dissenting.
I dissent from the portion of the opinion designated Part 11(A), Expert Testimony and consequently from the result. The real issue is not expert testimony but the right of a defendant to present evidence negating the elements of the charge. In my view the majority opinion deprives a defendant of that right, thereby violating the due process clauses of both the state and federal constitutions.
Defendant was charged with and convicted of one count of child abuse under circumstances other than those likely to produce death or serious physical injury, a class 4 felony; and one count of child abuse under circumstances likely to produce death or serious injury, a class 2 felony. See A.R.S. § 13-3623(B) and (C). We focus on the class 2 felony conviction because it was the predicate for the first-degree felony murder conviction, for which Defendant was sentenced to a mandatory minimum of thirty-five years’ *549imprisonment, without possibility of parole, commutation, or time off for good behavior.8
As relevant to this case, the statute provides that any person who has custody of and permits a child to be injured or endangered is guilty of a class 2 felony if the person acted intentionally or knowingly. See A.R.S. § 13-3623(B)(1). The person is guilty of a class 3 felony, however, if he or she acted recklessly or a class 4 felony if he or she acted with criminal negligence. See § 13-3623(B)(2) and (3). Defendant was charged in the alternative with violating all three subsections.
Some facts are clear. Defendant permitted her child to be injured or endangered by failing to obtain medical care and by placing her or allowing her to remain in a dangerous situation under the control of Vincent Near, the man with whom Defendant was living in an abusive relationship. In this case, therefore, the only issue was Defendant’s mental state. The jury was instructed on all three degrees of child abuse. If her actions were intentional or knowing, Defendant would be convicted of first-degree felony murder and punished for a class 2 felony (enhanced because the child was less than fifteen years of age). See §§ 13-3623(B)(1); 13-604.01. Defendant would not be convicted of first-degree felony murder if her conduct were reckless or criminally negligent and her punishment would be significantly less severe. See §§ 13-701; 13-702.
To address the issue of whether she acted knowingly, intentionally, recklessly, or with criminal negligence, Defendant offered the testimony of Dr. Cheryl Karp, a qualified, certified psychologist, who was to relate Defendant’s history of abuse to rebut the state’s case on mens rea. The state moved to preclude, arguing that evidence of the so-called battered woman syndrome was inadmissible because that syndrome applied only when the defendant was charged with injuring or killing the abuser. Before trial, the judge denied the state’s motion to preclude Dr. Karp’s testimony. However, the judge also ordered defense counsel to avoid discussing Defendant’s history of abuse in opening statement and later precluded Dr. Karp from testifying about the battered woman syndrome and its impact on Defendant’s ability to make decisions. Then, as the court of appeals put it, Defendant
made an offer of proof that Karp ... would have testified that she had reviewed the police reports and had interviewed Mott and reviewed tests she had taken and that ... Mott possessed the characteristics of a battered woman. These characteristics include “learned helplessness” or the passive acceptance of abuse, development of a traumatic bond that impedes the woman’s ability to stand up to the batterer, fear of male authority figures, lying to protect the batterer and inability to accurately perceive danger and to protect herself and others from it.
State v. Mott, 183 Ariz. 191, 193, 901 P.2d 1221, 1223 (App.1995). Such evidence, of course, directly addresses the mental element and degrees of the crimes charged.
Defense counsel assured the trial judge that Dr. Karp would not be asked to testify about Defendant’s state of mind at the time of the offense but only about the effect of physical, sexual, and mental abuse on the thought process of battered women such as Defendant, and the effect such a history might have on Defendant’s decision-making, rationalization, comprehension, and the like. Thus, the offer complied with the rule we have set down for such evidence in cases in which prosecution witnesses are allowed to testify about the behavioral patterns of victims of incest or child molestation. State v. Moran, 151 Ariz. 378, 384, 728 P.2d 248, 254 (1986); State v. Lindsey, 149 Ariz. 472, 474-75, 720 P.2d 73, 75-76 (1986).
We have permitted testimony from experts to explain the tendency of child victims to recant and testify inconsistently, and to explain other psychological phenomena that afflict such victims and may bear on their credibility before a jury. See Moran, 151 Ariz. at 384, 728 P.2d at 254; Lindsey, 149 Ariz. at 474-75, 720 P.2d at 75-76. Defendant’s offer in this case, therefore, did not *550stray beyond the permissible limits we have set for analogous expert testimony.
