first two elements of the malice requirement are specific-intent elements, while the third element is a general-intent element.(72) With regard to the third element, "malice aforethought may be inferred if, in the circumstances known to the defendant, a reasonably prudent person would have known that . . . there was a plain and strong likelihood that death would follow the contemplated act."(73) Under circumstances in which the defendant is highly intoxicated, allowing the jury to find that the defendant did not possess the requisite specific intent necessary to commit the murder, the malice aforethought can be inferred from the defendant's actions.(74) Although this "third prong" of malice is general in nature, evidence of mental impairment can be introduced because the evidence considers whether the defendant was knowledgeable about the circumstances.(75)

B.  Background on Intoxication Case Law

Until the 1970s, Massachusetts courts were reluctant to allow evidence of drug or alcohol intoxication as a defense in criminal cases.(76) Evidence of voluntary intoxication could not be used as a defense to any criminal conduct.(77) In crimes requiring a specific intent, the long-standing rule in Massachusetts was not to allow evidence of voluntary intoxication to negate the requisite mental state.(78) The Supreme Judicial Court of Massachusetts (SJC), was concerned that by allowing evidence of intoxication to reach the jury on the issue of criminal liability, criminal law would be undermined.(79) As previously mentioned, intoxication is not an affirmative defense,(80) such as an insanity defense, but is considered a "form" of diminished capacity.(81) Thus, any evidence of mental illness, short of insanity,(82) was not admissible to excuse one's illicit acts.(83)

Beginning around the 1970s, the SJC began to allow the jury to consider evidence of voluntary intoxication and mental impairment short of insanity, solely to decide whether the defendant killed another person with deliberate premeditated(84) malice aforethought,(85) or with extreme atrocity or cruelty.(86) This rule was finally enunciated in the 1980 case of Commonwealth v. Gould.(87) In Gould, the SJC reasoned that there was "no justifiable reason" for treating the effect of involuntary mental illness differently from voluntary intoxication.(88) The SJC stated:

It would be a legal as well as a logical incongruity to hold that the crime of murder in the first degree could only be committed after deliberate thought or premeditated malice, and yet that it might be committed by one who was without mental capacity to think deliberately or determine rationally.(89)

Following the reasoning of Gould, a defendant accused of deliberate premeditated murder, or murder by extreme atrocity or cruelty, (both of which are specific-intent circumstances), may negate these elements by demonstrating that he or she was intoxicated by alcohol or drugs at the time of the crime.(90) This would allow the jury to presume(91) that the defendant did, in fact, act with malice;(92) however, his capacity to act with deliberate premeditation or with extreme atrocity or cruelty was impaired.(93) Thus, evidence of intoxication does not negate malice, but only aspects of this element, reducing the crime to second degree murder, not manslaughter.(94)

Although the SJC in Gould, limited its application of impaired mental capacity to a theory of first-degree murder, the court's reasoning has been criticized.(95) By allowing the jury to consider evidence of "mental abnormality in order to determine if the lower verdict of second degree murder is more consonant with justice,"(96) the court has in effect adopted the standard of "true partial responsibility."(97) Gould's reasoning makes headway for future cases, because a jury can consider evidence of mental impairment to determine whether the defendant deserves a mitigation of culpability due to his or her seeming inability to appreciate the consequences of his or her actions.(98) If the issue of intoxication is adequately raised by the defendant, then the defendant would be entitled to present a jury instruction.(99)

Intoxication as a mitigating factor of murder was extended in Commonwealth v. Henson.(100) In Henson, evidence of intoxication from drugs or alcohol was admitted to show an impairment of the defendant's capacity(101) to form the requisite specific intent to commit a crime.(102) The SJC held that the crime of assault with intent to murder requires both malice and specific intent.(103) For purposes of determining when intoxication can be used as a mitigating factor, any previous distinctions that were drawn between deliberate premeditation and other specific intent elements were discarded.(104) If a defendant is convicted without possessing the requisite specific criminal intent, violations of due process under the fourteenth amendment can be raised.(105) The court further stated that any previous rule that absolutely barred relevant evidence was arbitrary.(106)

As a result of Henson, evidence of intoxication is a mitigating factor of whether the defendant had the ability or capacity to form the specific intent to kill the victim;(107) or to form the specific intent to inflict grievous bodily harm on him or her; or about whether the defendant possessed the requisite knowledge of the circumstances in which he acted that created a plain and strong likelihood of death resulting from his acts.(108) Henson reversed a long line of Massachusetts cases by allowing the jury to consider whether a defendant's voluntary intoxication prevented the defendant from forming the specific intent to commit murder.(109) This holding extended beyond crimes involving strictly premeditation, to all crimes that require proof of specific intent.(110) Chief Justice Hennessey stressed that the court's reasoning will apply to specific-intent crimes, but not to general-intent crimes.(111)

In the 1987 case of Commonwealth v. Grey,(112) the SJC again expanded the use of evidence of intoxication as a factor to determine whether the defendant accused of murder possessed the capacity to act with malice.(113) The SJC rejected the idea of the "partial responsibility" notion found in Gould.(114) Although the defendant in this case had "borderline retarded intelligence," and was not mentally impaired due to intoxication, the case expanded the view that any mental impairment, short of insanity, is relevant to the issue of intent and must be allowed to reach the jury.(115) By 1991, the SJC in Commonwealth v. Sama(116) no longer confined evidence of intoxication to the issue of specific intent.(117) In Sama, the SJC permitted evidence of intoxication to reach the question of the defendant's knowledge.(118) Knowledge is the facet of malice that determines whether the defendant "intended to do an act creating a plain and strong likelihood that death or grievous bodily harm would follow."(119) Evidence of mental impairment was admitted to mitigate the specific intent necessary to commit the murder, and was also admitted as relevant to determine whether the defendant knew of the circumstances in which he acted.(120)

After Sama, even crimes that do not require the element of specific intent, (such as murder established by the so-called "third" prong of malice), shall allow a defendant, who may be entitled to a jury consideration regarding the evidence of intoxication, to present a compelling argument on his or her behalf.(121) By allowing the jury to consider evidence of intoxication for the "third" prong of malice, the SJC assures that the defendant will not be found guilty of murder without the requisite mental state.(122) Thus, the defendant's impaired mental state will play a major role in determining what the jury decides in a murder trial.(123) This evidence becomes a factor for the jury to consider when they determine the degree of murder, or manslaughter.(124) This evidence could also lead to an acquittal.(125)

C.  Degree of Intoxication

As discussed earlier, evidence of intoxication is relevant to the mental state of the defendant during the commission of a crime.(126) The effect that alcohol must have on the perpetrator varies among jurisdictions.(127) Most jurisdictions require a high level of intoxication in order for the evidence to be relevant to the defendant's state of mind.(128) Thus, "defendants seeking to show that [intoxication] precluded the formation of the required mental state," often encounter numerous admissibility problems in allowing that evidence to reach the jury.(129) Substantial evidence of intoxication, in addition to evidentiary limitations, will aid in preventing defendants from escaping criminal liability due to the intoxicated, or impaired, state of mind.(130)

D.  Other Jurisdictions

Whether the intoxication is voluntary(131) or involuntary,(132) intoxication acts as a defense to a crime when a required element of a crime, such as malice, is not met.(133) Massachusetts case law establishes that in criminal cases involving evidence of intoxication, or other mental impairment, it is appropriate for the jury to consider the evidence in determining whether the defendant acted with malice aforethought.(134) Most modern criminal codes also recognize voluntary intoxication as a defense when it can be used to negate the requisite mental state or when it can be used to negate an element of a crime.(135) Most jurisdictions have agreed that although voluntary intoxication may not be shown for the purpose of negating general criminal intent, for specific-intent crimes, voluntary intoxication may be used as a defense.(136)

E.  Issues of Punishment

"The theory underlying the mitigation of culpability is that the offense is substantially product of circumstances, rather than primarily the result of the actor's bad character."(137)

1.  Voluntary Manslaughter

Massachusetts recognizes that voluntary intoxication or impairment due to alcohol or drugs does not operate to prevent the defendant from forming the general intent necessary to establish malice.(138) In order to reduce a murder charge to voluntary manslaughter, the defendant must have lost his self-control after being reasonably provoked by the victim.(139) For a voluntary manslaughter instruction to be warranted, the provocation must arise in a "heat of passion" in a reasonably sober person.(140) A defendant's voluntary intoxication that provokes him or her to commit criminal acts he or she would not perform if otherwise sober, will not reduce the murder charge to manslaughter.(141)

Theoretical anomalies exist in the murder-voluntary manslaughter relationship, creating a loophole in this area of criminal law.(142) Because voluntary manslaughter contains an element not included among the elements of murder, (passion/provocation), voluntary manslaughter is considered its own separate offense, not a "lesser included" offense of murder.(143) The loophole in the law occurs in situations in which "the jury acquits the accused of murder, [and] it cannot logically convict him of voluntary manslaughter, because the acquittal of murder necessarily implies the absence of proof as to at least one element of voluntary manslaughter. If the jury convicts him of murder, a voluntary manslaughter conviction is surplusage."(144)

2.  Involuntary Manslaughter

To reduce murder to involuntary manslaughter there must be "a high degree of likelihood that substantial harm will result to another."(145) Thus, an unjustified killing of another, without malice, is involuntary manslaughter if the perpetrator's conduct is willful, wanton, and reckless.(146) "Before a state can preclude negativing defenses based on mental abnormality or intoxication, it must have a clear understanding of the nature of the existing mental requirements."(147) Thus, depending on how the courts interpret "willful," "wanton," or "reckless," will determine whether the evidence of intoxication will be admitted to negate the requisite mental requirement.(148)

3.  The Manslaughter Instruction Is Inappropriate

A few jurisdictions have recognized that diminished capacity due to intoxication will reduce a murder charge to manslaughter.(149) Thus, if intoxication negates premeditation and deliberation, and also negates the "intent to kill" or do "serious bodily harm," then the murder charge will be reduced to manslaughter.(150)

