UNITED STATES v. BRAWNER, 471 F.2d 969 (D.C. Cir. 1972)
UNITED STATES OF AMERICA v. ARCHIE W. BRAWNER, APPELLANT.
No. 22714.
United States Court of Appeals, District of Columbia Circuit.
Argued En Banc April 12, 1972.
Decided June 23, 1972.
Rehearing Denied August 21, 1972.
Mr. Richard J. Flynn, Washington, D.C. (appointed by this
court), with whom Mr. Richard G. Clemens, Washington, D.C., was
on the brief, for appellant.
Mr. John D. Aldock, Asst. U.S. Atty., with whom Messrs. Thomas
A. Flannery, U.S. Atty. at the time the brief was filed, and
John A. Terry, Earl J. Silbert, Oscar Altshuler, Daniel J.
Bernstein, Asst. U.S. Attys., and Miss Beatrice Rosenberg,
Atty., Dept. of Justice, were on the brief, for appellee.
Mr. William H. Dempsey, Jr., Washington, D.C. (appointed by
the court), as amicus curiae.
Messrs. Peter Barton Hutt, James H. Heller and Ralph J. Temple,
Washington, D.C., filed a brief on behalf of The American Civil
Liberties Union Fund of the National Capital Area as amicus
curiae.
Messrs. Allan Ashman and John Shullenberger filed a brief on
behalf of National Legal Aid and Defender Assn. as amicus curiae.
Messrs. Joseph P. Busch, Jr., Harry Wood, Eugene D. Tavris, and
Arnold T. Guminski, Los Angeles, Cal., filed a brief on behalf of
the National District Attorneys Assn. as amicus curiae.
Miss Marilyn Cohen, Washington, D.C., filed a brief on behalf
of Public Defender Service and The Georgetown Legal Intern
Project as amici curiae.
Mr. Warren E. Magee, Washington, D.C., filed a brief on behalf
of American Psychiatric Assn. as amicus curiae.
Professor David L. Chambers, III, filed a brief as amicus
curiae.
Messrs. Bruce L. Montgomery and Michael N. Sohn, Washington, D.
C., filed a brief on behalf of the American Psychological Assn.,
as amicus curiae. Mr. James F. Fitzpatrick, Washington, D.C.,
also entered an appearance for the American Psychological Assn.
Mr. Paul A. Lenzini, Washington, D.C., filed a brief on behalf
of the Bar Assn. of the District of Columbia, as amicus curiae.
Appeal from the United States District Court for the District
of Columbia.
[1] ON REHEARING EN BANC
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM,
LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges,
sitting en banc.
LEVENTHAL, Circuit Judge:
[2] The principal issues raised on this appeal from a conviction
for second degree murder and carrying a dangerous weapon relate
to appellant's defense of insanity. After the case was argued to
a division of the court, the court sua sponte ordered rehearing
en banc. We identified our intention to reconsider the
appropriate standard for the insanity defense, authorized counsel
to file supplemental briefs, invited the Public Defenders'
Service "to submit an additional brief on behalf of the
appellant," and appointed William H. Dempsey, Jr., Esq., as
amicus curiae, without instruction as to result or theory, "to
research the authorities on the issue of criminal
responsibility," to advise the court thereon and to present oral
argument. We advised a number of organizations of our action, and
invited briefs amicus curiae. Subsequently we directed the
Clerk to notify all concerned of questions the court requested be
discussed (Appendix A).
[3] In the course of our reconsideration of the rule governing the
insanity defense, we have studies the opinions of other courts,
particularly but not exclusively the opinions of the other
Federal circuits, and the views of the many scholars who have
thoughtfully pondered the underlying issues. Our file includes
presentations of counsel, both Government lawyers and counsel
appointed to represent defendant, and submissions of those who
have responded to the invitation to comment as amicus curiae on a
considerable number of inter-related matters.
[4] We have stretched our canvas wide; and the focal point of the
landscape before us is the formulation of the American Law
Institute. The ALI's primary provision is stated thus in its
Model Penal Code, see § 4.01(1).
[5] Section 4.01 Mental Disease or Defect Excluding
Responsibility.
(1) A person is not responsible for criminal conduct
if at the time of such conduct as a result of mental
disease or defect he lacks substantial capacity
either to appreciate the criminality [wrongfulness]
of his conduct or to conform his conduct to the
requirements of the law.
[6] We have decided to adopt the ALI rule as the doctrine excluding
responsibility for mental disease or defect, for application
prospectively to trials begun after this date.
[7] The interest of justice that has called us to this labor bids
us set forth comments in which we review the matters we concluded
were of primary consequence - though we cannot practicably
retraverse all the ground covered in our reflection. These
comments also contain features of the rule in which we, like
other courts, have recorded our adjustments of the rule and
understandings concerning its application that are stated as part
of the adoption of the rule, to improve its capacity to further
its underlying objectives. We highlight, as most notable of
these, our decision to retain the definition of "mental illness
or defect" that we evolved in our 1962 McDonald[fn1] opinion en
banc. Others are prompted by the submissions which raised, as
points of objection to the ALI rule, matters that we think can be
fairly taken into account by clarifying comments.
[8] A. The Trial Record
[9] Passing by various minor disagreements among the witnesses, the
record permits us to reconstruct the events of September 8, 1967,
as follows: After a morning and afternoon of wine-drinking,
appellant Archie W. Brawner, Jr. and his uncle Aaron Ross, went
to a party at the home of three acquaintances. During the
evening, several fights broke out. In one of them, Brawner's jaw
was injured when he was struck or pushed to the ground. The time
of the fight was approximately 10:30 p.m. After the fight,
Brawner left the party. He told Mr. Ross that some boys had
jumped him. Mr. Ross testified that Brawner "looked like he was
out of his mind". Other witnesses who saw him after the fight
testified that Brawner's mouth was bleeding and that his speech
was unclear (but the same witness added, "I heard every word he
said"); that he was staggering and angry; and that he pounded on
a mailbox with his fist. One witness testified that Brawner said,
"[I'm] going to get my boys" and come back, and that "someone is
going to die tonight."
[10] Half an hour later, at about eleven p. m., Brawner was on his
way back to the party with a gun. One witness testified that
Brawner said he was going up there to kill his attackers or be
killed.
[11] Upon his arrival at the address, Brawner fired a shot into the
ground and entered the building. He proceeded to the apartment
where the party was in progress and fired five shots through the
closed metal hallway door. Two of the shots struck Billy Ford,
killing him. Brawner was arrested a few minutes later, several
blocks away. The arresting officer testified that Brawner
appeared normal, and did not appear to be drunk, that he spoke
clearly, and had no odor of alcohol about him.
[12] After the Government had presented the evidence of its
non-expert witnesses, the trial judge ruled that there was
insufficient evidence on "deliberation" to go to the jury:
accordingly, a verdict of acquittal was directed on first degree
murder.
[13] The expert witnesses, called by both defense and prosecution,
all agreed that Brawner was suffering from an abnormality of a
psychiatric or neurological nature. The medical labels were
variously given as "epileptic personality disorder," "psychologic
brain syndrome associated with a conclusive disorder,"
"personality disorder associated with epilepsy," or, more simply,
"an explosive personality." There was no disagreement that the
epileptic condition would be exacerbated by alcohol, leading to
more frequent episodes and episodes of greater intensity, and
would also be exacerbated by a physical blow to the head. The
experts agreed that epilepsy per se is not a mental disease or
defect, but a neurological disease which is often associated with
a mental disease or defect. They further agreed that Brawner had
a mental, as well as a neurological, disease.
[14] Where the experts disagreed was on the part which that mental
disease or defect played in the murder of Billy Ford. The
position of the witnesses called by the Government is that
Brawner's behavior on the night of September 8 was not consistent
with an epileptic seizure, and was not suggestive of an explosive
reaction in the context of a psychiatric disorder. In the words
of Dr. Platkin of St. Elizabeths Hospital, "He was just mad."
[15] The experts called by the defense maintained the contrary
conclusion. Thus, Dr. Eugene Stanmeyer, a psychologist at St.
Elizabeths, was asked on direct by counsel for defense, whether,
assuming accused did commit the act which occurred, there was a
causal relationship between the assumed act and his mental
abnormality. Dr. Stanmeyer replied in the affirmative, that there
was a cause and effect relationship.
[16] Later, the prosecutor asked the Government's first expert
witness Dr. Weickhardt: "Did you . . . come to any opinion
concerning whether or not the crimes in this case were causally
related to the mental illness which you diagnosed?" An objection
to the form of the question was overruled. The witness then set
forth that in his opinion there was no causal relationship
between the mental disorder and the alleged offenses. Brawner
claims that the trial court erred when it permitted a prosecution
expert to testify in this manner. He relies on our opinion in
Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444
(1967).
[17] B. Prior Developments of the Insanity Defense in this
Jurisdiction
[18] History looms large in obtaining a sound perspective for a
subject like this one. But the cases are numerous. And since our
current mission is to illuminate the present, rather than to
linger over the past, it suffices for our purposes to review a
handful of our opinions on the insanity defense.
[19] 1. The landmark opinion was written by Judge Bazelon in Durham
v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). Prior
to Durham the law of the District of Columbia was established
by United States v. Lee, 15 D.C. (4 Mackey) 489, 496 (1886) and
Smith v. United States, 59 App.D.C. 144, 36 F.2d 548 (1929),
which, taken together, stated a traditional test of insanity, in
terms of right and wrong[fn2] and irresistible impulse.[fn3]
Durham adopted the "product rule," pioneered in State v. Pike,
49 N. H. 399, 402 (1869-70), and exculpated from criminal
responsibility those whose forbidden acts were the product of a
mental disease or defect.
[20] Few cases have evoked as much comment as Durham. It has
sparked widespread interest in the legal-judicial community and
focused attention on the profound problems involved in defining
legal responsibility in case of mental illness. It has been
hailed as a guide to the difficult and problem-laden intersection
of law and psychiatry, ethics and science. It has been scored as
an unwarranted loophole through which the cunning criminal might
escape from the penalty of the law. We view it more modestly, as
the court's effort, designed in the immemorial manner of the case
method that has built the common law, to alleviate two serious
problems with the previous rule.
[21] The first of these was a problem of language which raised an
important symbolic issue in the law. We felt that the language of
the old right-wrong/irresistible impulse rule for insanity was
antiquated, no longer reflecting the community's judgment as to
who ought to be held criminally liable for socially destructive
acts. We considered the rule as restated to have more fruitful,
accurate and considered reflection of the sensibilities of the
community as revised and expanded in the light of continued study
of abnormal human behavior.
[22] The second vexing problem that Durham was designed to reach
related to the concern of the psychiatrists called as expert
witnesses for their special knowledge of the problem of insanity,
who often and typically felt that they were obliged to reach
outside of their professional expertise when they were asked,
under the traditional insanity rule established in 1843 by
M'Naghten's Case,[fn4] whether the defendant knew right from
wrong. They further felt that the narrowness of the traditional
test, which framed the issue of responsibility solely in terms of
cognitive impairment, made it impossible to convey to the judge
and jury the full range of information material to an assessment
of defendant's responsibility.
[23] 2. Discerning scholarship now available asserts that the
experts' fears and concerns reflected a misapprehension as to the
impact of the traditional standard in terms of excluding relevant
evidence.
Wigmore states the rule to be that when insanity is
in issue, "any and all conduct of the person is
admissible in evidence." And the cases support
Wigmore's view. The almost unvarying policy of the
courts has been to admit any evidence of abberational
behavior so long as it is probative of the
defendant's mental condition, without regard to the
supposed restrictions of the test used to define
insanity for the jury.[fn5]
[24] Moreover if the term "know" in the traditional test of "know
right from wrong" is taken as denoting affective knowledge,
rather than merely cognitive knowledge, it yields a rule of
greater flexibility than was widely supposed to exist. Livermore
and Meehl, The Virtues of M'Naghten, 51 Minn.L.Rev. 789, 800-08
(1967).
[25] We need not occupy ourselves here and now with the question
whether, and to what extent, the M'Naghten rule, ameliorated by
the irresistible impulse doctrine, is susceptible of application
to include medical insights and information as justice requires.
In any event, the experts felt hemmed in by the traditional test;
they felt that they could not give the jury and judge the
necessary information in response to the questions which the
traditional test posed, see 37 F.R.D. 365, 387 (1964).
[26] The rule as reformulated in Durham permitted medical experts
to testify on medical matters properly put before the jury for
its consideration, and to do so without the confusion that many,
perhaps most, experts experienced from testimony structured under
the M'Naghten rule. That was a positive contribution to
jurisprudence - and one that was retained when the American Law
Institute undertook to analyze the problem and proposed a
different formulation.
[27] 3. A difficulty arose under the Durham rule in application.
The rule was devised to facilitate the giving of testimony by
medical experts in the context of a legal rule, with the jury
called upon to reach a composite conclusion that had medical,
legal and moral components.[fn6] However the pristine statement
of the Durham rule opened the door to "trial by label."
Durham did distinguish between "disease," as used "in the sense
of a condition which is considered capable of either improving or
deteriorating," and "defect," as referring to a condition not
capable of such change "and which may be either congenital or the
result of injury, or the residual effect of a physical or mental
disease." 94 U.S.App.D.C. at 241, 214 F.2d at 875. But the court
failed to explicate what abnormality of mind was an essential
ingredient of these concepts. In the absence of a definition of
"mental disease or defect," medical experts attached to them the
meanings which would naturally occur to them - medical meanings -
and gave testimony accordingly. The problem was dramatically
highlighted by the weekend flip flop case, In re Rosenfield, 157
F.Supp. 18 (D.D.C. 1957). The petitioner was described as a
sociopath. A St. Elizabeths psychiatrist testified that a person
with a sociopathic personality was not suffering from a mental
disease. That was Friday afternoon. On Monday morning, through a
policy change at St. Elizabeths Hospital, it was determined as an
administrative matter that the state of a psychopathic or
sociopathic personality did constitute a mental disease.[fn7]
[28] The concern that medical terminology not control legal outcomes
culminated in McDonald v. United States, 114 U.S.App.D.C. 120,
312 F.2d 847, 851 (en banc, 1962), where this court recognized
that the term, mental disease or defect, has various meanings,
depending upon how and why it is used, and by whom. Mental
disease means one thing to a physician bent on treatment, but
something different, if somewhat overlapping, to a court of law.
We provided a legal definition of mental disease or defect, and
held that it included "any abnormal condition of the mind which
substantially affects mental or emotional processes and
substantially impairs behavior controls." (312 F.2d at 851).
"Thus the jury would consider testimony concerning the
development, adaptation and functioning of these processes and
controls." Id.
[29] While the McDonald standard of mental disease was not without
an attribute of circularity, it was useful in the administration
of justice because it made plain that clinical and legal
definitions of mental disease were distinct, and it helped the
jury to sort out its complex task and to focus on the matters
given it to decide.
[30] 4. The Durham rule also required explication along other
lines, notably the resolution of the ambiguity inherent in the
formulation concerning actions that were the "product" of mental
illness. It was supplemented in Carter v. United States, 102
U.S.App.D.C. 227 at 234, 235, 252 F.2d 608 at 615-616 (1957):
The simple fact that a person has a mental disease or
defect is not enough to relieve him of responsibility
for a crime. There must be a relationship between the
disease and the criminal act; and the relationship
must be such as to justify a reasonable inference
that the act would not have been committed if the
person had not been suffering from the disease.
[31] Thus Carter clarified that the mental illness must not merely
have entered into the production of the act, but must have played
a necessary role. Carter identified the "product" element of
the rule with the "but for" variety of causation.
[32] The pivotal "product" term continued to present problems,
principally that it put expert testimony on a faulty footing.
Assuming that a mental disease, in the legal sense, had been
established, the fate of the defendant came to be determined by
what came to be referred to by the legal jargon of
"productivity." On the other hand, it was obviously sensible if
not imperative that the experts having pertinent knowledge should
speak to the crucial question whether the mental abnormality
involved is one associated with aberrant behavior. But since
"productivity" was so decisive a factor in the decisional
equation, a ruling permitting experts to testify expressly in
language of "product" raised in a different context the concern
lest the ultimate issue be in fact turned over to the experts
rather than retained for the jurors representing the community.
[33] The problem was identified by then Circuit Judge Burger in his
concurring opinion in Blocker:[fn8]
The hazards in allowing experts to testify in
precisely or even substantially the terms of the
ultimate issue are apparent. This is a course which,
once allowed, risks the danger that lay jurors,
baffled by the intricacies of expert discourse and
unintelligible technical jargon may be tempted to
abdicate independent analysis of the facts on which
the opinion rests. . .
[34] As early as Carter, we had warned that the function of an
expert was to explain the origin, development and manifestations
of mental disorders, in terms that would be coherent and
meaningful to the jury. "Unexplained medical labels . . . are not
enough." (102 U.S.App.D.C. at 236, 252 F.2d at 617). Even after
McDonald, however, we continued to see cases where the
testimony of the experts was limited to the use of conclusory
labels, without the explication of the underlying analysis. We do
not say this was deliberated by the experts. It seems in large
measure to have reflected tactical decisions of counsel, and
perhaps problems of communications between the disciplines.
[35] It was in this context that the court came to the decision in
Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444
(1967), which forbade experts from testifying as to productivity
altogether. Chief Judge Bazelon's opinion illuminates the basis
of the ruling, as one intended "to help the psychiatrists
understand their role in court, and thus eliminate a fundamental
cause of unsatisfactory expert testimony," namely, the tendency
of the expert to use "concepts [which] can become slogans, hiding
facts and representing nothing more than the witness's own
conclusion about the defendant's criminal responsibility." (at
41, 390 F.2d at 456).
[36] C. Insanity Rule in Other Circuits
[37] The American Law Institute's Model Penal Code expressed a rule
which has become the dominant force in the law pertaining to the
defense of insanity. The ALI rule is eclectic in spirit,
partaking of the moral focus of M'Naghten, the practical
accommodation of the "control rules" (a term more exact and less
susceptible of misunderstanding than "irresistible impulse"
terminology), and responsive, at the same time, to a relatively
modern, forward-looking view of what is encompassed in
"knowledge."
[38] For convenience, we quote again the basic rule propounded by
the ALI's Model Penal Code:
A person is not responsible for criminal conduct if
at the time of such conduct as a result of mental
disease or defect he lacks substantial capacity
either to appreciate the criminality [wrongfulness]
of his conduct or to conform his conduct to the
requirements of the law.
[39] A subsidiary rule in paragraph (2), stating what has come to be
known as the "caveat" paragraph, has had a mixed reception in the
courts and discussion of that problem will be deferred.
[40] The core rule of the ALI has been adopted, with variations, by
all save one of the Federal circuit courts of appeals, and by all
that have come to reconsider the doctrine providing exculpation
for mental illness. Their opinions have been exceptionally
thoughtful and thorough in their expositions of the interests and
values protected. United States v. Freeman, 357 F.2d 606 (2d Cir.
1966); United States v. Currens, 290 F.2d 751 (3d Cir. 1961);
United States v. Chandler, 393 F.2d 920 (4th Cir. 1968); Blake v.
United States, 407 F.2d 908 (5th Cir. 1969); United States v.
Smith, 404 F.2d 720 (6th Cir. 1968); United States v. Shapiro,
383 F.2d 680 (7th Cir. 1967); Pope v. United States, 372 F.2d 710
(8th Cir. 1967); Wade v. United States, 426 F.2d 64 (9th Cir.
1970); Wion v. United States, 325 F.2d 420 (10th Cir. 1963).
[41] These opinions show that the ALI rule has proved peculiarly
subject to successful adaptation, permitting variations but
within a framework of uniformity.
[42] The first was Currens, where Chief Judge Biggs of the Third
Circuit defined the test:
The jury must be satisfied that at the time of
committing the prohibited act the defendant, as a
result of mental disease or defect, lacked
substantial capacity to conform his conduct to the
requirements of the law which he is alleged to have
violated. (290 F.2d at 774) (footnote omitted).
[43] This formula is explicitly derived from the ALI rule. (Id. at
774 footnote 32.) It takes an additional step, however, in that
it treats cognitive impairments as "surplusage" to a test of
criminal responsibility. Ibid. The premise is that an
abnormality in the cognitive function is neither sufficient nor
necessary. If it does not result in a substantial incapacity of
the volitional function, it is not sufficient in law; and a
substantial incapacity of the volitional function results in
exculpation even though it does not involve the cognitive
faculties.
[44] Thus Currens capped the history of the insanity defense -
which began with impairment of knowledge and proceeded to
impairment of control - by dropping the knowledge feature as
merely one aspect of the ultimate control element. Though not
without considerable force and logic Currens has not been
followed by the other Federal courts, which adhere more closely
to the ALI model.
[45] We refer to the other Federal circuits in numerical order. The
First Circuit has not spoken. The Second Circuit adopted the ALI
rule in Freeman in terms, believing it to be "sufficiently
precise . . . to provide the jury with a workable standard,"
while "eschew[ing] rigid classification." 357 F.2d at 623.
[46] The position of the Fourth Circuit was announced by Chief Judge
Haynsworth in Chandler:
The American Law Institute's formulation has achieved
wide acceptance. Some Courts of Appeals have adopted
it exclusively, another approvingly but not rigidly,
still others with prescribed variations which
subordinate the cognitive portion of the problem or
satisfy semantic preferences. . . . [I]t is, in our
opinion, the preferred formulation. With appropriate
balance between cognition and volition, it demands an
unrestricted inquiry into the whole personality of a
defendant who surmounts the threshold question of
doubt of his responsibility. Its verbiage is
understandable by psychiatrists; it imposes no
limitation upon their testimony, and yet, to a
substantial extent, it avoids a diagnostic approach
and leaves the jury free to make its findings in
terms of a standard which society prescribes and
juries may apply. (393 F.2d at 926, footnotes
omitted.)
[47] The court, however, "abjure[d] any formalistic approach which
might foreclose variation." (at 927). Thus the court declined to
require any exact form of words by way of instructions.
[48] In Blake the Fifth Circuit stressed the value of uniformity.
While affirming the utility of variation as a form of social
experiment, and noting that variation among the circuits was not
inconsiderable, it stated that, at least as within the circuit,
uniformity was a preferable value. "We think [the ALI formula]
lends itself as a uniform standard." 407 F.2d at 915.
[49] The Sixth Circuit has been content to leave the precise wording
of the jury instructions to the discretion of the trial court,
preferring to frame its approach in terms of getting the answers
to three irreducible questions: First, was defendant "suffering
from a mental illness at the time of the commission of the
crime?" Second, "Was that illness such as to prevent his knowing
the wrongfulness of his act?" Third, "Was the mental illness such
as to render him substantially incapable of conforming his
conduct to the requirements of the law he is charged with
violating?" This formulation in Smith, 404 F.2d at 727, is
essentially a restatement of the core of the ALI test.
[50] In Shapiro, the Seventh Circuit stated, 383 F.2d at 685, that
it preferred the ALI rule to other possible formulae on the
ground that it resulted in a charge shorter, simpler, and more
congruent to the expert testimony than the charge based on Davis
v. United States, 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750
(1897), which was a traditional test and itself based on
M'Naghten; it found the ALI test more comprehensible than
Durham and more helpful to the jury.
[51] The position of the Eighth Circuit was staked out in Pope by
then Circuit Judge Blackmun:
We hold again, and we stress by repetition, that if
the trial court freely admits all evidence which
appears to be relevant and if the charge
appropriately embraces and requires positive
conclusions by the jury as to the defendant's
cognition, his volition, and his capacity to control
his behavior, and if these three elements of
knowledge, will and choice are emphasized in the
charge as essential and critical constituents of
legal sanity, we shall usually regard the charge as
legally sufficient. 372 F.2d at 736 (Italics in
original.)
[52] The court said (p. 735) that it would look with approval upon any
form of instruction so long as it resulted in presenting the
issue to the jury with as much information as possible on
cognition, volition, and the capacity to choose.
[53] In Wade, the latest of the Federal opinions, the Ninth
Circuit approved the basic ALI rule, though rejecting the
"caveat" second paragraph. The court noted that the traditional
M'Naghten rule asked the jury to determine the existence of a
"perverted and deranged condition of the mental and moral
faculties," while the ALI's "mental disease or defect" language
was preferable, focusing on disabling impairments in terms closer
to the kind of expert testimony which the jury will hear.
[54] The position of the Tenth Circuit, very near to that of the
Eighth, was stated in Wion where Judge Murrah presented, as a
"simple test of criminal responsibility," language that restated
the essence of the ALI rule. Noting that the test permitted
behavioral scientists latitude to put their professional findings
and conclusions before the court he concluded: "This should go
far toward bridging the gulf between psychiatry and the law, if
indeed, there is one, and it will also give the trial judge a
definition which he can articulate to the lay jury." 325 F.2d at
430.
[55] D. Comments Concerning Reason for Adoption of ALI Rule and
Scope of Rule as Adopted By This Court
[56] In the foreglimpse stating that we had determined to adopt the
ALI rule we undertook to set forth comments stating our reasons,
and also the adjustments and understandings defining the ALI rule
as adopted by this Court. Having paused to study the rulings in
the other circuits, we turn to our comments, and to our
reflections following the extensive, and intensive, exposure of
this court to insanity defense issues.[fn9]
[57] 1. Need to depart from "product" formulation and undue
dominance by experts.
[58] A principal reason for our decision to depart from the Durham
rule is the undesirable characteristic, surviving even the
McDonald modification, of undue dominance by the experts giving
testimony. The underlying problem was identified, with stress on
different facets, in the Carter, Blocker (concurring), and
Washington opinions. The difficulty is rooted in the
circumstance that there is no generally accepted understanding,
either in the jury or the community it represents, of the concept
requiring that the crime be the "product" of the mental disease.