The trial judge nevertheless precluded Dr. Karp’s testimony; in fact, he refused to even allow defense counsel to make a more specific offer of proof. It was not until defense counsel raised the issue again just before closing arguments that he was allowed to put the following into the record:
Dr. Karp would have testified to [Defendant’s] history, history of suffering physical abuse as a child at the hands of her parents, sexual abuse, rape, molest at the hands of her brother, her friend’s father and other individuals while she was a child and then her continued physical abuse by boyfriends, by her husband, and by Mr. Near, and that abuse made her — how she fit the category of being a battered woman, along with all the expert testimonies of what a battered woman means, how that would relate to her decision making as an adult.
Reporter’s Transcript (R.T.), Nov. 13, 1991, at 13.
As her later testimony at Defendant’s mitigation hearing illustrated, Dr. Karp would have provided the jurors with information from which they might conclude that fear, low intelligence, and psychological trauma resulting from a lifetime of abuse affected Defendant’s ability to make “the kind of decision it would take in order to take her child to the hospital.” R.T., Nov. 15, 1991, at 11, 18, 24.
A. The majority confuses the concept of diminished capacity with evidence addressing the mens rea element of the crime
1. Diminished capacity and mens rea
The majority argues that Arizona has not adopted the defense of diminished capacity. I agree that M’Naghten is still the rule in Arizona. See A.R.S. § 13-502. But it is quite apparent that Defendant is not advancing the affirmative defense of diminished capacity. As the majority must and does concede, we deal here with evidence “not offered as a defense to excuse [Defendant’s] crimes, but rather [with] evidence to negate the mens rea element of the crime.” In other words, the evidence was offered to help the jury determine whether Defendant acted knowingly, intentionally, recklessly, or with criminal negligence — the only real issues in the case. The record shows quite clearly that Defendant’s counsel conceded her capacity and sought only to show how her history of abuse affected her decision-making about whether to take the child for medical care.9 In fact, battered woman’s syndrome was withdrawn as an affirmative defense, and not even the trial judge viewed the issue to be lack of capacity:
Assuming we were not talking M’Naughton insanity, what difference would it make why a person who is capable of intending to do something, of acting or omitting, ... what difference does it make why [it was done]?
R.T., Nov. 8, 1991, at 87, 90 (emphasis added).
The answer to the judge’s question is clear — the difference in mental state determines the degree of the crime. Although Defendant was capable of acting intentionally, if she did not act knowingly or intentionally, she could not be found guilty of felony murder.
It is also clear that the trial judge and the prosecutor agreed that testimony regarding the effect of Defendant’s abusive past on her decision-making capacity that evening was admissible — but only if Defendant herself took the stand and so testified:
Then [the jury] ought to hear [evidence of what went into Defendant’s decision-making] from the defendant and not Dr. Karp who is extrapolating one from the other, extrapolating test results to an evening in question when she was not there.
*551R.T., Nov. 8,1991, at 89-90 (Prosecutor).10
Defendant invoked her Fifth Amendment right and chose not to testify. Thus, when the trial judge precluded Dr. Karp’s testimony, the case went to the jury without any evidence directly relating to Defendant’s state of mind at the time of the acts charged. Thus, although the legislatively prescribed elements of the different crimes charged require the state to prove conduct that is either intentional, knowing, reckless, or criminally negligent, the only evidence that bore directly on those issues was rejected by the trial judge11 There was, in short, no issue left to try under the circumstances of this case.
2. Psychological testimony
Again, as the majority acknowledges, “the evidence of defendant’s history of being battered and of her limited intellectual ability was ... offered ... as evidence to negate the mens rea element of the crime.” Ante at 540, 931 P.2d at 1050. The majority further acknowledges that “[s]uch evidence is distinguishable from an affirmative defense that excuses, mitigates, or lessens a defendant’s moral culpability due to his psychological impairment.” Ante at 540, 931 P.2d at 1050. Yet, despite recognizing this distinction, the majority takes the inconsistent position that use of psychiatric evidence to negate mens rea is the same as an attempt to prove diminished capacity. “Because the legislature has not provided for a diminished capacity defense, we have since consistently refused to allow psychiatric testimony to negate specific intent.” Ante at 540, 931 P.2d at 1050.
