I just got off the phone with a defense attorney concerning strategy for his client.  His client was in jail for killing the spouse. He summarized his case pointing out several factors he believed might qualify his client for a “diminished capacity” defense. A diminished capacity at the time of the act  could be the difference between “the death penalty” and “just a few years in prison.

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A person who is convicted of “Murder” a first degree felony in Utah “shall be sentenced to imprisonment for an indeterminate term of not less than 15 years and which may be for life.” If the killing qualifies for “aggravated murder” punishment is more severe-even the Death Penalty.

You might be saying, if you kill someone isn’t it always -“Murder?”

No-not in the legal sense!

The mental state of the actor must be carefully examined before determining if “Murder” occurred or not.  It is only “Murder” if the actor formed the “requisite intent” – that is the actor “intentionally or knowingly” caused the death of another. In other terms-Did the actor have the ability to choose!  Or  How much agency did the actor have!

When the actor recklessly causes the death of another person or acted in self-defense the actor cannot be convicted of “Murder.” In such cases the charges are something like Manslaughter, Criminal homicide, etc  etc. Although the result is always another’s death, the mental state at the time determines the actor’s level of “accountability.”

Recently I was working on three murder cases at once. Each with a different mental state at the time of the killing. At times, I can spend hours on the witness stand being cross examined by lawyers as to my opinion concerning a defendant’s level of accountability

Let me share an example. In one murder case the defendant had been in jail going on 4 years. As the court system has been carefully sorting through his “competence to proceed” and his “mental state at the time of the offense“. He killed two persons and hid their bodies in a closet. I reviewed the “Discovery”. Discovery includes all the crime scene pictures, witness statements,  autopsy reports, blood splatter analysis,  etc etc. (This is not the fun part of my job.)  In addition, I interviewed and tested the accused murderer for hours going into great detail about all the events occurring just prior to the offense, during the offense, and just after the offense. I also made collateral contacts with his family trying to understand the defendant including his upbringing. Needless to say it takes time.  Nevertheless, the 24 or so page report typically has only one sentence the court is really interested in: What was the mental state at the time of the offense.

The criminal charge and punishment fluctuates accordingly.

With murder – change a person’s “mental state” at the time of the offense and you change the level of accountability and punishment.

If we in our court system attempt to be so careful in determining the level of accountability an individual has in performing a single act,

don’t you think God does as well?

Of course there is “justice” in God’s courtroom.

Level of intellectual ability, alcohol and drug intoxication, mental illnesses, and upbringing are examples of factors capable of influencing a person’s level of accountability.


When the Lamanites killed BEFORE Alma converted them they could be viewed as having lower accountability – Diminished capacity if you will. In part “they didn’t know any better.”  Read this:

Now, the Lamanites knew nothing concerning the Lord, nor the strength of the Lord,…They were a wild, and ferocious, and a blood-thirsty people, believing in the tradition of their fathers, which is thisBelieving that they were driven out of the land of Jerusalem because of the iniquities of their fathers, and that they were wronged in the wilderness by their brethren, and they were also wronged while crossing the sea; And again, that they were wronged while in the land of their first inheritance …  Mosiah 10:11-13

Pay close attention to verse 17:

And thus they have taught their children that they should hate them, and that they should murder them, and that they should rob and plunder them, and do all they could to destroy them; therefore they have an eternal hatred towards the children of Nephi. Mosiah 10: 17

What is the level of accountability for a child raised in this Lamanite culture who killed a Nephite? It almost sounds like self-defense when they killed those “evil” Nephites.

What if a Nephite who has been “taught the gospel and knows the Lord” killed someone?

The additional knowledge such as knowing good from evil, changes a converted Nephite’s accountability.

Now therefore, I would that ye should behold, my brethren, that it shall be better for the Lamanites than for you except ye shall repent. For behold, they are more righteous than you, for they have not sinned against that great knowledge which ye have received; therefore the Lord will be merciful unto them; Helaman 7:23-24

A converted Nephite – knows better and has a higher level of accountability.

And what happened to the Lamanites and killing AFTER their conversion to the gospel and they received additional knowledge? Their accountability changed and they realized they could no longer murder:

And thus we see that, when these Lamanites were brought to believe and to know the truth, they were firm, and would suffer even unto death rather than commit sin; and thus we see that they buried their weapons of peace, or they buried the weapons of war, for peace. Alma 24:19

Why would the accountability for the same act – killing someone- be different for the Nephites and Lamanites? My response, their “mental state” at the time of the offense.

This principle is not only true for “Murder” but all our acts. Our level of accountability changes.


God will be just

Men will be held accountable for the things which they have and NOT for the things they have not. … All the light and intelligence communicated to them from their beneficent creator, whether it is much or little, by the same they in justice will be judged, and … they are required to yield obedience and improve upon that and that only which is given …(Joseph Smith, Teachings of Presidents of the Church: Joseph Smith 2007, pg 405)

This quote from Jesus The Christ gives us insight on how we will be judged.

In the judgment with which we shall be judged, all the conditions and circumstances of our lives shall be considered. The inborn tendencies due to heredity, the effect of environment whether conducive to good or evil, the wholesome teachings of youth, or the absence of good instruction – – these and all other contributory elements must be taken into account in the rendering of a just verdict as to the soul’s guilt or innocence(James Talmage, Jesus the Christ, pp 29)

Just like in the Court of Law, God’s Court will take into consideration our unique situation and level of accountability will be taken into consideration.

dr rick


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