[59] When the court used the term "product" in Durham it likely
assumed that this was a serviceable, and indeed a natural, term
for a rule defining criminal responsibility - a legal reciprocal,
as it were, for the familiar term "proximate cause," used to
define civil responsibility. But if concepts like "product" are,
upon refinement, reasonably understood, or at least appreciated,
by judges and lawyers, and perhaps philosophers, difficulties
developed when it emerged that the "product" concept did not
signify a reasonably identifiable common ground that was also
shared by the nonlegal experts,[fn10] and the laymen serving on
the jury as the representatives of the community.
[60] The doctrine of criminal responsibility is such that there can
be no doubt "of the complicated nature of the decision to be made
- intertwining moral, legal, and medical judgments," see King v.
United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389
(1967) and Durham and other cases cited supra, note 6. Hence,
as King and other opinions have noted, jury decisions have been
accorded unusual deference even when they have found
responsibility in the face of a powerful record, with medical
evidence uncontradicted, pointing toward exculpation.[fn11] The
"moral" elements of the decision are not defined exclusively by
religious considerations but by the totality of underlying
conceptions of ethics and justice shared by the community, as
expressed by its jury surrogate. The essential feature of a jury
"lies in the interposition between the accused and his accuser of
the commonsense judgment of a group of laymen, and in the
community participation and shared responsibility that results
from that group's determination of guilt or innocence." Williams
v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446
(1970).
[61] The expert witnesses - psychiatrists and psychologists - are
called to adduce relevant information concerning what may for
convenience be referred to as the "medical" component of the
responsibility issue. But the difficulty - as emphasized in
Washington - is that the medical expert comes, by testimony
given in terms of a non-medical construct ("product"), to express
conclusions that in essence embody ethical and legal conclusions.
There is, indeed, irony in a situation under which the Durham
rule, which was adopted in large part to permit experts to
testify in their own terms concerning matters within their domain
which the jury should know, resulted in testimony by the experts
in terms not their own to reflect unexpressed judgments in a
domain that is properly not theirs but the jury's. The irony is
heightened when the jurymen, instructed under the esoteric
"product" standard, are influenced significantly by "product"
testimony of expert witnesses really reflecting ethical and legal
judgments rather than a conclusion within the witnesses'
particular expertise.
[62] It is easier to identify and spotlight the irony than to
eradicate the mischief. The objective of Durham is still sound
- to put before the jury the information that is within the
expert's domain, to aid the jury in making a broad and
comprehensive judgment. But when the instructions and appellate
decisions define the "product" inquiry as the ultimate issue, it
is like stopping the tides to try to halt the emergence of this
term in the language of those with a central role in the trial -
the lawyers who naturally seek to present testimony that will
influence the jury who will be charged under the ultimate
"product" standard, and the expert witnesses who have an
awareness, gained from forensic psychiatry and related
disciplines, of the ultimate "product" standard that dominates
the proceeding.
[63] The experts have meaningful information to impart, not only on
the existence of mental illness or not, but also on its
relationship to the incident charged as an offense. In the
interest of justice this valued information should be available,
and should not be lost or blocked by requirements that
unnaturally restrict communication between the experts and the
jury. The more we have pondered the problem the more convinced we
have become that the sound solution lies not in further shaping
of the Durham "product" approach in more refined molds, but in
adopting the ALI's formulation as the linchpin of our
jurisprudence.
[64] The ALI's formulation retains the core requirement of a
meaningful relationship between the mental illness and the
incident charged. The language in the ALI rule is sufficiently in
the common ken that its use in the courtroom, or in preparation
for trial, permits a reasonable three-way communication - between
(a) the law-trained, judges and lawyers; (b) the experts and (c)
the jurymen - without insisting on a vocabulary that is either
stilted or stultified, or conducive to a testimonial mystique
permitting expert dominance and encroachment on the jury's
function. There is no indication in the available literature that
any such untoward development has attended the reasonably
widespread adoption of the ALI rule in the Federal courts and a
substantial number of state courts.
[65] 2. Retention of McDonald definition of "mental disease or
defect."
[66] Our ruling today includes our decision that in the ALI rule as
adopted by this court the term "mental disease or defect"
includes the definition of that term provided in our 1962 en banc
McDonald opinion, as follows:
[A] mental disease or defect includes any abnormal
condition of the mind which substantially affects
mental or emotional processes and substantially
impairs behavior controls.
[67] McDonald v. United States, 114 U.S.App.D.C. at 124, 312 F.2d at
851.
[68] We take this action in response to the problem, identified by
amicus comments of Mr. Dempsey and the D.C. Bar Association, that
the ALI's rule, lacking definition of "mental disease or defect,"
contains an inherent ambiguity. These comments consider this a
reason for avoiding the ALI rule. We find more merit in the
suggestion of Mr. Flynn, counsel appointed to represent
appellant, that the McDonald definition be engrafted on to the
ALI rule.[fn12]
[69] In our further discussion of ALI and McDonald, we shall
sometimes refer to "mental disease" as the core concept, without
specifically referring to the possibility of exculpation by
reason of a non-altering "mental defect."
[70] The McDonald rule has helped accomplish the objective of
securing expert testimony needed on the subject of mental
illness, while guarding against the undue dominance of expert
testimony or specialized labels. It has thus permitted the kind
of communication without encroachment, as between experts and
juries, that has prompted us to adopt the ALI rule, and hence
will help us realize our objective. This advantage overrides the
surface disadvantage of any clumsiness in the blending of the
McDonald component, defining mental disease, with the rest of
the ALI rule, a matter we discuss further below.
[71] 3. Interest of uniformity of judicial approach and
vocabulary, with room for variations and adjustments
[72] Adoption of the ALI rule furthers uniformity of judicial
approach - a feature eminently desirable, not as a mere glow of
"togetherness," but as an appreciation of the need and value of
judicial communication. In all likelihood, this court's approach
under Durham, at least since McDonald, has differed from that
of other courts in vocabulary more than substance. Uniformity of
vocabulary has an important value, however, as is evidenced from
the familiar experience of meanings that "get lost in
translation." No one court can amass all the experience pertinent
to the judicial administration of the insanity defense. It is
helpful for courts to be able to learn from each other without
any blockage due to jargon. It is an impressive virtue of the
common law, that its distinctive reliance on judicial decisions
to establish the corpus of the law furthers a multi-party
conversation between men who have studied a problem in various
places at various times.
[73] The value of uniformity of central approach is not shattered by
the circumstance that in various particulars the different
circuits have inserted variations in the ALI rule. Homogeneity
does not mean rigidity, and room for local variation is likely a
strength, providing a basis for comparison,[fn13] not a weakness.
Nor is the strength of essential uniformity undercut by the
caution of our appointed amicus that the formulation of the ALI
rule provides extremely broad flexibility.[fn14] Flexibility and
ductility are inherent in the insanity defense, as in any
judicial rule with an extensive range - say, negligence, or
proximate cause - and the ALI rule permits appropriate guidance
of juries.
[74] In prescribing a departure from Durham we are not unmindful
of the concern that a change may generate uncertainties as to
corollaries of the change.[fn15] While the courts adopting the
ALI rule have stated variations, as we have noted, these were
all, broadly, in furtherance of one or more of the inter-related
goals of the insanity defense:
(a) a broad input of pertinent facts and opinions
(b) enhancing the information and judgment
(c) of a jury necessarily given latitude in light of
its functioning as the representative of the
entire community.
[75] We are likewise and for the same objectives defining the ALI rule
as adopted by the court, with its contours and corollaries given
express statement at the outset so as to minimize uncertainty. We
postpone this statement to a subsequent phase of the opinion (see
p. 990 et seq.) in order that we may first consider other
alternatives, for in some measure our adaptation may obviate or
at least blunt objections voiced to the ALI rule.
[76] 4. Consideration and rejection of other suggestions
[77] a. Proposal to abolish insanity defense
[78] A number of proposals in the journals recommend that the
insanity defense be abolished altogether.[fn16] This is advocated
in the amicus brief of the National District Attorneys
Association as both desirable and lawful.[fn17] The amicus brief
of American Psychiatric Association concludes it would be
desirable, with appropriate safeguards, but would require a
constitutional amendment. That a constitutional amendment would
be required is also the conclusion of others, generally in
opposition to the proposal.[fn18]
[79] This proposal has been put forward by responsible judges for
consideration, with the objective of reserving psychiatric
overview for the phase of the criminal process concerned with
disposition of the person determined to have been the
actor.[fn19] However, we are convinced that the proposal cannot
properly be imposed by judicial fiat.
[80] The courts have emphasized over the centuries that "free will"
is the postulate of responsibility under our jurisprudence. 4
Blackstone's Commentaries 27. The concept of "belief in freedom
of the human will and a consequent ability and duty of the normal
individual to choose between good and evil" is a core concept
that is "universal and persistent in mature systems of law."
Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240,
243, 96 L.Ed. 288 (1952). Criminal responsibility is assessed
when through "free will" a man elects to do evil. And while, as
noted in Morissette, the legislature has dispensed with mental
element in some statutory offenses, in furtherance of a paramount
need of the community, these instances mark the exception and not
the rule, and only in the most limited instances has the mental
element been omitted by the legislature as a requisite for an
offense that was a crime at common law.
[81] The concept of lack of "free will" is both the root of origin
of the insanity defense and the line of its growth.[fn20] This
cherished principle is not undercut by difficulties, or
differences of view, as to how best to express the free will
concept in the light of the expansion of medical knowledge. We do
not concur in the view of the National District Attorneys
Association that the insanity defense should be abandoned
judicially, either because it is at too great a variance with
popular conceptions of guilt[fn21] or fails "to show proper
respect for the personality of the criminal [who] is liable to
resent pathology more than punichmeft."[fn22]
[82] These concepts may be measured along with other ingredients in
a legislative re-examination of settled doctrines of criminal
responsibility, root, stock and branch. Such a reassessment, one
that seeks to probe and appraise the society's processes and
values, is for the legislative branch, assuming no constitutional
bar. The judicial role is limited, in Justice Holmes's figure, to
action that is molecular, with the restraint inherent in taking
relatively small steps, leaving to the other branches of
government whatever progress must be made with seven-league
leaps. Such judicial restraint is particularly necessary when a
proposal requires, as a mandatory ingredient, the kind of
devotion of resources, personnel and techniques that can be
accomplished only through whole-hearted legislative commitment.
[83] To obviate any misunderstanding from our rejection of the
recommendation of those proposing judicial abolition of the
insanity defense, we expressly commend their emphasis on the need
for improvement of dispositional resources and programs. The
defense focuses on the kind of impairment that warrants
exculpation, and necessarily assigns to the prison walls many men
who have serious mental impairments and difficulties. The needs
of society - rooted not only in humanity but in practical need
for attempting to break the recidivist cycles, and halt the
spread of deviant behavior - call for the provision of
psychiatrists, psychologists and counselors to help men with
these mental afflictions and difficulties, as part of a total
effort toward a readjustment that will permit re-integration in
society.
[84] b. Proposal for defense if mental disease impairs capacity
to such an extent that the defendant cannot "justly be held
responsible."
[85] We have also pondered the suggestion that the jury be
instructed that the defendant lacks criminal responsibility if
the jury finds that the defendant's mental disease impairs his
capacity or controls to such an extent that he cannot "justly be
held responsible."
[86] This was the view of a British commission,[fn23] adapted and
proposed in 1955 by Professor Wechsler, the distinguished
Reporter for the ALI's Model Penal Code, and sustained by some,
albeit a minority, of the members of the ALI's Council.[fn24] In
the ALI, the contrary view prevailed because of a concern over
presenting to the jury questions put primarily in the form of
"justice."
[87] The proposal is not to be condemned out of hand as a suggestion
that the jury be informed of an absolute prerogative that it can
only exercise by flatly disregarding the applicable rule of law.
It is rather a suggestion that the jury be informed of the
matters the law contemplates it will take into account in
arriving at the community judgment concerning a composite of
factors.[fn25]
[88] However, there is a substantial concern that an instruction
overtly cast in terms of "justice" cannot feasibly be restricted
to the ambit of what may properly be taken into account but will
splash with unconfinable and malign consequences. The Government
cautions that "explicit appeals to `justice' will result in
litigation of extraneous issues and will encourage improper
arguments to the jury phrased solely in terms of `sympathy' and
`prejudice.'"
[89] Nor is this solely a prosecutor's concern.
[90] Mr. Flynn, counsel appointed to represent defendant, puts it
that even though the jury is applying community concepts of
blameworthiness "the jury should not be left at large, or asked
to find out for itself what those concepts are."
[91] The amicus submission of the Public Defender Service argues
that it would be beneficial to focus the jury's attention on the
moral and legal questions intertwined in the insanity defense. It
expresses concern, however, over a blameworthiness instruction
without more, saying (Br. 19) "it may well be that the `average'
American condemns the mentally ill."[fn26] It would apparently
accept an approach not unlike that proposed by the ALI Reporter,
under which the justice standard is coupled with a direction to
consider the individual's capacity to control his behavior. Mr.
Dempsey's recommendation is of like import, with some
simplification.[fn27] But the problem remains, whether, assuming
justice calls for the exculpation and treatment of the mentally
ill, that is more likely to be gained from a jury, with "average"
notions of mental illness, which is explicitly set at large to
convict or acquit persons with impaired mental capacity according
to its concept of justice.
[92] The brief of the D.C. Bar Association as amicus submits that
with a "justly responsible" formulation the test of insanity
"would be largely swallowed up by this consideration." And it
observes that the function of giving to the jury the law to be
applied to the facts is not only the duty of the court, see Sparf
v. United States, 156 U.S. 51, 102, 15 S.Ct. 273, 39 L.Ed. 343
(1895), but is also "a bedrock right of every citizen" - and,
possibly, his "only protection," citing Justice Story in United
States v. Battiste, 2 Sumn. 240, 244, Fed.Cas. No. 14,545
(C.C.D.Mass. 1835).
[93] We are impressed by the observation of Professor Abraham S.
Goldstein, one of the most careful students of the problem:
[The] overly general standard may place too great a
burden upon the jury. If the law provides no
standard, members of the jury are placed in the
difficult position of having to find a man
responsible for no other reason than their personal
feeling about him. Whether the psyches of individual
jurors are strong enough to make that decision, or
whether the "law" should put that obligation on them,
is open to serious question. It is far easier for
them to perform the role assigned to them by
legislature and courts if they know - or are able to
rationalize - that their verdicts are "required" by
law.[fn28]
[94] Professor Goldstein was referring to the broad "justice"
standard recommended by the Royal Commission. But the problems
remain acute even with the modifications in the proposal of the
ALI Reporter, for that still leads to "justly responsible" as the
ultimate and critical term.
[95] There may be a tug of appeal in the suggestion that law is a
means to justice and the jury is an appropriate tribunal to
ascertain justice. This is a simplistic syllogism that harbors
the logical fallacy of equivocation, and fails to take account of
the different facets and dimensions of the concept of justice. We
must not be beguiled by a play on words. The thrust of a rule
that in essence invites the jury to ponder the evidence on
impairment of defendant's capacity and appreciation, and then do
what to them seems just, is to focus on what seems "just" as to
the particular individual. Under the centuries-long pull of the
Judeo-Christian ethic, this is likely to suggest a call for
understanding and forgiveness of those who have committed crimes
against society, but plead the influence of passionate and
perhaps justified grievances against that society, perhaps
grievances not wholly lacking in merit. In the domain of morality
and religion, the gears may be governed by the particular
instance of the individual seeking salvation. The judgment of a
court of law must further justice to the community, and safeguard
it against undercutting and evasion from overconcern for the
individual. What this reflects is not the rigidity of retributive
justice - an eye for an eye - but awareness how justice in the
broad may be undermined by an excess of compassion as well as
passion. Justice to the community includes penalties needed to
cope with disobedience by those capable of control, undergirding
a social environment that broadly inhibits behavior destructive
of the common good. An open society requires mutual respect and
regard, and mutually reinforcing relationships among its
citizens, and its ideals of justice must safeguard the vast
majority who responsibly shoulder the burdens implicit in its
ordered liberty. Still another aspect of justice is the
requirement for rules of conduct that establish reasonable
generality, neutrality and constancy. Cf. L. Fuller, The Morality
of Laws 33-94 (1964). This concept is neither static nor
absolute, but it would be sapped by a rule that invites an ad hoc
redefinition of the "just" with each new case.
[96] It is the sense of justice propounded by those charged with
making and declaring the law - legislatures and courts - that
lays down the rule that persons without substantial capacity to
know or control the act shall be excused. The jury is concerned
with applying the community understanding of this broad rule to
particular lay and medical facts. Where the matter is unclear it
naturally will call on its own sense of justice to help it
determine the matter. There is wisdom in the view that a jury
generally understands well enough that an instruction composed in
flexible terms gives it sufficient latitude so that, without
disregarding the instruction, it can provide that application of
the instruction which harmonizes with its sense of justice.[fn29]
The ALI rule generally communicates that meaning. Wade v. United
States, supra, 426 F.2d at 70-71. This is recognized even by
those who might prefer a more explicit statement of the
matter.[fn30] It is one thing, however, to tolerate and even
welcome the jury's sense of equity as a force that affects its
application of instructions which state the legal rules that
crystallize the requirements of justice as determined by the
lawmakers of the community. It is quite another to set the jury
at large, without such crystallization, to evolve its own legal
rules and standards of justice. It would likely be
counter-productive and contrary to the larger interest of justice
to become so explicit - in an effort to hammer the point home to
the very occasional jury that would otherwise be too rigid - that
one puts serious strains on the normal operation of the system of
criminal justice.
[97] Taking all these considerations into account we conclude that
the ALI rule as announced is not productive of injustice, and we
decline to proclaim the broad "justly responsible" standard.
[98] 5. ALI rule is contemplated as improving the process of
adjudication, not as affecting number of insanity acquittals
[99] Amicus Dempsey is concerned that a change by this court from
Durham-McDonald to ALI will be taken as an indication that this
court intends that the number and percentage of insanity
acquittals be modified. That is not the intendment of the rule
adopted today, nor do we have any basis for forecasting that
effect.
[100] a. Statistical data concerning the use of insanity in criminal
trials in this jurisdiction were presented in the December 15,
1966, Report of the President's Commission on Crime in the
District of Columbia.[fn31] These data have been up-dated in Mr.
Dempsey's brief, with the aid of data helpfully supplied by the
United States Attorney's office. At least since Durham was
modified by McDonald, insanity acquittals have run at about 2%
of all cases terminated. In the seven years subsequent to
McDonald jury verdicts of not guilty by reason of insanity
averaged only 3 per annum.[fn32] In trials by the court, there
has been an annual average of about 38 verdicts of not guilty by
reason of insanity; these typically are cases where the
Government psychiatrists agreed that the crime was the product of
mental illness.[fn33] We perceive no basis in these data for any
conclusion that the number of percentage of insanity acquittals
has been either excessive or inadequate.
[101] We have no way of forecasting what will be the effect on
verdicts, of juries or judges, from the reduction in influence of
expert testimony on "productivity" that reflects judgments
outside the domain of expertise.[fn34] Whatever its effect, we
are confident that the rule adopted today provides a sounder
relationship in terms of the giving, comprehension and
application of expert testimony. Our objective is not to steer
the jury's verdict but to enhance its deliberation.[fn35]
[102] b. Some judges have viewed the ALI test as going beyond
Durham in enlarging the category of persons who may win
acquittals.[fn36] The 1966 report of the President's Crime
Commission (supra note 15) apparently concludes that the debate
over Durham was stilled by McDonald, and that
Durham-McDonald is not significantly different in content from
the ALI test. In contrast, Mr. Dempsey is concerned that a
person's ability to control his behavior could be "substantially
impaired" by mental condition, thus qualifying the defense under
McDonald, while still leaving him with "substantial capacity,"
rendering the defense unavailable under the ALI rule. We have no
way of knowing whether psychiatrists giving testimony would draw
such a distinction, and moreover there would be no difference in
result unless one also indulges the assumption, which is dubious,
that the jury would reason that the crime may have been the
"product" of the mental condition of a man even though he
retained substantial capacity.
[103] In the last analysis, however, if there is a case where there
would be a difference in result - and it would seem rare - we
think the underlying freedom of will conception renders it just
to assign responsibility to a person, even though his controls
have been impaired, if his residual controls give him
"substantial capacity" both to appreciate the wrongfulness of his
conduct and to conform it to the requirement of law. Whether the
ALI standard is to be given a narrow or broad conception rests
not on abstract analysis[fn37] but on the application reflecting
the underlying sense of responsibility of the jury, as the
community's surrogate.[fn38]
[104] 6. Elements of the ALI rule adopted by this court
[105] Though it provides a general uniformity, the ALI rule leaves
room for variations. Thus, we have added an adjustment in the
McDonald definition of mental disease, which we think fully
compatible with both the spirit and text of the ALI rule. In the
interest of good administration, we now undertake to set forth,
with such precision as the subject will permit, other elements of
the ALI rule as adopted by this court.
[106] The two main components of the rule define (1) mental disease,
(2) the consequences thereof that exculpate from responsibility.
[107] a. Intermesh of components
[108] The first component of our rule, derived from McDonald,
defines mental disease or defect as an abnormal condition of the
mind, and a condition which substantially (a) affects mental or
emotional processes and (b) impairs behavioral controls. The
second component, derived from the Model Penal Code, tells which
defendant with a mental disease lacks criminal responsibility for
particular conduct: it is the defendant who, as a result of this
mental condition, at the time of such conduct, either (i) lacks
substantial capacity to appreciate that his conduct is wrongful,
or (ii) lacks substantial capacity to conform his conduct to the
law.
[109] The first component establishes eligibility for an instruction
concerning the defense for a defendant who presents evidence that
his abnormal condition of the mind has substantially impaired
behavioral controls. The second component completes the
instruction and defines the ultimate issue, of exculpation, in
terms of whether his behavioral controls were not only
substantially impaired but impaired to such an extent that he
lacked substantial capacity to conform his conduct to the
law.[fn39]
[110] b. The "result" of the mental disease
[111] The rule contains a requirement of causality, as is clear from
the term "result." Exculpation is established not by mental
disease alone but only if "as a result" defendant lacks the
substantial capacity required for responsibility. Presumably the
mental disease of a kleptomaniac does not entail as a "result" a
lack of capacity to conform to the law prohibiting rape.
[112] c. At the time of the conduct
[113] Under the ALI rule the issue is not whether defendant is so
disoriented or void of controls that he is never able to conform
to external demands, but whether he had that capacity at the time
of the conduct. The question is not properly put in terms of
whether he would have capacity to conform in some untypical
restraining situation - as with an attendant or policeman at his
elbow. The issue is whether he was able to conform in the
unstructured condition of life in an open society, and whether
the result of his abnormal mental condition was a lack of
substantial internal controls. These matters are brought out in
the ALI's comments to § 4.01 of the Model Penal Code Tentative
Draft #4, p. 158:
The schizophrenic . . . is disoriented from reality;
the disorientation is extreme; but it is rarely
total. Most psychotics will respond to a command of
someone in authority within the mental hospital; they
thus have some capacity to conform to a norm. But
this is very different from the question whether they
have the capacity to conform to requirements that are
not thus immediately symbolized by an attendant or
policeman at the elbow. Nothing makes the inquiry
into responsibility more unreal for the psychiatrist
than limitation of the issue to some ultimate extreme
of total incapacity, when clinical experience reveals
only a graded scale with marks along the way.
[114] d. Capacity to appreciate wrongfulness of his conduct
[115] As to the option of terminology noted in the ALI code, we adopt
the formulation that exculpates a defendant whose mental
condition is such that he lacks substantial capacity to
appreciate the wrongfulness of his conduct. We prefer this on
pragmatic grounds to "appreciate the criminality of his conduct"
since the resulting jury instruction is more like that
conventionally given to and applied by the jury. While such an
instruction is of course subject to the objection that it lacks
complete precision, it serves the objective of calling on the
jury to provide a community judgment on a combination of factors.
And since the possibility of analytical differences between the
two formulations is insubstantial in fact in view of the control
capacity test, we are usefully guided by the pragmatic
considerations pertinent to jury instructions.[fn40]
[116] In adopting the ALI formulation, this court does not follow the
Currens opinion of the Third Circuit, which puts it that the
sole issue in every case is defendant's capacity to control his
behavior, and that as a matter of analysis a person who lacks
substantial capacity to appreciate the wrongfulness [criminality]
of his conduct necessarily lacks substantial capacity to control
his behavior. Like the other circuits, we resist the Currens
lure of logic in order to make certain that the jury will give
heed to the substantiality of a defense of lack of substantial
capacity to appreciate wrongfulness, a point that may elude a
jury instructed solely in terms of control capacity. In a
particular case, however, defendant may have reason to request
omission of the phrase pertaining to lack of capacity to
appreciate wrongfulness, if that particular matter is not
involved on the facts, and defendant fears that a jury that does
not attend rigorously to the details of the instruction may
erroneously suppose that the defense is lost if defendant
appreciates wrongfulness. Here again, it is not enough to rely
solely on logic, when a simple change will aid jury
understanding. In such a case, if defendant requests, the judge
should limit the instruction to the issue involved in that case,
and charge that the jury shall bring in a verdict of not guilty
if as a result of mental illness defendant lacked substantial
capacity to conform his conduct to the requirements of the law.
[117] e. Caveat paragraph
[118] Section 4.01 of the Model Penal Code as promulgated by ALI
contains in subsection (2) what has come to be known as the
"caveat paragraph":
(2) The terms "mental disease or defect" do not
include an abnormality manifested only by repeated
criminal or otherwise anti-social conduct.
