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256.7 Mental, Medical Or Physical Impairment Of Defendant

    256.7.3 Mental, Medical Or Physical Impairment: Specific Defense Theories

    256.7.3.1 Alcoholism Or Drug Addiction As Basis For Mental Illness
    256.7.3.2 Amnesia Affecting Capacity To Commit The Crime And/Or Defend Against The Charges
    256.7.3.3 Steroid Reaction Evidence
    256.7.3.4 Anger: Defense Theory To Negate Intent Or Mens Rea
    256.7.3.5 Mental Impairment: Battered Person Syndrome
    256.7.3.6 Chromosomal Abnormality: XYY Chromosome Defense
    256.7.3.7 Confusional Arousal Syndrome
    256.7.3.8 Diabetes: Impact Upon Defendant’s Ability To Control His Or Her Behavior
    256.7.3.9 Epilepsy As Defense Theory Whether Or Not Crime Occurred During A Seizure
    256.7.3.10 Fatigue
    256.7.3.11 Fetal Alcohol Syndrome (FAS)
    256.7.3.12 Genetic Brain Disorder: Frontal Lobe Brain Abnormalities As Defense Theory
    256.7.3.13 Insulin Reaction (Hypoglycemia) As Relevant To Intoxication
    256.7.3.14 Piquerism As Defense To Crime Involving Stabbing Or Jabbing With Sharp Instrument
    256.7.3.15 Physical Disability As Affecting Objective Reasonable Person Standard
    256.7.3.16 Physical Trauma To Negate Mental Element Of The Charged Offense
    256.7.3.17 Post-Partum Disorders
    256.7.3.18 Post-Traumatic Stress Disorder (PTSD)
    256.7.3.19 Premenstrual Syndrome (PMS)
    256.7.3.20 “Pseudologia Fantastica” (Making Grandiose Inculpatory Statements)
    256.7.3.21 Sleep Disorder
    256.7.3.22 Traumatic Automatism
    256.7.3.23 Unconsciousness

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    See also FORECITE National™ 256.6.1.12 [Activation Of Mental Disease Or Insanity By Use Of Alcohol Or Drugs].

    See also FORECITE National™ 256.7.3.2 [Amnesia Affecting Capacity To Commit The Crime And/Or Defend Against The Charges].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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PRACTICE NOTE:  ()

    A.    Capacity To Defend: Impairment Of Right To Fair Trial

    Under certain circumstances amnesia may preclude a fair trial. (See Casey v. State (TX 1996) 924 SW2d 946 [defendant with psychogenic amnesia entitled to competency hearing re: probation violation hearing];  see also Robinson, Criminal Law Defenses (West, 1984) § 207(c) pp. 496-97.) Whether the defendant’s amnesia precludes a fair trial depends on a multiplicity of factors including the nature of the crime, the extent of the prosecutor’s disclosure to the defense of facts known to him, the quality and quantity of the prosecution's evidence, and the nature of the defenses raised. (Robinson, Criminal Law Defenses (West, 1984) § 207(b) p. 498.)

    See FORECITE National™ 300.27.1.2 [Right To Communication With Counsel At Trial].

    When a defendant suffers from amnesia at the time of the offense, he may be able to raise either (1) a defense of mental disease or defect negating an offense element, or (2), in rare cases, a defense of insanity. (Robinson, Criminal Law Defenses (West, 1984) § 207(c) pp. 499-500.) For example, if knowledge of a circumstance is an element of the offense, amnesia may negate that knowledge element. (Robinson, Criminal Law Defenses (West, 1984) § 207(c) p. 500.)

NOTE: "While amnesia and cognitive dysfunction may result from similar causes, such as traumatic injury, only the resulting cognitive dysfunction, not the resulting amnesia," is relevant to the defendant’s mental state at the time of the offense. (Id. at 500.) Hence, what is commonly referred to as "alcoholic blackout" may preclude the defendant from remembering what occurred but does not necessarily preclude cognitive functioning at the time of the event. (Ibid.; see also People v. Leger (IL 1992) 597 NE2d 586, 592; Danahey v. State (RI 1977) 373 A2d 489.)

Annotation, Amnesia As Affecting Capacity To Commit Crime Or Stand Trial, 46 ALR3d 544.

Roesch & Golding, "Competency to Stand Trial" pp. 36-39 (1980).

Cocklin, Amnesia: The forgotten justification for finding an accused incompetent to stand trial (1980) 20 Washburn L.J. 289.

Amnesia: A Case Study in the Limits of Particular Justice (1961) 71 Yale L.J. 109.

Criminal Law -- Ability to Stand Trial -- Amnesia 8 Univ.Kan.L.Rev. 132 (1959-60).