The general rule, however, is that voluntary intoxication cannot reduce a murder charge from murder to manslaughter.(151) Massachusetts follows this general proposition and does not reduce murder to manslaughter, (whether voluntary or involuntary) due to a defendant's voluntary intoxication.(152) Although it may be relevant to whether the defendant was actually acting in the heat of passion, "diminished capacity" evidence, in and of itself, will not entitle the defendant to a voluntary manslaughter instruction.(153) The level of "provocation" required to mandate a manslaughter instruction is judged by an objective standard.(154) Therefore, unless there is also evidence of objectively reasonable provocation, a voluntary manslaughter instruction will not be warranted because it does not matter what the defendant's state of mind was at the time of the killing.(155)

Massachusetts case law recognizes intoxication as a defense to a specific-intent crime, however, the result is not an acquittal, but a conviction on a lower degree of the offense when proof of specific intent is not necessary.(156) In Commonwealth v. Sires,(157) the SJC held that an unlawful "killing without malice does not automatically become[] manslaughter."(158) The court concluded that an involuntary manslaughter instruction was not required.(159) The court distinguished between murder based on the third prong of malice (general intent facet of malice)(160) and manslaughter based on "wanton and reckless" conduct.(161) The SJC stated:

Wanton and reckless conduct amounting to involuntary manslaughter was not an available option because, if there was a risk of harm arising from the firing of a gun at a person, it was the kind of risk (likelihood of death) that could only lead to a finding of malice. That is so because the defendant knew facts that a reasonably prudent person would have known, according to common experience, created a plain and strong likelihood that death would follow the act of shooting (third prong of malice).(162)

Therefore, based on the evidence, the Sires court did not find that an instruction on manslaughter was warranted.(163) The SJC found that the trial judge did not err by omitting an instruction that would have allowed the jury to return a guilty of manslaughter verdict when ultimately the defendant was found guilty of murder in the first degree.(164)

In Commonwealth v. Ferreira,(165) the defendant asserted that the jury should have been permitted to consider a verdict of manslaughter.(166) The defendant argued that due to his voluntary intoxication, he was entitled to a manslaughter instruction because the jury could have found that the element of malice was negated.(167) The court stated:

A judge must give an instruction on manslaughter if any view of the evidence will permit a finding that the offense was manslaughter. In this case, no view of the evidence would permit such a verdict. An instruction on voluntary manslaughter was not appropriate because there was no evidence of provocation.(168)

Because the SJC determined that the defendant's actions were not of the type that would warrant manslaughter,(169) the instruction was not given.(170) In Ferreira, the defendant was found guilty of murder.(171) The court cited Sires' reasoning and stated:

"A killing without malice does not automatically become involuntary manslaughter. The traditional elements of involuntary manslaughter must be shown by the evidence that the jury might believe before an instruction on involuntary manslaughter is required." Here, as in Sires, evidence of wanton and reckless conduct amounting to involuntary manslaughter was not raised by the testimony.(172)

The court reasoned that "intoxication alone [was] not sufficient to negate an otherwise voluntary act."(173) If the jury determined that the defendant was too intoxicated to possess malice aforethought, then the possibility of an acquittal existed, because there was no evidentiary predicate for manslaughter.(174)

In Commonwealth v. Knight,(175) the Massachusetts Court of Appeals maintained that even in the wake of Sires, it is well established in Massachusetts that an unlawful killing without malice is indeed manslaughter.(176) The Court of Appeals clarified Sires and stated that the Sires court held the way it did not because it sought to overrule what it called "such an established rule," but merely because of facts unique to that particular case.(177) The Court of Appeals in Knight declined to interpret Sires as "effecting a substantial change in the law of homicide," and instead relied on older cases which held that what was not murder was manslaughter.(178) Furthermore, the Court of Appeals also cited persuasive authority that voluntary intoxication cannot be a complete excuse for an unlawful killing, and that an unjustified killing cannot be anything less than manslaughter.(179)

IV.  Possible Solutions and Tightening the Loophole

As discussed in Part II, there exists a theoretical dilemma inherent in the murder-voluntary manslaughter relationship.(180) As evidenced through the SJC's reasoning in Sires, Ferreira, and Knight, confusion exists among the Massachusetts trial courts.(181) Thus, when evidence of intoxication is introduced at trial, the probability of an acquittal is heightened.(182)

A prosecutor is required under the law to prove every element of a crime, murder included, beyond a reasonable doubt.(183) When evidence of intoxication is allowed, the burden of proof on the prosecution becomes very demanding.(184) The defendant has an interest in presenting relevant evidence on the issue of intent.(185) "[T]he defendant may want to introduce negativing evidence that he acted unintentionally, unknowingly or nonrecklessly because of intoxication."(186) As demonstrated in Massachusetts case law, evidence of intoxication is becoming increasingly relevant toward the issue of intent.(187) Without the availability of a lesser included offense and given that manslaughter is its own separate charge,(188) the loophole in the law remains. The question becomes: What can be done to decrease the chances of freeing dangerous people? A balance must be struck between serving both the defendant's interests of due process and the state's interest in keeping dangerous murderers in jail.(189)

1.  Unreliable Evidence

Evidence of intoxication could be labeled as "unreliable" for purposes of admissibility during the trial.(190) A concern about the reliability of evidence of intoxication is raised, because most people believe that the condition of an intoxicated defendant can be faked.(191) The court must reconstruct the defendant's mental state during the crime, and inferences must be drawn from the defendant's actions.(192) This is difficult to ascertain.(193) "The defendant may so convincingly feign intoxication or mental abnormality at the time of the crime that lay witnesses will testify in court that the condition appeared to exist."(194) The issue becomes whether evidence of intoxication should be barred completely on this fear alone. Probably not.(195) The evidence of intoxication, however, should be evaluated strictly on a case-by-case basis to determine the reliability of the evidence.(196) "[T]he Constitution may support a case-by-case evaluation of the reliability and efficiency of evidence and permit exclusion only where the state can show less drastic, traditional safeguards fail to protect the factfinding process."(197) Other factors to consider in determining whether to allow evidence of intoxication to reach the jury include the prejudicial effect, the presentation of confusing issues, and efficiency at trial.(198)

2.  Mental Institutions

"There is no obvious reason why the mechanism of civil commitment could not also be used to incapacitate those whose mental abnormality or intoxication precluded the existence of the required mental state."(199) While this solution poses an entire dilemma on its own, which is beyond the scope of this Note, there are certain problems that will arise by committing a defendant on the basis of a "negativing mental-state defense."(200) It is unlikely that a defendant will be civilly committed under existing statutes that provide "the predicate of `mental disease or defect.'"(201) Perhaps a civil commitment procedure could be modified to meet the needs of the jurisdiction.(202)

3.  Leave It to the Legislature

"Courts and legislatures are confused about the different variants of the diminished capacity doctrine and often place illogical limitations on them. The law needs to be clarified considerably, and proposed schemes should be tested carefully against their policy rationales to determine if they satisfy those rationales."(203)

When evidence of intoxication is presented, there is a growing concern that criminal homicide is not sufficiently and clearly defined under the current state of the law in Massachusetts.(204) These concerns, however, must be addressed by the Massachusetts Legislature.(205)

V.  Conclusion

As demonstrated in Massachusetts case law, confusion and ambiguity exists regarding the statutory definition of "mental state."(206) This, in conjunction with the anomalies inherent in the murder-voluntary manslaughter relationship, creates a loophole in the law.(207) As evidence of intoxication becomes more relevant to the defendant's state of mind, the loophole provides an exit for the defendant who can negate the element of intent.(208) In addition, admissibility of evidence proving that the defendant was intoxicated will create a more difficult forum for the prosecution to prove every element beyond a reasonable doubt.(209)

Courts are developing new requirements for proving the mental elements required to commit a specific-intent crime.(210) Continued reliance on old presumptions to prove requisite mental elements of criminal offenses are becoming outdated.(211) In addition, the availability of a lesser included offense is an important consideration in determining criminal liability, because diminished capacity defenses will often be unlikely to succeed if the only alternatives presented to a jury is either a conviction or complete acquittal.(212)

Although this loophole exists, courts tend to limit the admissibility of evidence demonstrating that the defendant was intoxicated during the commission of a crime.(213) Thus, it can be difficult for a defendant to benefit from this defense because of the substantial amount of evidence needed for the defendant to demonstrate that he was completely unaware of the circumstances under which he acted. In order to avoid injustice, however, a balance needs to be struck between the defendant's interests and the state's interests. This is a balance that is best handled in the Legislature.

M. Christina Almanzor(*)


1. Commonwealth v. Farrell, 78 N.E.2d 697, 705-06 (Mass. 1948) (quoting Commonwealth v. Hawkins, 69 Mass. 463, 466 (1855)); see also Commonwealth v. Taylor, 161 N.E. 245, 248 (Mass. 1928); Commonwealth v. Gleason, 159 N.E. 518, 520 (Mass. 1928); Commonwealth v. Malone, 114 Mass. 295, 298 (1873).

2. Intoxication has been defined as "a disturbance of mental or physical capacities resulting from the introduction of substances into the body." MODEL PENAL CODE § 2.08(5)(a) (Proposed Official Draft 1962).

3. See Annotation, Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge, 8 A.L.R.3d 1236, 1239-40 (1966). "The rule that voluntary intoxication is not a general defense to a charge of crime based on acts committed while drunk is so universally accepted as not to require the citation of cases. Apparently no court has ever dissented from the proposition." Id. at 1240 (footnote omitted); see also WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 341-51 (1972).

4. See infra note 47 and accompanying text.

5. See infra Part II.

6. See, e.g., Patterson v. New York, 432 U.S. 197, 206 (1977); Mullaney v. Wilbur, 421 U.S. 684, 687 (1975); In re Winship, 397 U.S. 358, 361-64 (1970); see also Susan F. Mandiberg, Protecting Society and Defendants Too: The Constitutional Dilemma of Mental Abnormality and Intoxication Defenses, 53 FORDHAM L. REV. 221, 221-28 (1984).