[119] The purpose of this provision was to exclude a defense for the
so-called "psychopathic personality."[fn41]
[120] There has been a split in the Federal circuits concerning this
provision. Some of the courts adopting the ALI rule refer to both
subsections but without separate discussion of the caveat
paragraph - as in the Chandler and Blake opinions. As to the
decisions considering the point, those of the Second and Third
Circuits conclude the paragraph should be retained (in Freeman
and Currens), while the Smith and Wade decisions, of the
Sixth and Ninth Circuits, conclude it should be omitted. The
Sixth Circuit's position is (404 F.2d at 727, fn. 8) that there
is "great dispute over the psychiatric soundness" of the caveat
paragraph. The Wade opinion considers the matter at great
length and puts forward three grounds for rejecting the caveat
paragraph: (1) As a practical matter, it would be ineffectual in
keeping sociopaths out of the definition of insanity; it is
always possible to introduce some evidence, other than past
criminal behavior, to support a plea of insanity. (2) The
criminal sanction ought not be sought for criminal psychopaths -
constant recidivists - because such people should be taken off
the streets indefinitely, and not merely for a set term of years.
(3) Its third ground is stated thus (426 F.2d at 73):
It is unclear whether [the caveat paragraph] would
require that a defendant be considered legally sane
if, although the only overt acts manifesting his
disease or defect were "criminal or otherwise
anti-social," there arises from his acts a reasonable
inference of mental derangement either because of the
nature of the acts or because of credible medical or
other evidence.
[121] Our own approach is influenced by the fact that our rule
already includes a definition of mental disease (from
McDonald). Under that definition, as we have pointed out, the
mere existence of "a long criminal record does not excuse crime."
Williams v. United States, 114 U.S.App.D.C. 135, 137, 312 F.2d 862,
864 (1962). We do not require the caveat paragraph as an
insurance against exculpation of the deliberate and persistent
offender.[fn42] Our McDonald rule guards against the danger of
misunderstanding and injustice that might arise, say, from an
expert's classification that reflects only a conception[fn43]
defining all criminality as reflective of mental illness. There
must be testimony to show both that the defendant was suffering
from an abnormal condition of the mind and that it substantially
affected mental or emotional processes and substantially impaired
behavioral controls.
[122] In this context, our pragmatic approach is to adopt the caveat
paragraph as a rule for application by the judge, to avoid
miscarriage of justice, but not for inclusion in instructions to
the jury.
[123] The judge will be aware that the criminal and antisocial
conduct of a person - on the street, in the home, in the ward -
is necessarily material information for assessment by the
psychiatrist. On the other hand, rarely if ever would a
psychiatrist base a conclusion of mental disease solely on
criminal and anti-social acts. Our pragmatic solution provides
for reshaping the rule, for application by the court, as follows:
The introduction or proffer of past criminal and anti-social
actions is not admissible as evidence of mental disease unless
accompanied by expert testimony, supported by a showing of the
concordance of a responsible segment of professional opinion,
that the particular characteristics of these actions constitute
convincing evidence of an underlying mental disease that
substantially impairs behavioral controls.
[124] This formulation retains the paragraph as a "caveat" rather
than an inexorable rule of law. It should serve to obviate
distortions of the present state of knowledge that would
constitute miscarriages of justice. Yet it leaves the door open -
on shouldering the "convincing evidence" burden - to accommodate
our general rule to developments that may lie ahead. It is the
kind of imperfect, but not unfeasible, accommodation of the
abstract and pragmatic that is often found to serve the
administration of justice.
[125] We do not think it desirable to use the caveat paragraph as a
basis for instructions to the jury. It would be difficult for a
juryman - or anyone else - to reconcile the caveat paragraph and
the basic (McDonald) definition of mental disease if a
psychiatrist testified that he discerned from particular past
criminal behavior a pattern that established defendant as
suffering from an abnormal condition of the mind that
substantially impaired behavioral controls. If there is no such
testimony, then there would be no evidence that mere misconduct
betokens mental illness, it would be impermissible for defense
counsel to present such a hypothesis to the jury, and there would
be very little likelihood that a jury would arrive at such a
proposition on its own. On the other hand, an instruction along
the lines of the caveat paragraph runs the risk of appearing to
call for the rejection of testimony that is based materially, but
only partially, on the history of criminal conduct.
[126] f. Broad presentation to the jury
[127] Our adoption of the ALI rule does not depart from the doctrines
this court has built up over the past twenty years to assure a
broad presentation to the jury concerning the condition of
defendant's mind and its consequences. Thus we adhere to our
rulings admitting expert testimony of psychologists,[fn44] as
well as psychiatrists, and to our many decisions contemplating
that expert testimony on this subject will be accompanied by
presentation of the facts and premises underlying the opinions
and conclusions of the experts.[fn45] and that the Government and
defense may present, in Judge Blackmun's words, "all possibly
relevant evidence" bearing on cognition, volition and
capacity.[fn46] We agree with the amicus submission of the
National District Attorneys Association that the law cannot
"distinguish between physiological, emotional, social and
cultural sources of the impairment" - assuming, of course,
requisite testimony establishing exculpation under the pertinent
standard - and all such causes may be both referred to by the
expert and considered by the trier of fact.[fn47]
[128] Breadth of input under the insanity defense is not to be
confused with breadth of the doctrines establishing the defense.
As the National District Attorneys Association brief points out,
the latitude for salient evidence of e. g., social and cultural
factors pertinent to an abnormal condition of the mind
significantly affecting capacity and controls, does not mean that
such factors may be taken as establishing a separate defense for
persons whose mental condition is such that blame can be imposed.
We have rejected a broad "injustice" approach that would have
opened the door to expositions of e. g., cultural deprivation,
unrelated to any abnormal condition of the mind.
[129] We have recognized that "Many criminologists point out that
even normal human behavior is influenced by such factors as
training, environment, poverty and the like, which may limit the
understanding and options of the individual." King v. United
States, supra, 125 U.S.App.D.C. at 323, 372 F.2d at 388.
Determinists may contend that every man's fate is ultimately
sealed by his genes and environment, over which he has no
control. Our jurisprudence, however, while not oblivious to
deterministic components, ultimately rests on a premise of
freedom of will. This is not to be viewed as an exercise in
philosophic discourse, but as a governmental fusion of ethics and
necessity, which takes into account that a system of rewards and
punishments is itself part of the environment that influences and
shapes human conduct. Our recognition of an insanity defense for
those who lack the essential, threshold free will possessed by
those in the normal range is not to be twisted, directly or
indirectly, into a device for exculpation of those without an
abnormal condition of the mind.
[130] Finally, we have not accepted suggestions to adopt a rule that
disentangles the insanity defense from a medical model, and
announces a standard exculpating anyone whose capacity for
control is insubstantial, for whatever cause or reason. There may
be logic in these submissions, but we are not sufficiently
certain of the nature, range and implications of the conduct
involved to attempt an all-embracing unified field theory. The
applicable rule can be discerned as the cases arise in regard to
other conditions - somnambulism or other automatisms; blackouts
due, e.g. to overdose of insulin; drug addiction. Whether these
somatic conditions should be governed by a rule comparable to
that herein set forth for mental disease would require, at a
minimum, a judicial determination, which takes medical opinion
into account, finding convincing evidence of an ascertainable
condition characterized by "a broad consensus that free will does
not exist." Salzman v. United States, 131 U.S.App.D.C. 393, 400,
405 F.2d 358, 365 (1968) (concurring opinion of Judge Wright).
[131] E. Inter-related Doctrines and Implementing Instructions
[132] For sake of clarity, and to obviate misunderstanding and
unnecessary litigation, we undertake by today's ruling to
accompany our definition of the underlying doctrine on insanity
as a defense negativing criminal responsibility, with comments on
implementing instructions and certain inter-related doctrines as
they will stand hereafter.
[133] 1. Suggested instruction
[134] Appendix B contains a suggested instruction in the thought that
the trial judges may consider it useful for their consideration
and guidance in the task of making the adjustments in practices
and routines required by our ruling.
[135] Burden of Proof
[136] Appendix B contains alternate wordings on burden of proof. One
wording conforms to the doctrine of Davis v. United States,
160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), that the Government
has the burden of proving beyond a reasonable doubt that the
defendant was not entitled to exculpation as a result of his
mental disease or defect. The other version is cast in the
wording of the last sentence of 24 D.C.Code § 301 (j), as added
to the law in 1970:[fn48] "No person accused of an offense shall
be acquitted on the ground that he was insane at the time of its
commission unless his insanity, regardless of who raises the
issue, is affirmatively established by a preponderance of the
evidence."
[137] Questions have been raised as to the constitutionality of this
1970 provision,[fn49] its applicability to offenses committed
prior to the 1970 enactment, and its applicability to offenses
committed in the District of Columbia which are not violations of
the D.C.Code but are violations of the United States Code.[fn50]
We do not think it appropriate to decide such questions at this
time, and accordingly have provided alternate versions in the
instruction suggested in Appendix B.
[138] 2. The "Lyles" instruction - as to effect of verdict of
not guilty by reason of insanity
[139] By a statute of August 9, 1955, passed in the wake of Durham,
Congress added to 24 D.C.Code § 301, provisions on mandatory
commitment of persons acquitted by reason of insanity, set forth
in subsection (d), and provisions governing the release of
persons so committed, set forth in subsection (e).
[140] In Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725
(en banc, 1957), the majority of the court concurred in Part I of
the opinion filed by Judges Prettyman and Burger that the jury,
which knows the meaning of a verdict of guilty and not guilty
"has a right to know the meaning of [the insanity] verdict as
accurately as it knows by common knowledge the meaning of the
other two possible verdicts." The court said, 103 U.S.App.D.C. at
25, 254 F.2d at 728:
We think that when the instruction is given the jury
should simply be informed that a verdict of not
guilty by reason of insanity means that the accused
will be confined in a hospital for the mentally ill
until the superintendent has certified, and the court
is satisfied, that such person has recovered his
sanity and will not in the reasonable future be
dangerous to himself or others, in which event and at
which time the court shall order his release either
unconditionally or under such conditions as the court
may see fit.
[141] The court provided for omission of such an instruction on the
affirmative request of a defendant.
[142] Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968) read
§ 301(d) as permitting mandatory commitment for the purpose of a
mental examination, but as containing a requirement of a judicial
hearing, on the question of whether the defendant involved ought
to be retained in custody on the basis of his current mental
condition, with procedures substantially similar to those in
proceedings, under 21 D.C.Code § 545(b), for civil commitment of
the dangerous mentally ill. The court also construed § 301(e) to
entitle the patient to periodic examinations by the hospital
staff, to an examination by an outside psychiatrist, and to a
court hearing if any one of the examining physicians believes he
should no longer be hospitalized.
[143] Finally, the court construed § 301(g), reserving the right of a
confined person to establish eligibility for release under this
section by habeas corpus, to require the person confined to prove
by a preponderance of the evidence that his detention is illegal.
"Thus, the court must find, by the preponderance of the evidence,
that the patient's commitment is no longer valid - i. e., that
he is no longer `likely to injure himself or other persons' due
to `mental illness.'" (130 U.S.App.D.C. at 12, 395 F.2d at 653.)
The Court referred to its ruling as similar to that in the
concurring opinion of Judge Fahy in Ragsdale v. Overholser, 108
U.S.App.D.C. 308, 315, 281 F.2d 943, 950 (1960).
[144] As to the Lyles instruction, the Bolton opinion (at note
50) held that it should be changed to comport with the procedures
then construed to be required under the law. The D.C. Court
Reform and Criminal Procedure Act of 1970, P.L. 91-358, retained
what was formerly § 301(d) as § 301(d)(1) of 24 D.C. Code, and
retained § 301(e) unchanged. Accordingly, the 1970 law retains
the Bolton v. Harris construction of what is now § 301(d)(1), as
providing mandatory commitment for the purpose of examination,
and its construction of § 301 (e), as to provisions for release.
However, the 1970 law adds a new provision, see 24 D.C.Code §
301(d)(2):
(2) A person confined pursuant to paragraph (1)
shall have a hearing, unless waived, within 50 days
of his confinement to determine whether he is
entitled to release from custody. At the conclusion
of the criminal action referred to in paragraph (1)
of this subsection, the court shall provide such
person with representation by counsel -
(A) in the case of a person who is eligible to
have counsel appointed by the court, by continuing
any appointment of counsel made to represent such
person in the prior criminal action or by
appointing new counsel; or
(B) in the case of a person who is not eligible
to have counsel appointed by the court, by assuring
representation by retained counsel.
If the hearing is not waived, the court shall cause
notice of the hearing to be served upon the person,
his counsel, and the prosecuting attorney and hold
the hearing. Within ten days from the date the
hearing was begun, the court shall determine the
issues and make findings of fact and conclusions of
law with respect thereto. The person confined shall
have the burden of proof. If the court finds by a
preponderance of the evidence that the person
confined is entitled to his release from custody,
either conditional or unconditional, the court shall
enter such order as may appear appropriate.
[145] Section 301(d)(2), as added in 1970, gives specific
implementation to the construction of Bolton v. Harris, which
requires a judicial hearing, following the initial examination,
prior to an order of mandatory commitment under 301(d). It
differs to the extent that Bolton v. Harris contemplated a burden
of proof on the Government in 301(d) commitment proceedings, like
that in civil commitment proceedings. Section 301 (d) (2) now
provides that the person confined "shall have the burden of
proof" - to establish eligibility for release under the standards
of § 301(e). Accordingly the Lyles instruction must be recast
as to persons governed by the 1970 law. This is a suggested form:
If the defendant is found not guilty by reason of
insanity, it becomes the duty of the court to commit
him to St. Elizabeths Hospital. There will be a
hearing within 50 days to determine whether defendant
is entitled to release. In that hearing the defendant
has the burden of proof. The defendant will remain in
custody, and will be entitled to release from custody
only if the court finds by preponderance of the
evidence that he is not likely to injure himself or
other persons due to mental illness.
[146] As to the possibility of an attack on the constitutionality of
§ 301(d)(2), that question has not been briefed or argued, and it
is not now being decided.[fn51]
[147] 3. Mental condition, though insufficient to exonerate, may
be relevant to specific mental element of certain crimes or
degrees of crime.
[148] Our decision accompanies the redefinition of when a mental
condition exonerates a defendant from criminal responsibility
with the doctrine that expert testimony as to a defendant's
abnormal mental condition may be received and considered, as
tending to show, in a responsible way, that defendant did not
have the specific mental state required for a particular crime or
degree of crime - even though he was aware that his act was
wrongful and was able to control it, and hence was not entitled
to complete exoneration.
[149] Some of the cases following this doctrine use the term
"diminished responsibility," but we prefer the example of the
cases that avoid this term (e. g., note 57, infra), for its
convenience is outweighed by its confusion: Our doctrine has
nothing to do with "diminishing" responsibility of a defendant
because of his impaired mental condition,[fn52] but rather with
determining whether the defendant had the mental state that must
be proved as to all defendants.
[150] Procedurally, the issue of abnormal mental condition negativing
a person's intent may arise in different ways: For example, the
defendant may offer evidence of mental condition not qualifying
as mental disease under McDonald. Or he may tender evidence
that qualifies under McDonald, yet the jury may conclude from
all the evidence that defendant has knowledge and control
capacity sufficient for responsibility under the ALI rule.
[151] The issue often arises with respect to mental condition
tendered as negativing the element of premeditation in a charge
of first degree premeditated murder. As we noted in Austin v.
United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967), when
the legislature modified the common law crime of murder so as to
establish degrees, murder in the first degree was reserved for
intentional homicide done deliberately and with premeditation,
and homicide that is intentional but "impulsive," not done after
"reflection and meditation," was made murder only in the second
degree. (127 U.S.App.D.C. at 187, 382 F.2d at 135).
[152] An offense like deliberated and premeditated murder requires a
specific intent that cannot be satisfied merely by showing that
defendant failed to conform to an objective standard.[fn53] This
is plainly established by the defense of voluntary intoxication.
In Hopt v. Utah, 104 U.S. 631, 634, 26 L.Ed. 873 (1881), the
Court, after stating the familiar rule that voluntary
intoxication is no excuse for crime, said:
[W]hen a statute establishing different degrees of
murder requires deliberate premeditation in order to
constitute murder in the first degree, the question
of whether the accused is in such a condition of
mind, by reason of drunkenness or otherwise, as to be
capable of deliberate premeditation, necessarily
becomes a material subject of consideration by the
jury.
[153] In Bishop v. United States, 71 App. D.C. 132, 136, 107 F.2d 297,
301 (1939), Justice Vinson noted that while voluntary
intoxication per se is no defense to guilt, "the stated condition
of a defendant's mind at the time of the killing . . . is now a
proper subject for consideration, inquiry, and determination by
the jury." Thus "voluntary intoxication will not excuse murder,
but it may negative the ability of the defendant" as to
premeditation, and hence effect "a reduction to second degree
murder."
[154] Enlarging on Hopt and Bishop, Judge Burger's opinion in
Heideman v. United States, 104 U.S.App.D.C. 128, 131, 259 F.2d 943,
946 (1958), points out:
Drunkenness is not per se an excuse for crime, but
nevertheless it may in many instances be relevant to
the issue of intent. One class of cases where
drunkenness may be relevant on the issue of intent is
the category of crimes where specific intent is
required. Robbery falls into this category, and a
defendant accused of robbery is entitled to an
instruction on drunkenness as bearing on intent if
the evidentiary groundwork has been adequately laid.
[155] As Judge Burger points out there must be a showing of
drunkenness that does more than remove inhibitions, and is such
an "incapacitating state" as to negate intent. But he also notes,
citing Hopt, and Bishop, that a lesser state of drunkenness,
insufficient to negate the specific intent required for robbery,
may suffice to negate the premeditation required for first degree
murder.
[156] Neither logic nor justice can tolerate a jurisprudence that
defines the elements of an offense as requiring a mental state
such that one defendant can properly argue that his voluntary
drunkenness removed his capacity to form the specific intent but
another defendant is inhibited from a submission of his
contention that an abnormal mental condition, for which he was in
no way responsible, negated his capacity to form a particular
specific intent, even though the condition did not exonerate him
from all criminal responsibility.
[157] In Fisher v. United States, 80 U.S.App.D.C. 96, 149 F.2d 28
(1946), the court upheld the trial court's refusal to instruct
the jury that on issues of premeditation and deliberation "it
should consider the entire personality of the defendant, his
mental, nervous, emotional and physical characteristics as
developed by the evidence in the case." Justice Arnold's
abbreviated opinion was evidently premised on two factors: (1)
that the instruction confused the issue of insanity with the
issue of deliberation; (2) that "To give an instruction like the
above is to tell the jury they are at liberty to acquit one who
commits a brutal crime because he has the abnormal tendencies of
persons capable of such crimes." His opinion made no effort to
come to terms with the Hopt opinion, stressed by Fisher's
counsel.
[158] Fisher went to the Supreme Court and there was affirmed, but
on the limited ground of disinclination to "force" this court in
a choice of legal doctrine for the District of Columbia, 328 U.S. 463,
66 S.Ct. 1318, 90 L.Ed. 1382 (1946). The Court said (at 476,
66 S.Ct. at 1325) that such a change was "more properly a subject
for the exercise of legislative power or at least for the
discretion of the courts of the District."
[159] In Stewart I, Stewart v. United States, 94 U.S.App.D.C. 293,
214 F.2d 879 (1954) which issued only two weeks after Durham
was announced, we said that "reconsideration of our decision in
Fisher should wait until we can appraise the results [of
Durham]." In Stewart v. United States, 107 U.S.App.D.C. 159,
275 F.2d 617 (1960), the court en banc again stated that more
experience with Durham was required to evaluate Fisher, and
the matter was appropriate for legislative consideration. That
was Stewart II.[fn54]
[160] Today we are again en banc, and we have the benefit of many
years of experience with Durham-McDonald. We are changing the
insanity rule, on a prospective basis, to take into account
intervening scholarship and court opinions. As a corollary, we
deem it appropriate to change the rule of Fisher on a
prospective basis, and to accept the approach which the Supreme
Court declined to "force" upon us in 1946, but which has been
adopted by the overwhelming majority of courts that have recently
faced the question. We are convinced by the analysis set forth in
the recent opinions of the highest courts of California,[fn55]
Colorado,[fn56] New Jersey,[fn57] Iowa,[fn58] Ohio,[fn59]
Idaho,[fn60] Connecticut,[fn61] Nebraska,[fn62] New Mexico[fn63]
and Nevada.[fn64] They have joined the states that spoke out
before Fisher - New York, Rhode Island, Utah, Wisconsin and
Wyoming.[fn65]
[161] The pertinent reasoning was succinctly stated by the Colorado
Supreme Court as follows:[fn66]
The question to be determined is not whether
defendant was insane, but whether the homicidal act
was committed with deliberation and premeditation.
The evidence offered as to insanity may or may not be
relevant to that issue. * * * "A claim of insanity
cannot be used for the purpose of reducing a crime of
murder in the first degree to murder in the second
degree or from murder to manslaughter. If the
perpetrator is responsible at all in this respect, he
is responsible in the same degree as a sane man; and
if he is not responsible at all, he is entitled to an
acquittal in both degrees. However, . . . evidence of
the condition of the mind of the accused at the time
of the crime, together with the surrounding
circumstances, may be introduced, not for the purpose
of establishing insanity, but to prove that the
situation was such that a specific intent was not
entertained - that is, to show absence of any
deliberate or premeditated design." (Emphasis in
original.)
[162] On the other side of the coin, very few jurisdictions which
have recently considered this question have held to the contrary
position.[fn67]
[163] Intervening developments within our own jurisdiction underscore
the soundness of a doctrine for consideration of abnormal mental
condition on the issue of specific intent. In the Fisher
opinion of 1946, the court was concerned lest such a doctrine
"tell the jury that they are at liberty to acquit one who commits
a brutal crime because he has the abnormal tendencies of persons
capable of such crimes." That a man's abnormal mental condition
short of legal insanity may be material as negativing
premeditation and deliberation does not set him "at liberty" but
reduces the degree of the criminal homicide. Our 1967 opinion in
Austin, supra, clarifies that even "a particularly frightful
and horrible murder" may not be murder in the first degree, that
"many murders most brutish and bestial are committed in a
consuming frenzy or heat of passion, and that these are in law
only murder in the second degree."[fn68] Indeed the action of the
trial judge in acquitting defendant of first degree murder
indicates how the refinement of Austin has undercut the
Fisher approach. Though the defendant went back to get his
gun,[fn69] the judge concluded that the evidence as a whole -
including defendant's broken jaw, the blood streaming down his
face, and his irrational pounding on the mailbox - did not
establish a reasonable foundation for inferring a calculated,
deliberate mind at the time of shooting. We are not called upon
to consider whether that action was proper in this case; what we
do take note of is the inevitable implication of Austin.
[164] There has also been a material legislative development since
both Fisher and Stewart II. In 1964, after extensive
hearings, Congress enacted the Hospitalization of the Mentally
Ill Act, which provides civil commitment for the "mentally ill"
who are dangerous to themselves or others.[fn70] Both the
terminology and the underlying conception of this statute
reflected a deliberate change from the 1939 law and its use of
the term "insanity," which prior to Durham tended to be equated
to psychosis and to disorientations like delusions. The enlarged
conception underlying the 1964 law has been accorded a "liberal
construction"[fn71] for the protection of the community, going so
far as to include commitment of a disturbed mental defective with
behavioral reactions resulting in danger-productive
behavior.[fn72] The law is broad enough to include not only
mental illness requiring confinement in St. Elizabeths, but also
conditions of mental illness calling for placement in nursing
homes,[fn73] or, where appropriate, halfway houses or requirement
of outpatient care.[fn74] These statutory provisions provide a
shield against danger from persons with abnormal mental condition
- a danger which in all likelihood bolstered, or even impelled,
the draconic Fisher doctrine.
[165] Further, to the extent that the 1970 law (supra, note 48)
leads to a conviction of first degree murder when the evidence is
in equipoise on the issue of insanity, there would be an
additional miscarriage of justice if the evidence were not
available for consideration as raising a reasonable doubt on the
issue of premeditation and deliberation.
[166] In providing for the admission and consideration of expert
testimony on abnormal mental condition insufficient for complete
exoneration, we insert some observations prompted by State v.
Sikora, 44 N.J. 453, 210 A.2d 193 (1965), supra, note 57. The
doctrine does not permit the receipt of psychiatric testimony
based on the conception that mental disorder is only a relative
concept and that the behavior of every individual is dictated by
forces - ultimately, his genes and lifelong environment - that
are unconscious and beyond his control. As we have already made
clear, we are not embarked on enquiry that must yield to tenets
of the philosophy of determinism. The law accepts free will and
blameworthiness as a general premise. Expert psychiatric
testimony negativing blameworthiness for a crime - whether on
ground of general exoneration or lack of requisite specific
intent - must rest on the premise of an exception due to abnormal
mental condition.
[167] Our rule permits the introduction of expert testimony as to
abnormal condition if it is relevant to negative, or establish,
the specific mental condition that is an element of the crime.
The receipt of this expert testimony to negative the mental
condition of specific intent requires careful administration by
the trial judge. Where the proof is not offered in the first
instance as evidence of exonerating mental disease or defect
within the ALI rule the judge may, and ordinarily would, require
counsel first to make a proffer of the proof to be adduced
outside the presence of the jury. The judge will then determine
whether the testimony is grounded in sufficient scientific
support to warrant use in the courtroom, and whether it would aid
the jury in reaching a decision on the ultimate issues.[fn75]
[168] F. Disposition of the Case
[169] 1. Issue of Causality Testimony
[170] We are urged to reverse appellant's conviction on the ground
that the trial court erred in allowing Government experts to
testify in terms of "causality."
