Defense attorneys and prosecutors, however, say this is unlikely to happen. The most likely role of an ADHD diagnosis in a criminal defense would be its use as a tool in mitigating intent or in showing diminished capacity. Some crimes, such as murder, require a defendant to have the ability to form intent to commit that crime. For example, a conviction for first-degree murder requires a prosecutor to prove the defendant intended to kill. For a lesser conviction, it must be demonstrated that the defendant intended the act but not the consequences of the act.
Juries are tough.
They don't want to hear excuses. Assistant District Attorney Robert Welsh predicts an increase in attention deficit becoming a part of a defense, particularly where the charge involves specific intent. One of the features of ADHD is that a person is constantly being bombarded with stimulus and is unable to focus his mind. Specific intent crimes, such as armed assault with intent to murder, or armed assault with intent to rob, require that the specific intent to murder or rob be formed in the person's mind. A jury can consider ADHD as a factor in whether or not the person had the ability to form that specific intent.