"Capacity To Stand Trial: The Amnesic Criminal Defendant" (1967) 27 MD L.Rev. 182, 184 ["Amnesia is the loss, either temporarily or permanently, of memory of conscious experience. It may be caused by a wide variety of conditions, but among criminal defendants it most often results from alcoholism, hysteria, epilepsy and head injury"].

See generally, FORECITE National™ 305.5.5 [Epilepsy].

 VOLUME 11 - CHAPTER 256

RATIONALE: Because anger may negate mens rea a defense theory instruction on anger may be appropriate.

POINTS AND AUTHORITIES: It has been recognized that anger may negate mens rea or intent. (See e.g., OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 411.11 [Intoxication, Drugs And Anger (Homicide Case)] [mental state may be negated by intoxication, drugs or anger] (Anderson, 2000); FORECITE National™ 92.7.3.3 [Intentional Murder: Impact Of Provocation And Heat Of Passion/Hot Blood On Premeditation And Deliberation]; cf. FORECITE National™ 256.7.3.16 [Physical Trauma To Negate Mental Element Of The Charged Offense].) Accordingly, when the defense relies upon anger as a theory to negate a required mens rea, an instruction such as the above should be given upon request. (See FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].)

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

    The prosecution is required to prove that the defendant had the intent to ___________ [the mental state of ___________]. In deciding whether the prosecution has met this burden, consider the impact of the defendant's anger.

    If, after considering the defendant's anger, as well as all the other evidence, you have a reasonable doubt that the prosecution has met its burden of proving defendant had the [intent to ____________] [and/or] [mental state of ___________________ ] you must resolve that doubt in favor of the defendant and find that the intent or mental state has not been proven.

[Cf. OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 411.11 [Intoxication, Drugs And Anger (Homicide Case)] (Anderson, 2000).]

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    See FORECITE National™ 253.1 [Battered Person’s Syndrome].

    See FORECITE National™ 256.1.2 [Battered Person Syndrome: Challenge To Required Objective Mental State Under On Reasonable Person Standard].

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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RESEARCH NOTES:

LaFave & Scott, Substantive Criminal Law (West, 1986) § 4.8.

Robinson, Criminal Law Defenses (West, 1984) § 193 pp. 444-50.

Comment, Horan, The XYY Supermale and the Criminal Justice System: A Square Peg in a Round Hole, 25 Loyola LA L Rev. 1343 (1992).

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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PRACTICE NOTE: People v. Cegers (CA 1992) 7 CA4th 988, 995-1001 [9 CR2d 297] held that evidence that the defendant suffered from "Confusional Arousal Syndrome" should not have been excluded, since such evidence was central to defendant's case. Cegers explained that "Confusional Arousal Syndrome" is a type of sleep disorder resulting from diminished oxygen levels caused by a defect in breathing patterns during sleep. The syndrome is associated with people who have sleep apnea and are awakened during a period of depressed mental functioning. They are able to perform motor functions, such as walking, while still mentally asleep. In severe cases, such persons can be violent, causing injury or death to others, in which event their condition has been termed "homicidal somnambulism." The condition is properly termed physiological rather than psychological, because it results from an anomaly of the brain. It is exacerbated by excessive alcohol consumption. (Cegers, 7 CA4th at 994.)

    [An article on sleepwalking, Guilty of Sleepwalking: Are Sleep Disorders Excuse for Murder? by Jane E. Brody, of the New York Times, appeared in the Press Democrat (Santa Rosa, California 1/22/96.) In this article several experts are quoted regarding the commission of violent crimes by persons who are sleep walking. The experts referred to in the article included: Dr. Clete Kushida of the Stanford University Sleep Disorders Clinic, Dr. Mark Mahowald of the Minnesota Sleep Disorders Center, Hennepin County Medical Center, Minneapolis, and Dr. Harvey Moldofsky, University of Toronto Center for Sleep and Chronobiology.]

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

 VOLUME 11 - CHAPTER 256

PRACTICE NOTE: See Collier v. Turpin (11th Cir. 1998) 177 F3d 1184, 1202 [counsel ineffective for failure to explore and present readily available expert opinion evidence regarding the impact of petitioner’s diabetes upon his ability to control his behavior]; see also Forbes v. Commonwealth (VA 1998) 498 SE2d 457, 460-61.

    See also FORECITE National™ 256.6.1.16 [Voluntary Intoxication: Insulin Reaction (Hypoglycemia) As Relevant To Intoxication].