[171] The rule of Washington v. United States, 129 U.S.App.D.C. 29,
390 F.2d 444 (1967) that experts must not frame their testimony
in terms of "product," was aimed at relieving a stubborn and
recurring problem - that of experts using their facility with the
esoteric and imprecise language of mental disease to exert an
undue dominion over the jury's deliberations. The Washington
opinion did not refer to the prior opinion in Harried v. United
States, 128 U.S.App.D.C. 330, 389 F.2d 281 (1967), wherein the
court stated that narrowly drawn, concrete questions addressed to
the experts on the causal connection between the forbidden act
and the alleged mental disease were permissible.
[172] Since both Washington and Harried are superseded - on this
point - by our change today of the ultimate rule, it would be
bootless to consider to what extent Washington superseded
Harried. It suffices for disposition of this case to say only:
(1) Under the rule of Harried the questioning of Government
experts on the question of the causal connection between
appellant's crime and his mental disease or defect was proper.
(2) Assuming, arguendo, that these questions were not consonant
with Washington we are unable, on this record, to discern
prejudice. We think the expert testimony in this case adequately
and lucidly ventilated the issues, there was no use of the term
"product," and we see no sign of overreaching.[fn76]
[173] Our conclusion is also impelled by the fact that it was
defendant himself who first sought expert testimony on the
question of causal connection. The doctrine of curative
admissibility rests upon "the necessity of removing prejudice in
the interest of fairness," United States v. Winston, 145
U.S.App.D.C. 67, 447 F.2d 1236, 1240 (1971), quoting Crawford v.
United States, 91 U.S.App.D.C. 234, 237, 198 F.2d 976, 979
(1952). In this case, the interests of fairness were served by
permitting additional inquiry on the subject of the relationship
between the murder and the appellant's mental status. Defense
questioning established that, in the opinion of defense experts,
there was a causal connection between the act and the defendant's
mental disorder. It would be unfair, and against the interest of
justice, for us to hold that the jury had to retire to consider
the case believing that this question was beyond medical dispute.
[174] 2. Prosecutor's conduct
[175] It is also urged upon us that reversal of appellant's
conviction is required because the prosecutor went beyond the
limits of the permissible in his summation, by attempting to
discredit the projective tests the St. Elizabeths psychologist
had given to the defendant. Excerpts from this summation are set
out in a footnote.[fn77]
[176] It is unfortunate that the prosecutor's summation incorporated,
as an approach to the projective tests: "After all, they are just
blots of ink." The prosecutor, who speaks in court in behalf of
the public interest, has a responsibility to refrain from
know-nothing appeals to ignorance. The prosecutor is not free to
offer his own opinions and attitudes on matters of expert
knowledge, even in camouflaged form. The prosecutor was free to
adduce appropriate expert testimony, on direct or
cross-examination, to attack the validity of such tests, or
perhaps to adduce limitations on their value and significance.
However, in this trial the prosecutor's cross-examination was not
oriented in that manner, but sought rather to probe the basis for
the expert's conclusion, and his use of the tests. That was an
entirely permissible course, particularly since the witness
agreed that interpretation of the tests involves a subjective
evaluation, over and above the underlying training and expertise
of the expert. But there was neither testimony adduced on
cross-examination, nor testimony of a prosecutor's witness, to
support a disparagement of the very concept of projective tests,
as based on mere ink blots.
[177] While the prosecutor's summation contains an approach we do not
expect to recur, it was neither as aggravated nor as prolonged as
that in King.[fn78] And the record context includes clarifying
questions by the trial judge that brought out for the jury both
the long and widespread use of projective tests, and their use as
a basis for this expert's conclusions. We do not find reversible
error.
[178] 3. Remand
[179] Our action today in stating a new rule for insanity, and for
receipt and consideration of expert testimony on abnormal mental
condition that does not establish an insanity defense but is
material to a substantive element of the offense, is effective
prospectively for all trials beginning after this date.[fn79]
However, under established doctrines of the judicial function we
conclude that the benefit of the rule cannot wholly be withheld
from the defendant in whose case it was established.[fn80] We do
not, however, think it appropriate for us to determine at this
juncture whether a jury which convicted under our old insanity
standard might have acquitted under the new standard. While we
hesitate to burden the trial judge further, we are remanding to
the trial judge to determine whether a new trial is appropriate
in the interest of justice, rather than considering that question
at the appellate level in the first instance, because the trial
judge has a superior vantage point for assessing whether there is
a substantial possibility that the jury, if instructed under our
new rule, would have found that appellant should be acquitted by
reason of insanity. If a new trial is denied, the trial judge
will re-enter a judgment on the verdict of guilty.[fn81]
[180] G. Supplement To Clarify Matters Discussed in Separate
Opinion
[181] A number of matters are discussed in the separate opinion of
Chief Judge Bazelon. For the most part, where that opinion takes
issue with the approach of the majority opinion the issue is
reasonably clearly joined and refinement or elaboration would be
in the service of rhetoric rather than clarity. Certain passages
of the separate opinion, however, set forth a view of the
majority opinion which is not congruent with its intent or thrust
as understood by the judges subscribing to that opinion. The
matters most requiring comment, in order to avoid a misinference
that supposes that failure to speak means acquiescence, are as
follows:
[182] 1. The court's failure to discuss various procedural aspects of
the insanity defense and its presentation reflects neither
unawareness nor indifference. As the questions communicated
through the Clerk (Appendix A) make clear, however, this review
en banc was intended to focus on the ultimate standard, and not
to expatiate broadly on the administration of the insanity
defense. There is no intent to override various decisions of this
court, evolved during the past twenty years, on matters of
procedure and administration that are important, to be sure, but
do not turn on the ultimate standard. And of course we always
contemplate improvements ahead, in all aspects of the
administration of justice. It is our belief that they can be both
accommodated within and enhanced by a context that defines the
governing standard as avoiding the conviction as criminals of
those who as a result of mental disease or defect lack
substantial capacity to control the criminal behavior in question
(or to appreciate its wrongfulness).
[183] 2. The goal of avoiding undue dominance of the jury by expert
testimony does not require ostrich disregard of the key issue of
causality. That issue, however, is focused more meaningfully, for
both expert and jury, by asking whether the mental disease or
defect resulted in lack of substantial capacity to control the
behavior in question (or appreciate its wrongfulness). The
question is differently put under Durham and the difference has
proved to be both confusing and significant. The issue today is
not whether this confusion could or should have been foreseen,
but whether it shall be corrected. The rule contemplating expert
testimony as to the existence and consequence of a mental disease
or defect is not to be construed as permission to testify solely
in terms of expert conclusions. Our jurisprudence to the contrary
is not undone, it is rather underscored. It is the responsibility
of all concerned - expert, counsel and judge - to see to it that
the jury in an insanity case is informed of the expert's
underlying reasons and approach, and is not confronted with
ultimate opinions on a take-it-or-leave-it basis. The Appendix to
Washington is useful in this regard - assuming appropriate
modification of the third paragraph, which uses the "product"
term.[fn82] It clarifies the respective roles of the legal and
medical professions, and perhaps helps achieve the goal envisaged
by Sir James Fitz-James Stephen: "In dealing with matters so
obscure and difficult the two great professions ought rather to
feel for each other's difficulties than to speak harshly of each
other's shortcomings."[fn83]
[184] The Appendix to Washington still stands in effect, although
we do not retain Washington insofar as it reflects the product
rule, and we permit testimony by the expert, and
cross-examination, on the causal relationship between the mental
disease and the existence of substantial capacity for control
(and knowledge) at the time of the act. The jury will consider
this testimony under the instruction on need to acquit if as a
result of mental disease or defect there is a lack of substantial
capacity to control the behavior in question (or appreciate its
wrongfulness). We think this sufficiently communicates to the
jury the kind of hard question it is called upon to decide, and
the instructions will make clear that the jury is not foreclosed
by opinions of experts. The experts add to perspective, without
governing decision. The law looks to the experts for input, and
to the jury for outcome.
* * *
[185] The case is remanded for further consideration by the District
Court in accordance with this opinion.
[186] So ordered.
APPENDIX A
Letter of February 5, 1971, from the Clerk to organizations
invited to make a submission amicus curiae.
The Court has directed me to request you to discuss in your
briefs the following questions:
1. In this case all four expert witnesses testified on the
issue of "productivity." See Transcript pp. 335-36, 464-65,
506-07, 539. But see bench colloquy at 314-15. Assuming
arguendo that this testimony violated the rule of Washington v.
United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967), is the
Washington rule a viable device for limiting the role of the
expert and preserving the ultimate question of criminal
responsibility for the jury? Would it be more effective simply to
eliminate the separate inquiry into productivity from our test of
responsibility? See United States v. Eichberg, 142 U.S.App.D.C.
110 at 117, 118, 439 F.2d 620 at 627, 628 (Decided Jan. 21, 1971)
(concurring opinion).
2. What are the theoretical and practical differences between
the Durham-McDonald test of criminal responsibility, the ALI
test, and the various other tests that have been proposed in
recent years by courts and commentators?
3. Should the Durham-McDonald formulation be retained as it
is?
4. Should the ALI formulation be adopted?
5. If so, should the McDonald definition of "mental disease
or defect" be applied to the ALI formulation?
6. If a defendant's behavior controls are impaired, should a
test of criminal responsibility distinguish between
physiological, emotional, social, and cultural sources of the
impairment? See Transcript pp. 409-11, 477-79. Is it
appropriate to tie a test of criminal responsibility to the
medical model of mental illness? See United States v. Eichberg,
supra, 142 U.S.App.D.C. at 116, 117, 439 F.2d at 626, 627.
7. Should the results of psychological tests such as the
Rorschach test be admissible in evidence? If so, what kind of
testimony is necessary or appropriate in order to put the test
results in proper perspective? See Transcript pp. 318-329,
342-350, 413-452.
8. Have we departed in practice, if not in theory, from the
rule that the government has the burden of proving criminal
responsibility beyond a reasonable doubt? See United States v.
Eichberg, supra, 142 U.S.App.D.C. at 113-116, 439 F.2d at
623-626.
9. Would it be sound as a matter of policy to abolish the
insanity defense? Possible as a matter of law? If so, what are
the possible alternatives? Should the issues presently treated
under that heading be subsumed under the inquiry into mens rea?
Should we reconsider the possibility of "diminished" or "partial"
responsibility?
Should you wish a copy of the transcript. I should be pleased
to furnish it to you if you intend to submit and file a brief.
Sincerely yours,
Nathan J. Paulson
Clerk
APPENDIX B
SUGGESTION FOR INSTRUCTION ON INSANITY[fn*]
The defendant in this case asserts the defense of insanity.
You are not to consider this defense unless you have first
found that the Government has proved beyond a reasonable doubt
each essential elements of the offense. One of these elements is
the requirement [of premeditation and deliberation for first
degree murder] [or of specific intent for ___], on which you have
already been instructed. In determining whether that requirement
has been proved beyond a reasonable doubt you may consider the
testimony as to the defendant's abnormal mental condition.
If you find that the Government has failed to prove beyond a
reasonable doubt any one or more of the essential elements of the
offense, you must find the defendant not guilty, and you should
not consider any possible verdict relating to insanity.
If you find that the Government has proved each essential
element of the offense beyond a reasonable doubt, then you must
consider whether to bring in a verdict of not guilty by reason of
insanity.
The law provides that a jury shall bring in a verdict of not
guilty by reason of insanity if, at the time of the criminal
conduct, the defendant, as a result of mental disease or defect,
either lacked substantial capacity to conform his conduct to the
requirements of the law, or lacked substantial capacity to
appreciate the wrongfulness of his conduct.
Every man is presumed to be sane, that is, to be without mental
disease or defect, and to be responsible for his acts. But that
presumption no longer controls when evidence is introduced that
he may have a mental disease or defect.
The term insanity does not require a showing that the defendant
was disoriented as to time or place.
Mental disease [or defect] includes any abnormal condition of
the mind, regardless of its medical label, which substantially
affects mental or emotional processes and substantially impairs
behavior controls. The term "behavior controls" refers to the
processes and capacity of a person to regulate and control his
conduct and his actions.
In considering whether the defendant had a mental disease [or
defect] at the time of the unlawful act with which he is charged,
you may consider testimony in this case concerning the
development, adaptation and functioning of these mental and
emotional processes and behavior controls.
[The term "mental disease" differs from "mental defect" in that
the former is a condition which is either capable of improving or
deteriorating and the latter is a condition not capable of
improving or deteriorating.]
[Burden of proof - alternate versions:
(a) The burden of proof is on the defendant to
establish by a preponderance of the evidence that, as
a result of mental disease or defect, he either
lacked substantial capacity to conform his conduct to
the requirements of the law or lacked substantial
capacity to appreciate the wrongfulness of his
conduct. If defendant has met that burden you shall
bring in a verdict of not guilty by reason of
insanity. If he has not met that burden you shall
bring in a verdict of guilty of the offenses you
found proved beyond a reasonable doubt.
(b) The burden is on the Government to prove beyond
a reasonable doubt either that the defendant was not
suffering from a mental disease or defect, or else
that he nevertheless had substantial capacity both to
conform his conduct to the requirements of the law
and to appreciate the wrongfulness of his conduct. If
the Government has not established this beyond a
reasonable doubt, you shall bring in a verdict of not
guilty by reason of insanity.]
Evaluation of Testimony
In considering the issue of insanity, you may consider the
evidence that has been admitted as to the defendant's mental
condition before and after the offense charged, as well as the
evidence as to defendant's mental condition on that date. The
evidence as to the defendant's mental condition before and after
that date was admitted solely for the purpose of assisting you to
determine the defendant's condition on the date of the alleged
offense.
You have heard the evidence of psychiatrists [and
psychologists] who testified as expert witnesses. An expert in a
particular field is permitted to give his opinion in evidence. In
this connection, you are instructed that you are not bound by
medical labels, definitions, or conclusions as to what is or is
not a mental disease [or defect]. What psychiatrists [and
psychologists] may or may not consider a mental disease [or
defect] for clinical purposes, where their concern is treatment,
may or may not be the same as mental disease [or defect] for the
purpose of determining criminal responsibility. Whether the
defendant had a mental disease [or defect] must be determined by
you under the explanation of those terms as it has been given to
you by the Court.
There was also testimony of lay witnesses, with respect to
their observations of defendant's appearance, behavior, speech,
and actions. Such persons are permitted to testify as to their
own observations and other facts known to them and may express an
opinion based upon those observations and facts known to them. In
weighing the testimony of such lay witnesses, you may consider
the circumstances of each witness, his opportunity to observe the
defendant and to know the facts to which he has testified, his
willingness and capacity to expound freely as to his observations
and knowledge, the basis for his opinion and conclusions, and the
nearness or remoteness of his observations of the defendant in
point of time to the commission of the offense charged.
You may also consider whether the witness observed
extraordinary or bizarre acts performed by the defendant, or
whether the witness observed the defendant's conduct to be free
of such extraordinary or bizarre acts. In evaluating such
testimony, you should take into account the extent of the
witness's observation of the defendant and the nature and length
of time of the witness's contact with the defendant. You should
bear in mind that an untrained person may not be readily able to
detect mental disease [or defect] and that the failure of a lay
witness to observe abnormal acts by the defendant may be
significant only if the witness had prolonged and intimate
contact with the defendant.
You are not bound by the opinions of either expert or lay
witnesses. You should not arbitrarily or capriciously reject the
testimony of any witness, but you should consider the testimony
of each witness in connection with the other evidence in the case
and give it such weight as you believe it is fairly entitled to
receive.
You may also consider that every man is presumed to be sane,
that is, to be without mental disease [or defect], and to be
responsible for his acts. You should consider this principle in
the light of all the evidence in the case and give it such weight
as you believe it is fairly entitled to receive.
Effect of verdict of not guilty by reason of insanity
If the defendant is found not guilty by reason of insanity, it
becomes the duty of the court to commit him to St. Elizabeths
Hospital. There will be a hearing within 50 days to determine
whether defendant is entitled to release. In that hearing the
defendant has the burden of proof. The defendant will remain in
custody, and will be entitled to release from custody only if the
court finds by preponderance of the evidence that he is not
likely to injure himself or other persons due to mental illness.
Note: If the defendant so requests, this instruction need not
be given.
[fn1] McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847
(en banc, 1962).
[fn2] United States v. Lee, 15 D.C. 489, 496 (1886):
The rule of law is very plain that in order that the
plea of insanity shall prevail, there must have been
that mental condition of the party which disabled him
from distinguishing between right and wrong in
respect of the act committed.
[fn3] Smith v. United States, 59 App.D.C. 144, 145, 36 F.2d 548,
549 (1929):
[it must be found that defendant's] reasoning powers
were so far dethroned by his diseased mental
condition as to deprive him of the will power to
resist the insane impulse to perpetrate the deed,
though knowing it to be wrong.
[fn4] 10 Clark & F. 200, 2 Eng.Rep. 718 (H.L. 1843).
[fn5] A. Goldstein. The Insanity Defense 54 (1967), citing 1
Wigmore Evidence § 228 (1940) and numerous cases.
[fn6] Durham contemplated from the start that the jury would
have the guidance of "wider horizons of knowledge" from the
medical experts than was available under the prior rule, but that
in the last analysis the ultimate question is left to the jury
"to perform its traditional function . . . to apply `our
inherited ideas of moral responsibility to individuals prosecuted
for crime.' [Juries will] continue to make moral judgments. . .
." 94 U.S.App.D.C. at 242, 214 F.2d at 876. See also, King v.
United States, 125 U.S.App.D.C. 318 at 323-324, 372 F.2d 383 at
388-389 "The question for the jury requires the application to
medical knowledge, and the lay evidence as well, of the
understanding and judgment of the community as reflected in the
jury. . . . [In] view of the complicated nature of the decision
to be made - intertwining moral, legal, and medical judgments -
it will require an unusually strong showing to induce us to
reverse a conviction because the judge left the critical issue of
responsibility with the jury."
Holloway v. United States, 80 U.S.App.D.C. 3, 4, 148 F.2d 665,
666 (1945): "Legal tests of criminal insanity are not and cannot
be the result of scientific analysis or objective judgment. . . .
They must be based on the instinctive sense of justice of
ordinary men. This sense of justice assumes that there is a
faculty called reason which is separate and apart from instinct,
emotion, and impulse, that enables an individual to distinguish
between right and wrong and endows him with moral responsibility
for his acts. . . . Our collective conscience does not allow
punishment where it cannot impose blame."
Sauer v. United States, 241 F.2d 640, 649 (9th Cir. 1957),
quoting Holloway, refers to the court's "awareness that the
jury will eventually exercise a moral judgment as to the sanity
of the accused."
United States v. Wilson, 399 F.2d 459, 463 (4th Cir. 1968):
"There is enough doubt about a sociopath such as [defendant] to
call for an exercise of the jury's moral judgment. . . ."
[fn7] Compare Campbell v. United States, 113 U.S.App.D.C. 260,
261, 307 F.2d 597, 598 (1962):
As an administrative matter, "emotionally unstable
personality" has been regarded by the staff at St.
Elizabeths as a mental disease only since November
1957.
[fn8] Blocker v. United States, 110 U.S.App.D.C. 41, 51, 288 F.2d 853,
863 (en banc 1961).
[fn9] Ten years ago Judge Burger said: "While the time span since
1954 is brief, our total study and collective case consideration
of the problem is equal perhaps to as much as a half century of
case review of this problem in most jurisdictions." Blocker v.
United States, 110 U.S.App.D.C. at 52, 288 F.2d at 864 (en banc.
1961) (concurring opinion).
[fn10] A difference in language perception probably contributed
to the development that psychiatric testimony concerning
"product" causal relationship did not develop along the lines
presaged by legal students of the problem. Early critiques in
journals asserted that a but-for test of "product" would rarely,
if ever, permit a psychiatrist to testify as to the existence of
mental illness coexisting with a lack of "product" causal
relationship to the crime. See, e. g., Wechsler, The Criteria
of Criminal Responsibility, 22 U. Chi.L.Rev. 367, 371 (1955); De
Grazia. The Distinction of Being Mad. 22 U.Chi. L.Rev. 339, 343
(1955). Presumably, the force of this analysis was strengthened
when "mental disease or defect" was defined and tightened in
McDonald. As events have developed, however, it has become
almost commonplace that psychiatrists testifying as to the
presence of mental disease have nevertheless found an absence of
"product" causal relation with the crime, or at least expressed
substantial doubt as to such relationship. Perhaps more to the
point, it has become commonplace for psychiatrists called by
Government and defense to be in agreement on the mental disease
aspects of their testimony and to differ on the issue of
"product" relationship. This is not intended, in any way, as a
criticism of any particular testimony. There is often a genuine
and difficult question as to the relationship between a
particular mental disease and particular offense. What is our
concern, however, is that the inherent difficulty of this core
problem has been intensified, and the sources of confusion
compounded, by a kind of mystique that came to surround the
"product" test, and testimony cast in that language.
[fn11] E. g., Hawkins v. United States, 114 U.S.App.D.C. 44,
310 F.2d 849 (1962): Isaac v. United States, 109 U.S.App.D.C.
34, 284 F.2d 168 (1960).
[fn12] This was also the suggestion of the National District
Attorneys Association, subject to caveats, as the test
recommended if the court did not accept its submission that the
insanity defense should be abolished entirely.
[fn13] Compare New State Ice Co. v. Liebmann, 285 U.S. 262, 280,
52 S.Ct. 371, 76 L.Ed. 747 (1932) (dissenting opinion of
Brandeis, J.).
[fn14] Amicus points out that in Freeman the Second Circuit
referred to the fact that the Third and Tenth Circuits "have
employed their own language approaching the objectives of the
Model Penal Code formulation," and then offered a discussion of
guiding policy considerations, including Senator Dodd's espousal
of an approach sending "marginal" cases to a hospital rather than
prison, that, as amicus puts it, "strikes quite a different tone
than, say, the analogous discussion of the Tenth Circuit in
Wion."
[fn15] See, e. g., Report of President's D.C. Crime Commission
at pp. 550 ff. A majority of the members of the Commission
preferred the ALI rule, but were concerned lest departure from
Durham-McDonald spawn confusion.
[fn16] "[I]t may be that psychiatry and the other social and
behavioral sciences cannot provide sufficient data relevant to a
determination of criminal responsibility no matter what our rules
of evidence are. If so, we may be forced to eliminate the
insanity defense altogether, or refashion it in a way which is
not tied so tightly to the medical model." Washington v. United
States, 129 U.S.App.D.C. at 42, n. 33, 390 F.2d at 457 (1967).
[fn17] It suggests that a mental condition be exculpatory solely
as it negatives mens rea.
[fn18] E. g., Mr. Dempsey. To the same general effect is the
position in the research memorandum from the University of
Virginia Law School Research Group to Mr. Flynn, appellant's
appointed counsel attached to his brief.
[fn19] See e. g., Burger, then Circuit Judge, Proceedings of
the Sixth Annual Meeting of the National Conference of State
Trial Judges, Chicago, Illinois, Aug. 9-11, 1963, quoted in Wion
v. United States, 325 F.2d at 428, n. 10; Bazelon, Chief Judge,
in Washington v. United States, 129 U.S.App.D.C. at 42, n. 33,
390 F.2d at 457 (1967); Haynesworth, Chief Judge, in en banc
opinion in United States v. Chandler, 393 F.2d at 928 (1968); see
also remarks of Chief Justice Weintraub (of New Jersey) in
Insanity as a Defense - Panel Discussion, Annual Judicial
Conference, Second Circuit, 37 F.R.D. 365, 369 (1964).
[fn20] Davis v. United States, 160 U.S. 469, 484-485, 16 S.Ct.
353, 40 L.Ed. 499 (1895); Durham v. United States, supra, 94
U.S.App.D.C. at 242, 214 F.2d at 876.
[fn21] Amicus argues that penal systems can only survive so long
as they "accord substantially with the popular estimate of the
enormity of guilt," citing 1 W. Lecky, History of the Rise and
Influence of the Spirit of Rationalism in Europe 336-337 (1891).
[fn22] Citing Harris, Respect for Persons in Ethics and Society
129-130 (R. De George ed. 1966).
[fn23] In 1953 the British Royal Commission on Capital Punishment
proposed:
[A person is not responsible for his unlawful act if]
at the time of the act the accused was suffering from
disease of the mind (or mental deficiency) to such a
degree that he ought not to be held responsible.
[fn24] The minority, together with the Reporter for the Model
Penal Code (Professor Herbert Wechsler), proposed the following
test of insanity:
A person is not responsible for criminal conduct if
at the time of such conduct as a result of mental
disease or defect his capacity either to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of law is so
substantially impaired that he cannot justly be held
responsible.
This proposal appears as alternative (a) to paragraph (1) of
Model Penal Code § 4.01 (Tent. Draft No. 4, 1955) (emphasis
added).
[fn25] See authorities cited supra, note 6.
[fn26] See, e. g., Szasz, Psychiatry, Ethics and the Criminal
Law, 58 Colum.L.Rev. 183, 195 (1958) "[To] have a `psychopathic'
personality is only a more elegant way of expressing moral
condemnation." See also, Star. "The Public's Ideas About Mental
Illness" (National Opinion Research Center, 1955); H. Kalven and
H. Zeisel, The American Jury 405 (1966).
[fn27] He proposes (Br. 78) an instruction with this crucial
sentence: "It is up to you to decide whether defendant had such
an abnormal mental condition, and if he did whether the
impairment was substantial enough, and was so related to the
commission of the crime, that he ought not be held
responsible." (Emphasis added.)
[fn28] A. Goldstein, The Insanity Defense 81-82 (1967).
[fn29] See H. Kalven and H. Zeisel. The American Jury (1966),
passim, and particularly Chapters 5, 8, 12, 15 et seq. See also,
Rifkind, Follow-up: The Jury. The Center Magazine 59, 64 (July,
1970).
[fn30] See e. g., the response of the Attorney General in Ramer
v. United States, 390 F.2d 564, 575, n. 10 (9th Cir. en banc,
1968).