But as many courts have recognized, “the use of expert testimony for this purpose is entirely distinct from the use of such testimony to relieve a defendant of criminal responsibility based on the insanity defense or one of its variants, such as diminished capacity.” United States v. Pohlot, 827 F.2d 889, 897 (3rd Cir.1987) (citing United States v. Demma, 523 F.2d 981, 986 n. 14 (9th Cir.1975)), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); United States v. Staggs, 553 F.2d 1073, 1075 (7th Cir.1977); United States v. Bennett, 539 F.2d 45, 53 (10th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976); United States v. Brawner, 471 F.2d 969, 998-1002 (D.C.Cir.1972); Rhodes v. United States, 282 F.2d 59, 60-61 (4th Cir.), cert. denied, 364 U.S. 912, 81 S.Ct. 275, 5 L.Ed.2d 226 (1960); see also United States v. Cameron, 907 F.2d 1051 (11th Cir.1990); United States v. Fazzini, 871 F.2d 635 (7th Cir.), cert. denied, 493 U.S. 982, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989); United States v. Bartlett, 856 F.2d 1071 (8th Cir.1988); United States v. Twine, 853 F.2d 676 (9th Cir.1988).
The majority believes that these cases are inapplicable because they “do not address the constitutionality of precluding a defendant from introducing evidence of diminished capacity to challenge the element of specific intent.” Ante at 542, 931 P.2d at 1052. But these cases are directly applicable because they recognize and apply the distinction between evidence of diminished capacity, which would be an affirmative defense to the crime charged regardless of its elements, and evidence that challenges or refutes an element of the specific intent required by the particular statute. The distinction is between evidence claiming the mental inability to commit the otherwise criminal conduct and evidence from which the jury may infer whether a defendant, who admittedly had the ability to commit the crime, actually had the specific mental state that the legislature has required to be proven as an element of a particular crime.
*552[I]t is clear that the mens rea variant of diminished capacity is not a separate defense that deserves to be called “diminished capacity” or any other name connoting that it is some sort of special, affirmative defense. The defendant is simply introducing evidence, in this case evidence of mental abnormality, to make the following claim: “I did not commit the crime charged because I did not possess the requisite mens rea.” This is not an affirmative defense [such as insanity] whereby the defendant admits or has proved against him the elements of the crime charged, but then raises a claim of justification or ex-cuse____ Rather, the defendant is straightforwardly denying the prosecution’s claim that a requisite mental element was present at the time of the offense. He is claiming that he is not guilty of that crime at all, although he may be guilty of a lesser crime if all the elements of the latter are proven.
Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim.L. & Criminology 1, 6 (1984). As Professor Morse, an attorney, law professor, and practicing mental health clinician explains, courts, including ours today, have confused these distinct concepts. Id. at 7 n. 19. As a result, such courts wrongly preclude evidence negating mens rea under a mistaken belief that it is a form of diminished capacity or insanity that fails to match the M’Naghten rule. Id.
Again, I agree with the majority that the legislature has not provided for a diminished capacity defense. Thus, if Defendant had argued that she lacked capacity to form the requisite mental state, thus offering the unrecognized affirmative defense of diminished capacity, then the majority need go no farther than to say so. However, as the majority acknowledges, Defendant’s expert testimony “was not offered as a defense to excuse her crimes” but only “to negate the mens rea element.” Ante at 540, 931 P.2d at 1050. Thus, the trial court erred by precluding Dr. Karp’s testimony, thereby depriving Defendant of the ability to test the mens rea element of the state’s case in the adversarial process. In my view, by so ruling the court violates Defendant’s right to due process of law. That very issue is the subject of the recent United States Supreme Court case of Montana v. Egelhoff, — U.S. —, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996).
B. Defendant had a due process right to present Dr. Karp’s testimony
Egelhoff, in which the five-to-four Court filed five separate opinions, reversed a Montana Supreme Court judgment. The Montana court held that due process was violated by a statute requiring Montana courts to reject evidence of voluntary intoxication when offered to rebut the mens rea element of a criminal offense. See State v. Egelhoff, 272 Mont. 114, 900 P.2d 260 (1995). In the United States Supreme Court, Justice Scalia wrote for the plurality, Justice Ginsberg filed a concurring opinion, Justice O’Connor filed a dissenting opinion in which three other justices joined, and Justices Souter and Breyer filed separate opinions, although they concurred in Justice O’Connor’s dissent. The majority opinion in the present case is contrary to each and every opinion.