    See also FORECITE National™ 256.7.3.13 [Insulin Reaction (Hypoglycemia) As Relevant To Intoxication].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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    256.7.3.9    Epilepsy As Defense Theory Whether Or Not Crime Occurred During A Seizure

PRACTICE NOTE:  It is a recognized right to present evidence and have the jury instructed on the defendant's epileptic condition and seizure at the time of the offense.  (See State v. Rocha (RI 1992) 604 A2d 783 [court erred in excluding evidence of epileptic condition and seizure of defendant and in failing to instruct on unconsciousness].)  Even if the offense did not occur during a seizure the defense may still be applicable.  Medical research indicates that an epileptic may experience uncontrollable aggressive impulses between seizures. (See Irma Jacquelin Ozer, "The Epilepsy Defense Reconsidered," Criminal Law Bulletin, Vol. 33, No. 4, July-August 1997, pp. 328-51.)

See also generally, FORECITE National™ 305.5.5 [Epilepsy].

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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    256.7.3.10    Fatigue

PRACTICE NOTE: See Robbins v. State (TX 1984) 667 SW2d 318, 321 [recognition that fatigue may be a concurrent cause; but rejecting argument that concurrent cause instruction was insufficient].

    See FORECITE National™ 89.4.3 [Drunk Driving: Defense Theory That Fatigue Was A Cause Of The Defendant’s Actions Or Mannerisms While Driving].

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    256.7.3.11    Fetal Alcohol Syndrome (FAS)

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

 VOLUME 11 - CHAPTER 256

    256.7.3.12    Genetic Brain Disorder: Frontal Lobe Brain Abnormalities As Defense Theory

PRACTICE NOTE: In a new study appearing in the February issue of the Archives of General Psychiatry, researchers report that 21 men with antisocial personality disorder, a psychiatric diagnosis often applied to people with a history of criminal behavior and a history of violence, had subtle abnormalities in the structure of the brain’s frontal lobe.

    The abnormalities, the researchers found, distinguished the men with the disorder from healthy subjects, as well as from subjects who abused alcohol or drugs, or who suffered from other psychiatric disorders like schizophrenia.

    When combined with the results of previous studies, write the researchers, led by Dr. Adrian Raine, Professor of Psychology at the University of Southern California, the findings suggest "that there is a significant brain basis to APD over and above contributions from the psychosocial environment, and that these neurobehavioral processes are relevant to understanding violence in everyday society."

    An analysis of MRI scans, the researchers said, revealed that the men with antisocial personality disorder had an 11 percent reduction in the gray matter of the frontal lobe, compared with normal subjects.

    Similar reductions were found when the men’s brain scans were compared with those of subjects suffering from drug or alcohol abuse or other psychiatric disorders. (See "Reduced Prefrontal Gray Matter Volume and Reduced Autonomic Activity in Antisocial Personality Disorder," Adrian Raine, et al., Archives of General Psychiatry (AMA), Vol. 57, Feb. 2000, pp. 119-127.) [For more information, contact Dr. Adrian Raine, D Phil, Department of Psychology, University of Southern California, Los Angeles, CA 90089-1061 (e-mail: raine@rcf-fs.usc.edu).]

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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PRACTICE NOTE: See People v. Morton (NY 1984) 473 NYS2d 66, 68 [failure to follow a prescribed course of diabetic treatment, excessive drinking and consumption of extra dose of insulin all contributed to intoxication]; compare State v. Clarkston (MO 1998) 963 SW2d 705, 715 [state made insufficient showing that diabetic defendant's ingestion of insulin contributed to his intoxication to justify submitting to jury issue of whether intoxication was caused by combination of alcohol and insulin, in prosecution for driving while intoxicated, where there was no evidence of recent ingestion of insulin or that level of insulin in defendant's system could cause intoxication].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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PRACTICE NOTE: Expert testimony may be admissible in a murder prosecution as to a pathological condition called "piquerism," stabbing or jabbing oneself or others with sharp objects for sexual satisfaction, since it is a behavioral phenomenon not within the common knowledge of average juror and requiring professional knowledge. (See People v. Drake (NY 1987) 514 NYS2d 280, 281; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 6:11 [Witnesses-Expert-Commentary] (West, 1999).)

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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    See FORECITE National™ 256.7.3.16 [Physical Trauma To Negate Mental Element Of The Charged Offense].

    See FORECITE National™ 48.1.2 [Objective Reasonable Person Standard: Consideration Of Physical Handicaps, Traumatic Injury And Extreme Grief].

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RATIONALE: Physical trauma may cause mental impairment due to the associated pain and shock. Therefore, as with intoxication and mental illness, the defendant should have the right to a theory of the case instruction requiring the court to consider whether physical trauma negated a mental element of the charged offense.