[fn31] See ch. 7, section III: The Mentally Ill Offender,
subsection "Experience Under the Durham Rule," at p. 534 ff of
the Report, including Tables 1-10.
[fn32] McDonald was decided in 1962. For fiscal years ending
June 30, 1964-1970, there were 21 verdicts of not guilty by
reason of insanity in trials by jury, 265 such verdicts in trials
by court. These data appear in Appendix C of Mr. Dempsey's brief,
as revised by submission of Sept. 21, 1971.
Mr. Dempsey provides data on all terminations for fiscal
1964-1968. The data for these five years show 7537 terminations,
and 194 verdicts of not guilty by reason of insanity. The other
terminations are: 3500 verdicts of guilty on plea, 1567 verdicts
of guilty after trial, and 629 verdicts of not guilty.
[fn33] These trials are discussed in the amicus submission of
David Chambers, consultant, who prepared a report on the John
Howard Pavilion at St. Elizabeths Hospital, submitted to the
Hospital and the National Institutes of Mental Health.
Professor Chambers characterizes most insanity trials to the
courts as more nearly comparable to the taking of guilty pleas -
consisting of a stipulated statement of facts; a conclusory
Hospital report that the crime was the product of mental illness;
and brief supporting testimony from a single John Howard
psychiatrist - all in a context of a "tacit or explicit
understanding" that the defendant will not contest his indefinite
commitment to the Hospital.
[fn34] Any such analysis of the productivity testimony and
verdicts not only would require prodigious time and effort, but
might well be inconclusive in view of the way experts testifying
on the "product" issues come to diametric differences in the same
trial.
[fn35] We do not share the cynical view that treats the
instruction as devoid of consequence. In a study of the reactions
of more than a thousand jurors to two experimental trials
involving a defense of insanity, it was found that juries
deliberated significantly longer when instructed under Durham
than under M'Naghten. Yet this did not undercut consensus:
there was no significant difference in the percentages of hung
juries. R. Simon, The Jury and the Defense of Insanity 213 ff.
(1967).
[fn36] See the opinion of Trask, J., for six of the 13 judges on
the Ninth Circuit, in Wade v. United States, 426 F.2d 64, 75, 79.
[fn37] Mr. Dempsey is concerned lest the ALI test assigns
responsibility unless capacity has been reduced "to the vagrant
and trivial dimensions characteristic of the most severe
afflictions of the mind," see Wechsler, Codification of
Criminal Law in the United States: The Model Penal Code, 68
Colum.L.Rev. 1425, 1443 (1968). But the application in fact will
depend in the last analysis on the jury's application of
community standards to the evidence adduced.
[fn38] Even under McDonald the jury has frequently brought in a
verdict of guilty, when the exculpatory rules would plainly
permit, or even contemplate, a verdict of not guilty by reason of
insanity. King v. United States, supra.
[fn39] Defendant is also exculpated if he lacks substantial
capacity to appreciate the conduct is wrongful.
[fn40] In M'Naghten's case, 10 Cl. & F. 200, 211, 8 Eng.Rep.
718, 722 (H.L. 1843), the majority opinion of Lord Chief Justice
Tindal ruled that the jury should be instructed in terms of the
ability of the accused "to know that he was doing an act that was
wrong," adding: "If the question were to be put as to the
knowledge of the accused solely and exclusively with reference to
the law of the land, it might tend to confound the jury, by
inducing them to be believe that an actual knowledge of the law
of the land was essential in order to lead to a conviction."
When the question arose as to whether "wrong" means moral or
legal wrong, the American courts split. One group, following
M'Naghten, held the offender sane if he knew the act was
prohibited by law. A second group, following the lead of Judge
Cardozo in People v. Schmidt. 216 N.Y. 324, 110 N.E. 945, 948-950
(1915) ruled that, e. g., the defense was available to a
defendant who knew the killing was legally wrong but thought it
morally right because he was so ordered by God. The issue is
discussed and authorities collected in A. Goldstein, The Insanity
Defense, and notes thereto. In Sauer v. United States, 241 F.2d 640,
649 (9th Cir. 1957), Judge Barnes summed up the
practicalities: "[The] practice has been to state merely the word
`wrong' and leave the decision for the jury. While not entirely
condonable, such practice is explained in large measure by an
awareness that the jury will eventually exercise a moral judgment
as to the sanity of the accused."
This issue rarely arose under M'Naghten, and its
substantiality was reduced if not removed by the control capacity
test, since anyone under a delusion as to God's mandate would
presumably lack substantial capacity to conform his conduct to
the requirements of the law.
We are not informed of any case where a mental illness left a
person with capacity to appreciate wrongfulness but not a
capacity to appreciate criminality. If such a case ever arises,
supported by credible evidence, the court can then consider its
correct disposition more meaningfully, in the light of a concrete
record.
[fn41] See Comments to Fourth Draft, p. 160:
6. Paragraph (2) of section 4.01 is designed to
exclude from the concept of "mental disease or
defect" the case of so-called "psychopathic
personality." The reason for the exclusion is that,
as the Royal Commission put it, psychopathy "is a
statistical abnormality: that is to say, the
psychopath differs from a normal person only
quantitatively or in degree, not qualitatively; and
the diagnosis of psychopathic personality does not
carry with it any explanation of the causes of the
abnormality." While it may not be feasible to
formulate a definition of "disease," there is much to
be said for excluding a condition that is manifested
only by the behavior phenomena that must, by
hypothesis, be the result of disease for
irresponsibility to be established. Although British
psychiatrists had agreed, on the whole, that
psychopathy should not be called "disease," there is
considerable difference of opinion on the point in
the United States. Yet it does not seem useful to
contemplate the litigation of what is essentially a
matter of terminology: nor is it right to have the
legal result rest upon the resolution of a dispute of
this kind.
[fn42] We note that the Second Circuit adopted the caveat
paragraph on the ground that
a contrary holding would reduce to absurdity a test
designed to encourage full analysis of all
psychiatric data and would exculpate those who
knowingly and deliberately seek a life of crime.
(Freeman, 357 F.2d at 625).
[fn43] See, e. g., D. Abrahamsen, Who Are the Guilty? 125
(1952).
[fn44] Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637
(en banc, 1962) (assuming substantial experience in the
diagnosis of disease in association with psychiatrists or
neurologists).
[fn45] E. g., the opinions in Durham, Carter, McDonald and
Washington, and Judge Burger's concurring opinion in Blocker.
[fn46] Pope v. United States, 372 F.2d 710, 736 (8th Cir. 1967).
[fn47] The Association points out that "the effects of poverty,
historical factors and prejudice may well have an adverse effect
upon an individual's mental condition."
[fn48] By § 207(6) of the D.C. Court Reform and Criminal
Procedure Act of 1970, P.L. 91-358.
[fn49] E. g., Bazelon, C. J., concurring in United States v.
Eichberg, 142 U.S.App.D.C. 110, 114, 439 F.2d 620, 624 (1971),
where the vitality of Leland v. Oregon, 343 U.S. 790, 72 S.Ct.
1002, 96 L.Ed. 1302 (1952) is questioned in view of In re
Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
See also Report of the President's D.C. Crime Commission (1966)
553: "The majority of the Commission also believes that the views
of the dissenting justices in Leland v. Oregon are grounds for
caution. * * * We believe that there is at least a substantial
question whether requiring the defendant to prove insanity in a
Federal court would be upheld by the Supreme Court."
[fn50] United States v. Thompson, 147 U.S.App.D.C. 1. 452 F.2d 1333
(1971).
[fn51] In Bolton the court relied in part on the circumstance
that an acquittal by reason of insanity might reflect only a
doubt as to sanity. This may be affected by the 1970 provision
putting the trial burden on defendant to establish his insanity.
We are not addressing ourselves to the procedure that would
result if a court concludes that § 301 (d)(2) is
unconstitutional.
[fn52] Our doctrine is different from the doctrine of "partial
responsibility" that permits a jury to find that a defendant's
mental condition was such that he is only "partly responsible,"
and therefore entitled to a verdict reducing the degree of the
offense. See Model Penal Code, Comments to Art. 201, app. B at
111 (Tentative Draft No. 9, 1959), quoting the English Homicide
Act of 1957, 5 & 6 Eliz. 2, c. 11.
[fn53] The term "malice" in second degree murder has been
extended to include recklessness where defendant had awareness of
a serious danger to life and displayed wanton disregard for human
life. Lee v. United States, 72 App.D.C. 147, 150-151, 112 F.2d 46,
49-50 (1940); Austin v. United States, supra, 127 U.S.App.D.C.
at 184, 382 F.2d at 133: United States v. Dixon, 135
U.S.App.D.C. 401, 405, 419 F.2d 288, 292 (1969) (concurring
opinion).
[fn54] There was no independent consideration in Stewart v.
United States, 129 U.S.App.D.C. 303, 394 F.2d 778 (1968), which
was not an en banc court, and merely cited the earlier cases.
[fn55] People v. Nicolaus, 65 Cal.2d 866, 56 Cal.Rptr. 635,
423 P.2d 787 (1967); People v. Goedecke, 65 Cal.2d 850, 56 Cal. Rptr.
625, 423 P.2d 777 (1967); People v. Ford, 65 Cal.2d 41, 52
Cal.Rptr. 228, 416 P.2d 132 (1966); People v. Conley, 64 Cal.2d
310, 49 Cal.Rptr. 815, 411 P.2d 911 (1966); People v. Wolff, 61
Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959 (1964); People v.
Gorshen, 51 Cal.2d 716, 336 P.2d 492 (1959); People v. Wells, 33
Cal.2d 330, 202 P.2d 53 (1949).
[fn56] Schwickrath v. People, 159 Colo. 390, 411 P.2d 961 (1966);
Gallegos v. People, 159 Colo. 379, 411 P.2d 956 (1966); Becksted
v. People, 133 Colo. 72, 292 P.2d 189 (1956); Battalino v.
People, 118 Colo. 587, 199 P.2d 897 (1948); Ingles v. People,
92 Colo. 518, 22 P.2d 1109 (1933).
[fn57] State v. Di Paolo, 34 N.J. 279, 168 A.2d 401 (1961),
clarified in State v. Sikora, 44 N.J. 453, 210 A.2d 193 (1965).
[fn58] State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964).
[fn59] State v. Nichols, 3 Ohio App.2d 182, 209 N.E.2d 750
(1965).
[fn60] State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961).
[fn61] State v. Donahue, 141 Conn. 656, 109 A.2d 364 (1954).
[fn62] Starkweather v. State, 167 Neb. 477, 93 N.W.2d 619 (1958).
[fn63] State v. Padilla, 66 N.M. 289, 347 P.2d 312 (1959).
[fn64] Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957).
[fn65] New York, People v. Moran, 249 N.Y. 179, 163 N.E. 553
(1928); Rhode Island, State v. Fenik, 45 R.I. 309, 121 A. 218
(1923); Utah, State v. Green, 78 Utah 580, 6 P.2d 177 (1931);
Wisconsin, Hempton v. State, 111 Wis. 127, 86 N.W. 596 (1901) and
Wyoming, State v. Pressler, 16 Wyo. 214, 92 P. 806 (1907).
[fn66] Battalino v. People, 118 Colo. 587, 199 P.2d 897, 901
(1948).
[fn67] State v. Janovic, 101 Ariz. 203, 417 P.2d 527 (1966);
Armstead v. State, 227 Md. 73, 175 A.2d 24 (1961); State v.
Flint, 142 W.Va. 509, 96 S.E.2d 677 (1957): Ezzell v. State,
88 So.2d 280 (Fla. 1956).
[fn68] 127 U.S.App.D.C. at 189-190, 382 F.2d at 138-139.
[fn69] See Belton v. United States, 127 U.S.App.D.C. 201, 203,
382 F.2d 150, 152 (1967).
[fn70] 78 Stat. 944 (1960), 21 D.C.Code § 501 et seq.
[fn71] Millard v. Harris, 132 U.S.App.D.C. 146, 150, 406 F.2d 964,
968 (1968).
[fn72] In re Alexander, 124 U.S.App.D.C. 352, 372 F.2d 925
(1967).
[fn73] Lake v. Cameron, 124 U.S.App.D.C. 264, 364 F.2d 657
(1966).
[fn74] S.Rep. No. 925, 88th Cong., 2d Sess., 31 (1964).
[fn75] At the risk of repetition, but out of abundance of
caution, and in order to obviate needless misunderstanding, we
reiterate that this opinion retains the "abnormal mental
condition" concept that marks the threshold of McDonald.
Assuming the introduction of evidence showing "abnormal mental
condition," the judge will consider an appropriate instruction
making it clear to the jury that even though defendant did not
have an abnormal mental condition that absolves him of criminal
responsibility, e. g., if he had substantial capacity to
appreciate the wrongfulness of his act or to control his behavior
he may have had a condition that negatives the specific mental
state required for a higher degree of crime, e. g., if the
abnormal mental condition existing at the time of the homicide
deprived him of the capacity for the premeditation required for
first degree murder.
To avoid needless confusion, we contemplate strict adherence to
the term "abnormal mental condition." and do not contemplate use
of terms such as "mental unsoundness," which might confuse a
juror who considered that any defendant committing a wanton act
is "unsound," and, presumably, suffering from "mental
unsoundness."
Since the defense relates to a specific mental element of a
crime, it is not applicable to "malice" established on an
objective standard in a case of second degree murder (supra,
note 53). Whether it may be applicable in a case where malice is
established on a subjective standard, so as to reduce the offense
to manslaughter, is a matter that requires further analysis and
reflection. The cases are in conflict, see Annot., 22 A.L.R.3d
1228 (1968). Generally, at least, a defendant with substantial
capacity to appreciate the wrongfulness of his crime would appear
to have the capacity requisite for malice. Without further study,
however, we hesitate to rule as a matter of law concerning the
possibility that there may be abnormal mental conditions falling
short of legal insanity that would leave the defendant with
capacity to appreciate the wrongfulness of his acts, but without
awareness of the danger of serious harm. The problem is remitted
to future consideration, which we think will be aided by the
availability of a specific factual context.
[fn76] Compare Washington v. United States, 129 U.S.App.D.C.
29, 35, 390 F.2d 444, 450 (1967): "[T]he persistent use of
conclusory labels may have hindered the jury in getting to the
underlying facts. But we think the jury obtained enough concrete
information to preclude us from disturbing the verdict. The
defense psychiatrists and, on cross-examination, the Government
psychiatrists gave some meaningful descriptions of defendant's
mental and emotional processes. . . . [T]aken as a whole, the
testimony in this case was, if anything, a little better than in
most insanity cases. Under these circumstances, reversal seems
inappropriate."
[fn77] "Now, another one, you remember on the same test, that
drawing test, the doctor said he had ten of those little things
and they had squiggles and lines and angles, and he was asked to
draw those, ten of them separately. And the doctor said he
rotated, he rotated one. And I said, well, what was the
significance of that. Well, the significance is that shows that
there is organic brain damage. That is a very hard indicator of
organic brain damage. Why organic brain damage. He said he meant
structural damage, something physically wrong with the brain, a
part missing, a dead cell, something like that, a lesion in the
brain.
"And I asked the doctor how many of them did he rotate, how
many of them did he turn the picture a little bit. I asked him
how many did he rotate 90 degrees, and I think he said it was,
how many out of those ten - one. That is a hard indicator, that
is a hard indicator of organic brain damage.
"Ladies and gentlemen, then we came to that ink blot, and the
doctor said, well, the usual thing about that was those
anatomical things, and how many of them were there. Well, let's
see, and he counts, and there are four. How many responses.
Fourteen of them. Fourteen responses and four of them turn out to
be anatomical things - hearts or whatever it happened to be.
"Is there something unusual about that? Is a man crazy when he
sees a heart or something else four times, four different
anatomical things or maybe the same things in those little
drawings, these little ink blots. And all, they are just blots of
ink. Is a man crazy when he sees them? And how about that last
one, that rocket one. He says he sees a rocket going off.
"I asked him doctor, was there any rocket fired during that
period of time that might stick in a man's brain and might
suggest it to him. The doctor doesn't know. But there is
something explosive about a personality if he sees a rocket on a
little ink blot.
"Well, ladies and gentlemen, there is not much I can say about
that; I am not an expert. You heard the expert on the stand and
he testified about that.
"But I can say one thing: that it is a jury decision. It is
your province. It is your function to take that evidence and
weigh that evidence and decide whether what that doctor said as
far as you are concerned made any sense at all."
* * * * *
[fn78] In King v. United States, we pointed out (at 125
U.S.App.D.C. 325, 372 F.2d 390):
[T]he prosecutor persistently drummed into the jury -
without evidentiary basis, and contrary to the
uncontradicted testimony of the Government
psychiatrists called by the defense - the assertion
that organic [brain] damage was negatived by the
failure to detect it by physical tests, and that
psychological tests could not establish organic brain
damage. . . .
[fn79] We are aware that other circuits, in adopting the ALI test
of criminal responsibility, have made their decisions
retrospective, see e. g., United States v. Tarrago, 398 F.2d 621
(2d Cir. en banc, 1968) giving retrospective effect to its
decision in Freeman, cited supra. However, we think sound
principles - applied in Stovall v. Denno. 388 U.S. 293, 296 ff.,
87 S.Ct. 1967. 18 L.Ed.2d 1199 (1967) so as to give only
prospective effect even to constitutional rights - lead to the
conclusion that our adoption of the ALI test be prospective. We
liken this opinion to our decisions adopting a rule in the
exercise of our supervisory jurisdiction for prospective
application, see e. g., United States v. Thomas, 146
U.S.App.D.C. 101, 449 F.2d 1177, 1187 (1971); Harris v. United
States, 140 U.S.App.D.C. 21, 23, 433 F.2d 1127, 1129 (1970).
In Tarrago the Second Circuit noted that its retroactivity
ruling concerned only two cases and hence involved no problem of
"significant burden on administration of justice." Our court
would be confronted with a substantially different problem. The
criminal appeals pipeline in our court, unlike other Federal
courts, relates for the most part to common law crimes. While
acquittals for insanity are only in a range of 40 per annum
(supra, p. 989) almost 700 persons per year are sent to St.
Elizabeths Hospital for psychiatric examination with a view
towards the possibility of presenting an insanity defense. See
data for 1968 and 1969 in Broderick, Involuntary Hospitalization
for Mental Illness, 20 Catholic U.L.Rev. 564, n. 80.
More significantly, this opinion is not, like Freeman, a
change in substantive law from outmoded doctrine retained for a
long period without critical examination and modification. In
this circuit, that kind of departure was wrought in Durham -
which, incidentally, was made prospective. In this opinion we
have acknowledged and retained the positive contribution of the
1954 decision in Durham (see p. 977, supra), relating legal
doctrine to modern medical thinking, together with McDonald's
1962 improvement in the judicial definition of mental disease and
defect. The President's Commission noted in 1966 (see supra, p.
990) that Durham-McDonald is not significantly different in
substantive content from the ALI test. Although today we drop the
term "product," we retain the underlying concept of causal
relationship. Our change helps cope with the problem of
oversteering and lack of communication, but that problem had also
been considered in the 1967 Washington opinion, prescribing a
course for "future cases" (129 U.S.App.D.C. at 36, 390 F.2d at
451). Today's course is likewise for future trials.
While our change in formulation will, we think, be helpful to
the jury, it does not require retrospective application as
indispensable to integrity in the factfinding process. As we have
already pointed out, we did not adopt the new rule in the
contemplation that it would affect a significant number of
verdicts.
[fn80] Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 18
L.Ed.2d 1199 (1967).
[fn81] As to this judgment, the District Court may exercise its
discretion to revise the sentence. The foregoing is without
prejudice to an appeal from the judgment, if appellant be so
advised, on the ground that it is not consistent with our opinion
and mandate.
[fn82] The court will revise the third paragraph of the
Washington Appendix (129 U.S.App.D.C. at 42, 390 F.2d at 457) to
read:
As an expert witness, you may, if you wish and if
you feel you can, give your opinion whether at the
time of his conduct the defendant suffered from a
mental disease or defect, and whether, as a result,
defendant either lacked substantial capacity to
appreciate the wrongfulness of his conduct, or lacked
substantial capacity to conform his conduct to the
requirements of the law. You may explain in terms of
the development, adaptation and functioning of the
defendant's behavioral processes.
[fn83] 2 J. Stephen, History of the Criminal Law of England 128
(1883).
[fn*] Note: In addition to this instruction, for submission of
the insanity issue to the jury, the judge will have given the
jury the guidance provided by reading in its presence the
instruction to the expert witness required by Washington v.
United States, 129 U.S.App.D.C. 29, 42, 390 F.2d 444, 457 (1967),
revised in accordance with note 82 of the opinion in United
States v. Brawner, 153 U.S.App.D.C. at ___, 471 F.2d at 1006.
[187] BAZELON, Chief Judge, concurring in part and dissenting in
part:
[188] We are unanimous in our decision today to abandon the
formulation of criminal responsibility adopted eighteen years ago
in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862
(1954). We held there that a person is not responsible for a
criminal act if the act was the product of mental disease or
mental defect. In place of the Durham jury instruction, juries
will now be instructed in terms of the American Law Institute
test that a person is not responsible for a criminal act if as a
result of mental disease or defect he lacks substantial capacity
either to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law. But the adoption
of this new test is largely an anticlimax, for even though
Durham's language survived until today's decision, the
significant differences between our approach and the approach of
the ALI test vanished many years ago. As described in Judge
Leventhal's scholarly opinion, the ALI test may make possible an
improvement in the adjudication of the responsibility issue. But
on the whole I fear that the change made by the Court today is
primarily one of form rather than of substance.[fn1]
[189] Durham was designed to throw open the windows of the defense
and ventilate a musty doctrine with all of the information
acquired during a century's study of the intricacies of human
behavior. It fueled a long and instructive debate which uncovered
a vast range of perplexing and previously hidden questions. And
the decision helped to move the question of responsibility from
the realm of esoterica into the forefront of the critical issues
of the criminal law.
[190] While Durham never suffered a shortage of critics, virtually
all of them missed what I consider the crucial failure which
emerged in its operation. The critics assumed that our ruling
would generate far-reaching changes, and they questioned or
condemned the changes they foresaw. In fact, for all our efforts
to push the defense onto a new and more meaningful track,
Durham actually produced very little change at all. The first
few years' experience dispelled any illusion that the decision
would alter fundamentally the operation of the defense.
[191] By its adoption of the American Law Institute test of criminal
responsibility, this Court today repudiates none of the
objectives of Durham, see pages 1030-1031, infra, but
embraces a new test in the hope that it will succeed where
Durham failed. The principal question before us, therefore, is
whether the adoption of the ALI test is responsive to the lessons
we learned from our efforts to implement Durham, and whether it
offers any promise of resolving the difficulties that have always
troubled us. The analysis must begin with a clear understanding
of the reasons why Durham failed to achieve its objectives.
[192] Plainly, we did not fail for want of trying. Durham
reformulated the responsibility test in the hope that new and
more useful information would be presented to the jury. We acted
largely in response to the plea of behavioral scientists that
they did not want to decide ultimate questions of law and
morality, but wanted only an opportunity to report their findings
as scientific investigators without the need to force those
findings through the prism of M'Naghten.[fn2] See pages
1015-1016, infra. By removing the obstacles to the presentation
of those findings, Durham challenged the experts to provide the
information they had long promised. We expected, perhaps naively,
that the presentation of this new information would permit -
indeed, require - the jury to undertake a much broader inquiry
and to rely less on the ultimate conclusions of the experts. But
it quickly became apparent that while our decision produced some
expansion of the inquiry, it did not do nearly enough to
eliminate the experts' stranglehold on the process. Even after
Durham counsel for both sides often sought to present the issue
to the jury in "simplified" form by eliciting from the experts
little more than conclusory yes-or-no answers to the questions,
"Was the accused suffering from a mental disease or defect?" "Was
his act the product of that disease or defect?" And so the
experts continued, on the whole, to speak in conclusory terms
which inevitably included but concealed their underlying value
judgments, and their own views as to the appropriate legal
outcome. The use of conclusory psychiatric labels often provided
an aura of certainty which made it difficult to discern the
inadequacies of the examination on which the expert testimony was
based, and the limitations of psychiatric knowledge generally.
See pages 1017-1018 and n. 21, infra. The experts were able
to retain their influence in part because of the manner in which
Durham was construed. The term "mental disease or mental
defect" was saddled with an unintended and astringent medical
meaning. And the "productivity" requirement was perversely viewed
as a locked door which could only be opened by an expert's key.
But most important, the Court failed to deal with crucial
practical obstacles that operate under any formulation of the
test to impede the flow of information to the jury.
[193] The first of these difficulties was the subject of our 1962
decision in McDonald v. United States, 114 U.S.App.D.C. 120,
312 F.2d 847 (1962) (en banc), where we attempted to rescue the
term "mental disease or defect" from the grip of the expert
witnesses. The definition of mental disease adopted in
McDonald[fn3] rendered our test, in almost every significant
respect, identical to the ALI test. Yet McDonald, no less than
Durham, left the power of the experts intact. Expert witnesses
still testify in misleading and conclusory terms about the
medical or psychiatric definitions of mental disease. Since the
Court today grafts McDonald onto the ALI test, this decision
provides no new answers to this aspect of the problem. In fact,
the Court makes clear that the new test rests squarely on a
"medical model," thereby enhancing the power of the experts.
See pages 1027-1030, infra.
[194] The second source of difficulty concerns the productivity
requirement - the albatross of the Durham decision. This
Court's frustration with the conclusory expert testimony on the
issue of productivity culminated in our decision in Washington v.
