On July 31, 2026, in the case of People v. Madison, the Michigan Supreme Court overruled a quarter-century of its own precedent and finally held that "diminished capacity" can be raised in defense to criminal charges where specific intent is an element the prosecution must prove beyond a reasonable doubt. In this article, we explain the basics of diminished capacity under Michigan law.
How is Diminished Capacity Defined in Michigan's Criminal Laws?
In Michigan criminal law, "Diminished capacity" means not having the mental ability to form the specific intent required to be guilty of a crime. This could be due to a mental health issue, an intellectual disability, or other similar condition.
Every crime has two essential components: 1) the act or acts (or in limited circumstances, failure to act) committed, or actus reus; and 2) the accompanying, requisite state of mind, or mens rea. Diminished capacity is about the Defendant's state of mind - the mens rea component. In our law, there are various states of mind that the prosecution has to prove beyond a reasonable doubt for different types of crimes.
Under Michigan law, diminished capacity only applies to "specific intent" crimes, meaning those changes which require the prosecution to prove that at the time of commission of the alleged crime, the Defendant specifically intended a particular result or outcome. For example, intending to kill, or intending to do "great bodily harm."
What is the Difference Between the Insanity Defense and Diminished Capacity in Michigan?
Diminished capacity is different from, but related to, the defense of Insanity, so first, let's look at Insanity...
Michigan has long recognized the defense of legal Insanity to crimes in the decisions of our appellate Courts at least as far back as the post Civil War era. A person who meets the requirements of the Insanity defense is entitled to a verdict of "Not Guilty by Reason of Insanity" (NGRI).
The Michigan Legislature codified the "Insanity" defense in MCL 768.21a, Persons deemed legally insane; burden of proof, which reads:
"(1) It is an affirmative defense to a prosecution for a criminal offense that the defendant was legally insane when he or she committed the acts constituting the offense. An individual is legally insane if, as a result of mental illness as defined in section 400 of the mental health code, 1974 PA 258, MCL 330.1400, or as a result of having an intellectual disability as defined in section 100b of the mental health code, 1974 PA 258, MCL 330.1100b, that person lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. Mental illness or having an intellectual disability does not otherwise constitute a defense of legal insanity.
(2) An individual who was under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his or her alleged offense is not considered to have been legally insane solely because of being under the influence of the alcohol or controlled substances.
(3) The defendant has the burden of proving the defense of insanity by a preponderance of the evidence."
[Note that Michigan law also allows for a verdict of "Guilty But Mentally Ill" (GBMI), which is for those who demonstrate that they were mentally ill at the time of the crime, but cannot meet the above standard for establishing a defense of "Not Guilty by Reason of Insanity" (NGRI).]
Importantly, unlike Diminished capacity, the Insanity defense is what is called an "Affirmative Defense." Our Supreme Court says this means the Defendant "admits the crime but seeks to excuse or justify its commission. It does not negate specific elements of the crime.” People v. Dupree, 486 Mich 693, 704, n11 (2010). The Insanity defense can apply to any criminal charge.
However, diminished capacity is not an "Affirmative Defense." To present Diminished capacity in one's defense means that in a case where the prosecution has a duty to prove beyond a reasonable doubt that the Defendant had a specific intent at the time of the alleged crime, the Defendant is offering evidence (usually via expert testimony) of a lack of the ability to form that specific intent. So rather than arguing that the Defendant committed all elements of a crime including that intent but was Insane, he or she is arguing that the prosecution simply cannot meet their burden to prove that intent.
If that sounds confusing, here's an example...
In our imaginary Court, Joe D. Fendant is charged with Larceny of a Candy Bar. This crime requires the prosecutor to prove beyond a reasonable doubt that Joe: 1) took a candy bar; 2) unlawfully and without permission; and 3) intended to permanently deprive Suzy, the owner, of her candy bar.
- If Joe were raising an Insanity defense, his lawyer would be arguing: "Sure, he took it and intended to permanently deprive her of it, but we have proven to you that it is more likely than not that due to his [mental illness / intellectual disability], he couldn't understand that it was wrong at the time, or else he couldn't resist taking it, so you must find Joe Not Guilty by Reason of Insanity." If the jury agrees, Joe cannot realistically be convicted of any crime arising out of the candy bar theft.