7. See generally, Jerome Hall, Intoxication and Criminal Responsibility, 57 HARV. L. REV. 1045 (1944) (describing the history of the common law's approach to intoxication as a defense to crimes); See generally Edward H. Benton et al., Special Project: Drugs and Criminal Responsibility, 33 VAND. L. REV. 1145 (1980); Monrad G. Paulson, Intoxication as a Defense to Crime, 1961 U. ILL. L.F. 1; Note, Intoxication as a Criminal Defense, 55 COLUM. L. REV. 1210 (1955). Keep in mind, however, that this is not the same as an affirmative defense. See Mandiberg, supra note 6, at 225.

8. Mandiberg, supra note 6, at 221-22.

9. See, e.g., Brennan v. People, 86 P. 79, 82 (Colo. 1906) (stating that voluntary intoxication may negate premeditation and deliberation even if a statute provides that intoxication does not excuse the commission of a crime).

10. See Commonwealth v. Henson, 476 N.E.2d 947, 954 (Mass. 1985).

It is time to announce that where proof of a crime requires proof of a specific criminal intent and there is evidence tending to show that the defendant was under the influence of alcohol or some other drug at the time of the crime, the judge should instruct the jury, if requested, that they may consider evidence of the defendant's intoxication at the time of the crime in deciding whether the Commonwealth has proved that specific intent beyond a reasonable doubt. If the judge gives such an instruction, he should further instruct the jury that, if they find beyond a reasonable doubt that the defendant had the required specific intent, the defendant's intoxication, if any, is not an excuse or justification for his actions.

Id.

11. "Murder" is the unlawful "killing of a human being with malice aforethought." MASS. GEN. LAWS ch. 277, § 39 (1994 & Supp. 1996); see also Commonwealth v. Pierce, 642 N.E.2d 579, 584 n.8 (Mass. 1994); Commonwealth v. Kane, 445 N.E.2d 598, 601 (Mass. 1983); Commonwealth v. Campbell, 376 N.E.2d 872, 875 (Mass. 1978); Commonwealth v. Amazeen, 375 N.E.2d 693, 699 (Mass. 1978); Commonwealth v. McCauley, 246 N.E.2d 425, 427 (Mass. 1969).

12. The defendant can be guilty of murder in the first degree in two ways: 1) deliberately premeditated malice aforethought, or, 2) murder with extreme atrocity or cruelty. See MASS. GEN. LAWS ch. 265, § 1 (1994 & Supp. 1996).

13. Murder that is not first degree murder is murder in the second degree. See id.

14. See Commonwealth v. Pierce, 642 N.E.2d 579, 584 n.8 (Mass. 1994).

The crime of murder requires proof of a killing done with malice aforethought. Malice aforethought includes (1) any unexcused intent to kill (first prong); (2) any unexcused intent to do grievous bodily harm (second prong); or (3) to do an act which, in the circumstances known to the defendant, a reasonably prudent person would have known there was a plain and strong likelihood that death would follow (third prong).

Id.; see also; Commonwealth v. Sneed, 597 N.E.2d 1346, 1347 n.1 (Mass. 1992); Commonwealth v. Blake, 564 N.E.2d 1006, 1010 (Mass. 1991); Katherine E. McMahon, Murder, Malice and Mental State: A Review of Recent Precedent Recognizing Diminished Capacity, from Commonwealth v. Grey to Commonwealth v. Sama, 78 MASS. L. REV. 40, 41 (1993).

15. See Commonwealth v. Webster, 59 Mass. 295, 304 (1850). In Webster, malice was described as a state of mind that includes not only anger, hatred, and revenge, but every other unlawful motive. See id.; see also Commonwealth v. Chance, 54 N.E. 551, 554 (Mass. 1899). In Chance, malice was referred to as "knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act." Chance, 54 N.E. at 554. Malice is not necessarily ill will; rather, it is an intent to inflict injury without legal justification or palliation. See Commonwealth v. Hicks, 252 N.E.2d 880, 881 (Mass. 1969). Malice may be inferred when the killing is the result of the intentional use of deadly force. See, e.g., Commonwealth v. Delaney, 639 N.E.2d 710, 714-16 (Mass. 1994) (discussing an error in a jury instruction regarding the third prong of malice); Commonwealth v. Brown, 579 N.E.2d 153, 154-55 (Mass. 1991) (discussing the element of malice); Commonwealth v. Beattie, 567 N.E.2d 206, 207-08 (Mass. 1991) (stating that a jury instruction on Grey was not required); Commonwealth v. Grey, 505 N.E.2d 171, 175 (Mass. 1987) (stating that the mental condition of the defendant is material to the issue of malice); Commonwealth v. Davis, 307 N.E.2d 6, 8 (Mass. 1974); Commonwealth v. McCauley, 246 N.E.2d 425, 427-28 (Mass. 1969).

16. See supra notes 8-10 and accompanying text.

17. See Commonwealth v. Pierce, 642 N.E.2d 579, 582 (Mass. 1994) ("`"Instructions on voluntary manslaughter must be given if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused's temper to cool."'" (quoting Commonwealth v. Halbert, 573 N.E.2d 975, 978 (Mass. 1991) (quoting Commonwealth v. Schnopps, 417 N.E.2d 1213, 1215 (Mass. 1981)))). Involuntary manslaughter can be satisfied if a killing resulted from wanton and reckless conduct, or from a non-felony battery that the defendant knew or should have known would have endangered human life. See id. at 583.

18. See, e.g., Commonwealth v. McLeod, 477 N.E.2d 972, 981 (Mass. 1985) (stating that manslaughter is the unlawful killing of a person without malice). The definition of manslaughter is provided by common law, not statutory law. See Webster, 59 Mass. at 304. Malice, either express or implied, distinguishes murder from manslaughter. See id.

19. See Commonwealth v. Soaris, 175 N.E. 491, 493-94 (Mass. 1931). Voluntary manslaughter has been defined as "a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat." Id. at 494. Provocation is not an element of manslaughter, but a defense to murder. See, e.g., Commonwealth v. Anderson, 563 N.E.2d 1353, 1355-56 (Mass. 1990) (upholding jury instructions on provocation); Webster, 59 Mass. at 304.

20. See Commonwealth v. Vanderpool, 328 N.E.2d 833, 836 (1975) ("Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct."); see also Commonwealth v. Kinney, 282 N.E.2d 409, 410 (Mass. 1972); McCauley, 246 N.E.2d at 428; Commonwealth v. Campbell, 226 N.E.2d 211, 218 (Mass. 1966); Commonwealth v. Welansky, 55 N.E.2d 902, 909 (Mass. 1944).

21. See Pierce, 642 N.E.2d at 582. In Pierce, the court found that unless the elements of voluntary manslaughter are met, a voluntary manslaughter instruction would not be appropriate. See id.

In the present case, the victim's invitation, "You know you want it," and the grabbing of the defendant's testicles, was not provocation warranting a voluntary manslaughter instruction. Although the gesture was perhaps offensive, it was not the type of behavior that would provoke a reasonable person into a homicidal response. Because the evidence was insufficient to support a finding of reasonable provocation, the judge properly refused to instruct the jury on voluntary manslaughter

.Id. at 32 (footnotes omitted); see also Commonwealth v. Sires, 596 N.E.2d 1018, 1025 (Mass. 1992) ("A killing without malice does not automatically become involuntary manslaughter. The traditional elements of involuntary manslaughter must be shown by evidence that the jury might believe before an instruction on involuntary manslaughter is required." (footnote omitted)); Commonwealth v. Walden, 405 N.E.2d 939, 943 (Mass. 1980) (stating that it would be an error to give an involuntary manslaughter instruction to the jury without some supporting evidence of the crime); cf. Commonwealth v. Dunton, 489 N.E.2d 1012, 1014 (Mass. 1986) (stating that there was no error in refusing to instruct the jury on involuntary manslaughter, when the victim died after having her head smashed into a concrete floor five or six times).

22. See, e.g., Pierce, 642 N.E.2d at 582 (holding that a judge properly refused to instruct the jury on voluntary manslaughter); Commonwealth v. Halbert, 573 N.E.2d 975, 979 (Mass. 1991) (holding that there was insufficient evidence to support a finding of provocation); Commonwealth v. Troila, 571 N.E.2d 391, 394-95 (Mass. 1991) (holding that a voluntary manslaughter instruction was not required when the only evidence of provocation was a homosexual advance from the victim).

23. See Commonwealth v. Robinson, 441 N.E.2d 553, 558 (Mass. App. Ct. 1982) (stating that diminished capacity may not be used as a basis for reducing murder to manslaughter, thus a defendant is not entitled to a manslaughter charge on the theory that he acted without malice due to a psychotic episode); see also Commonwealth v. Lannon, 306 N.E.2d 248, 251 (Mass. 1974) (stating that diminished responsibility may not be relied upon by a criminal defendant to reduce the degree of homicide from murder to manslaughter).

24. See infra Part III.E.

25. See James B. Haddad, Allocation of Burdens in Murder-Voluntary Manslaughter Cases: An Affirmative Defense Approach, 59 CHI.-KENT L. REV. 23, 23 (1982). Illinois case law has also recognized the possibility of an acquittal due to the lack of evidence mandating a manslaughter instruction. See id. "Voluntary manslaughter, containing an element which is not also an element of murder, is therefore not included within murder. Additionally, Illinois opinions often declare that sometimes the evidence would support either a conviction of murder, or an acquittal, but would not support a conviction of voluntary manslaughter." Id. at 27-28 (footnote omitted). "If a trial judge finds a murder defendant guilty of voluntary manslaughter without requiring proof beyond a reasonable doubt of the presence of passion-provocation . . . the judge is inviting a `murder-or-nothing' argument on appeal." Id. at 36 (footnote omitted).