In Egelhojf, the plurality acknowledged that due process guarantees a defendant the right to present evidence to rebut the elements of a charge but concluded there was no due process violation because the right “to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state” was not a “fundamental principle of justice.” — U.S. at-, 116 S.Ct. at 2015 (Scalia, J., Rehnquist, C.J., Kennedy and Thomas, JJ.) (citing Hale, Coke, and Blackstone). Justice Scalia noted that the common law had always disallowed voluntary intoxication as a defense. More important, as the earliest case cited by Justice Scalia indicates, it was not merely the state of voluntary intoxication or its concomitant effects on mens rea that permitted rejection of the defense but the fact that the defendant’s unimpaired and voluntary act caused the intoxication.
[I]f a person that is drunk kills another, this shall be Felony, and he shall be hanged for it, and yet he did it through Ignorance, for when he was drunk he had no Understanding nor Memory; but inasmuch as that Ignorance was occasioned by *553his own Act and Folly, and he might have avoided it, he shall not be privileged thereby.
Id. at-, 116 S.Ct. at 2018 (quoting Reniger v. Fogossa, 1 Plowd. 1, 19, 75 Eng.Rep. 1, 31 (K.B.1550)) (emphasis added).12 Unlike those who willingly become intoxicated, battered women and victims of child abuse do not voluntarily cause the defect in their mental process. Thus, mental impairment from battered woman’s syndrome is fundamentally different than that caused by voluntary intoxication.
Justice Ginsberg concurred in reversing the Montana Supreme Court’s judgment only because she believed that by forbidding the use of voluntary intoxication as a defense the Montana legislature had simply redefined the mens rea element of the offense, “‘extract[ing] the entire subject of voluntary intoxication from the mens rea inquiry,’ and thereby rendering evidence of voluntary intoxication logically irrelevant to proof of the requisite mental state.” Id. at -, 116 S.Ct. at 2024 (Ginsberg, J., concurring in the judgment).13
Here, however, we are not dealing with a statute prohibiting battered woman’s syndrome testimony. To the contrary, with the exception of voluntary intoxication the legislature has left all the statutorily possible mens rea formulations as elements of the statutes under which Defendant was convicted. See A.R.S. § 13-503. Because the evidence offered was logically very relevant to the requisite mens rea, this case presents the issue of whether a criminal defendant has the right to defend against every element of the charged offense — including the mens rea specified by the legislature — with relevant, credible, and competent evidence. Our legislature has required, not forbidden, the evidence offered. Applying Justice Ginsberg’s views, we must therefore conclude that evidence bearing directly on the elements of the crime must be admitted under the constitution’s due process guarantees. See Egelhoff, — U.S. at —, 116 S.Ct. at 2024 (Ginsberg, J., concurring).
If we then turn to the views expressed by Justice O’Connor, in which Justices Stevens, Breyer, and Souter joined, we again must conclude that Defendant’s due process rights were violated. The legislature specified the mental states of intentional, knowing, reckless, or criminal negligence as elements of the crime. See A.R.S. § 13-3623(B)(1) through (3). With the offenses thusly defined, “a defendant has the right to insist that the State prove beyond a reasonable doubt every element of an offense charged.” Egelhoff, — U.S. at —, 116 S.Ct. at 2027 (O’Connor, Stevens, Souter & Breyer, JJ., dissenting) (citing McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2415-16, 91 L.Ed.2d 67 (1986); Patterson v. New York, 432 U.S. 197, 211, n. 12, 97 S.Ct. 2319, 2327 n. 12, 53 L.Ed.2d 281 (1977). It is wholly inconsistent, when the legislature requires proof of a specific mens rea, that the state may prevent the jury from considering evidence relevant to rebut that element of the crime. See Egelhoff, — U.S. at —, 116 S.Ct. at 2028 (O’Connor, Stevens, Souter & Breyer, JJ., dissenting). It is even worse to do so when the different degrees of the crime turn on the question of mens rea and when Defendant’s conviction turns on the degrees of the crime.