- If Joe were offering evidence of diminished capacity, his lawyer would be arguing: "Because of Joe's [mental illness / intellectual disability / other condition], there at least exists a reasonable doubt as to whether Joe even could have formed the specific intent to permanently deprive Suzy of the candy bar, so the prosecution didn't meet their burden on that element and you must find Joe not guilty." But even if the jury agrees, Joe might still be conceivably convicted of some other, general intent crime arising out of the candy bar theft, such as an imaginary "lesser included offense."
Notice that for the Insanity defense in Michigan the Defendant has the burden of proving legal Insanity a "preponderance of the evidence" (i.e., more likely than not). This is the opposite of the current law in Massachusetts as many are familiar with the recent Lindsay Clancy trial.
For diminished capacity, it's simply the right to present an argument supported by evidence that the prosecution failed to prove something they need to prove. This distinction would turn out to be a key factor in why the Michigan Supreme Court overturned itself after 25 years of abolishment of diminished capacity (see below).
Is Diminished Capacity a Defense to Criminal Sexual Conduct Charges in Michigan?
More on-point to our practice Prain Law PLLC is a criminal defense practice specifically concentrating on defending those accused of Criminal Sexual Conduct (CSC), a few more specific questions we expect to be hearing a lot are...
- Does diminished capacity apply to Criminal Sexual Conduct in Michigan?
- Can a person charged with CSC raise diminished capacity as a defense?
The short answer is...
No, a person charged with any of the four main Degrees of Criminal Sexual Conduct in Michigan cannot raise diminished capacity in their defense to those charges, because those are all "general intent" crimes. However, someone charged with Assault With Intent to Commit Sexual Penetration or Assault With Intent to Commit Criminal Sexual Conduct in the Second Degree may raise diminished capacity in their defense because those are both "specific intent" crimes.
In Michigan, CSC charges are broken-down into four main "Degrees":
- First Degree Criminal Sexual Conduct (MCL 750.520b), a LFIE offense
- Second Degree Criminal Sexual Conduct (MCL 750.520c), a 15 year felony
- Third Degree Criminal Sexual Conduct (MCL 750.520d), a 15 year felony
- Fourth Degree Criminal Sexual Conduct (MCL 750.520e), a 2 year "high court" misdemeanor
To say that all four of these main Degrees of CSC in Michigan are considered "general intent" crimes is to say that (in addition to having to prove that the sexual act itself actually occurred in the first place) they only require the prosecution to prove that the Defendant voluntarily or deliberately did the sexual act in question. Here's an example...
One sub-category (or "multiple variable") of First Degree CSC involves "sexual penetration" accomplished by "force or coercion" which causes "personal injury." The prosecution must prove that the Defendant meant to do the sexual penetration, used force or coercion to do so, and that it did cause personal injury - but does not have to prove that the Defendant actually intended to cause personal injury as a result.
On the other hand, a "specific intent" crime is one which requires the prosecution to prove that the Defendant specifically intended a particular result or outcome. For example the crime of larceny requires the prosecution to prove that the Defendant unlawfully took someone else's property with the intent to permanently deprive the owner of it. Thus, larceny is a specific intent crime.
RELATED: Michigan Court of Appeals - "Rape Shield" precedes do not apply at Preliminary Exam.
If you're thinking "I don't see the difference...", you're not alone. Sometimes even lawyers disagree on where the boundary lies between a general intent and specific intent crime. So we rely on our appellate Courts to confirm whether a particular crime is considered a general vs. specific intent crime.
In the case of all four main Degrees of CSC in Michigan (1st through 4th), our Courts have made it clear that they are to be considered general intent crimes. Because the Supreme Court's current position is that Michigan's "new" (or should we say revived) diminished capacity defense only applies to specific intent crimes, it does not apply to the four Degrees of CSC.
RELATED: Can CSC charges be dismissed due to lost or destroyed evidence?
But there are a couple of notable exceptions; the following two Criminal Sexual Conduct related charges are considered specific intent crimes:
- Assault With Intent to Commit Sexual Penetration (MCL 750.520g(1)), a 10 year felony
- Assault With Intent to Commit Criminal Sexual Conduct in the Second Degree (MCL 750.520g(2)), a 5 year felony
This is because (as their very names suggest) sexual penetration / contact is not the act in question; the act in questionis actually an Assault (i.e., something less than actual sexual penetration or sexual contact - perhaps even without any touching at all). The "sexual penetration" or "sexual contact" here is the intended result...which may not have even occurred.