26. Id. at 35 (footnote omitted).

27. See infra Part III.

28. See infra Part III.E.

29. See generally Mandiberg, supra note 6.

30. See LAFAVE & SCOTT, supra note 3, at 343-47.

31. See, e.g., Commonwealth v. Ferreira, 632 N.E.2d 392, 395 (Mass. 1994); see also Phillip E. Hassman, Annotation, Effect of Voluntary Drug Intoxication Upon Criminal Responsibility, 73 A.L.R.3d 98, 170-73 (1976).

32. See Commonwealth v. Laliberty, 366 N.E.2d 736, 739 (Mass. 1971); see also Commonwealth v. Costa, 274 N.E.2d 802, 808 (Mass. 1971) ("[E]xcept as modified by the rule which permits consideration of second degree murder in cases of voluntary intoxication.").

The diminished capacity doctrine allows a criminal defendant to introduce evidence of mental abnormality at trial either to negate a mental element of the crime charged, thereby exonerating the defendant of that charge, or to reduce the degree of crime for which the defendant may be convicted, even if the defendant's conduct satisfied all the formal elements of a higher offense.

Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J. CRIM. L. & CRIMINOLOGY 1, 1 (1984).

33. See Morse, supra note 32, at 1.

34. See infra Part III.E.3.

35. See infra notes 42-67 and accompanying text.

36. See infra notes 59-67 and accompanying text.

37. For practical purposes, the discussion of this Note is limited to voluntary intoxication.

38. See infra notes 68-179 and accompanying text.

39. See infra notes 180-89 and accompanying text.

40. See infra notes 190-205 and accompanying text.

41. See infra notes 206-13 and accompanying text.

42. Mandiberg, supra note 6, at 259.

43. Id. at 260 (footnote omitted) ("[Mental state words] . . . are frequently ill-defined, inconsistently defined, or not defined at all, and in part to the fact that courts and legislatures often fail to indicate which physical elements are to be considered in light of which mental requirement." (footnotes omitted)).

44. The mens rea variant is not an affirmative defense. See Morse, supra note 32, at 6 ("[T]he defendant is straightforwardly denying the prosecution's . . . claim that a requisite mental element was present at the time of the offense.").

45. "Partial responsibility" means that the defendant should be held less responsible for the crime committed while intoxicated, than if the defendant committed the crime while sober. See id. at 5.

46. Id. at 4 n.12 (second emphasis added).

47. See Commonwealth v. Sibinich, 598 N.E.2d 673, 675 (Mass. App. Ct. 1992) (discussing the distinction between general and specific intent).

48. See, e.g., Heiderman v. United States, 259 F.2d 943, 946 (D.C. Cir. 1958) (stating that voluntary drunkenness is relevant in crimes requiring specific intent); Allen v. United States, 239 F.2d 172, 173 (6th Cir. 1956) (stating that evidence of voluntary intoxication is admissible to prove lack of specific intent); People v. Deatherage, 57 Cal. Rptr. 501, 504 (Cal. Ct. App. 1967) (stating that the jury was correctly instructed to consider voluntary intoxication in specific-intent crimes); Gentry v. State, 437 So. 2d 1097, 1099 (Fla. 1983) (stating that voluntary intoxication is admissible to show that the defendant is incapable of the requisite specific intent); State v. Roman, 403 A.2d 24, 27 (N.J. Super. Ct. App. Div. 1979) (stating that the effect of drugs might prevent the defendant from attaining the mental state necessary for first degree murder); State v. Kinlaw, 374 A.2d 1233, 1235 (N.J. Super. Ct. Law Div. 1977) (stating that intoxication may negate intent in specific-intent crimes); LAFAVE & SCOTT, supra note 3, at 342-43 (stating that evidence of voluntary intoxication is admissible to prove lack of specific intent); Hall, supra note 7, at 1049 (stating that intoxication is one factor weighed in determining whether intent exists).

49. See Annotation, supra note 3, at 1241.

50. Morse, supra note 32, at 8.

Whether or not one accepts the special/general mens rea terminology or any other set of terms, there is no doubt that the phenomena being described by those terms are conceptually distinct. A defendant who lacks special mens rea is acquitted because his conduct fails to satisfy the state's definition of the offense, not because he lacks criminal responsibility. The conduct of a defendant who lacks general mens rea almost always satisfies the elements of the prima facie case including special mens rea, but he is acquitted because he is not considered responsible for his conduct.

Id. (footnote omitted).

51. See Commonwealth v. Parker, 649 N.E.2d 727, 729 n.3 (Mass. 1995).

52. See Commonwealth v. Vazquez, 644 N.E.2d 978, 981 (Mass. 1995) ("[E]vidence that defendant [repeatedly] smashed a heavy paint can into the middle of victim's face, . . . kicked the victim . . . , and manually strangled the victim" was sufficient evidence to establish a specific intent to kill).

53. See, e.g., Commonwealth v. Sires, 596 N.E.2d 1018, 1020 (Mass. 1992) ("The thrust of the defense was that the defendant was under the influence of alcohol at the time of the killing and, therefore, could not have acted with deliberate premeditation or with a specific intent to kill or to cause grievous bodily harm."). Although the judgment still rested in favor of the prosecution, the opinion of the court provided: "Whenever the Commonwealth must prove the defendant's intention to do something, you should consider all the credible evidence relevant to the defendant's intent, including any credible evidence of the effect on the defendant of (his) (her) consumption of [alcohol or drugs]." Id. at 1024 (footnote omitted); see also Commonwealth v. Gould, 405 N.E.2d 927, 932 (Mass. 1980) ("If a defendant who has voluntarily used alcohol or drugs is found by the jury to be incapable of deliberately premeditating the acts charged, he may not be found guilty of murder in the first degree but may be found guilty of murder in the second degree.").

54. Annotation, supra note 3, at 1246 (footnote omitted).

55. See, e.g., Carter v. United States, 531 A.2d 956, 964 (D.C. 1987) (noting that a court cannot negate mens rea in a general-intent crime of malicious destruction of property); State v. Sterline, 680 P.2d 301, 304 (Kan. 1984) (following general intent-specific intent distinction); Shell v. State, 512 A.2d 358, 370 (Md. 1986) (noting that a court cannot negate mens rea in a general-intent crime of knowingly transporting guns); Commonwealth v. Troy, 540 N.E.2d 162, 166 (Mass. 1989) (stating that intoxication has no mitigating effect on rape, a general-intent crime); People v. Kelley, 446 N.W.2d 821, 822-23 (Mich. 1989) (noting that a court cannot negate mens rea in a general-intent crime of child torture); People v. Langworthy, 331 N.W.2d 171, 175 (Mich. 1982) (following that distinction, though recognized to be unsound, and noting that the solution lies with the legislature); State v. Balint, 426 N.W.2d 316, 319 (S.D. 1988) (following general intent-specific intent distinction).

56. See, e.g., Commonwealth v. Sires, 596 N.E.2d 1018, 1025 (Mass. 1992); Commonwealth v. Gould, 405 N.E.2d 927, 932 (Mass. 1980). But see Commonwealth v. Vazquez, 644 N.E.2d 978, 980 (Mass. 1995).

57. See Commonwealth v. Blake, 564 N.E.2d 1006, 1012 (Mass. 1991) (upholding defendant's murder in first degree by reason of extreme atrocity or cruelty); Troy, 540 N.E.2d at 167; Commonwealth v. Henson, 476 N.E.2d 947, 953 (Mass. 1985).

58. See Commonwealth v. Grey, 505 N.E.2d 171, 173 n.1 (Mass. 1987); see also infra Part III.

59. Mandiberg, supra note 6, at 224.

60. Id. at 225.

61. Id. (footnote omitted).

62. Id. (footnote omitted). The `dynamics' of the defenses were discussed in Patterson v. New York, 432 U.S. 197 (1977).

In Patterson v. New York the defendant was convicted of second-degree murder after the state proved beyond a reasonable doubt that the defendant had caused the death of another person and that he had intended to cause that death. The conviction would have been lowered to manslaughter if the defendant persuaded the jury that he had "acted under the influence of extreme emotional disturbance," a burden he bore under New York law. The United States Supreme Court . . . affirmed the conviction. "The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is convicted of murder. No further facts are either presumed or inferred in order to constitute the crime." The issue of extreme emotional disturbance "does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue."

Mandiberg, supra note 6, at 224 (footnotes omitted) (quoting Patterson v. New York, 432 U.S. 197, 205-07 (1977)).

63. See infra Part III.B.

64. See infra Part III.E.3.

65. Mandiberg, supra note 6, at 228.

66. See id. at 227 n.32.

67. See id.

68. See Commonwealth v. Tucker, 76 N.E. 127, 137-38 (Mass. 1905). In Tucker, the court stated:

In substance the view expressed is that, while it must be shown that there must be a plan to murder formed after the matter had been made a subject of deliberation and reflection, yet, in view of the quickness with which the mind may act, the law cannot set any limit to the time. . . . First the deliberation and premeditation, then the resolution to kill, and lastly the killing in pursuance of the resolution; and all this may occur in a few seconds.

Id.; see also Commonwealth v. Chipman, 635 N.E.2d 1204, 1207-08 (Mass. 1994) (noting sufficient evidence of premeditation); Commonwealth v. Stewart, 499 N.E.2d 822, 826 (Mass. 1986) (noting sufficient evidence of deliberate premeditation); Commonwealth v. Brooks, 32 N.E.2d 242, 243 (Mass. 1941) (noting ample evidence of "deliberately premeditated malice aforethought"). But see Commonwealth v. Webster, 59 Mass. 295, 304 (1850) (stating that deliberate premeditation is absent when the killing results from a sudden provocation and heat of passion).

69. See Tucker, 76 N.E. at 139-40. In some cases, it is difficult to distinguish between the elements of premeditation and malice aforethought. See id.; see also Commonwealth v. Ferreira, 632 N.E.2d 392, 395-96 (Mass. 1994) (stating that a jury instruction on malice was correct); Commonwealth v. Sneed, 597 N.E.2d 1346, 1347-49 (Mass. 1992) (stating that a jury instruction on malice was flawed); Commonwealth v. Blake, 564 N.E.2d 1006, 1009-12 (Mass. 1991) (stating that a jury instruction on malice and intent was correct).