United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967), which
barred such testimony altogether. And yet, in the face of our
prohibition, the experts have continued to testify in conclusory
terms, as the records in Brawner and dozens of other cases
attest. A reiteration of our ban will not be effective, and I
join the Court's holding that the issue of productivity must
henceforth be eliminated from the instructions to the jury. But
it should be clear that the ALI test comprises its own variant of
the productivity requirement. And, as I will point out below, the
Court's discussion of that aspect of the ALI test carries the
strong implication that the albatross is with us still. In my
view, we can prevent encroachments on the jury's function only by
adopting an instruction that candidly describes the jury's power
and responsibility. Since we have no simple, scientific formula
that will provide a clear-cut answer to every case, we have no
choice, in my opinion, but to tell the truth: that the jury, not
the experts, must judge the defendant's blameworthiness; that a
calibrated, easily-applied standard is not yet available to guide
that decision; and that the jury must resolve the question with
reference to its own understanding of community concepts of
blameworthiness. See pages 1030-1034, infra.
[195] The third source of difficulty - and to my mind the paramount
cause of Durham's failure - is the cluster of practical
obstacles that stand in the way of the full disclosure of
information that Durham hoped to secure. See pages 1034-1039,
infra. Here too the Court's decision sheds no new light. For no
matter how felicitous its phrasing, a responsibility test cannot,
singlehanded, overcome these practical obstacles. Neither
Durham nor Brawner lets slip our well-guarded secret that the
great majority of responsibility cases concern indigents, not
affluent defendants with easy access to legal and psychiatric
assistance. In a long line of cases we have been asked to
confront difficult questions concerning the right to an adequate
psychiatric examination, the right to psychiatric assistance in
the preparation of the defense, the right to counsel at various
stages of the process, the role and responsibility of a
government expert who testifies on behalf of an indigent
defendant, the burden of proof, the right to treatment during
postacquittal hospitalization, and many more. If the promise of
Durham has not been fulfilled, the primary explanation lies in
our answers, or lack of answers, to those questions. I fear that
it can fairly be said of Brawner, just as it should be said of
Durham, that while the generals are designing an inspiring new
insignia for the standard, the battle is being lost in the
trenches. In fact, our obligation to confront the practical
problems now is greater than it was in 1954, if only because our
efforts to implement Durham have brought many of these problems
to first light.
[196] If Brawner is not responsive to the problems uncovered by
Durham and makes no fundamental change in the operation of the
defense,[fn4] why has the Court bothered to do anything at all?
Perhaps the decision rests on an unstated assumption that change
is futile because we lack enough information about human behavior
to make possible a meaningful use of the defense, or because we
are unwilling or unable to act upon the information that is
already at hand.[fn5] Adoption of the uncontroversial ALI test
might then be explained as an attempt to discourage the fruitless
expenditure of time and energy on an effort doomed to failure. If
that is indeed the Court's intention, then this decision will
undoubtedly prove a great disappointment. The adoption of this
test, or any other new test, is sure to touch off a flurry of
litigation in which counsel will call upon us not only to face
the underlying moral questions, but also to pour some concrete
meaning into the ambiguous language of the ALI test. True, the
adoption of this new test does not foreclose the possibility of
further change and development that will respond directly to the
central problems of the defense. But the decision does seem to me
an important signal of the Court's current attitude. It is an
attitude sharply at odds with the spirit of experimentation,
inquiry, and confrontation that have characterized so much of our
work in this field. Brawner offered us an opportunity to
explore the most difficult questions - to what end do we maintain
the defense? and how can we facilitate a meaningful use of the
defense by all defendants, including indigents who must rely on
the government for expert assistance? If the Court's decision
today rests on the belief that nothing is wrong which cannot be
cured by fixing a new label to our test, then eighteen years'
experience has surely been wasted.
[197] I. THE TRIAL RECORD
[198] The facts underlying this appeal are simple. After spending an
afternoon drinking wine, appellant went to a party at the
apartment of three friends. During the evening several fights
broke out. Appellant was hit in the jaw and knocked down; he left
the apartment immediately. During the next hour he was seen by
several friends, who described him as dizzy, unclear of speech
and bleeding from the mouth. He refused to go to a hospital for
medical attention, and told his friends he had been jumped.
Pounding on a mailbox with a fist, he said that someone - perhaps
himself - was going to die. Returning to the building in which
the party had been held, appellant fired five shots through the
closed door of the apartment. Two of the shots struck and killed
one of the occupants. Appellant was arrested nearby shortly
afterward.
[199] On his own motion appellant was committed to St. Elizabeths
Hospital for observation. The standard commitment order asked the
Hospital to report on both his competence to stand trial and his
responsibility at the time of the act charged.[fn6] With respect
to responsibility, the Hospital was asked "whether the defendant,
at the time of the alleged criminal offense, committed on or
about September 8, 1967, was suffering from a mental disease, or
defect which substantially affected his mental or emotional
processes and substantially impaired his behavior controls, and
if so, whether his criminal act was the product of his mental
condition . . . ."[fn7] The Hospital's summary report stated that
appellant was competent for trial; that he was mentally ill at
the time of the act; and that the act was not causally related to
his illness.
[200] At trial, four expert witnesses from the staff of the Hospital
testified on the issue of responsibility. All four agreed that
appellant was mentally ill at the time of his unlawful act. They
used various labels,[fn8] but in general they agreed that he had
an organic brain pathology and an associated explosive
personality disorder. The organic damage was indicated by a
history of epileptic seizures, an abnormal electroencephalogram
test, and a pattern of responses to psychological tests
characteristic of persons with organic impairment. The explosive
personality disorder was indicated by psychological testing and
by psychiatric interviews and observations.
[201] All four experts went into commendable detail in describing the
nature of appellant's disorder and its effect on his behavior.
Each expert in turn stated that appellant's disorder was
manifested in an inability to deal with provocation.[fn9]
Appellant was said to have severe feelings of inadequacy,[fn10]
and to be easily threatened. He would respond to a felt threat
without control; his behavior would be explosive, and out of
proportion to the situation.
[202] The only conflict in the expert testimony arose in the course
of the prohibited inquiry into productivity. Dr. Stammeyer and
Dr. Hamman testified that in their view appellant's unlawful act
was the product of his explosive epileptoid personality disorder.
Dr. Weickhardt and Dr. Platkin, on the other hand, testified that
appellant's act in shooting through the closed door of an
apartment was not the product of his illness but rather the
product of a normal desire to retaliate for a broken jaw. That
is, even if appellant had not been ill, he would have retaliated
in this way. Dr. Platkin's notes in the Hospital records describe
the act as "a more or less legitimate response to a situation in
which he had been severely injured in a fight and was very
vindictive." Dr. Platkin testified that "I think I would, too,
under the same circumstances want to get even with somebody who
broke my jaw."
[203] II. THE ORIGINS AND DEVELOPMENT OF THE DURHAM RULE OF
CRIMINAL RESPONSIBILITY
[204] Eighteen years ago this Court formulated a new test of criminal
responsibility for the District of Columbia. In Durham v. United
States we held that "an accused is not criminally responsible if
his unlawful act was the product of mental disease or mental
defect."[fn11] The Durham test was formulated in response to
the widespread complaints of psychiatrists that under traditional
tests of responsibility the law asked them to go beyond their
professional competence; the traditional tests seemed to saddle
them with the job of deciding which defendants were guilty and
which ones should be excused for lack of criminal responsibility.
The M'Naghten Rule and the various "irresistible impulse" tests
attempted to define the types of illness that the law would
regard as exculpatory, and asked the psychiatrist whether the
particular defendant suffered from such an illness at the time of
his unlawful act. Thus under M'Naghten the psychiatrist was asked
whether the defendant could tell right from wrong, and under the
irresistible impulse test he was asked whether the defendant had
the capacity to refrain from doing the unlawful act.[fn12] The
psychiatrist's answer was the whole answer to the question of
responsibility. The only function of the jury was to choose which
expert to believe in case of a conflict.
[205] Psychiatrists vociferously criticized that approach to the
problem of criminal responsibility or the ground that it did not
correspond to the state of psychiatric knowledge. In their view
few if any persons could be said to be totally lacking in the
capacity to distinguish right from wrong or to control their
actions. At the same time psychiatrists believed that they could
provide extensive insights into other aspects of behavior that
were highly relevant to the problem of responsibility.[fn13]
Since the traditional tests were deemed too narrow to allow
consideration of such insights, many psychiatrists sought to
include them under the cover of psychiatric labels and legal
conclusions. The expert treated a neutral scientific question
about the defendant's mental condition as one addressed to the
legal significance of that condition.[fn14] He was often allowed
to do so because the factfinder was happy to be relieved of a
difficulty and troubling task, namely, deciding whether the
defendant's illness was severe enough to excuse him. The
psychiatrist performed this task simply by fitting, or refusing
to fit, the defendant into one of the categories of exculpatory
mental illness. But even if psychiatric diagnosis is sufficiently
flexible to permit this kind of manipulation,[fn15] it does not
provide a satisfactory solution from a legal standpoint. The
difficulty of deciding the issue of responsibility may not be
avoided by turning it over entirely to the experts.
[206] One solution might have been to formulate a new and broader
definition of "exculpatory mental illness," in order to retain
M'Naghten's goal of offering the psychiatrist a limited role, i.
e., ascertaining whether the defendant suffered from such an
illness. But we found it impossible to formulate a general
definition which would eliminate the need to evaluate
blameworthiness in each individual case. Our problem, therefore,
was to make it clear that evaluation was to be made not by the
experts but by the jury. On the basis of past experience we
feared that any concrete definitions we might offer the jury for
guidance would promptly find their way into the standard
repertoire of psychiatric testimony, capable again of yes-or-no
answers, thereby returning the ultimate issues to the keeping of
the psychiatrists.
[207] For inspiration we turned to a model long familiar to the law,
the method of assessing fault in negligence cases. We articulated
no precise definition of responsibility, as the law articulates
no precise definition of negligence. Instead in each case we
allow the jury to hear all relevant information and ask it to
decide whether by prevailing community standards the defendant
was at fault. Thus the jury not only makes the factual
determination that the defendant behaved in a certain manner, or
that his mental condition was of a certain character, but also
fixes the legal norm against which the mental condition and its
relationship to the behavior must be measured. The role of the
expert is to tell the jury anything he can about the relationship
between the defendant's behavior and his state of mind. The jury
decides in the light of that information whether the defendant
can justly be held responsible for the harmful consequences of
his act, or whether, on the contrary, the harm should be
attributed to chance, for example, or to mental disorder.
[208] The principle of Durham was to impose responsibility only if
an act was the product of a free choice on the part of the
defendant, and not of a mental disease or defect. In adopting the
term "product" we borrowed again from the law of torts. In
negligence cases the law is concerned with the relationship
between the defendant's conduct and the resultant injury. Even
when it is possible to establish some sort of causation, the
requirement of "proximate cause" permits the jury to decide that
the negligence was too slight or the causal connection too remote
to have legal significance. Durham uses the term product not to
limit liability but to limit its avoidance. Nevertheless, the
function of productivity is similar to the function of proximate
cause. In criminal cases the law is concerned with the
relationship between the defendant's mental condition and his
unlawful conduct. Even though it is usually possible to establish
some sort of causal relationship between almost any mental
illness and the unlawful conduct, the requirement of productivity
permits the jury to decide that the illness was too slight or the
causal connection too remote to have legal significance.
[209] Critics of Durham said the product requirement was illusory,
because no psychiatrist would be able to deny the possibility of
a causal connection between the illness and the act.[fn16]
Consequently, it was argued, responsibility would turn solely on
the question of mental disease, a question clearly within the
scope of psychiatric expertise. Thus Durham would increase the
power of the expert to decide legal and moral questions, rather
than cut it down. We intended, however, that the inquiry into
productivity would define the moral determination inherent in any
determination of responsibility and commit it to the judgment of
the jury rather than that of the experts. We expected that if a
mental illness was present, and the experts could not exclude
causation entirely, the issue would ordinarily go to the jury as
a question of degree.
[210] III. THE NEED TO ABANDON THE DURHAM-McDONALD TEST
[211] Ever since this court announced its new test of responsibility
in 1954, we have been struggling with the problem of
distinguishing between the uniquely psychiatric elements of the
determination of responsibility, and the legal and moral elements
of that determination. We have repeatedly urged psychiatrists to
avoid using the conclusory labels of either psychiatry or
law.[fn17] Testimony in terms of the legal conclusion that an act
was or was not the product of mental disease invites the jury to
abdicate its function and acquiesce in the conclusion of the
experts. Testimony in terms of psychiatric labels obscures the
fact that a defendant's responsibility does not turn on whether
or not the experts have given his condition a name and the status
of disease.[fn18]
[212] Since Durham we have been engaged in a continuing process of
refining and explicating the rule of that case. Carter v. United
States defined the term "product" in broad terms designed to
restrict conclusory expert testimony and expand the basic factual
information available to the jury.[fn19] Later McDonald v. United
States sought to do the same for the term "mental disease or
defect"[fn20] by discouraging the use of psychiatric labels which
often served to hide the fact that the experts were providing
virtually no information about the defendant's underlying
condition.[fn21] The point in both cases was to invite all the
information that modern knowledge could provide, to guide the
jury's consideration of the moral, legal, and medical elements in
the issue of responsibility. But most psychiatrists declined the
invitation and continued to decide themselves when an illness
should relieve a defendant of responsibility. Therefore in
Washington v. United States we reluctantly took the step of
prohibiting all psychiatric testimony in terms of the issue of
productivity, on the ground that such testimony was particularly
likely to usurp the jury's function of resolving the ultimate
question of guilt.[fn22] We said that the existence of disease
was a medical question which psychiatrists could properly answer,
but the question of productivity was the ultimate question for
the jury, involving a mixture of medical information and moral
judgment.
[213] The reason for the Washington rule was to reserve exclusively
for the jury one part of the determination of criminal
responsibility. By prohibiting testimony in terms of the ultimate
question of productivity we sought to focus on the need for
testimony in depth concerning the nature, extent, and
manifestations of the defendant's disability. The purpose was to
give the jury an adequate basis for deciding whether the
disability was such that it would be unjust to condemn the
defendant for his conduct.
[214] In practice, however, under Durham and its progeny
psychiatrists have continued to make moral and legal judgments
beyond the proper scope of their professional expertise.[fn23]
Even after Washington, the District Court continues to commit
defendants to the public mental hospital for examination under a
standard order that asks for a conclusion on productivity.[fn24]
And the doctors who perform most of the examinations have shown
little reluctance to answer that an illness was present but the
act was not its product. The testimony takes a form that
indicates that the psychiatrists are in fact making a moral
judgment, that they are finding an illness which in their view is
not sufficiently serious or sufficiently related to the act
to warrant acquittal. And that, of course, is precisely the
judgment that we have entrusted not to the experts but to the
jury.
[215] Moreover, the productivity requirement tends to focus the
attention of expert witnesses and the jury on extraneous and
inappropriate issues, and to divert them from the core of the
question of responsibility. Durham suggested that the
government could establish criminal responsibility either by
proving freedom from illness or by proving that the illness did
not cause the act. And one way to prove that the illness did not
cause the act is to prove that the defendant would have done it
anyway. Carter even more explicitly than Durham invited the
government to establish responsibility by proving that the
defendant would have committed the act even if he had not been
ill. Carter stated that productivity amounted to causation of
the "but for" variety: an act is the product of mental disease if
"the accused would not have committed the act he did commit if he
had not been diseased as he was."[fn25] This approach invited
experts and juries to speculate about the defendant's character,
and convict him on the ground that he would have been "bad" if he
had not been sick.[fn26]
[216] The abuses of the productivity inquiry are strikingly
illustrated by the record in this case. Since the expert
witnesses agreed that appellant suffered from a substantial
disorder, his conviction would seem to depend on the jury's
resolution of the question of productivity. The government's two
expert witnesses both found mental illness without productivity.
The testimony of these two witnesses is open to at least two
interpretations. It may be that they regarded appellant's illness
as highly specific in its operation: that its only effect on
appellant's behavior was to produce an occasional reflex-like
explosive reaction following instantly on the heels of the
triggering event rather than an hour or two later; that the
illness could have no relation to behavior of the type that
resulted in appellant's prosecution. Putting aside the conclusory
parts of their testimony, the balance of their testimony so
understood could support a jury finding of criminal
responsibility.
[217] But it is not clear whether the conflict among the experts
related to the scope of the illness or to its legal significance.
In other testimony the government witnesses seem to reject such a
tightly compartmentalized view of appellant's mental and
emotional processes.[fn27] There is reason to suspect that their
conclusion was based not on a professional judgment about the
scope of the illness but rather on the view that the illness was
irrelevant because appellant would have committed the crime in
any event. Their testimony suggests that they regarded
appellant's act as a normal response for someone in his
circumstances.[fn28]
[218] Clearly, firing a shotgun through a closed door is not a normal
response for everyone who is hurt in a fight, though it may well
be for some people. The criminal law assumes that there is a
spectrum of "normality," and that some "normal" people commit
crimes while others do not. We cannot allow either the experts or
the jury to speculate about where on that spectrum the defendant
would belong if he were not mentally ill. That sort of
speculation is especially pernicious because it is likely to
discriminate systematically against inner-city slum residents
like appellant, since violent unlawful behavior is more common in
the slums than in middle class neighborhoods. To regard behavior
as the product of illness in the suburbs but "normal" in the
slums is to establish an odious double standard of morality and
responsibility.
[219] The insanity defense is based on the premise that it is unjust
to convict a man for behavior he could not control. There is a
high incidence of mental illness in inner-city slum areas,[fn29]
and we are bound to give it the same significance in dealing with
their residents as we do in dealing with other people.[fn30] If
appellant's behavior controls were substantially impaired by
mental illness, he should not be held responsible on the ground
that it is "normal" for those in his environment to behave that
way,[fn31] or even because the examining psychiatrist believed
that "under the same circumstances I would want to get even with
somebody who broke my jaw."[fn32]
[220] IV. THE COURT'S ARTICULATED REASONS FOR REPLACING
DURHAM-McDONALD WITH ALI-DONALD
[221] In my view, the ALI test of criminal responsibility, with or
without the McDonald side bar, cannot remedy the problems in
the administration of the defense which have come to light as a
result of our efforts to implement the Durham-McDonald rule.
While I assume my brethren do not share my pessimistic appraisal
of the new test, they make no real effort to justify this change.
Pages 981-985 of the Court's opinion are devoted to the
articulation of two reasons for adopting the ALI test: (A) the
"interest of uniformity of judicial approach and vocabulary, with
room for variations and adjustments," majority opinion at
984-985; and (B) the "need to depart from [the] `product'
formulation and undue dominance by experts," majority opinion at
981-983.
[222] A. THE INTEREST OF UNIFORMITY
[223] At issue here is no garden variety "uniformity." Whatever the
benefit of having the Circuits in substantial alignment on
important questions of law, that is clearly not the benefit which
the Court is seeking here. The other Circuits that have adopted
the ALI test have taken a variety of substantially different
approaches to the interpretation of its language.[fn33] And today
this Court adopts a variation on the ALI theme which differs, in
design at least, from the approach of every other court. But the
Court makes clear that uniformity in substance is not our goal,
but only uniformity in vocabulary. If all of us speak the same
language, the Court reasons, judicial communication will be
enhanced.
[224] Even accepting the argument at face value, it contributes very
little to the resolution of the issue. For the argument does not
even purport to demonstrate that the ALI test is inherently
preferable to Durham-McDonald or any other test. I do not mean
to disparage the value of judicial communication, but it is
surely a concern of markedly less importance than the substantive
merits of the test.
[225] In any case, it is far from clear that our adoption of the new
test will, in fact, enhance communication. The Court assumes that
the lessons we have learned from Durham-McDonald have been
"lost in translation" to the other Circuits, and that their
lessons have been similarly lost to us. The problem apparently
arises because of "blockage due to jargon." Majority opinion at
984. It is not clear to me how one would prove or disprove that
assertion. But as a matter of logic - and surely as a reason for
adopting the ALI test - the assertion is entirely unpersuasive.
In fact, if I were to devise a paradigm scheme for blocking
communication, I would arrange for courts to hide major
differences behind uniform language, so that the differences
would be overlooked by all but the most astute observers. That is
precisely the result we have achieved by adopting the
all-things-to-all-people language of the ALI test. By contrast,
the singular phrasing of our prior rule encouraged its analysis
by courts and commentators, and forced us to compare our approach
with the approach of other courts. I do not see how we can
reasonably expect our adoption of the ALI test to enhance our
communication with other courts.
[226] B. THE NEED TO DEPART FROM THE PRODUCT FORMULATION
[227] The questions initially raised on this appeal pertained to our
decision in Washington v. United States, 129 U.S.App.D.C. 29,
390 F.2d 444 (1967), barring conclusory expert testimony on the
issue of productivity. Appellant insisted at the outset that
Washington's prohibition had been disregarded at trial, and he
asked us to demonstrate our opposition to expert domination of
the process by enforcing the Washington rule. This Court, sua
sponte, altered the focus of the inquiry by calling into
question our test of responsibility, and by asking the parties
and amici curiae to canvass the arguments for and against a
change in the Durham-McDonald rule.
[228] In examining the ALI test now adopted by this Court, it is
important to keep in mind the origins of this case and the
problem which the adoption of a new test is designed to solve.
The great bulk of the Court's opinion is devoted to an
explication of the ALI test as adopted in this jurisdiction.
Since the clarification of ambiguous language now may minimize
litigation later, that is, of course, an important undertaking.
But the critical question before us is whether or not the
adoption of the ALI test is likely to make any significant inroad
on the problem of expert domination. The answer to that question
depends in large part upon an understanding of the reasons why
Durham's productivity requirement became a convenient handle
for expert domination.
[229] Durham did not invent the question of causality. Every
responsibility test demands (or assumes) some link between the
defendant's act and his impairment; Durham merely gave explicit
recognition to the issue. Thus, the critical question is not
whether the act must be related to the impairment ("mental
disease," "defect of reason," or whatever), but rather how
directly, if at all, the jury's attention should be focused on
the question.
[230] It is still not clear precisely what the concept of causality
means in this context, or whether it is an intelligible concept
at all. Yet Durham forced the concept out from its hiding place
behind the murky language of other responsibility tests and made
the productivity question the ultimate issue for the jury. In our
effort to clarify the question we held that an act was to be
considered the "product" of a mental disease only if it would not
have been committed but for the disease - the disease must have
"made the effective or decisive difference between doing and not
doing the act." Carter v. United States, 102 U.S.App.D.C. 227,
236, 252 F.2d 608, 617 (1957). That definition gave the false
impression that we understood the concept of causality fully and
could draw meaningful and distinct lines between sufficient and
insufficient cause - between acts that were caused by mental
illness and acts that were not.
[231] Notwithstanding the expectations to the contrary of the courts
and commentators who examined the Durham rule,[fn34] the
productivity requirement became a formidable obstacle to the
presentation of a successful responsibility defense. Even as
recently as 1970 one federal court suggested that the "product
portion of the tests seems superfluous," reasoning that once a
disability had been established, it would ordinarily be
impossible to prove that it had no relationship to the unlawful
act. Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970).
Nevertheless, psychiatrists in this jurisdiction have often
concluded - and convinced juries - that a mentally ill defendant
should be convicted because his act was not the product of his
illness. See United States v. Eichberg, 142 U.S.App.D.C. 110,
113, 439 F.2d 620, 628 (1971) (Bazelon, C. J., concurring).
[232] This development may have allayed the fears of some who
expected Durham to produce a vast increase in the number of
insanity acquittals. After all, it was only the productivity
requirement that stood between the liberalized concept of mental
illness and acquittal; insistence on a rigid, and often
impossible, showing of causal connection was an obvious means of
reining in the defense. But the primary drawback of the
productivity requirement was not that it reduced the number of
insanity acquittals, for it is extremely unlikely, in my opinion,
that juries would have acquitted many more defendants if the
product formulation had never been devised. The real difficulty
was that the superficial simplicity of the productivity question
made it seem susceptible of an unambiguous medical or scientific
answer. As a consequence, jurors too often relied on the
conclusions of the experts, failing to see that the "gravity of
an impairment and its relevance to the acts charged are both
questions of degree, which can only be resolved with reference to
the community's sense of when it is just to hold a man
responsible for his act." United States v. Eichberg, 142 U.S.App.D.C.
110, 113, 439 F.2d 620, 623 (1971) (concurring opinion).
[233] As I understand the Court's opinion, the rationale for the
switch from Durham-McDonald to ALI-McDonald can be summarized
as follows: The primary flaw of our prior test was its emphasis
on productivity, which permitted "undue dominance" by the expert
witnesses who testified on the issue of responsibility. Majority
opinion at 981. The remedy is not to depart from the product
requirement (which would hardly be possible in any case since
the requirement is an integral part of every responsibility
test), but to depart from the product formulation. The ALI test
retains the "core requirement" of productivity, in the sense that
there must be a "meaningful relationship between the mental
illness and the incident charged." Id. at 983. But the question
of causality does not occupy a position of prominence under ALI
comparable to the position that the product requirement occupied
under Durham. By eliminating the term "product" we can
eliminate the vocabulary which was "conducive to a testimonial
mystique permitting expert dominance and encroachment on the
jury's function." Id. The foregoing reasoning of my brethren
represents the primary articulated justification for adoption of
the ALI test, and the validity of the analysis must, therefore,
be considered with great care.
[234] 1. The Court's reasoning suggests that our primary goal is to
deemphasize the question of productivity or causality. Yet there
is strong reason to suspect that adopting the ALI test will not
bring us closer to that goal. The difficulty of applying the ALI
productivity requirement - and hence the amount of attention
which the requirement will attract - is likely to vary with the
nature of the defendant's impairment. If the defendant cannot
"distinguish `good and evil,' i. e., if he `doth not know what he
is doing, no more than * * * a wild beast,'"[fn35] he may well
lack the capacity to appreciate the wrongfulness of any act or
to conform any act to the requirements of law. In that case, a
jury is likely to conclude that the defendant's impairment
"caused" his act, irrespective of the act he allegedly committed.