However, under Michigan law, a person acquitted of a specific intent crime due to diminished capacity may still be convicted of a different, general intent crime (so long as Constitutional principles such as the prohibition on Double Jeopardy are not violated). For instance, at least in theory, a person acquitted of the specific intent crime of Assault With Intent to Commit Sexual Penetration based on a diminished capacity offense could still be convicted of 4th Degree CSC if the elements of that offense are proven.
What Changed About the law of Diminished Capacity in Michigan When the Supreme Court Decided People v. Madison in July, 2026?
Historically, Michigan law recognized the right to offer evidence of diminished capacity in one's defense, even though our Legislature has not codified it into a statute like the above one for the Insanity defense.
In People v. Lynch, 47 Mich App 8 (1973), our Court of Appeals saw diminished capacity as an issue of the right to present evidence to negate the intent element the prosecution had to prove, and thus did not find it to be anything unusual or violative of the Insanity defense statute. Rather, in People v. Mangiapane, 85 Mich App 379 (1978), the Court found diminished capacity to be sort of part-and-parcel of the concept of legal Insanity set forth in MCL 768.21a.
However, things changed in 2001 when the Michigan Supreme Court struck-down diminished capacity and a Defendant's right to introduce evidence of it in the case of People v. Carpenter, 464 Mich 223 (2001). In Carpenter, the Supreme Court held that when the Legislature enacted MCL 768.21a, it was their intent to set forth an "all or nothing" Insanity defense and to cover all defenses arising out of a Defendant's mental conditions, and therefore, since the Legislature said nothing about "diminished capacity," they therefore meant to abolish it. Thus, for a quarter-century now, diminished capacity evidence has not been allowed under Michigan law.
But on July 31, 2026, our Supreme Court decided People v. Madison, __ Mich __ (2026) (Docket No. 167120), where they concluded that Carpenter had been wrongly decided in 2001 and overturned it's holding, reinstating the right of Defendants to offer evidence of diminished capacity to specific intent crimes in Michigan. Among the reasons for the reversal, the Supreme Court cited years of dissent from practitioners, and how the distinction between Insanity as an Affirmative Defense and diminished capacity as an evidentiary challenge affects how the Legislature's intent should be ascertained (i.e., the Legislature not mentioning diminished capacity did not signify its intended abolition).
What Are the Procedures for Asserting Diminished Capacity in Your Defense?
After Madison was decided this past summer, the Michigan Court Rules (MCR) were amended to add the following Notice requirement - those wishing to present evidence of diminished capacity must comply with the newly added MCR 6.201(B), Notice of Expert Evidence of Diminished Capacity, which reads:
"If a defendant intends to introduce expert evidence relating to mental illness or intellectual disability bearing on the defendant’s specific intent, the defendant must notify the prosecutor in writing on a form approved by the state court administrator of this intention and file a copy of the notice with the clerk not less than 30 days before the trial date or at such other time as the court directs. The court may, for good cause, allow the defendant to provide and file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders."
But as for how this mind-bending "new" body of Michigan diminished capacity law will be explained to jurors who must decide based on it in trials, since the Madison case is so newly decided, the Committee which creates our standard Criminal Jury Instructions has not even adopted a standard Diminished Capacity Jury Instruction as of the original publication of this article.
The last "Diminished Capacity" Jury Instruction offered by the predecessor Committee before its abolition commencing in 2001 read as follows:
"(1) The defendant says that [he / she] could not have intended to [state intent element of appropriate crime charged] because [he / she] did not have enough mental ability to form that intent.
(2) You must decide whether the defendant had enough mental ability to form that intent. You may think about such things as [the defendant’s history of mental problems / the defendant’s mental ***********], and any circumstances having to do with the incident.
(3) The prosecutor must prove beyond a reasonable doubt that the defendant could and did intend to [state intent element of appropriate crime charged], or you must find the defendant not guilty of __."
While that Instruction may be helpful in drafting an updated one, its language is so dated that this author felt compelled to remove a term which, suffice it to say, is no longer acceptable these days. A new standard Diminished Capacity Jury Instruction will ideally reflect the current and future state of scientific research and social acceptance in its use of terminology.