Additionally this court has held that the Miranda warnings have an independent source in the Hawaii Constitution's privilege against self-incrimination. SeeState v. Santiago, 53 Haw. 254, 266, 492 P.2d 657, 664 (1971), appeal after remand, 55 Haw. 162, 516 P.2d 1256 (1973). In fact, we have consistently provided criminal defendants with greater protection under Hawaii's version of the privilege against self-incrimination (article I, section 10 of the Hawaii Constitution) than is otherwise ensured by the federal courts under Miranda and its progeny.

Generally, a defense of diminished capacity warranting an instruction has been recognized as relevant in determining the existence of the mental elements essential to conviction under specific intent crimes; most notably the elements of premeditation, deliberation, and malice essential to the crime of murder. Id., State v. Moeller, 50 Haw. 110, 433 P.2d 136 (1967); State v. Santiago, 55 Haw. 162, 516 P.2d 1256 (1973). We note parenthetically that the doctrine of diminished capacity was initially developed to ameliorate the law governing criminal responsibility prescribed by the M'Naghten rule on criminal insanity.

Also, if you find that [defendant's] mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you cannot find him guilty of murder of either the first or second degree.State v. Santiago, 55 Haw. 162, 166, 516 P.2d 1256, 1258 (1973). The Missouri Supreme Court has held such evidence to be admissible where the legislature enacted legislation that expressly makes it admissible.

Commonwealth v. Walzack, 1976, 468 Pa. 210, 360 A.2d 914, 918. While many courts have discussed both diminished capacity and intoxication in the context of negation of a required element of criminal intent (including malice as is in question in the situation at bar) most courts, in discussing diminished capacity recognize it independent and separate from any defense of intoxication. People v. Poddar, 1974, 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342; State v. Santiago, 1973, 55 Haw. 162, 516 P.2d 1256; State v. Green, 1975, 271 Or. 153, 531 P.2d 245; In re Miller, 1973, 33 Cal.App.3d 1005, 109 Cal.Rptr. 648; Johnson v. State, 1970, 226 Ga. 511, 175 S.E.2d 840; State v. Nichols, 1965, 3 Ohio App.2d 182, 209 N.E.2d 750. See generally, Anno., §§ 5-9, 22 A.L.R.3d 1228, 1238-1257.

Minn.Stat. § 609.02, subd. 9(3) (1980). States which have made some provision for admitting psychiatric evidence on the elements of a crime include Arizona, State v. Shaw, 106 Ariz. 103, 471 P.2d 715 (1970); California, People v. Wells, 33 Cal.2d 330, 202 P.2d 53 (1949), cert. denied, 338 U.S. 836, 70 S.Ct. 45, 94 L.Ed. 511 (1949); Colorado, Battalino v. People, 118 Colo. 587, 199 P.2d 897 (1948); Connecticut, State v. Donahue, 141 Conn. 656, 109 A.2d 364 (1954), cert. denied and appeal dismissed, 349 U.S. 926, 75 S.Ct. 778, 99 L.Ed. 1257 (1955); Hawaii, State v. Santiago, 55 Haw. 162, 516 P.2d 1256 (1973); Idaho, State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961); Iowa, State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964); Kentucky, Mangrum v. Commonwealth, 19 Ky. LR 94, 39 S.W. 703 (1897); Nebraska, Starkweather v. State, 167 Neb. 477, 93 N.W.2d 619 (1958); New Jersey, State v. DiPaolo, 34 N.J. 279, 168 A.2d 401 (1961), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961); New Mexico, State v. Padilla, 66 N.M. 289, 347 P.2d 312 (1959); New York, People v. Moran, 249 N.Y. 179, 163 N.E. 553 (1928); Ohio, State v. Nichols, 3 Ohio App.2d 182, 209 N.E.2d 750 (1965); Utah, State v. Green, 78 Utah 580, 6 P.2d 177 (1931). There is an exception for certain strict liability crimes that, by statute, require only an actus reus or bad act.

Since the purpose of the diminished-capacity doctrine is to establish the absence of an essential element of the crime, the state still has the burden of overcoming this effort by proof of all the essential elements beyond a reasonable doubt. State v. Santiago, 55 Haw. 162, 165-66, 516 P.2d 1256, 1258-59 (1973); State v. Gramenz, 256 Iowa 134, 144, 126 N.W.2d 285, 291 (1964); State v. Umscheid, 31 Or. App. 1249, 572 P.2d 362 (1977). Here, the trial justice did not place the burden upon Correra to prove his diminished capacity.

The principle of the Brawner case is reflected in the decisions of numerous courts: United States v. Erskine, 588 F.2d 721 (9th Cir. 1978); Hughes v. Mathews, 576 F.2d 1250 (7th Cir.), cert. dismissed sub nom. Israel v. Hughes, 439 U.S. 801 (1978); Commonwealth v. Walzack, 468 Pa. 210 (1976); State v. Cooper, 286 N.C. 549 (1975); State v. Anderson, 515 S.W.2d 534 (Mo. 1974); State v. Santiago, 55 Haw. 162 (1973); State v. Shaw, 106 Ariz. 103 (1970) (by implication), cert. denied, 400 U.S. 1009 (1971); Gallegos v. People, 159 Colo. 379 (1966); Starkweather v. State, 167 Neb. 477 (1958); Mangrum v. Commonwealth, 19 Ky. L. Rep. 94 (1897). See cases collected in Lewin, Psychiatric Evidence in Criminal Cases for Purposes Other Than the Defense of Insanity, 26 Syracuse L. Rev. 1051, 1105-1115 (1975), and Pfeiffer v. State, 44 Md. App. 49, 57 n. 4 (1979).

While many courts have discussed both diminished capacity and intoxication in the context of negation of a required element of criminal intent (including malice as is in question in the situation at bar) most courts, in discussing diminished capacity recognize it independent and separate from any defense of intoxication. People v. Poddar, 1974, 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342; State v. Santiago, 1973, 55 Haw. 162, 516 P.2d 1256; State v. Green, 1975, 271 Or. 153, 531 P.2d 245; In re Miller, 1973, 33 Cal.App.3d 1005, 109 Cal. Rptr. 648; Johnson v. State, 1970, 226 Ga. 511, 175 S.E.2d 840; State v. Nichols, 1965, 3 Ohio App.2d 182, 209 N.E.2d 750. See generally, Anno., §§ 5-9, 22 A.L.R.3d 1228, 1238-1257.

Rule 29(a), H.R.Cr.P. Appellant urges that there was inadequate evidence to establish that appellant was the operator of the motor vehicle which collided with the automobile containing the Newmans. Appellant's contention is without merit. Under the standards set forth in State v. Rocker, 52 Haw. 336, 346, 475 P.2d 684, 690 (1970), and recently reaffirmed in State v. Santiago, 55 Haw. 162, 163-64, 516 P.2d 1256, 1257 (1973), and State v. Kahalewai, 55 Haw. 127, 128, 516 P.2d 336, 337 (1973), we find no error in the denial of the Rule 29(a) motion. Indeed, contrary to all the arguments adduced by appellant, under our law the evidence offered at trial during the prosecution's case to identify appellant as operator of the lethal vehicle was not only sufficient to go to the jury to permit them to "weigh the evidence, and draw justifiable inferences of fact," Rocker, supra, at 346, but actually remains in the transcript virtually uncontradicted by appellant.