The Due Process Clause protects those “principiéis] of justice so rooted in the tradi*554tions and conscience of our people as to be ranked as fundamental.” Patterson, 432 U.S. at 201-02, 97 S.Ct. at 2322. Indeed, the fabric of due process is spun from the thread of such fundamental principles as those guaranteeing the right of a criminal defendant to put the state’s case to a meaningful adversarial test and to rebut each element of the charged offense with competent, credible, and relevant evidence. Chambers v. Mississippi 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”); see also Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986); California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984) (due process requires that “criminal defendants be afforded a meaningful opportunity to present a complete defense”). Allowing the state to “first determine the elements of the crime it wishes to punish, and then thwart the accused’s defense by categorically disallowing the very evidence that would prove [her] innocent” violates these principles. Egelhoff, — U.S. at —, 116 S.Ct. at 2029 (O’Connor, Stevens, Souter & Breyer, JJ., dissenting).
The majority virtually ignores any analysis of Egelhojf, instead relying for its conclusion on cases that do not withstand scrutiny on the due process issue. The majority cites primarily Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946), and State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965). These cases predate Crane (1986), Patterson (1977), and Chambers (1973).
Fisher is actually irrelevant to the question before us. The issue in Fisher, as the Court characterized it, was “the contention of the defense that the mental and emotional qualities of [the defendant] were of such a level at the time of the crime that he was incapable of deliberation and premeditation although he was then sane in the usual legal sense.” 328 U.S. at 466, 66 S.Ct. at 1320 (emphasis added). As noted, incapacity is not Defendant’s argument in this case. In Fisher, unlike the present case, the trial judge allowed the psychiatrist to testify, the defendant was allowed to present expert psychiatric evidence about his mental condition, and the jury was in fact instructed that:
It is further contended that even if sane and responsible, there was no deliberate intent to kill, nor in fact any actual intent to kill. Therefore if not guilty by reason of insanity, the defendant at most is guilty only of second degree murder or manslaughter, according as you may find he acted with or without malice.
Id. at 467 n. 3, 66 S.Ct. at 1320 n. 3. Thus, unlike our case, Fisher was permitted to introduce psychiatric testimony from which the jurors were instructed that they could infer he did not possess the requisite mental state. All that Fisher was properly denied was an instruction on diminished capacity or, as the court termed it, partial responsibility. In citing Fisher, today’s majority confuses the discredited affirmative defense of diminished capacity with a defendant’s due process right to present evidence negating an element of the crime charged.14
The majority further argues that Fisher “stands for the proposition that state legislatures may, without violating the constitution, preclude defendants from offering evidence of mental and psychological deficiencies to *555challenge elements of a crime.” This contention is quite dubious. In Egelhoff, which involved Montana’s preclusion of the mental and psychological deficiencies induced by voluntary intoxication, not one of the five opinions cited or relied on Fisher, and all opinions acknowledged a defendant’s right to present evidence. The only question was whether that right extended to voluntary intoxication.
The majority also overrules State v. Gonzales, 140 Ariz. 349, 681 P.2d 1368 (1984), concluding that Gonzales was improperly decided because it is contrary to Schantz and because the evidence offered in Gonzales was evidence of diminished capacity and therefore inadmissible. But the evidence in Gonzales was not evidence of diminished capacity at all; the defendant proffered and the trial court excluded evidence that defendant suffered from organic brain syndrome that impaired his cognitive functioning. The evidence was relevant to the issue of whether defendant, convicted of unlawful imprisonment, acted knowingly in restraining the victim. Id. at 352-53, 681 P.2d at 1371-72. We reversed the conviction in Gonzales, not because we were establishing the diminished capacity defense but because “the trial court’s exclusion of the testimony effectively precluded the defendant from introducing evidence essential” to his mere presence defense. Id. at 351-52, 681 P.2d at 1370-71. In relying on Schantz in overruling Gonzales, the majority simply ignores Chambers and its progeny, including Egelhoff
C. Neither jurisprudential considerations nor case authority supports the majority’s conclusion
The courts that have considered a defendant’s right to present evidence addressing the mens rea element of a crime since the decisions in Crane, Trombetta, and Chambers have reached conclusions opposite to that reached today. And, as noted, nearly every federal circuit has recognized the salient distinction between mens rea rebuttal evidence and affirmative defenses and now allows evidence rebutting the mens rea element.
In considering the precise issue raised in this case, the federal cases interpret 18 U.S.C. § 17, the Insanity Defense Reform Act of 1984, by which Congress codified the M’Naghten rule and specifically provided that anything less would not be a defense. The statute specifically provides: “Mental disease or defect [short of M’Naghten insanity] does not otherwise constitute a defense.” 18 U.S.C. § 17(a). This language, if contained in Arizona law — which it is not — might arguably provide a springboard to reach the majority’s conclusion in this case. But even with that springboard, the federal courts have been unwilling or unable to reach such a conclusion. They have rejected the federal government’s argument — one not even made by the state in the case before us — that evidence of mental abnormality is never admissible to negate mens rea. See, e.g., Pohlot, 827 F.2d at 896-97 (citing cases).