70. See MASS. GEN. LAWS ch. 265, § 1 (1994 & Supp. 1996). The law provides:

Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree.

Id. Malice may by inferred from the perpetration of the felony from which the killing results. See Commonwealth v. Parker, 522 N.E.2d 924, 926 (Mass. 1988); Commonwealth v. Devlin, 141 N.E.2d 269, 275-76 (Mass. 1957); Commonwealth v. Gricus, 58 N.E.2d 241, 245-46 (Mass. 1944). If the underlying felony is a specific-intent crime, then the jury may consider voluntary intoxication or mental impairment as it affects a defendant's ability to form the specific intent for the underlying felony. See Parker, 522 N.E.2d at 926; cf. Commonwealth v. Tevenal, 515 N.E.2d 1191, 1194 (Mass. 1987) (holding that when the underlying felony is one that has been held to be inherently dangerous as a matter of law, the defendant is not entitled to a diminished capacity instruction).

71. See Mandiberg, supra note 6, at 221-22; see also supra note 14 for the three prongs that must be satisfied in order to prove malice aforethought.

72. See Commonwealth v. Grey, 505 N.E.2d 171, 173 n.1 (Mass. 1987).

73. Id.

74. See, e.g., id. at 472 n.4; see also Blake, 564 N.E.2d at 1010 n.3.

75. See Morse, supra note 32, at 9.

There is resistance in the criminal law to the idea that liability should purely or primarily be based on subjective mental states. If mens rea is subjective, a highly unreasonable and dangerous defendant may be freed entirely if he can prove that mens rea was actually absent. This is an uncongenial result to many and leads to tensions and ambiguities in the definitions of intent, knowledge, and recklessness. The better solution would be to confront openly our willingness to impose liability on objective grounds.

Id. (footnotes omitted); see also Commonwealth v. Delaney, 639 N.E.2d 710, 714-15 (Mass. 1994) (holding that there was an error but no substantial risk of a miscarriage of justice).

76. See Commonwealth v. Hawkins, 69 Mass. 463, 466 (1855). Other jurisdictions were also reluctant to permit the jury to consider the effect of intoxication on a defendant's ability to form the requisite specific-intent when the defendant was charged with a specific-intent crime. See, e.g., Dorsey v. State, 225 S.E.2d 418, 421 (Ga. 1976) (stating that voluntary intoxication shall not be an excuse for any criminal conduct); Lee v. State, 403 So. 2d 132, 134 (Miss. 1981) (stating that a defendant capable of distinguishing between right and wrong when sober is not entitled to jury instructions on the incapability of forming the specific intent due to voluntary intoxication); State v. Vaughn, 232 S.E.2d 328, 330 (S.C. 1977) (stating that voluntary intoxication is not an excuse or a defense to either specific or general intent crimes).

77. See Commonwealth v. Farrell, 78 N.E.2d 697, 705-06 (Mass. 1948); Commonwealth v. Malone, 114 Mass. 295, 298 (1873) (holding that voluntary intoxication cannot be used as an "excuse, or justification or extenuation" of a crime); see also Annotation, supra note 3, at 1240.

78. See, e.g., Commonwealth v. Sheehan, 383 N.E.2d 1115, 1121 (Mass. 1978) ("Our rule that the voluntary consumption of alcohol itself cannot warrant a finding of the absence of a specific criminal intent is of long standing."); see also, Commonwealth v. Stewart, 270 N.E.2d 811, 816 (Mass. 1971) ("you cannot find the absence of a specific intent solely because you find drunkenness"), vacated, 408 U.S. 845 (1972); Commonwealth v. LePage, 226 N.E.2d 200, 210 (Mass. 1967); Commonwealth v. Farrell, 78 N.E.2d 697, 705-06 (Mass. 1948); Commonwealth v. Taylor, 161 N.E. 245, 247 (Mass. 1928); Commonwealth v. Gleason, 159 N.E. 518, 520 (Mass. 1928); Commonwealth v. Malone, 114 Mass. 295, 298 (1873); Commonwealth v. Hawkins, 70 Mass. 463, 466 (1855); cf. Regina v. Cruse, 173 Eng. Rep. 610 (K.B. 1838). The Regina case reflected the common-law perspective that the jury was allowed to consider the effect of intoxication on the defendant's ability to form the specific intent. See Regina, 173 Eng. Rep. at 612. This holding was slow in gaining acceptance. See Hall, supra note 7, at 1049.

79. See Commonwealth v. Dellechiaie, 84 N.E.2d 7, 8 (Mass. 1949). In Dellechiaie, the court instructed the jury that "[i]t would be subversive of all law and morality if the commission of one vice, may we call it a vice like drunkenness, . . . should be allowed to excuse another crime. One may be perfectly unconscious of what he is doing and yet be responsible for his conduct during drunkenness." Id. Courts also note that drunkenness may be easily feigned. See Hall, supra note 7, at 1047; see also Note, Intoxication As A Criminal Defense, 55 COLUM. L. REV. 1210, 1211 (1955) (stating that alcohol removes inhibitions, thereby revealing underlying instincts that may cause repeated negative conduct).

80. See supra note Part II.B.

81. See supra Part II; cf. Commonwealth v. Parker, 649 N.E.2d 727, 729 n.3 (Mass. 1995).

82. See Commonwealth v. McHoul, 226 N.E.2d 556, 557 (Mass. 1967). Legal insanity is the lack of a substantial capacity, as a result of mental disease or defect, to appreciate the wrongfulness of one's conduct or to conform one's conduct to the requirements of the law. See id. at 557-58 (adopting MODEL PENAL CODE § 4.01 [Proposed Official Draft 1962]).

83. See Commonwealth v. Laliberty, 366 N.E.2d 736, 739 (Mass. 1977) ("Criminal conduct is excusable in this Commonwealth on the ground of insanity only where the defendant's capacity to appreciate the criminality of his action or his capacity to conform his conduct to the requirements of law was substantially impaired as a result of mental disease or defect."); Commonwealth v. Farrell, 78 N.E.2d 697, 705-06 (Mass. 1948) (stating that voluntary intoxication cannot form the basis for an insanity defense, except in the limited circumstance in which the intoxication triggers an otherwise latent disease or defect).

84. See Commonwealth v. Dellechiaie, 84 N.E.2d 7, 8-9 (Mass. 1949). In Dellechiaie, the jury was allowed to consider whether voluntary intoxication rendered a defendant incapable of deliberate premeditation necessary for first-degree murder. See id.

No matter how drunk one may be and no matter what the intention may be, the law does not permit drunkenness under such circumstances to be an excuse for the crime. . . . On the question of murder in the first degree deliberately premeditated, . . . if you are satisfied upon the evidence that the defendant killed the deceased but that he was incapable of conceiving a deliberately premeditated intention to kill because of intoxication, then he is not guilty of murder in the first degree, but he is guilty of murder in the second degree.

Id.; see also Commonwealth v. Soaris, 175 N.E. 491, 493-94 (Mass. 1931) (stating that liquor may negate deliberate premeditation); Commonwealth v. Taylor, 161 N.E. 245, 247-48 (Mass. 1928) (stating that liquor may negate deliberate premeditation); cf. Commonwealth v. Sheehan, 383 N.E.2d 1115, 1117-20 (Mass. 1978) (stating that drug addiction is not per se sufficient to negate deliberate premeditation). "`Intoxication is not a defense to murder in the first degree that the Commonwealth must disprove.'" Commonwealth v. Sylvester, 509 N.E.2d 275, 279 (Mass. 1987) (quoting Commonwealth v. Costello, 467 N.E.2d 811, 816-17 (1984)); see also Commonwealth v. Grey, 505 N.E.2d 171, 173 n.2 (Mass. 1987).

85. See Grey, 505 N.E.2d at 173-74 (stating that the jury must be permitted to consider evidence of defendant's mental impairment in deciding whether the defendant possessed the specific intent); see also Commonwealth v. Henson, 476 N.E.2d 947 (Mass. 1985).

86. See Commonwealth v. Gould, 405 N.E.2d 927, 939 (Mass. 1980); see also Commonwealth v. Sama, 582 N.E.2d 498, 500-03 (Mass. 1991) (stating that the jury should have been instructed on the effect of intoxication regarding the defendant's extreme atrocity and malice); Commonwealth v. Perry, 433 N.E.2d 446, 450-51 (Mass. 1982) (stating that the jury is now required under appropriate instructions to consider a defendant's intoxication as it bears on his criminal culpability for murder by extreme atrocity); Commonwealth v. Satterfield, 284 N.E.2d 216, 217-18 (Mass. 1978) (stating that the SJC has generally upheld the concept of murder in the first degree based on "extreme atrocity or cruelty" against claims that the phrase is unconstitutionally vague).

87. 405 N.E.2d 927 (Mass. 1980).

88. Id. at 932; see also Commonwealth v. Costa, 274 N.E.2d 802, 808 (Mass. 1971).

89. HENRY WEIHOFEN, MENTAL DISORDER AS A CRIMINAL DEFENSE 178 n.9 (1954) (quoting from Aszman v. State, 24 N.E. 123, 125 (Ind. 1889)); see also MODEL PENAL CODE §§ 4.01-.02 (Proposed Official Draft 1962). See generally Commonwealth v. Trippi, 167 N.E.2d 354 (Mass. 1929); Arenella, supra note 47, at 828-29.

90. See Commonwealth v. Millyan, 503 N.E.2d 934, 938 n.9 (Mass. 1987). As long as there is some evidence that the defendant, due to his or her voluntary intoxication by drugs or alcohol, lacked the capacity to commit deliberately premeditated murder, he or she is entitled to an instruction that the jury may consider that evidence. See id. at 944. Expert testimony is not a prerequisite to such an instruction. See id.; see also Commonwealth v. Dellechiaie, 84 N.E.2d 7, 8-9 (Mass. 1949).