POINTS AND AUTHORITIES: It has been recognized that "evidence of diminished mental capacity, whether caused by intoxication, trauma or disease, [could] be used to show that a defendant did not have a specific mental state essential to an offense." [Emphasis added.] (People v. Wetmore (CA 1978) 22 C3d 318, 323 [149 CR 265]; see also People v. Alvarez (CA 1970) 4 CA3d 913, 918-19 [84 CR 732] [trauma resulting from a knife wound sustained to defendant's arm minutes before the killing required sua sponte instruction on diminished capacity]; Robinson, Criminal Law Defenses (West, 1984) § 207(c) p. 500 [traumatic injury may cause cognitive dysfunction].)

    Hence, because the pain and shock associated with physical trauma may affect the actual formation of an intent or mental state, such trauma may be viewed as causing a mental defect or disorder upon which a defense theory instruction should be given if requested. (See FORECITE National™ 256.7 [Mental, Medical Or Physical Impairment Of Defendant].)

    See FORECITE National™ 48.1.2 [Objective Reasonable Person Standard: Consideration Of Physical Handicaps, Traumatic Injury And Extreme Grief].

FEDERALIZATION: To federalize this request, click here. [Constitutional 2.3; 4.1].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

    [An intent by the defendant to ______________] [The formation by the defendant of the mental state of ______________] [knowledge by the defendant that ______________], is a necessary element of the crime of ______________.  In deciding whether the prosecution has proven this element beyond a reasonable doubt, consider only evidence of physical trauma received by the defendant during or prior to the [alleged] crime.  

    If, after considering all the evidence, including any evidence of physical trauma, you have a reasonable doubt whether the defendant [intended to _____________] [formed the mental state of _____________] [knew that _________________] you must give the defendant the benefit of that doubt and find [him] [her] not guilty.    

[Source: FORECITE National™.]

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PRACTICE NOTE: Post partum disorders are a recognized problem which can severely impact a mother's mental state during the first year after an infant's birth. Such disorders may afflict up to 10-20% of post partum mothers to varying degrees. In fact, the California Legislature has passed two resolutions attempting to deal with the problems of social responsibility for an awareness of post partum psychosis. (See 38 UCLA Law Rev. 699, 716; S. Con. Res. 23, 1989-90 Reg. Sess., ch. 83 (July 26, 1989); S.Con.Res. 39, 1989-90 Reg. Sess., ch. 87 (July 26, 1989).)

    Hence, post partum disorder is a potential defense theory which should be investigated whenever a mother is charged with neglecting, assaulting or killing her infant child.

ARTICLE AND BRIEFING AVAILABLE: For a comprehensive annotation of post partum issues and resources, click here. [Article Bank # A-78]. For sample factual and legal allegations in support of a post partum depression habeas claim, click here. [Brief Bank # B-831].

See T.L. Schroeder, "Post Partum Psychosis as Defense to Murder?" 21 W.ST.U.L.REV. 267-93, Fall 1993.

Mothers Who Kill: Postpartum Disorders And Criminal Infanticide, 38 UCLA L. Rev. 699, 757 (1991).

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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    256.7.3.18    Post Traumatic Stress Disorder (PTSD)

PRACTICE NOTE: "Post-Traumatic Stress Disorder describes a pattern of behavior induced by unusually stressful or traumatic-like events. Frequently seen in veterans of combat, it’s symptoms may include forms of reenactment of the stressful experience or avoidance of reminders or memories of the painful aspects of the experience. It may cause physiological changes which result in increased irritability, anger, sleep disturbance and memory and concentration problems, and it may induce aggression, hostility, anger and violent outbursts." (Black v. Collins (5th Cir. 1992) 962 F2d 394, 401; see also U.S. v. Cebian (11th Cir. 1985) 774 F2d 446, 448 [post traumatic stress disorder resulting from spousal abuse admissible as relevant to specific intent]; People v. Contreras DEPUBLISHED (CA 1998) 66 CA4th 842 [78 CR2d 349] [error to refuse evidence of childhood trauma and PTSD offered in support of defendant's imperfect self defense theory]; State v. Fields (NC 1989) 376 SE2d 740, 744 [instruction on unconsciousness required based in part on expert testimony regarding PTSD]; State v. Janes (WA 1992) 822 P2d 1238, 1244 [post-traumatic stress disorder impairing a defendant’s ability to premeditate may support a diminished capacity instruction].)

RESEARCH NOTES:

See D.D. Burke & M.A. Nixon, Post-Traumatic Stress Disorder And The Death Penalty. 38 How. L.J. 183-99 Fall 1994.

LaFave & Scott Substantive Criminal Law [Automatism] (West, 1986) § 4.9, p. 543.

