70
O'Connor, J., dissenting
admissible with a view to the question whether a crime has been committed; . . . . As [mental state], in such case, is of the essence of the offense, it is possible that in proving intoxication you go far to prove that no offense was committed").
Courts across the country agreed that where a subjective mental state was an element of the crime to be proved, the defense must be permitted to show, by reference to intoxication, the absence of that element. One court commented that it seemed "incontrovertible and to be universally applicable" that "where the nature and essence of the crime are made by law to depend upon the peculiar state and condition of the criminal's mind at the time with reference to the act done, drunkenness may be a proper subject for the consideration of the jury, not to excuse or mitigate the offence but to show that it was not committed." People v. Robinson, 2 Park. Crim. 235, 306 (N. Y. Sup. Ct. 1855). See also Swan v. State, 23 Tenn. 136, 141-142 (1843); State v. Donovan, 61 Iowa 369, 370-371, 16 N. W. 206, 206-207 (1883); Mooney v. State, 33 Ala. 419, 420 (1859); Aszman v. State, 123 Ind. 347, 24 N. E. 123 (1890) (citing cases). With similar reasoning, the Montana Supreme Court recognized the incompatibility of a jury instruction pursuant to § 45-2-203 in conjunction with the legislature's decision to require a mental state of "purposely" or "knowingly" for deliberate homicide. It held that intoxication is relevant to formation of the requisite mental state. Unless a defendant is proved beyond a reasonable doubt to have possessed the requisite mental state, he did not commit the offense. Elimination of a critical category of defense evidence precludes a defendant from effectively rebutting the mental-state element, while simultaneously shielding the State from the effort of proving the requisite mental state in the face of negating evidence. It was this effect on the adversarial process that persuaded the Montana Supreme Court that the disallowance was unconstitutional.
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