91. See, e.g., Commonwealth v. Webster, 59 Mass. 295, 305 (1850) (holding that a presumption of malice arises in every case of an intentional homicide). This presumption only arises in situations in which the defense was unable to prove that the passion/provocation circumstances existed at the time of the murder. See Mullaney v. Wilbur, 421 U.S. 684, 704 (1975) (stating that proving beyond a reasonable doubt that the defendant acted in the heat of passion would reduce murder to manslaughter).

92. See Commonwealth v. Sires, 596 N.E.2d 1018, 1021-27 (Mass. 1992) (stating that malice required for the prosecution of murder in the first degree does not differ from malice required for the prosecution of murder in the second degree).

93. See Commonwealth v. Glass, 519 N.E.2d 1311, 1318 (Mass. 1988). A jury must be permitted to consider the effects of voluntary intoxication of any crime that requires specific intent, including the elements of malice that involve specific intent. See id. at 1318-19; see also Commonwealth v. Costello, 467 N.E.2d 811, 819 (Mass. 1984) (stating that a jury may consider intoxication in determining whether deliberate premeditation or extreme atrocity or cruelty exists); Commonwealth v. Doucette, 462 N.E.2d 1084, 1094-95 (Mass. 1984) (stating that a jury cannot return a verdict of first-degree murder if the defendant is incapable of deliberate premeditation or of committing murder with extreme atrocity or cruelty).

94. See MASS. GEN. LAWS ch. 265, § 1 (1994 & Supp. 1996); see also Commonwealth v. Costa, 274 N.E.2d 802, 808 (Mass. 1971) (stating that a manslaughter instruction was not required to be submitted to the jury based on evidence of Costa's impaired mental capacity); Commonwealth v. Rollins, 241 N.E.2d 809, 812-13 (Mass. 1968); Commonwealth v. Hartford, 194 N.E.2d 401, 406-07 (Mass. 1963); Commonwealth v. Soaris, 175 N.E. 491, 494 (Mass. 1931); Commonwealth v. Peterson, 154 N.E. 260, 262 (Mass. 1926); Commonwealth v. Malone, 114 Mass. 295, 298 (1873).

The fact that the defendant was drunk at the time of the shooting might have rendered him incapable of conceiving a deliberately premeditated intention to kill necessary to be present in an indictment for murder in the first degree. But it would not transfer an act, which, if committed while the defendant was sober, would have been murder, into manslaughter.

Soaris, 175 N.E. at 494 (emphasis added).

95. See Morse, supra note 32, at 27.

96. Id.

97. Id.

If the ability to appreciate the consequences of one's choices is relevant to one's responsibility for a killing committed in an objectively brutal manner, why is it not relevant to responsibility for any crime? If the law will consider partial responsibility at all, is not the ability to appreciate the consequences of choices a factor in one's moral capacities that should bear on accountability for all actions? . . . [I]t is difficult to avoid illogical limitations on partial responsibility if one adopts this partial defense in the guise of interpreting the elements of specific crimes.

Id.; see also supra note 45 for an explanation of the partial-responsibility theory.

98. See Morse, supra note 32, at 24-27.

Courts are often faced . . . with defendants whose conduct meets the technical mens rea requirements, yet whose mental abnormality seems to require mitigation of culpability by providing a form of excuse in addition to a reduction in sentence. . . . "[C]reative" courts have solved the quandary by interpreting the mens rea elements in a way that adopts the partial responsibility variant. These courts have often tortured the ordinary meanings of mens rea terms in order to achieve a result they perceive is just.

Id. at 24; see also MASS. GEN. LAWS ch. 265, § 1 (1994 & Supp. 1996). The degree of murder shall be found by the jury. See Commonwealth v. DiStasio, 11 N.E.2d 799, 801-03 (Mass. 1937).

99. See Commonwealth v. Doucette, 462 N.E.2d 1084, 1096 (Mass. 1984). When conflicting, but substantial evidence of intoxication is presented, and the evidence of premeditation is otherwise ambiguous, the judge must instruct the jury clearly and thoroughly on the possible effect of intoxication on deliberate premeditation. See Commonwealth v. Lanoue, 467 N.E.2d 159, 165 (Mass. 1984). If the evidence of intoxication is minimal, however, and the defendant does not rely on intoxication as a mitigating factor during the trial, the judge is not required, sua sponte, to instruct the jury on the effect of voluntary intoxication, nor to grant defendant's request for the instruction. See, e.g., Commonwealth v. Fano, 508 N.E.2d 859, 866 (Mass. 1987); Commonwealth v. Stewart, 499 N.E.2d 822, 829 (Mass. 1986); Commonwealth v. Chasson, 423 N.E.2d 306, 310 (Mass. 1981).

100. 476 N.E.2d 947, 953 (Mass. 1985). Appealing his conviction of assault with intent to murder, Henson argued that the trial judge was required not merely to instruct the jury on the element of malice, but also on the element of specific intent to kill. See id. at 952. In addition, Henson argued that the jury should have been allowed to consider the effect of intoxication on the defendant's ability to formulate the specific intent requisite for the offense of assault with intent to murder. See id. at 953. Unlike the crime of assault and battery by means of a dangerous weapon, in which no specific intent is involved, the crime of assault with intent to murder requires proof of specific intent to kill. See id. There was evidence that Henson was intoxicated at the time of the assault. See id. at 949.

101. Lacking the capacity to form the specific intent due to a mental impairment is considered a mens rea variant. See supra note 44 and accompanying text for an explanation of the mens rea variant; see also Morse, supra note 32, at 5.

102. See Henson, 476 N.E.2d at 953-54.

103. See id. at 952.

104. See id. at 953 ("There is `more than a soupçon of logic' in the defendant's argument that `voluntary intoxication is as relevant to a defendant's capacity to form a specific criminal intent as it is to a defendant's capacity to premeditate deliberately.'" (quoting Commonwealth v. Loretta, 438 N.E.2d 56, 60 (1982))); see also JOSEPH R. NOLAN, CRIMINAL LAW § 675, at 575 (Mass. Practice Series No. 32, 1976) (stating that if intoxication can negate deliberate premeditation, it should also negate the element of intent in other specific intent crimes).

105. See Henson, 476 N.E.2d at 954; see also In re Winship, 397 U.S. 358, 364 (1970) (finding that the due process clause would be violated unless the prosecution proves every element of the crime beyond a reasonable doubt). If a person is incapable of forming the requisite intent necessary to prove a specific intent due to intoxication, and is still convicted for that crime, then that person is essentially being punished for being drunk. But see Robinson v. California, 370 U.S. 660, 666 (1962) (ruling that a statute that made it a crime to be addicted to narcotics violated the Eighth and Fourteenth amendments); ROLLIN PERKINS & RONALD BOYCE, CRIMINAL LAW 1013 (3d ed. 1982) (stating that being punished for something that a person would not have done if a person was not drunk is not equivalent to punishing a person for being drunk).

106. See Henson, 476 N.E.2d at 954. The trial judge should further instruct the jury that, if they find that the Commonwealth has met its burden of proving the requisite specific intent, the defendant's intoxication can serve neither as an excuse nor as a justification for his actions. See id.

107. Courts use to make a distinction between deliberate premeditation and other specific intents, refusing to permit the jurors to consider a defendant's intoxication in deciding whether the defendant was capable of forming a specific intent to kill. See Commonwealth v. Sheehan, 383 N.E.2d 1115, 1122 (Mass. 1978) (holding that a jury may not consider a defendant's intoxication to determine whether the defendant possessed the specific intent to kill); cf. Commonwealth v. Taylor, 161 N.E. 245, 248 (Mass. 1928) (holding that evidence of intoxication is not allowed as a factor in determining whether the defendant possessed the specific intent to rape). This distinction between deliberate premeditation and other specific intents was later rejected, reasoning that if intoxication negates the intent element of a crime, than that crime was not committed. See LaFave & Scott, supra note 3, at 344-45 (noting that defendants forming their intent before murdering and then drinking alcohol to summon the courage to act on the intent may still be convicted of first-degree murder, even though they were incapable of deliberate premeditation at the time of the murder); PERKINS & BOYCE, supra note 105, at 1008 n.4 (noting that if the intent is formed before intoxication, the defendant may still be convicted of the specific-intent crime).

108. See, e.g., Commonwealth v. Sires, 596 N.E.2d 1018, 1023-24 (Mass. 1992); Commonwealth v. Sama, 582 N.E.2d 498, 501 (Mass. 1991).

109. See Henson, 476 N.E.2d at 954.

110. See id. (Hennessey, C.J., concurring).

111. See id. (Hennessey, C.J., concurring).

112. 505 N.E.2d 171 (Mass. 1987).

113. See id. at 173. The court concluded that:

the judge's failure on request to "instruct the jury, on the issue of intent, that they should consider the defendant's mental status on the day in question," requires reversal of the conviction if there was evidence tending to show that, because of his mental condition, the defendant may not have formed a specific intent to kill or to cause grievous bodily harm that could have warranted a finding of malice.

Id. at 174. Thus, the SJC ruled that evidence of mental impairment, short of criminal insanity, was relevant to the jury's determination. See id. Other intoxication cases soon followed. See, e.g., Commonwealth v. Glass, 519 N.E.2d 1311, 1318 (Mass. 1988) (stating that the jury must be permitted to consider the effects of voluntary consumption of alcohol on the proof of any crime that requires proof of specific intent, including the elements of malice that involve a specific intent).

114. See Grey, 505 N.E.2d at 174.

115. See id. at 173-74.

116. 582 N.E.2d 498 (Mass. 1991).

117. See id. at 501.

118. See id.

119. Commonwealth v. Blake, 564 N.E.2d 1006, 1010 n.3 (Mass. 1991).

120. See Sama, 582 N.E.2d at 501.

Under the third prong of malice, the Commonwealth must establish the guilty knowledge of the defendant beyond a reasonable doubt, and evidence of a defendant's intoxication should be considered by the jury. Evidence of intoxication certainly bears on the defendant's ability to possess the requisite knowledge of the circumstances in which he acted.

Id. (emphasis added). By applying the rule of Grey to the third prong of malice, the jury should consider whether the Commonwealth overcame its burden.