Although some courts have attempted to draw distinctions between diminished capacity, forbidden by the reform act, and so-called diminished responsibility, which tends to disprove the mens rea required by specific intent crimes, I would prefer to leave labels aside. It seems fairly clear that if specific intent is a required element of a crime, evidence of mental abnormality that tends to negate that intent is admissible.
Suffice it to say that the several uses to which these labels have been put has often hindered the correct application of the two very distinct ideas that are applied under one, both, or neither of these labels [citing cases and authorities]. Regardless of the semantic “war of labels,” both Congress and the courts have recognized the crucial distinction between evidence of psychological impairment that supports an “affirmative defense,” and psychological evidence that negates an element of the offense charged. “Affirmative defense” evidence of mental impairment, when specifically recognized and defined by the legislature, must be raised by the defendant and can justify or “excuse” conduct that is otherwise criminal. See W. LaFave & A. Scott, Criminal Law 152 (1972). Psychological evidence that aids the trier in determining the defendant’s specific state of mind with regard to the actions she took at the time the charged offense was committed, by *556contrast, is not an affirmative defense but is evidence that goes specifically to whether the prosecution has carried its burden of proving each essential element of the crime — at least when specific intent is at issue.
Cameron, 907 F.2d at 1063. In fact, the House Judiciary Committee of the Congress, in considering the Insanity Defense Reform Act, took the testimony of leading academicians in the field, lawyers, and commentators and made an important distinction that eludes today’s majority:
The use of mental disorder to negate mental state elements of crimes should not be confused with the diminished capacity defense as developed by the California courts during the 1960s and 1970s. Under that doctrine, a defendant could escape responsibility for a crime by demonstrating not that he or she lacked the required specific intent but rather that his or her capability of entertaining that intent was not, because of mental disorder, commensurate with that of nondisordered people.
H.R.Rep. No. 98-577, 98th Cong. 1st Sess. 15 n. 24 (1983), cited in Pohlot, 827 F.2d 889.
The committee also recognized what today’s majority does not: “[MJental disorders will remain relevant, of course, to the issue of the existence of a mental state required for the offense, such as the specific intent required for certain crimes. This accords with current practice.” Id., quoting H.R. Rep. at 14 (emphasis supplied in Pohlot). As Senator Hatch, chair of the Senate committee, indicated, “The California doctrine [of diminished responsibility] bears little if any relevance to the issue of capacity to form criminal intent that may be relevant under the mens rea approach.” Id., citing 130 Cong. Rec. S418-19 (Daily Ed. Jan. 30,1984). The House Judiciary Committee put it well:
By distinguishing the affirmative defense of insanity from the narrow mens rea /mental state requirements, the committee’s approach meets the constitutional requirement that the prosecutor prove all elements beyond a reasonable doubt while placing on the defendant the burden of demonstrating a reason for exculpation that presumes the existence of these elements.
Pohlot, 827 F.2d at 903 (quoting H.R. at 14) (emphasis added).
The congressional report, the federal eases, and the prior practice all make clear that a distinction exists between 1) affirmative defenses such as insanity, under which Arizona still requires the evidence to conform to that traditionally required under the M’Naghten Rule, and 2) constitutionally required evidence that is directed to the mens rea of specific-intent crimes. Today’s majority has confused the two. When the legislature has required a specific intent, such as intentional or reckless action, as an element that the state must prove beyond a reasonable doubt to convict, the state cannot forbid the defendant’s offer of evidence of mental conditions and abnormalities relevant to whether the defendant had one of the required mental states.
Of course, applying the distinction between evidence of whether a defendant lacked capacity or was unable to form an intent and evidence of whether a defendant possessed a required mental state may be difficult, and courts must be careful to allow only evidence that directly negates mens rea. See United States v. Marenghi, 893 F.Supp. 85, 91 (D.Maine 1995) (allowing expert testimony of battered woman’s syndrome so long as it is relevant to the issue of mens rea).