If the defendant's impairment is not so severe as to render him a
"wild beast," the question of productivity is still unlikely to
present great difficulty so long as the impairment is deep enough
and pervasive enough to compel the conclusion that most of his
acts are substantially affected by the impairment. A finding of
non-productivity will not often be made where the defendant is
suffering from a psychosis or other severe disorder, because the
defendant's act will, in all probability, bear a strong and
obvious relationship to the impairment.[fn36] And even where the
question is close, juries may often resolve their doubts in favor
of a finding of causality in order to insure that the defendant
is committed to a hospital rather than a penitentiary.
[235] The real difficulty with the causality requirement arises when
the defendant's impairment is a neurotic condition or personality
disorder. It appears that these conditions are often
encapsulated, in the sense that they may have a significant
impact on some aspects of the defendant's behavior, while leaving
his personality substantially intact.[fn37] In these cases
disputes will often arise concerning the relationship of the act
to the impairment. And since the impairment may be much less
severe than a psychosis, the defense will often not be aided by a
presumption that hospitalization is the appropriate disposition.
In fact, the jury may be convinced that the non-psychotic
defendant deserves criminal punishment even though the experts
consider him mentally ill. And they may use the productivity
requirement as a handle for the rejection of the responsibility
defense.
[236] In short, the most efficient means of eliminating the
productivity problem (but not the productivity question) is to
limit the definition of exculpatory mental illness to those
conditions which are so severe that in most cases a finding of
productivity can readily be made. It can reasonably be argued
that the intent of the ALI draftsmen was to make the
responsibility defense available only to defendants suffering
from psychoses or other severe disabilities.[fn38] Under that
interpretation, which is apparently accepted by at least some
other federal jurisdictions,[fn39] the productivity issue should
rarely present great difficulty. But that interpretation is
plainly not the one adopted by the Court in today's opinion. As I
read the Court's opinion, the retention of the McDonald
definition of mental illness reaffirms our longstanding view
that, in the words of Mr. Dempsey's amicus brief, "the defense is
not restricted to persons suffering from the gravest types of
mental disorders. While the jury must find that the defendant's
`mental or emotional processes' have been `substantially
affected' and his `behavior controls' `substantially impaired,'
the jury is not bound by whether those consequences flow from
what the psychiatrists label a `psychosis,' `pyschoneurosis,' a
`sociopathic personality,' an `emotionally unstable personality,'
or whatever."[fn40] If we are indeed to retain the expansive
definition of mental illness implicit in Durham and formalized
in McDonald, then the productivity question will remain a
source of controversy and debate.
[237] Unlike Durham, which focused on the relationship between the
defendant's mental illness (impairment) and his act, the ALI
test focuses on the relationship between the defendant's mental
illness and his impairment. In the words of the test, the
impairment must exist "as a result" of mental illness. But
productivity in the Durham sense - the relationship between the
impairment and the act - is not abolished; it is concealed in two
questions which are implicit in the test: Could the defendant
appreciate the wrongfulness of the particular act he committed?
Could he have conformed that particular act to the requirements
of law? So long as the defendant's impairment is a psychosis or
other severe disability and is roughly consonant with his act,
the answers to those questions should be sufficiently obvious
that the questions will not even seem to arise. But where the
defense is predicated on a less severe form of impairment - as it
apparently can still be in this jurisdiction - those questions
will assume the burden that has been carried up to now by
Durham's explicit requirement of productivity.
[238] The operation of the causality requirement implicit in the ALI
test can be illustrated by considering how Brawner would have
been tried under the new test. The expert witnesses would
presumably characterize his condition as an explosive personality
disorder, manifested in an inability to deal with provocation.
The act which Brawner committed - shooting through a closed door
in retaliation for a blow to his jaw a short while before - is
surely consistent with his condition. It could thus be said that
in at least some situations Brawner apparently lacked substantial
capacity to conform this kind of behavior to the requirements of
law. But I have little doubt that the government would seek to
introduce expert testimony, as it did under Durham, that
Brawner committed this act not because of his personality
disorder, but rather because he wanted "to get even with somebody
who broke [his] jaw." See page 1014 supra. The issue raised
by this line of testimony need not be called a productivity or
causality question. But whatever it is called, it is functionally
identical to the productivity question that routinely arose under
Durham.
[239] The Court undoubtedly recognizes that retention of McDonald's
open-ended definition of mental illness will require an inquiry
into causality in a large number of cases. In marked contrast to
the opinions of the other federal courts that have adopted the
ALI test,[fn41] the Court's opinion places great emphasis on the
causality question. Superficially, the Court's references are
directed only at the first stage of the causality question under
the ALI test - the relationship between the illness and the
impairment rather than the relationship between the impairment
and the act. But the question raised by that first stage is so
trivial and the Court's references to causality are so numerous
that it is hard to avoid the implication that the references are
primarily aimed at the second stage of the productivity question.
Those references carry an implicit assurance that acquittal under
the ALI test will be no less difficult for a defendant without a
pervasive disability than it has always been under Durham.
[240] The critical question, therefore, is how the productivity issue
will be presented to the jury. As I pointed out above, the
Durham formulation gave the false impression that the question
required a medical or scientific answer. The ALI language could
fare better, since it does not invite the expert witnesses to
offer a flat and seemingly scientific answer that the impairment
did or did not "cause" the act. But while there is some promise
in the language of the ALI test, I fear that the Court's
construction of that language may dissipate much of that promise.
The ALI test provides that "a person is not responsible for
criminal conduct if at the time of such conduct as a result of
mental disease or defect he lacks substantial capacity * * *"
(Emphasis supplied.) The Court maintains that the causality
requirement lurks in the term "as a result," suggesting that the
"mental disease of a kleptomaniac does not entail as a `result' a
lack of capacity to conform to the law prohibiting rape."
Majority opinion at 991. The term "as a result" does, of course,
contain a requirement of causality. But it refers only to the
first stage of the requirement under the ALI test, indicating
that the impairment must be caused by the mental disease. But the
crucial question of causality - the link between the impairment
and the act - is not reflected in the term "as a result." It
inheres in the concepts of "appreciating wrongfulness" and
"conforming conduct." Thus, if kleptomania is an abnormal
condition of the mind, then for purposes of the ALI test a
kleptomaniac "lacks substantial capacity as a result of mental
disease" regardless of the act he allegedly committed. But if he
is charged with rape, his responsibility defense would presumably
fail because, even though he may lack capacity to appreciate the
wrongfulness of theft or to conform his conduct to the
requirements of the law prohibiting theft, he may in fact have
substantial capacity to appreciate the wrongfulness of rape and
to conform his conduct to the requirements of the law prohibiting
rape.
[241] My concern with the source of the ALI productivity requirement
is not intended as an exercise in the splitting of hairs. By
making the term "as a result" carry not only the unimportant
first stage of the causality question, but also the critical
second stage, the Court repeats precisely the mistake it
correctly identifies in Durham: the articulation of a
catch-phrase that facilitates conclusory expert testimony and
that obscures the moral and legal overtones of the productivity
question. Where a psychiatrist would formerly have testified that
the act was not the "product" of the disease, he can now assert
that the disease of the defendant does not entail as a "result"
the kind of impairment that could have produced the act in
question. Under my view of the ALI language, a psychiatrist
attempting to present a conclusory no-productivity argument would
have to lead the jury through the murky waters of "appreciating
wrongfulness" and "conforming conduct," and in all likelihood the
jury would be lost almost from the outset. If the causality
requirement cannot readily be expressed as an uncomplicated
yes-no question, there is a good chance that juries would begin
to recognize that the requirement subsumes the moral and legal
questions which lie at the heart of the responsibility defense.
[242] 2. Our opinion in Washington recognized that the productivity
requirement can lead to domination by the expert witnesses not so
much because they testify about the issue, but because they
testify about the issue in conclusory terms. For that reason, we
barred conclusory testimony on this issue, and urged the experts
to disclose the factual data from which the jury could draw
reasonable inferences about the defendant's condition.
Inexplicably, the Court now concludes that Washington is
"superseded - on this point - by our change today of the ultimate
rule," majority opinion at 1003. Yet, as the Court repeatedly
makes clear, the change of the ultimate rule leaves standing the
causality requirement. The net effect of today's decision is,
therefore, to require the experts to drop the term "product" in
favor of the term "result," and to permit them once again to tell
the jury in conclusory terms that the act was not caused by the
defendant's impairment.[fn42] To be sure, a mystique has
developed around the term "product," and the elimination of that
term should undercut the mystique. But I see no reason to assume
that the term "result" is immune to the identical development,
especially in view of the Court's unexplained determination that
experts should once again be permitted to testify in conclusory
terms on the issue of causality.
[243] 3. If our primary goal is, in fact, to achieve a reduction in
expert domination of the process, the gratuitous overruling of
one aspect of Washington v. United States[fn43] is not the only -
and perhaps not the most important - step backward. The Court
identifies the productivity requirement as the chief villain that
permits the experts to encroach on the jury's function. But there
is another aspect of the test which is at least as susceptible to
expert domination. Like Durham, the ALI test demands a "mental
disease" as a condition of non-responsibility. And the Court
today holds that the definition of "mental disease" announced in
McDonald will be applicable to the ALI test. Nevertheless,
Brawner's discussion of the term suggests at least a partial
erosion of the McDonald view that "mental disease" is a legal
concept, and that "neither the court nor the jury is bound by ad
hoc definitions or conclusions as to what experts state is a
disease or defect." 114 U.S.App.D.C. 120, 124, 312 F.2d 847, 851
(1962).
[244] The Court today asserts that it has rejected "suggestions to
adopt a rule that disentangles the insanity defense from a
medical model," and adds that a successful responsibility defense
must be predicated on the existence of an "ascertainable
condition characterized by `a broad consensus that free will does
not exist.'" Majority opinion at 995. I fear that counsel, the
experts, and the trial courts will view that requirement as a
delegation of sweeping new authority to the medical experts.
[245] Of course, the Court does point out that a defendant can make a
broad presentation to the jury, offering all of the evidence,
even if not strictly medical, which is pertinent to an abnormal
condition of the mind. But that broad presentation is already
guaranteed by the traditional rules of evidence. The real impact
of the Court's decision is to establish a barrier which will
prevent some defendants from taking any evidence at all to the
jury on the issue of responsibility. The power to open and close
that barrier is effectively delegated to the psychiatric experts.
[246] We can only speculate on the impact of this requirement, but it
seems likely to produce very substantial distortions of the
process. First, it focuses attention on an entirely irrelevant
issue. If a defendant is prepared to present evidence that his
mental or emotional processes and behavior controls were in fact
impaired, it is not clear why anything should turn on the
experts' view of his condition in the abstract.
[247] Second, the requirement obliges the defendant to make a vastly
greater showing to have the issue of responsibility submitted to
the jury than to have any other issue submitted. We held many
years ago that "sanity is an `essential' issue which, if actually
litigated - that is, if `some proof is adduced' tending to
support the defense - must be submitted to the jury under the
guidance of instructions." Tatum v. United States, 88
U.S.App.D.C. 386, 389, 190 F.2d 612, 615 (1951). Conceding "that any
attempt to formulate a quantitative measure of the amount of
evidence necessary to raise an issue can produce no more than an
illusory definiteness," we pointed out that "so long as there was
some evidence relevant to the issue * * * the credibility and
force of such evidence must be for the jury, and cannot be matter
of law for the decision of the court." 88 U.S.App.D.C. at 390,
190 F.2d at 616, quoting from Kinard v. United States, 68
App.D.C. 250, 253-254, 96 F.2d 522, 525-526 (1938). As I read
the Court's opinion, a defendant who can introduce "some
evidence" that his capacity to control his behavior was in fact
impaired cannot take the responsibility issue to the jury unless
he can also offer, should the question be put in issue,
"convincing evidence" that he is suffering from a
medically-recognized condition characterized by a broad consensus
that free will does not exist.[fn44]
[248] Still, the greatest difficulty is not that the requirement
shifts attention onto an extraneous issue or that it imposes an
unwarranted obstacle to the presentation of an affirmative
defense. Those difficulties could be tolerated if the requirement
of a "broad consensus that free will does not exist" reflected
the Court's effort to achieve some important purpose of the
responsibility defense. At no point in its opinion does the Court
explain why the boundary of a legal concept - criminal
responsibility - should be marked by medical concepts, especially
when the validity of the "medical model" is seriously questioned
by some eminent psychiatrists.[fn45] Nor does the Court explain
what it means by "convincing evidence" of the existence of a
"broad consensus." If five psychiatrists are prepared to assert
that a particular condition does tend to impair free will, how
many psychiatrists must be willing to testify that it does not
have such an effect before we can preclude a responsibility
defense on the ground that there is no "broad consensus" that the
defendant's condition tends to impair free will? How many
psychiatrists must be convinced that a particular condition is
"medical" in nature before a defendant will be permitted, within
the confines of the "medical model," to predicate a
responsibility defense on such a condition?
[249] The Court similarly fails to explain how medical experts can be
expected to provide information about the impairment of free
will, when free will would seem to be a philosophical and not a
medical concept. If psychiatrists will be required to frame their
testimony in terms of this non-medical concept, then the Court
will have resurrected M'Naghten with one ironic twist. Under
M'Naghten, medical experts effectively answered moral and legal
questions, and cloaked the answers in medical terminology. The
Court now seems to ask experts to make moral and legal
determinations about the nature of an exculpatory condition, and
invites them to state their conclusions in non-medical terms.
[250] It is possible, however, that the Court's reference to free
will is not intended to carry moral or philosophical
implications, but is nothing more than a short-hand for the
component of the ALI test which refers to substantial capacity to
conform conduct to the requirements of law.[fn46] If so, it is
unclear why the Court omits reference to the second component of
the ALI test: namely, the capacity to appreciate the wrongfulness
of conduct. Is that omission premised on a determination that the
cognitive element is irrelevant to responsibility? Or does it
mean, perhaps, that the element of cognition is subsumed within
the concept of behavior control? See United States v. Currens,
290 F.2d 751, 774 (3d Cir. 1961). These questions, and others
which are no less extraneous to the question genuinely in issue,
will have to be answered in the course of applying this new
requirement.
[251] Of course, the fact that the requirement is illogical,
unwieldy, and an invitation to expert domination does not
necessarily mean that it should not be adopted. I suggested in a
recent opinion that adoption of an explicit medical model may be
the only available means of fending off a number of difficult
questions concerning our handling of a dangerous defendant who
has been found not guilty for lack of responsibility, but who
cannot be committed to a medical institution for medical care. In
that same opinion I outlined several alternative approaches and
attempted to point out the advantages and disadvantages of each.
See United States v. Alexander & Murdock, 152 U.S.App.D.C. ___
at ___-___, 471 F.2d 923 at 960-965 (April 21, 1972). But the
Court does not disclose the reasoning that underlies its adoption
of the medical model. Nor does it provide any indication of the
purpose of this limitation on the legal concept of
responsibility. The disadvantages of clinging to a medical model
are shouldered without acknowledgment or explanation. What does
emerge clearly from the Court's opinion is that we have now
turned over to the experts a substantial part of the inquiry,
without making clear why expert domination in this context - as
opposed to the context of productivity - is unobjectionable.
[252] V. THE ADVANTAGES OF A RULE THAT INSTRUCTS THE JURY TO ACQUIT
THE DEFENDANT IF HE CANNOT JUSTLY BE HELD RESPONSIBLE
[253] The effort to preserve the jury's function from encroachments
by the experts must begin with a clear understanding of what that
function is. In determining the responsibility issue, a jury has
two important tasks:
In the first place it measures the extent to which
the defendant's mental and emotional processes and
behavior controls were impaired at the time of the
unlawful act. The answer to that question is elusive,
but no more so than many other facts that a jury must
find beyond a reasonable doubt in a criminal trial. *
* * The second function is to evaluate that
impairment in light of community standards of
blameworthiness, to determine whether the defendant's
impairment makes it unjust to hold him responsible.
The jury's unique qualification for making that
determination justifies our unusual deference to the
jury's resolution of the issue of
responsibility.[fn47]
[254] Nothing in the Court's opinion today suggests a departure from
our long-standing view that the second of these two functions -
the evaluation of the defendant's impairment in light of
community standards of blameworthiness - is the very essence of
the jury's role. The Court points out, for example, that
[i]t is the sense of justice propounded by those
charged with making and declaring the law -
legislatures and courts - that lays down the rule
that persons without substantial capacity to know or
control the act shall be excused. The jury is
concerned with applying the community understanding
of this broad rule to particular lay and medical
facts. Where the matter is unclear it naturally will
call on its own sense of justice to help it determine
the matter. [Emphasis added.]
[255] Majority opinion at 988. And again,
The doctrine of criminal responsibility is such that
there can be no doubt "of the complicated nature of
the decision to be made - intertwining moral, legal,
and medical judgments," * * * * [J]ury decisions have
been accorded unusual deference even when they have
found responsibility in the face of a powerful
record, with medical evidence uncontradicted,
pointing toward exculpation. The "moral" elements of
the decision are not defined exclusively by religious
considerations but by the totality of underlying
conceptions of ethics and justice shared by the
community, as expressed by its jury surrogate.
[Emphasis added; citations omitted.]
[256] Majority opinion at 982.[fn48] See also majority opinion at
990.
[257] Against this background it is clear that Durham focused the
jury's attention on the wrong question - on the relationship
between the act and the impairment rather than on the
blameworthiness of the defendant's action measured by prevailing
community standards. If the ALI test is indeed an improvement, it
is not because it focuses attention on the right question, but
only because it makes the wrong question so obscure that jurors
may abandon the effort to answer it literally.
[258] Instead of asking the jury whether the act was caused by the
impairment, our new test asks the jury to wrestle with such
unfamiliar, if not incomprehensible, concepts as the capacity to
appreciate the wrongfulness of one's action, and the capacity to
conform one's conduct to the requirements of law. The best hope
for our new test is that jurors will regularly conclude that no
one - including the experts - can provide a meaningful answer to
the questions posed by the ALI test. And in their search for some
semblance of an intelligible standard, they may be forced to
consider whether it would be just to hold the defendant
responsible for his action. By that indirect approach our new
test may lead juries to disregard (or at least depreciate) the
conclusory testimony of the experts, and to make the
"intertwining moral, legal, and medical judgments" on which the
resolution of the responsibility question properly depends. The
Court's own opinion hints at this approach, maintaining that
"[t]here is wisdom in the view that a jury generally understands
well enough that an instruction composed in flexible terms gives
it sufficient latitude so that, without disregarding the
instruction, it can provide that application of the instruction
which harmonizes with its sense of justice. The ALI rule
generally communicates that meaning." Majority opinion at
988-989.
[259] The Court's approach may very well succeed and encourage jurors
to look behind the testimony and recommendations of the experts.
But, as I have tried to demonstrate above, there is also a
significant possibility that our new test will leave the power of
the experts intact - or even make possible an enlargement of
their influence. In my opinion, an instruction that tells the
jurors candidly what their function is, is the instruction most
likely to encourage the jurors to resist encroachments on that
function. In itself, that might not be sufficient justification
for adopting such a test if it were clear that its adoption would
entail substantial costs as a necessary by-product. But I am
unaware of any costs that compel us to adopt instead the ALI
test, which offers so much less promise of dealing with the
problems that initially brought this case to our attention.
[260] Our instruction to the jury should provide that a defendant is
not responsible if at the time of his unlawful conduct his
mental or emotional processes or behavior controls were impaired
to such an extent that he cannot justly be held responsible for
his act. This test would ask the psychiatrist a single question:
what is the nature of the impairment of the defendant's mental
and emotional processes and behavior controls? It would leave for
the jury the question whether that impairment is sufficient to
relieve the defendant of responsibility for the particular act
charged.[fn49]
[261] The purpose of this proposed instruction is to focus the jury's
attention on the legal and moral aspects of criminal
responsibility, and to make clear why the determination of
responsibility is entrusted to the jury and not the expert
witnesses. That, plainly, is not to say that the jury should be
cast adrift to acquit or convict the defendant according to
caprice. The jury would not be instructed to find a defendant
responsible if that seems just, and to find him not responsible
if that seems just. On the contrary, the instruction would
incorporate the very requirements - impairment of mental or
emotional processes and behavior controls - that McDonald
established as prerequisites of the responsibility defense.
[262] The proposed instruction has the additional advantage of
avoiding any explicit reference to "mental disease" or "abnormal
condition of the mind." As used in our prior tests, these terms
were never intended to exclude disabilities that originate in
diseases of the body,[fn50] but simply reflect the fact that the
defense of non-responsibility has traditionally been associated
with mental illness, or in the language of an earlier day,
"insanity." Washington v. United States, 129 U.S.App.D.C. at 37
n. 23, 390 F.2d at 452 n. 23. Moreover,
our experience has made it clear that the terms we
use - "mental disease or defect" and "abnormal
condition of the mind" - carry a distinct flavor of
pathology. And they deflect attention from the
crucial functional question - did the defendant lack
the ability to make any meaningful choice of action -
to an artificial and misleading excursion into the
thicket of psychiatric diagnosis and nomenclature.
[263] United States v. Alexander & Murdock, 152 U.S.App.D.C. ___ at
___-___, 471 F.2d 923 at 960-961 (April 21, 1972), (dissenting
opinion).
[264] I would adopt an instruction based on the language of
McDonald, which seems to me more comprehensible than the
language of the ALI test. The capacity to appreciate the
wrongfulness of conduct and the capacity to conform conduct to
the requirements of the law are, I fear, concepts with little
meaning to experts or to jurors. But for the present purpose, the
critical aspect of the proposed jury instruction is not the use
of the McDonald terminology or the omission of any reference to
an "abnormal condition of the mind." If the Court is convinced
that the terminology of the ALI test would illuminate the jury's
inquiry, or that the terms "mental disease" or "abnormal
condition of the mind" should, for whatever reason, be retained,
it is still possible to draft an instruction that clearly
describes the jury's role in deciding when the defendant's
incapacity is sufficient to warrant exculpation. In fact, a
minority of the ALI draftsmen (along with Professor Wechsler, the
reporter of the Model Penal Code) proposed a test providing that
a person
is not responsible for criminal conduct if at the
time of such conduct as a result of mental disease or
defect his capacity either to appreciate the
criminality of his conduct or to conform his conduct
to the requirements of law is so substantially
impaired that he cannot justly be held responsible.
[265] By contrast, the majority ALI test, now adopted by this Court,
provides that a person
is not responsible for criminal conduct if at the
time of such conduct as a result of mental disease or
defect he lacks substantial capacity either to
appreciate the criminality of his conduct or to
conform his conduct to the requirements of law.
[266] The difference between the two approaches does not pertain to
the type of showing a defendant must make. Both require the
defendant to demonstrate a particular form of incapacity. The
approaches diverge in establishing a standard to determine when
the incapacity is sufficient to exculpate the defendant. Under
the ALI majority view, the jury must acquit if the defendant's
capacity is substantially impaired. The ALI minority would
require acquittal where the defendant's capacity is so
substantially impaired that he cannot justly be held
responsible.
[267] The ALI ultimately rejected the minority approach because
"[s]ome members of the Council deemed it unwise to present
questions of justice to the jury, preferring a submission that
in form, at least, confines the inquiry to fact."[fn51] The
Court apparently shares this view, and rejects an instruction
"overtly cast in terms of `justice'" on the grounds that such an
instruction "cannot feasibly be restricted to the ambit of what
may properly be taken into account but will splash with
unconfinable and malign consequences." Majority opinion at 987.
That argument seems to present two separate justifications for
pretending that the inquiry is confined to fact.
[268] First, the argument apparently reflects a concern that adoption
of the "justice" approach would permit the introduction at trial
of extraneous information. But under the approach urged by a
minority of the ALI Council, a defendant must still demonstrate
that proffered evidence is relevant to an impairment of capacity.
The test does not provide him with a license to introduce
evidence merely for the purpose of engendering sympathy for him
in the jury. Adoption of the "justice" approach would still leave
standing all of the traditional obstacles to the introduction of
irrelevant evidence.
[269] The Court's second ground of objection is apparently that an
instruction cast in terms of justice would permit the jury to
convict or acquit without regard to legal standard. The Court
points out, for example, that
[i]t is one thing * * * to tolerate and even welcome
the jury's sense of equity as a force that affects
its application of instructions which state the legal
rules that crystallize the requirements of justice as
determined by the lawmakers of the community. It is
quite another to set the jury at large, without such
crystallization, to evolve its own legal rules and
standards of justice.
[270] Majority opinion at 989. I take it that in the Court's view the
majority version of the ALI test offers the jury "legal rules
that crystallize the requirements of justice as determined by the
lawmakers of the community," and that the minority version sets
the jury adrift without such crystallized rules. What, then, are
these crystallized rules? I pointed out above that while the
minority version asks the jury to measure the impairment in terms
of its own sense of justice, the majority version requires
acquittal if the incapacity is substantial, and requires
conviction if the incapacity is insubstantial. Can we seriously
maintain that the majority ALI instruction is preferable because
its determination that the impairment must be "substantial"
reflects a crystallization of the requirements of justice by the
lawmakers of the community? Naturally, we would all prefer a rule
that could, as a matter of law, draw a bright line between
responsible and non-responsible defendants. But the ALI test
adopted by this Court is plainly not such a rule. It offers the
jury no real help in making the "intertwining moral, legal, and
medical judgments" that all of us expect. In fact, because it
describes the question as one of fact it may lull the jury into
the mistaken assumption that the question of responsibility can
best be resolved by experts, leaving the jury at the mercy of the
witness who asserts most persuasively that, in his expert
judgment, the defendant's capacity was or was not substantially
impaired.
