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Vermont Supreme Court Announces Rule 12.1 Doesn’t Require Notice of Diminished Capacity Defense When Expert Testimony Won’t Be Used

by Matt Clarke

The Supreme Court of Vermont held that a trial court erred when it prohibited a defendant from raising the defense of diminished capacity, without relying on any expert witnesses, because she failed to give notice of intent to use that defense. In refusing to consider a diminished capacity defense, the trial court cited Vermont Rule of Criminal Procedure 12.1.

Elizabeth MacFarland went to a bar, ordered a large bottle of champagne, drank most of it, and became disruptive. The bar’s bouncer asked her to talk with him outside. She ignored the request, speaking incoherently with him about politics and her family. He repeated the request. She refused. He then pulled her bar stool and told her she “had to leave.” In response, she ran to a corner, sat on the floor, and muttered to herself.

Police Sergeant Jason Hamilton soon arrived and asked MacFarland to “come outside to talk with him.” She remained in the corner on the floor, speaking into her cellphone. Hamilton raised her by an arm and she went limp. Hamilton and other police officers carried her out of the bar, handcuffed her, and placed her in a patrol car. She resisted the arrest, yelling that the police were arresting her because she had a high IQ, and they could not understand her, calling them “misogynistic and a part of the patriarchal police structure” and tearing a plastic part off a patrol car.

MacFarland was charged with unlawful trespass and resisting arrest. During a one-day bench trial, defense counsel questioned Hamilton about MacFarland’s state of intoxication. That prompted the judge to ask if he was making a diminished capacity argument. Counsel said he was. The judge then asked whether the State had received notice of the intention to pursue a diminished capacity defense. The prosecutor said no. Defense counsel asserted that no such notice is required by the plain language of Rule 12.1 unless an expert witness testifies.

Although the trial court allowed defense counsel to elicit testimony from Hamilton and another officer that MacFarland had used alcohol, the court refused to allow testimony or argument regarding her degree of impairment or diminished capacity. Instead, it ruled that MacFarland had waived that defense by failing to give the Rule 12.1 notice and its scheduling order. The trial court found her guilty of both charges, and she appealed.

The Court noted that Rule 12.1(a), in relevant part, states: “A defendant who wishes to offer an alibi, raise the issue of insanity or offer expert testimony relating to a mental disease, or defect or any other mental condition of the defendant bearing upon the issue of his or her guilt must give written notice thereof….” The Court explained that the plain language of Rule 12.1(a) “requires notice by defendants who intend to rely on an alibi or insanity defenses, and by defendants who intend to introduce expert testimony relating to a mental disease or condition. It does not govern defendants who do not fit these criteria.”

Additionally, the words “diminished capacity” do not appear in Rule 12.1, the Court observed and stated that it is a well-settled principle of statutory construction that words are not to be read into a statute that are not there. State v. Hale, 256 A.3d 595 (Vt. 2021).

Thus, the Court held that Rule 12.1 doesn’t “require defendants to provide advance notice of an intent to argue diminished capacity when the defendant does not intend to call expert witnesses to testify in support of the defendant’s diminished capacity.” Since defense counsel intended to establish the diminished capacity defense using police and eyewitness testimony, he did not violate Rule 12.1, and excluding the defense was not harmless beyond a reasonable doubt as trial evidence indicated alcohol consumption may have been a factor in MacFarland’s behavior, according to the Court.

Accordingly, the Court reversed her convictions and remanded for further proceedings in accordance with this opinion. See: State v. MacFarland, 2021 Vt. LEXIS 113 (2021).  

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Related legal case

State v. MacFarland



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