EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, December 30, 2009

Rejecting The Twinkie Defense: Court Of Appeals Of Utah Finds Expert Testimony On Intoxication Inadmissible To Establish Diminished Capacity

Probably the most famous trial where a defendant raised the defense of diminished capacity was the trial of Dan White for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. This defense is much maligned because most people think that White was able to convince the jury that he was merely guilty of voluntary manslaughter and not murder in the first degree by using the "Twinkie defense" to prove diminished capacity, i.e., that he should not have been held fully responsible for the killings because he was "suffering" from the sugar rush of eating a lot of Twinkies. But that's not actually what happened. Instead, as Michael R. Dreeben notes in The Right to Present a Twinkie Defense, 9 Green Bag 2d 347, 348 n.5 (2006),

The "Twinkie defense" owes its name to the 1979 trial of Dan White in San Francisco for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. In fact, White did not use a “junk food” defense, but instead argued diminished capacity because of his episodes of depression. White's allegedly poor diet played only a small part in his lawyers' attempt to explain his plunge into a depressed state that led him to snap. Nevertheless, the phrase "Twinkie defense" has entered the lexicon to describe a seemingly absurd defense strategy that somehow works. 

In its recent opinion in State v. Argumendo-Rodriguez, 2009 WL 4681285 (Utah. App. 2009), the Court of Appeals of Utah was presented with a quasi-Twinkie defense, but the court found the defense to be without merit.

In Argumendo-RodriguezJesus Argumedo-Rodriguez was convicted for disarming a police officer. This disarming occurred after Argumedo-Rodriguez was pulled over on suspicion of driving under the influence, and "[t]here [wa]s no dispute that Argumedo-Rodriguez was extremely intoxicated when arrested and that he was physically impaired as a result." At trial, the court precluded Argumedo-Rodriguez from presenting the testimony of  expert witness, Dr. James L. Poulton, who he claimed would have testified "regarding the effect of alcohol on Argumedo-Rodriguez's intent to commit the crime."  

On Argumedo-Rodriguez's appeal, the Court of Appeals of Utah disagreed, finding that

testimony from Dr. Poulton was not germane to Argumedo-Rodriguez's defense of diminished capacity. To prevail on a diminished capacity or voluntary intoxication defense, Argumedo-Rodriguez had the burden to show that his "intoxication deprived him of the capacity to form the mental state necessary" for conviction on the charge of disarming a police officer....Thus, to prevail on a defense of diminished capacity, Argumedo-Rodriguez had to prove that, due to his intoxicated state, he did not intentionally attempt to take Officer Freir's weapon.

Dr. Poulton's testimony could not assist the trial court, as the trier of fact, in determining whether Argumedo-Rodriguez's level of intoxication negated the existence of Argumedo-Rodriguez's intent to take the gun. Rather than testifying as to Argumedo-Rodriguez's mental capacity, Dr. Poulton [would have] offered evidence about the effects of the alcohol on Argumedo-Rodriguez's physical ability to "follow through with any intent that he formed." That testimony is simply not relevant to whether Argumedo-Rodriguez was capable of forming the requisite intent.

In other words, under Utah Rule of Evidence 702, Dr. Poulton's testimony would not have "assist[ed] the trier of fact to understand the evidence or to determine a fact in issue," rendering it inadmissible.



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