I do not believe, however, that the difficulties involved in making this distinction are beyond our ability to overcome; we have demonstrated repeatedly our ability to resolve other difficult evidentiary issues. In any event, difficulty in making distinctions between proper and improper evidence seems to me a wholly inadequate reason for categorically disallowing proper evidence.
D. The majority has failed to follow proper procedure in reaching the issues
One further point must be made in light of Justice Zlaket’s disagreement with the majority analysis. See ante at 547-548, 931 P.2d at 1057-58. As Justice Zlaket points out, today’s majority has gone beyond what is required to decide the case before it. Id. *557The adequacy of the offer of proof and the possible lack of record fact as foundation for admission of the expert’s opinion were sufficient to permit the majority to affirm on an evidentiary basis. See ante at 548, 931 P.2d at 1058. Instead, the majority chose to make fundamental, substantive changes in Arizona law, limiting State v. Christensen and overruling State v. Gonzales. Ante at 544, 931 P.2d at 1054. This, I believe, was not only proceduraily unnecessary but improper. See Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 345, 861 P.2d 625, 630 (1993).
CONCLUSION
The majority opinion categorically prohibits competent, credible, and relevant evidence that directly addresses the elements and different degrees of the offenses with which Defendant was charged. Thus, it deprives Defendant of her right to due process under both the Arizona and United States Constitutions. Therefore, I respectfully dissent.
. Defendant was also given a mandatory twelve-year consecutive sentence on the class 4 child abuse conviction, making her total sentence forty-seven years.
. The majority likewise mischaracterizes Dr. Karp's testimony, arguing at one point that it "was offered to demonstrate that defendant’s mental incapacity negated specific intent.” But as the majority recognizes at other places, the offer was made for the permissible purpose of enabling the jury to determine Defendant's intent.
. Inexplicably, neither the trial judge, the prosecutor, nor the majority explains why Defendant could give evidence about her mental state but a qualified psychologist who had examined Defendant could not give such evidence.
. That rejection, we should note, was not based on any evidentiary offer or formal objection raising the issue on which the majority today decides the case: "We hold that the proffered evidence was inadmissible as an attempt to prove defendant’s diminished capacity.” The state made no such objection. For some reason the doctrine of waiver, which we apply so assiduously in other cases, does not apply in this case. Cf. State v. Miller, 186 Ariz. 314, 318, 921 P.2d 1151, 1155 (1996) (issues of prosecutorial misconduct, admission of other act evidence, use of peremptory challenges, and excusing jurors for cause all waived when raised for the first time on appeal).
. Likewise, Arizona's rejection of intoxication as a defense to conduct or a mental state is conditioned on the intoxicated state resulting from the defendant’s voluntary act:
Temporary intoxication resulting from the voluntary ingestion, consumption, inhalation or injection of alcohol, an illegal substance ... or other psychoactive substance or the abuse of prescribed medications does not constitute insanity and is not a defense for any criminal act or requisite state of mind.
A.R.S. § 13-503 (emphasis added). The validity of this statute, as directed and applied only to voluntary intoxication, was upheld in State v. Ramos, 133 Ariz. 4, 648 P.2d 119 (1982). One would assume, therefore, that a defect in thought process resulting from unwilling ingestion of drugs would be admissible on the issue of mens rea. If this is so, then why would defects resulting from abuse involuntarily received not be admissible?
. But see id. at-, 116 S.Ct. at 2031 (O’Con-nor, Stevens, Souter & Breyer, JJ.) (finding Justice Ginsberg’s reading of Montana law "plainly inconsistent with that given by the Montana Supreme Court”).
. The majority clearly confuses the impermissible use of evidence to establish a lack of capacity short of M’Naghten as a defense to the crime with the constitutionally-guaranteed right to present such evidence to enable the jury to determine the existence or non-existence of the specific mens rea required by the elements of the charged crime. For instance, the majority notes in passing that
most of the federal courts that explicitly recognize that evidence of mental abnormality is admissible on the issue of mens rea, prohibit the testimony offered by defendant in this case, [citations omitted]
In Cameron [for example], the defendant claimed that schizophrenia "rendered her incapable of forming the specific intent necessary to commit the crimes charged."
Ante at 542-543, 931 P.2d at 1052-53 (emphasis added). But in the present case, Defendant did not seek to show incapacity to act intentionally but only that her mental condition made it more likely that she acted recklessly. See R.T., Nov. 8, 1991, at 87; Nov. 13, 1991, at 13; Nov. 15, 1991, at 11, 18, 24.