In order to establish the third prong of malice in this case, the Commonwealth had the burden of demonstrating that the defendant knew that he was stabbing the victim with a knife and that a reasonably prudent person, although not necessarily the defendant, would recognize that such conduct carried with it the risk of death or serious bodily injury.

Id.

121. See id. at 502.

122. See id.

123. See Katherine E. McMahon, Murder, Malice and Mental State: A Review of Recent Precedent Recognizing Diminished Capacity, from Commonwealth v. Grey to Commonwealth v. Sama, 78 MASS. L. REV. 40, 48-49 (1993).

124. See Commonwealth v. Glass, 519 N.E.2d 1311, 1318 (Mass. 1988); Commonwealth v. Grey, 505 N.E.2d 171, 175 (Mass. 1987). Manslaughter carries a maximum penalty of twenty years commitment to the state prison. See MASS. GEN. LAWS ch. 265, § 13 (1994 & Supp. 1996). First-degree murder carries the mandatory penalty of a life sentence to the state prison, without possibility of parole. See id. § 2. Second-degree murder also carries a mandatory life sentence, but there is a possibility of parole after 15 years. See id. § 133A.

125. See McMahon, supra note 123, at 40.

126. See supra notes 71-125 and accompanying text.

127. See Hall, supra note 7, at 1050 (noting that many states require a showing that intoxication "`render[ed] the defendant practically an automaton'" (quoting Tate v. Commonwealth, 80 S.W.2d 817, 821 (Ky. 1935))); see also Jones v. State, 362 So. 2d 1303, 1315 (Ala. Crim. App. 1978) (stating that intoxication must "paralyze the mental facilities"); People v. Olson, 420 N.E.2d 1161, 1163 (Ill. App. Ct. 1981) (stating that voluntary intoxication must be "so extreme as to entirely suspend the defendant's power of reason"), aff'd, 470 N.E.2d 1176 (Ill. 1984); Commonwealth v. Gilbert, 42 N.E. 336, 337 (Mass. 1895) (stating that liquor must stupefy or cause a person to lose control of his or her faculties); State v. Scales, 221 S.E.2d 898, 902 (N.C. Ct. App. 1976) (stating that the defendant must have "lost [the] capacity to think and plan"); Parrott v. State, 522 P.2d 628, 633 (Okla. Crim. App. 1974) (stating that defendants must be unconscious of their actions and incapable of forming the requisite intent); State v. Turley, 318 A.2d 455, 459 (R.I. 1974) (stating that drunkenness must be exorbitant to exculpate the defendant).

128. See, e.g., Olson, 420 N.E.2d at 1163-64 (holding that the defendant was capable of forming specific intent, despite having a blood-alcohol level of approximately .40 at the time of the crime, which according to expert testimony at trial, would render the defendant almost comatose).

129. Mandiberg, supra note 6, at 222-23. "[B]ars to the introduction of defense evidence operate despite the clear relevance of the evidence to the mental state element of the crime charged, the competence of the defense witnesses and the excellence of their observations." Id. at 223.

130. See supra notes 122-25 and accompanying text.

131. Voluntary intoxication has been defined as, "[t]he voluntary introduction of any substances into the body which the defendant knows or should know are likely to have intoxicating effects. The MODEL PENAL CODE (§ 2.08) uses the term `self-induced intoxication' to refer to this idea." BLACK'S LAW DICTIONARY 822 (6th ed. 1990).

132. Involuntary intoxication can be a complete defense. See Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195, 199 (1976). A person's subsequent conduct should not be regarded as criminal if it results from stupefaction caused by liquor or drugs taken against his will or he is ignorant of the contents of a given libation. See id. at 200. But see Commonwealth v. Gilbert, 42 N.E. 336, 337 (Mass. 1895) ("The mere fact that one is slightly under the influence of liquor is certainly no legal excuse for crime, even though the liquor was taken involuntarily.").

133. See MODEL PENAL CODE § 2.08(5)(a) (Proposed Official Draft 1962) (defining intoxication as a "disturbance of mental or physical capacities resulting from the introduction of substances into the body"). The MODEL PENAL CODE states:

(1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it negatives an element of the offense.

(2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.

(3) Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01.

(4) Intoxication which (a) is not self-induced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law.Id. § 2.08(1)-(4) (Proposed Official Draft 1962) (alteration in original).

134. See Commonwealth v. Sires, 596 N.E.2d 1018, 1023 (Mass. 1992).

We add a suggestion for judges in instructing juries in criminal cases in which there is evidence of the effects of the consumption of a drug or drugs (including alcohol) that, if believed, would be relevant to a defendant's state of mind or knowledge at the time of the alleged commission of a crime. All that we have ever required be said to juries about the effect of drug consumption on a defendant's intent or knowledge would be satisfied by a simple instruction that the jury may consider credible evidence of the effects of the defendant's consumption of drugs in deciding whether the Commonwealth had met its burden of proving the defendant's state of mind beyond a reasonable doubt.

Id.

135. See, e.g., ALA. CODE § 13A-3-2 (1994 & Supp. 1996); ALASKA STAT. § 11.81.630 (Michie 1996) (negating only an element "that the defendant intentionally caused a result"); COLO. REV. STAT. § 18-1-804 (1985 & Supp. 1996) (negating only "specific intent"); CONN. GEN. STAT. ANN. § 53a-7 (West 1994 & Supp. 1996); HAW. REV. STAT. § 702-230 (1993); IDAHO CODE § 18-116 (1987 & Supp. 1996) (stating that the jury may consider the defendant's intoxication in determining whether the defendant possessed a specific criminal intent); 720 ILL. COMP. STAT. ANN. 5/6-3 (West 1993 & Supp. 1996) (stating that a person is not criminally responsible if the intoxicated condition negates the existence of a mental state that is an element of the offense); KAN. STAT. ANN. § 21-3208 (1995); KY. REV. STAT. ANN. § 501.080 (Michie 1985 & Supp. 1988); LA. REV. STAT. ANN. § 14:15 (West 1986 & Supp. 1997) (negating only "a specific criminal intent" or "special knowledge"); ME. REV. STAT. ANN. tit. 17-A, § 37 (West 1994 & Supp. 1996); MINN. STAT. ANN.§ 609.075 (West 1987 & Supp. 1997); MO. ANN. STAT. § 562.076 (West 1975 & Supp. 1997); MONT. CODE ANN. § 45-2-203 (1995); N.H. REV. STAT. ANN. § 626:4 (1996); N.J. STAT. ANN. § 2C:2-8 (West 1995); N.Y. PENAL LAW § 15.25 (Consol. 1984) (stating that intoxication is not a defense, but may be offered to negate an element of the crime); N.D. CENT. CODE § 12.1-04-02 (1995); OR. REV. STAT. § 161.125 (1995); UTAH CODE ANN. § 76-2-306 (1995); WASH. REV. CODE ANN. § 9A.16.090 (West 1988 & Supp. 1997); WIS. STAT. ANN. § 939.42 (West 1996); WYO. STAT. § 6-1-202 (1977); see also MODEL PENAL CODE § 2.08(1) (Proposed Official Draft 1962).

136. See United States v. Scott, 529 F.2d 338, 339 (D.C. Cir. 1975) (allowing voluntary intoxication as a defense for the crime of entering a bank with the intent to rob); Shell v. State, 512 A.2d 358, 369 (Md. 1986) (allowing voluntary intoxication as a defense for the willful and malicious destruction of property); State v. Caldrain 342 A.2d 628, 629 (N.H. 1975) (allowing voluntary intoxication as a defense for the crime of breaking and entering with the intent to rape); Comment, Intoxication as a Criminal Defense, 55 COLUM. L. REV. 1210, 1211 (1955); Annotation, supra note 3, at 1246.

137. Morse, supra note 32, at 29.

138. See, e.g., Commonwealth v. Troy, 540 N.E.2d 162, 167 (Mass. 1989) (holding that the defendant's intoxication did not have a mitigating effect for the general-intent crime of rape).

139. See Morse, supra note 32, at 29.

140. See id.

Consider also the provocation/passion formula by which the common law and most homicide statutes reduce an intentional killing from murder to voluntary manslaughter. An actor who kills after being provoked to the heat of passion by circumstances that would have so provoked a reasonable person is deemed less culpable than if the killing were done in cold blood or if the provocation were insufficient to incite a reasonable person.

Id. (footnote omitted).

141. See, e.g., Bishop v. United States, 107 F.2d 297, 302 (D.C. Cir. 1939); State v. Hall, 214 N.W.2d 205, 208-09 (Iowa 1974); Commonwealth v. Hicks, 396 A.2d 1183, 1186 (Pa. 1979).

142. See Haddad, supra note 25, at 26.

143. See id. at 57-59.

144. Id. at 35 (footnotes omitted).

145. Commonwealth v. Welansky, 55 N.E.2d 902, 910 (Mass. 1944); see also Commonwealth v. Cobb, 503 N.E.2d 945, 946 (Mass. 1987); Commonwealth v. Vanderpool, 328 N.E.2d 833, 836 (Mass. 1975) (holding that involuntary manslaughter involves an unlawful homicide, unintentionally caused by an act that constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct).

146. See Welansky, 55 N.E.2d at 908-12. Except in cases of motor vehicle homicide, Massachusetts does not recognize negligent homicide. See id. at 911.

147. Mandiberg, supra note 6, at 260.

148. See id. at 261. "Whether intoxication can ever negative `recklessness' depends on how the latter concept is defined in a jurisdiction. If the prosecution must merely prove carelessness about any aspect of the defendant's behavior, overlooking the risk of intoxication would suffice and the recklessly intoxicated offender would have no defense." Id. at 261 n.184.

[I]n a Model Penal Code jurisdiction, intoxication dynamically could negative the awareness of risk necessary to recklessness.

It should be noted that, even though this is so, the Model Penal Code does not allow the defendant to present such negativing evidence. . . . Assume that the prosecution is required to prove the defendant's conscious disregard of a substantial risk that his behavior would cause damage to property. If the defendant could convince the jury that he was so drunk that he was not aware of his own actions, the prosecution could not prove this. But under section 2.08 the defendant will not be able to present his evidence and the prosecution will have no evidence to overcome.