Erlinder, Paying the Price For Vietnam: Post-Traumatic Stress Disorder and Criminal Behavior, 25 Boston Coll. L.Rev. 305 (1984).

The U.S. National Center for Post-Traumatic Stress Disorder, through the U.S. Department of Veteran's Affairs offers a resource called "PILOTS." The database provides access to over 12,500 international literature citations on the topic of PTSD, dating back to 1917. It is available via the web at:

http://www.dartmouth.edu/dms/ptsd

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

VOLUME 11 - CHAPTER 256

PRACTICE NOTE: PMS "is a hormonal deficiency disease" which studies have shown "may be related to antisocial behavior." (Taylor & Dalton, Premenstrual Syndrome: A New Criminal Defense? 19 Cal.W.L.Rev. 269, 271, 274 (1983).) The PMS sufferer may be unable to control her actions during the time the PMS symptoms surface. (Note, Carney & Williams, "Premenstrual Syndrome: A Criminal Defense," 59 Notre Dame Law 253, 265 (1983).)

Michael Davidson, Feminine Hormonal Defenses: Premenstrual Syndrome and Postpartum Psychosis, 2000 Army Law 5, July 2000.

D’Emilio, Battered Woman’s Syndrome & Premenstrual Syndrome: A Comparison of Their Possible Use As Defenses To Criminal Liability, 59 St. John’s Law Review 558 (1985).

Jennifer L. Grossman, Postpartum Psychosis–A Defense to Criminal Responsibility Or Just Another Gimmick?, 67 U. Det. L. Rev. 311 (1990).

Kay A Heggestad, The Devil Made Me Do It: The Case Against Using Premenstrual Syndrome As A Defense In A Court Of Law, 9 Hamline L. Rev. 155 (1986).

Elizabeth Holtzman, Premenstrual Symptoms: No Legal Defense, 60 St. John’s L. Rev. 712 (1986).

Candy Pahl-Smith, Premenstrual Syndrome As A Criminal Defense: The Need For A Medico-Legal Understanding, 15 N.C. Cent. L. J. 246 (1984).

LaFave & Scott § 4.9 [Automatism] p. 54.3.

Lee Solomon, Premenstrual Syndrome: The Debate Surrounding Criminal Defense, 54 Md. L. Rev. 571 (1995).

Aleta Wallach & Larry Rubin, The Premenstrual Syndrome and Criminal Responsibility, 19 UCLA L. Rev. 209 (1971).

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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    256.7.3.20    "Pseudologia Fantastica" (Making Grandiose Inculpatory Statements)

PRACTICE NOTE: Evidence is admissible that the defendant suffered from a mental disorder which would cause him or her to make grandiose inculpatory statements. Such a disorder is "pseudolgia fantastica" which is akin to pathological lying (see State v. VanNatta (ND 1993) 506 NW2d 63, 67) and involves a mixture of lies and imagination. (U.S. v. Shay (1st Cir. 1995) 57 F3d 126, 129-32; State v. Tharp (IA 1985) 372 NW2d 280, 283.)

    See also FORECITE National™ 28.9 [Even If Accurately Recorded And Voluntarily Made, Defendant's Statement May Still Not Be Truthful].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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PRACTICE NOTE: REM sleep behavior disorder allows people to act out their dreams while still asleep.  Thus, the person does not have his or her normal conscious controls and inhibitions. (Guilty of Sleepwalking: Are Sleep Disorders Excuse for Murder? by Jane E. Brody, of the New York Times.)

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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PRACTICE NOTE: A form of unconsciousness which has been recognized as a defense is "traumatic automatism." (See e.g., State v. Caddell (NC 1945) 215 SE2d 348, 363 ["unconsciousness" or "automatism," is a complete defense to a criminal charge, separate and apart from the defense of insanity]; Polston v. State (WY 1984) 685 P2d 1, 6; Fulcher v. State (WY 1981) 633 P2d 142, 147; WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, WPIC 8.21 [Traumatic Automatism] (Wyoming State Bar, 1996).) The elements of the defense may include the following:

    1.    At the time of the crime charged the defendant had no mental impairments

    2.    The defendant received a traumatic brain injury which caused a concussion

    3.    As a result of the concussion the defendant acted in a state of unconsciousness and without criminal intent. (Cf. WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, WPIC 8.21 [Traumatic Automatism] (Wyoming State Bar, 1996).)

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.

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    See FORECITE National™ 256.9 [Unconsciousness].

See 1st Circuit Pattern Jury Instructions - Criminal 5.02.

See also 9th Circuit Pattern Model Instructions- Criminal 6.8.