Id.; see also MODEL PENAL CODE § 2.08 (Proposed Official Draft 1962). Other jurisdictions support the proposition that, if the only reason why the defendant was unable to realize the riskiness of his conduct because he was too intoxicated, then he is guilty of recklessness. See State v. Shine, 479 A.2d 218, 223 (Conn. 1984) (rejecting the argument that this approach was unconstitutional); Brown v. Commonwealth, 575 S.W.2d 451, 452 (Ky. 1978) (stressing the Model Penal Code position); People v. Townsend, 183 N.W. 177, 181 (Mich. 1921) (affirming that the defendant was guilty of manslaughter even though he did not realize that his acts may kill another while voluntary intoxicated); People v. Register, 457 N.E.2d 704, 708-09 (N.Y. 1983) (holding that intoxication is no defense to a charge of depraved-heart murder, because it is a variety of recklessness). When a defendant is voluntarily intoxicated at the time of the murder, intoxication under those circumstances may constitute reckless conduct amounting to manslaughter. See, e.g., People v. Walker, 58 A.D.2d 737, 738 (N.Y. 1977) (interpreting Model Penal Code § 2.08, at 8-9 (Tentative Draft No. 9, 1959)).

149. See, e.g., Allison v. State, 86 S.W. 409, 412-13 (Ark. 1904); People v. Conley, 411 P.2d 911, 916 (Cal. 1966) (lacking proof of malice aforethought, a homicide may be mitigated to manslaughter). The Arkansas Supreme Court has stated:

It is not always necessary to show that the killing was done in the heat of passion, to reduce the crime to manslaughter, for where the killing is done because the slayer believes that he is in great danger, but the facts do not warrant such a belief, it may be murder or manslaughter according to the circumstances, even though there be no passion.

Allison, 86 S.W. at 413; see also State v. Santiago, 516 P.2d 1256, 1258 (Haw. 1973) (distinguishing element between murder and manslaughter is malice; intoxication or mental state can negate malice).

150. See, e.g., Conley, 411 P.2d at 916 (mitigating murder to manslaughter when intoxication negates the intent to kill or do serious bodily injury); Annotation, Drunkenness as Affecting Existence of Elements Essential to Murder in Second Degree, 8 A.L.R. 1052, 1057-58 (1920).

151. See, e.g., People v. DelGuidice, 606 P.2d 840, 843 (Colo. 1979); Commonwealth v. Bridge, 435 A.2d 151, 153 (Pa. 1981); Johnson v. Commonwealth, 115 S.E. 673, 673 (Va. 1923); Annotation, supra note 150, at 1057-58. California was criticized for allowing an instruction to reduce a murder charge to a lesser included offense or manslaughter. See Morse, supra note 32, at 25.

[V]ague definitions allowed a defendant whose conduct satisfied the elements of some degree of murder to introduce evidence of mental abnormality to reduce his conviction to either murder in the second degree or manslaughter. The California doctrine was confusing, and led to what were popularly perceived as unjust or even absurd results in some cases. Finally, in 1982, legislation went into effect that overruled the series of cases that had judicially created partial responsibility in the law of homicide. California restored the mens rea elements of murder to their usual, sensible meanings and adopted a true mens rea variant.

Id. at 25-26. (footnotes omitted).

152. See Commonwealth v. Tevenal, 515 N.E.2d 1191, 1194 (Mass. 1987); Commonwealth v. Rodgers, 222 N.E.2d 766, 771 (Mass. 1967).

153. See, e.g., Commonwealth v. Gaulden, 420 N.E.2d 905, 913-14 (Mass. 1981) (stating that evidence of intoxication or mental impairment might be relevant in determining whether the defendant was actually acting in the heat of passion).

154. See, e.g., Commonwealth v. Sires, 596 N.E.2d 1018, 1020 (Mass. 1992).

155. See id.

156. See Commonwealth v. Cruz, 602 N.E.2d 1089, 1092 (Mass. 1992) (mitigating first-degree murder to second-degree murder); Commonwealth v. Dellechiaie, 84 N.E.2d 7, 8 (Mass. 1948) (mitigating murder in the first degree to second-degree murder).

157. 596 N.E.2d 1018 (Mass. 1992).

158. See Commonwealth v. Pierce, 642 N.E.2d 579, 583 (Mass. 1994). Involuntary manslaughter can be satisfied if a killing resulted from wanton and reckless conduct, or from a non-felony battery that the defendant knew or should have known endangered human life. See id. at 587.

159. See Sires, 596 N.E.2d at 1025.

160. See id.

161. See id. at 1025 n.14.

The difference between the elements of the third prong of malice and wanton and reckless conduct amounting to involuntary manslaughter lies in the degree of risk of physical harm that a reasonable person would recognize was created by particular conduct, based on what the defendant knew. The risk for the purposes of the third prong of malice is that there was a plain and strong likelihood of death. We reject any suggestion that we have made something less than a plain and strong likelihood of death sufficient for proof of the third prong of malice.

Id. (citations omitted).

162. Id. at 1025.

163. See id.; see also Commonwealth v. Martinez, 473 N.E.2d 167, 168 (Mass. 1985) (stating that an instruction on manslaughter is required when "any view of the evidence will permit a finding" of manslaughter and not murder).

164. See Sires, 596 N.E.2d at 1025.

165. 632 N.E.2d 392 (Mass. 1994).

166. See id. at 396.

167. See id.

168. Id. (citation omitted).

169. See id.

170. See id.

171. See Ferreira, 632 N.E.2d at 396 ("An instruction on involuntary manslaughter was unwarranted because there was no evidence that this was an unintentional death during the commission of a battery.").

172. Id. (quoting Sires, 596 N.E.2d at 1025).

173. See id. at 397; see also Commonwealth v. Doucette, 462 N.E.2d 1084, 1091 (Mass. 1984).

174. See Ferreira, 632 N.E.2d at 396. In Ferreira, the SJC held that the defendant's actions were not the type that could satisfy manslaughter because "[t]he risk of harm associated with throwing a person, tied up, into a canal is the kind of risk that could only lead to a determination of malice." Id.

175. 637 N.E.2d 240 (Mass. App. Ct. 1994).

176. See id. at 247.

177. Id.

178. Id.

179. See id.

180. See supra notes 42-67 and accompanying text.

181. See supra notes 76-125 and accompanying text.

182. See Mandiberg, supra note 6, at 275.

183. See Patterson v. New York, 432 U.S. 197, 206 (1977) (holding that due process requires the prosecution in a criminal case to prove beyond a reasonable doubt every element in the crime charged).

184. See Mandiberg, supra note 6, at 222.

185. See id. at 231.

186. Id. at 275.

187. See supra Part III.

188. See Haddad, supra note 25, at 57.

189. See Mandiberg, supra note 6, at 237.

190. See id.

191. See id. at 239.

192. See Morse, supra note 32, at 10.

193. See id. at 10-11.

194. Mandiberg, supra note 6, at 239 (footnote omitted).

195. See id.

196. See id.

197. Id. at 275.

198. See id. at 237-47.

199. Id. at 253 (footnote omitted).

200. Mandiberg, supra note 6, at 254. This solution is open to attack because all people acquitted for lack of a subjective mental state are not necessarily incapacitated. See id. at 270 ("Some people will fall through the cracks. They will not be civilly committed for some reason. They will be released too soon." (footnote omitted)).

201. Id. at 255.

202. See id. at 253; see also MASS. GEN. LAWS ch. 123, §§ 7, 8, 16 (1994 & Supp. 1996); WASH. REV. CODE ANN. § 70.96A (West 1992 & Supp. 1996) (allowing a person to be committed if that person is incapacitated due to intoxication or if that person is determined to be a threat to the safety of others). But see Bethea v. United States, 365 A.2d 64, 92 (D.C. 1976) (rejecting the alternative of civil commitment because of "significant procedural differences"). A defendant found not guilty by reason of insanity can be held at Bridgewater State Hospital or another mental health facility if found to pose a likelihood of serious harm by reason of mental illness. See MASS. GEN. LAWS ch. 123, §§ 7, 8, 16 (1994 & Supp. 1996). Therefore, a defendant acquitted by reason of a diminished mental capacity also may be committed if his mental illness or defect, not amounting to criminal insanity, is found to pose serious harm to himself or the public. See MASS. REGS. CODE tit. 104, § 3.01 (1996); STAN GOLDMAN, MENTAL HEALTH PROCEEDINGS IN THE DISTRICT COURT DEPARTMENT, A DEFENSE MANUAL, 17-26 (Committee for Public Counsel Services, 1992); McMahon, supra note 123, at 48.

203. Morse, supra note 32, at 55.

204. See supra Part II.

205. See, e.g., MODEL PENAL CODE, § 210 (Official Draft 1985). A defendant acquitted of criminal homicide due to mental impairment not amounting to insanity, and not suffering from a mental illness could still be convicted of general-intent crimes of assault, such as assault and battery with a dangerous weapon, which carries a maximum sentence of 10 years in state prison. See MASS. GEN. LAWS ch. 265, § 15A (1994 & Supp. 1996).

206. See supra Part II.

207. See supra Part III.B.

208. See supra Part III.E.

209. See supra Part III.A.

210. See supra Part IV.

211. See, e.g., DeJoinville v. Commonwealth, 408 N.E.2d 1353, 1355-58 (Mass. 1980); see also Sandstrom v. Montana, 442 U.S. 510, 524 (1979) (finding a violation of constitutional due process in grounding a mental element of a crime in a presumption that a defendant intends the ordinary consequences of his voluntary acts).

212. See Hall, supra note 7, at 1062 (stating that the defendant must be acquitted if evidence of intoxication proves a lack of specific intent, provided that there was not an underlying general-intent crime).

213. See Mandiberg, supra note 6, at 250.

* I dedicate this Note to my parents for their inspiration, love, and support.