[271] It is not at all clear that the approach I have suggested -
whether based on the terminology of the ALI test or McDonald -
would finally bar encroachments on the jury's function.
Nevertheless, this approach - unlike the majority ALI test
adopted by the Court - comes directly to grips with the problem
of expert domination in a manner that is at least responsive to
our experience under Durham. The majority ALI test merely
reshuffle and obfuscates the Durham components; it does nothing
to sort out for the jury the difference between its function and
the function of the expert witnesses. Our instruction should make
clear that in order to convict a defendant the jury must first
determine, on the basis of expert opinion and the factual
background disclosed by the experts, the extent to which the
defendant's mental and emotional processes and behavior controls
were impaired, and then find, on the basis of community moral
standards, that the degree of impairment was sufficiently slight
that the defendant can fairly be blamed and held responsible for
his act like any other person.[fn52]
[272] To expand the scope of the inquiry in this way would not invite
a significant increase in the number of acquittals. It would,
however, encourage greater commitment to the effort to understand
how each criminal defendant came to act as he did. Even if juries
were consistently to set the standard of responsibility so low
that virtually every defendant would meet it, they would still
have to confront the causes of criminal conduct in a way that
might teach us all something about human behavior. And they would
be giving defendants the kind of careful, individual study that
should precede any decision as consequential as the imposition of
moral condemnation on another human being.
[273] VI. PRACTICAL PROBLEMS OF THE DEFENSE AND THE DISPOSITION OF
THIS CASE
[274] In a distressing number of recent cases this Court has been
asked to consider questions unrelated to the substantive test of
responsibility, but which have, as a practical matter, far
greater impact on the operation of the defense than the language
of the rule. The Court's decision to abandon Durham-McDonald in
favor of ALI-McDonald does nothing to obsolete these questions
or the Court's responses to them. If our paramount goal is an
improvement of the process of adjudication of the responsibility
issue, our attention should be focused on these questions rather
than on the ultimate definition of the test. Obviously, these
questions cannot all be resolved by one opinion. But the Court's
approach to the disposition of this case offers some indication
of the manner in which these questions will be handled in the
future.
[275] 1. The one consistent note in the Court's analysis of our
experience under Durham is the objection to domination by the
experts accomplished through the productivity requirement. We
attempted to deal with that problem in Washington v. United
States by barring conclusory, expert testimony on the issue of
productivity. Virtually all of the expert witnesses at Brawner's
trial agreed that he was suffering from an abnormal condition of
the mind. The issue in dispute was productivity - the ultimate
issue for the jury. And the transcript is riddled with
conclusory, expert testimony on that issue. It is hard to imagine
a case which could make a stronger appeal for enforcement of the
Washington rule.
[276] After hearing one of his expert witnesses state that Brawner
had a "personality disorder connected with epilepsy," the
prosecutor asked the witness:
Did you also come to any opinion concerning whether
or not the crimes in this case were causally related
to the mental illness which you diagnosed?
[277] After defense counsel's objection to the question was overruled,
the prosecutor asked again:
What was your conclusion as to whether or not there
was a causal relationship between the two matters?
[278] The witness replied:
It was my conclusion that there was no causal
relationship between his mental disorder and the
alleged offense.
[279] Transcript at 464. To be sure, this testimony was not phrased in
terms of "product," but the jury could hardly avoid the message
that causality was the cutting edge of the responsibility test
and that at least some of the experts were convinced that
causality did not exist in this case. Nevertheless, the Court
refuses to overturn the conviction despite this patent violation
of the letter and the spirit of the Washington rule.
[280] I suggested above that the abandonment of the term "product"
may have some beneficial effect in reducing the mystique that
surrounds the causality question in this jurisdiction. But I also
noted that the Court has made available a new handle for
conclusory testimony on the issue of causality - "result" - and
at the same time it has lifted the ban on conclusory testimony on
this issue. The transcript of Brawner's trial offers a glimpse of
what we can expect from responsibility trials under the ALI test.
The Court's unwillingness to reverse Brawner's conviction on this
ground makes clear that this Court and the trial courts no longer
have any weapons to combat the problem of conclusory testimony
and the resulting domination by experts.[fn53]
[281] 2. Since 1895 the federal courts have taken the position that
if the defendant introduces "some evidence" of insanity, the
issue will be submitted to the jury and the government will bear
the burden of proving responsibility beyond a reasonable doubt.
Davis v. United States, 160 U.S. 469, 484, 16 S.Ct. 353, 40 L.Ed.
499 (1895). Yet as the responsibility defense has developed under
our case law, it has become increasingly clear that the defendant
carries an overwhelming practical burden which is not
acknowledged in the traditional rule. As a practical matter, the
defendant often has very great difficulty obtaining adequate
expert assistance to gather the information necessary for the
presentation of a significant defense. If he can obtain such
information, his defense will often prove vulnerable to attack
unrelated to the real merit of his responsibility claim. And even
if the attack is very weak the defendant will rarely be entitled
to a directed verdict. See United States v. Eichberg, 142
U.S.App.D.C. 110, 112-113, 439 F.2d 620, 622-623 (1971).
[282] With limited access to expert psychiatric assistance, indigent
defendants normally rely on the government to provide an adequate
psychiatric examination at the hospital to which the defendant is
committed for observation. In a large number of cases the
government's experts are called to testify on behalf of the
defense, and their testimony has often proved inadequate. In one
recent case, for example, the trial court concluded that the
testimony of a government expert testifying for the defense was
completely unacceptable under the principles of Washington v.
United States, and he struck the testimony as inadmissible. Yet
the trial court refused to grant the defendant's motion for a
mistrial or a new mental examination by experts capable of
explaining their findings to a court. And this Court affirmed
that ruling. United States v. Alexander & Murdock, 152
U.S.App.D.C. ___ at ___-___, 471 F.2d 923 at 952-957 (April 21,
1972) (Bazelon, C. J., dissenting). See also United States v.
Leazer, 148 U.S.App.D.C. 356 at 362, 460 F.2d 864 at 870 (Jan.
19, 1972) (Bazelon, C. J., concurring). If an indigent defendant
relies on the government for assistance in preparing his case and
if there is no remedy when the government's assistance is legally
inadequate, it will be little consolation to the defendant that
the government still carries the burden of persuasion on that
issue.
[283] The practical burden on the defendant is greatly enhanced by
the ease with which defense testimony can often be torn to pieces
on cross-examination. Where a psychiatrist testifying for the
government asserts that the defendant did not suffer from any
abnormal condition which could impair his mental processes or
behavior controls, defense counsel must have considerable
expertise in psychiatry to pick out the weak points in the
analysis. Yet "very few attorneys, if any, possess the requisite
expertise, and we have no automatic procedure for enabling them
to consult with psychiatric experts in the preparation and
conduct of the defense." United States v. Leazer, 148
U.S.App.D.C. 356 at 363, 460 F.2d 864 at 871 (Jan. 19, 1972),
(Bazelon, C. J., concurring). Even where the defendant has
obvious symptoms of mental disorder, defense counsel is
frequently helpless to rebut the suggestion by government
psychiatrists that the defendant is malingering. If he produces
testimony from a private psychiatrist that the defendant is not a
malingerer, he is almost sure to find that the government and its
expert witnesses will disparage that testimony on the grounds
that it was based on an insufficient period of observation. See,
e. g., United States v. Bennett, 148 U.S.App.D.C. 364 at
366-367, n. 4, 460 F.2d 872 at 874-875, n. 4 (Jan. 19, 1972),
United States v. Schappel, 144 U.S.App.D.C. 240, 445 F.2d 716
(1971); Rollerson v. United States, 119 U.S.App.D.C. 400,
343 F.2d 269 (1964).[fn54]
[284] There are other grounds on which the testimony of defense
psychiatrists is extremely vulnerable. A psychiatrist or
psychologist who testifies that the defendant suffered from some
mental illness exposes himself to what the Court appropriately
terms "know-nothing appeals to ignorance." Majority opinion at
1004. For example, "by requiring the witness to describe in
isolation the most minute `symptoms' on which the diagnosis rests
- the defendant's answer to a particular question or his reaction
to a particular ink-blot - the prosecution may succeed in making
these symptoms seem trivial or commonplace." United States v.
Leazer, 148 U.S.App.D.C. 356 at 363, 460 F.2d 864 at 871 (Jan.
19, 1972), (Bazelon, C. J., concurring). At Brawner's trial, the
prosecutor ridiculed the testimony of a defense psychologist in
his summation to the jury:
Ladies and gentlemen, then we came to that ink blot,
and the doctor said, well, the usual thing about that
was those anatomical things, and how many of them
were there. Well, let's see, and he counts, and there
are four. How many responses? Fourteen of them.
Fourteen responses and four of them turn out to be
anatomical things - hearts or whatever it happened to
be. Is there something unusual about that? Is a man
crazy when he sees a heart or something else four
times, four different anatomical things or maybe the
same things in those little drawings, these little
ink blots? After all, they are just blots of ink. Is
a man crazy when he sees them?
[285] Transcript of closing arguments at 36-37. We have seen almost
identical efforts to ridicule defense experts in other cases.
See United States v. Alexander & Murdock, 152 U.S.App.D.C. ___
at ___-___, 471 F.2d 923 at 955 (April 1972), (Bazelon, C. J.,
dissenting); United States v. Leazer, 148 U.S.App.D.C. 356 at
363-364, 460 F.2d 864 at 871-872 (Jan. 19, 1972) (Bazelon, C. J.,
concurring); United States v. McNeil, 140 U.S.App.D.C. 228,
231-235, 434 F.2d 502, 505-509 (1970) (Bazelon, C. J.,
concurring). The difficulty of presenting credible expert
testimony is a major part of the burden on the defendant.
[286] The defendant might be able to cope with these obstacles to the
successful use of the defense if we were willing to set aside
jury verdicts unsupported by the evidence. In fact, we have been
extremely reluctant to overturn a jury verdict even in the face
of substantial evidence that the defendant's act was the product
of a condition which impaired his mental or emotional processes
and behavior controls. See, e. g., United States v. Eichberg,
142 U.S.App.D.C. 110, 439 F.2d 620 (1971). If the burden of proof
does rest on the government, then acquittal should be required
not only when non-responsibility is proved, but also when there
is a reasonable doubt about responsibility.
[287] At Brawner's trial, both the prosecution and the defense
offered evidence that the defendant was suffering from an
abnormal condition of the mind which could impair behavior
controls. While the testimony on productivity was expressed
largely in conclusory terms, the record does contain a
substantial amount of evidence which could support the view that
the act was very closely tied to the impairment. In my view,
there are two theories which can explain our failure to reverse
the conviction on the grounds that a reasonable man must have had
a reasonable doubt about the defendant's criminal responsibility.
First, our deference to the jury's resolution of this issue may
be attributable to its special role in evaluating the defendant's
impairment in light of community concepts of blameworthiness, to
determine whether that impairment makes it unjust to hold him
responsible. See United States v. Eichberg, 142 U.S.App.D.C.
110, 114-115, 439 F.2d 620, 624-625 (1971) (Bazelon, C. J.,
concurring). But it becomes increasingly difficult to rely on
that explanation in the face of this Court's refusal to make the
special function of the jury explicit in the jury instruction.
And reliance on the jury's special function seems dangerously
misplaced in a case, such as this one, where the testimony on the
only issue in dispute was phrased in such conclusory terms that
expert domination is almost inevitable. If we will not take
meaningful action to curtail domination by the experts, then we
should not rely, in upholding the jury's verdict, on the jury's
supposed ability to make a kind of judgment that it almost surely
did not make.
[288] A second possible explanation for our refusal to set aside the
verdict is that we have relaxed the standard of proof in
responsibility cases. In fact, Congress enacted a statute in 1970
which purports to shift onto the defendant the burden of
establishing insanity by a preponderance of the evidence. 24
D.C.Code § 301 (j). Under that standard one could reasonably
conclude that the verdict should not be set aside. But the
constitutional validity of the statute is open to very serious
question. United States v. Trantham, 145 U.S.App.D.C. 113, 120,
448 F.2d 1036, 1043 (1971) (statement in support of rehearing en
banc); United States v. Eichberg, 142 U.S.App.D.C. 110, 114,
439 F.2d 620, 624 (1971) (concurring opinion). See In re Winship,
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
[289] The Court declines to consider the constitutionality of the
statute and instead provides the district court with alternative
instructions on the burden of proof. In my opinion, we should
resolve at this time the question of the statute's
constitutionality. If the statutory change is invalid and the
government must prove beyond a reasonable doubt that the
defendant was responsible for his conduct, we can no longer
pretend not to notice that defendants are being overwhelmed by an
invisible burden of proof. And if the statute's attempt to shift
the burden of persuasion onto the defendant is constitutional,
then we must still take steps to facilitate the production at
trial of meaningful information by both the government and the
defense.
[290] 3. I applaud the Court's decision to overturn Fisher v. United
States, 80 U.S.App.D.C. 96, 149 F.2d 28 (1945), aff'd, 328 U.S. 463,
66 S.Ct. 1318, 90 L.Ed. 1382 (1946) and Stewart v. United
States, 107 U.S.App.D.C. 159, 275 F.2d 617 (1960), rev'd on other
grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), and to
make clear that a defendant can introduce psychiatric and other
expert testimony to negative specific intent. I suggested in two
recent cases that Fisher and Stewart did not preclude our
adoption of this doctrine, inaptly termed "diminished
responsibility," and that it was therefore unnecessary to
overrule those cases. See United States v. Bryant, 153
U.S.App.D.C. ___, 471 F.2d 1040 (April 21, 1972) (dissenting
opinion); United States v. Alexander & Murdock, 152 U.S.App.D.C.
___, 471 F.2d 923 (April 21, 1972) (dissenting opinion). Two
panels of this Court rejected my view and concluded that the
doctrine could not be accepted without an en banc decision of the
Court. The Court now sits en banc and concludes that expert
testimony is relevant to the determination of specific intent
where the defendant is charged with murder in the first degree.
[291] The Court points out, however, that it does not decide whether
the doctrine is applicable to cases of second-degree murder,
where the prosecution must prove that the defendant acted with a
state of mind called "malice." In Murdock, where the defendant
was charged with second-degree murder, I discussed the argument
against applying the doctrine so as to reduce the offense of
second-degree murder to manslaughter. The argument rests on the
premise
that malice refers not to a state of mind, but to an
objective set of circumstances; it can be negated by
evidence of circumstances that would provoke a
reasonable man to act in the heat of passion, but not
by evidence of actual subjective provocation and
passion. * * * In a recent series of cases, however,
we reviewed with some care the concept of malice, and
concluded, inter alia, that it is not entirely an
objective matter, but has subjective elements as
well.
[292] 152 U.S.App.D.C. at ___, 471 F.2d at 950 (footnotes omitted). But
even though the Court apparently concedes that in some cases
malice is established on a subjective standard, it concludes that
the "matter * * * requires further analysis and reflection," and
"[t]he problem is [therefore] remitted to future consideration."
Majority opinion at 1002 n. 75.
[293] While I am convinced that the question can be resolved without
delay, I would have no objection to the Court's cautious approach
if the question had no application to the case before us. But it
should be clear that the question is directly relevant to the
disposition of this case. Although originally charged with
first-degree murder, Brawner was acquitted on that count by the
trial court before the case was submitted to the jury. He was
convicted of murder in the second-degree. The Court thus resolves
the question of diminished responsibility up to the point where
it becomes relevant to this case, and it remits to future
consideration the only aspect of the issue which could have any
bearing on the outcome of the case before us. That bizarre result
is justified with the comment that "future consideration * * *
will be aided by the availability of a specific factual context."
Majority opinion at 1002, n. 75. The Court's refusal to consider
the question in the case before us, where a "specific factual
context" plainly exists, seems to me entirely inconsistent with
the fair and efficient administration of justice.
[294] VII. CONCLUSION
[295] This Court's search for a new set of words to define the
elusive concept of responsibility has a distinctly archaic
quality. The arguments for and against the Durham wording, the
wording of the majority and minority versions of the ALI test,
and the wording of McDonald, were clearly articulated many
years ago. What should by now be clear is that the problems of
the responsibility defense cannot be resolved by adopting for the
standard or the jury instruction any new formulation of words.
The practical operation of the defense is primarily controlled by
other factors, including the quality of counsel, the attitude of
the trial judge, the ability of the expert witnesses, and the
adequacy of the pretrial mental examination. If the adoption of
the ALI test produces some improvement in the quality of
adjudication of the responsibility issue, that, of course, is all
to the good. But we cannot allow our search for the perfect
choice of words to deflect our attention from the far more
important practical questions. For it is on those questions that
the rationality and fairness of the responsibility defense will
ultimately turn.
[fn1] Our far-ranging experience with the responsibility defense
has led me in recent years to urge fundamental changes in the
defense. See United States v. Alexander & Murdock, 152
U.S.App.D.C. ___, 471 F.2d 923 (April 21, 1972) (separate
opinion); United States v. Leazer, 148 U.S.App.D.C. 356,
460 F.2d 864 (Jan. 19, 1972) (concurring opinion); United States v.
Trantham, 145 U.S.App.D.C. 113, 448 F.2d 1036 (1971) (statement
in support of rehearing en banc); United States v. Eichberg, 142
U.S.App.D.C. 110, 439 F.2d 620 (1971) (concurring opinion).
[fn2] Prior to our decision in Durham, the test of criminal
responsibility in this jurisdiction was the rule established in
M'Naghten's Case, 8 Eng.Rep. 718 (1843), joined with the
so-called irresistible impulse test. See Smith v. United
States, 59 App.D.C. 144, 36 F.2d 548 (1929).
[fn3] McDonald defined mental disease in legal terms as "any
abnormal condition of the mind which substantially affects mental
or emotional processes and substantially impairs behavior
controls." 114 U.S.App. at 124, 312 F.2d at 851.
[fn4] To be sure, the Court's decision does have the important
intention of abolishing the unnecessary and misleading emphasis
on productivity that has characterized the adjudication of the
responsibility issue in this jurisdiction. But see pages
1022-1027, infra.
[fn5] Cf. United States v. Carter, 141 U.S.App.D.C. 46, 56,
436 F.2d 200, 210 (1970) (concurring opinion): "It may well be
that we simply lack the resources - to say nothing of the
understanding - that would be required if those who stole to feed
their addiction were removed from the criminal process on the
ground that they are not responsible for their actions. But if
this is so, we should recognize the fact, and not rationalize our
treatment of narcotics addicts on the false premise that their
crimes are the result of a wrongful exercise of free will."
[fn6] D.C.Code § 24-301 (a) (Supp. V. 1972): Winn v. United
States, 106 U.S.App.D.C. 133, 270 F.2d 326 (1959).
[fn7] This is of course the legal test of responsibility set
forth in Durham v. United States, 94 U.S.App.D.C. 228, 240-241,
214 F.2d 862, 874-875 (1954), as modified by McDonald v. United
States, 114 U.S.App.D.C. 120, 124, 312 F.2d 847, 851 (1962) (en
banc).
[fn8] "Psychologic brain syndrome associated with convulsive
disorder," "personality disorder associated with epilepsy,"
"explosive personality, or epileptic personality disorder,"
"explosive personality with epileptoid personality disorder."
[fn9] Dr. Hamman reported exaggerated emotional responses, and a
tendency to go into long lasting rages. Dr. Stammeyer, the
clinical psychologist, found an explosive response to threats and
a tendency to perseverate - to fix on an idea and remain
preoccupied with it after it was no longer appropriate. Dr.
Weickhardt and Dr. Platkin stated that in their view appellant's
disorder would result in impulsive, purposeless, and uncontrolled
acts in immediate and exaggerated response to a situation.
[fn10] Which is not surprising in view of his "dull normal" I.Q.
of 82, his sixth grade education, his rejection by the Armed
Forces for failure to pass the aptitude test, and his release
from various jobs because of asthmatic attacks.
[fn11] 94 U.S.App.D.C. 228, 240-241, 214 F.2d 862, 874-875
(1954).
[fn12] M'Naghten's Case, 8 Eng.Rep. 718, 722 (1843): Smith v.
United States, 59 App.D.C. 144, 146, 36 F.2d 548, 550 (1929)
(adding irresistible impulse test to M'Naghten). For critical
discussion of the various tests of responsibility, see A.
Goldstein. The Insanity Defense (1967).
[fn13] See Durham v. United States, 94 U.S.App.D.C. at
236-240, 214 F.2d at 870-874 and sources cited. Professor
Goldstein has argued persuasively that the traditional rules can
be given an expansive reading that meets these objections.
"Knowledge" of right and wrong can be read to include emotional
appreciation as well as cognition. And the control tests can be
read to reach a wide range of impaired behavior controls, in
addition to the well-known "irresistible impulse." Goldstein
argues that only their own narrow vision prevents defense lawyers
and psychiatrists from introducing contemporary psychiatric
insights under the traditional tests of responsibility. He
suggests that psychiatric testimony has seldom in practice been
limited by narrow judicial application of the rules. A.
Goldstein, The Insanity Defense 45-79 (1967). In this
jurisdiction, however, the traditional rules were regularly
applied to prevent psychiatrists from explaining their insights
in broad terms. See, e.g., Durham v. United States, 94 U.S.App.D.C.
at 234, 214 F.2d at 868. Furthermore, any testimony that
passed the initial hurdle of admissibility then had to pass
through the eye of a needle in the form of the jury instruction.
While I sympathize with Goldstein's proposal for expanding the
old tests, it seems to me more effective to adopt a new one,
unencumbered with restrictive interpretations. I have no
illusions about the power of a new verbal formula to affect the
behavior of lawyers and experts, courts and jurors with respect
to the troublesome issue of responsibility. Goldstein, supra,
at 94-95. But our obligation to supervise the administration of
the test carries with it the obligation to offer such guidance as
we can in the form of analysis and restatement.
[fn14] See, e. g. M. Guttmacher & H. Weihofen. Psychiatry and
the Law 406-07 (1952), and sources cited. A group of
psychiatrists urging a change in the test of responsibility was
unusually candid about what they saw as an obligation to temper
psychiatric conclusions with moral judgments. "The pivotal
assumption [of M'Naghten] is that in some degree a disorder of
the cognitive faculty (knowledge) is the only basis for the
determination of responsibility. This confines the psychiatrist
to an exceedingly short tether and is usually his undoing. There
is much more to be said about mental disease, motivations and of
behavior, and the psychiatrist can do little else but cut corners
on the question of `knowledge'." Committee on Forensic
Psychiatry, Group for the Advancement of Psychiatry, Criminal
Responsibility and Psychiatric Expert Testimony 17 (Preliminary
Report). The last sentence was deleted from the final version,
GAP Report No. 25 (1954).
[fn15] See R. Leifer, In the Name of Mental Health 196-98
(1969): T. Szasz, Law, Liberty, and Psychiatry 136-37 (1963).
[fn16] See, e. g., Wechsler, The Criteria of Criminal
Responsibility, 22 U.Chi.L.Rev. 367 (1955); Frigillana v. United
States, 113 U.S.App.D.C. 328, 331, 307 F.2d 665, 668 (1962):
State v. Lucas, 30 N.J. 37, 70-71, 152 A.2d 50, 67 (1959).
[fn17] E. g., Washington v. United States, 127 U.S.App.D.C. 29,
390 F.2d 444 (1967): McDonald v. United States, 114 U.S.App.D.C.
120, 312 F.2d 847 (1962) (en banc); Campbell v. United States,
113 U.S.App.D.C. 260, 307 F.2d 597 (1962); Briscoe v. United
States, 101 U.S.App.D.C. 318, 248 F.2d 640 (1957) (statement of
Bazelon, J. in relation to petition for leave to appeal in forma
pauperis); Stewart v. United States, 101 U.S.App.D.C. 51,
247 F.2d 42 (1957); Stewart v. United States, 94 U.S.App.D.C. 293,
214 F.2d 879 (1954).
[fn18] As a result of the sudden decision of St. Elizabeth's
Hospital in 1957 to treat "sociopathic personality disturbance"
as a mental illness, the court has been very sensitive to the
danger of allowing psychiatric labels to determine legal results.
See Blocker v. United States, 110 U.S.App.D.C. 41, 48-50,
288 F.2d 853, 860-862 (1961) (Burger, J., concurring); Blocker v.
United States, 107 U.S.App.D.C. 63, 274 F.2d 572 (1959).
Compare United States v. Collins, 139 U.S.App.D.C. 392,
400-401 n. 3, 433 F.2d 550, 558-559 n. 3 (1970) (concurring and
dissenting opinion) (changing psychiatric views of narcotic
addiction): Salzman v. United States, 131 U.S.App.D.C. 393,
407-408 n. 43, 405 F.2d 358, 372-373 n. 43, (1968) (Wright, J.,
concurring) (alcoholism).
[fn19] 102 U.S.App.D.C. 227, 252 F.2d 608 (1957). The trial court
had instructed the jury that the act must be the direct
consequence or natural result of the illness. This court
disapproved that instruction and formulated a test that purported
to include virtually any mode of effective causation. The illness
might have been the source of the defendant's urge to do the act,
or it might have exaggerated an otherwise ordinary response to an
external threat; it might have impaired his ability to control
impulses normally repressed, or it might have impaired his
appreciation of the necessity for such control. So long as "the
disease made the effective or decisive difference between doing
and not doing the act," then the act was the product of the
disease for the purpose of Durham.
[fn20] 114 U.S.App.D.C. 120, 124, 312 F.2d 847, 851 (1962) (en
banc). In order to prevent expert opinion from controlling the
question of responsibility, we set forth a legal definition of
mental illness against which expert testimony could be measured.
[fn21] The use of conclusory psychiatric labels without
description of the underlying data carries an assurance of
certainty while systematically hiding from the jury the
considerations that influenced the expert's opinion.
Unfortunately, it is not uncommon for extraneous and undisclosed
factors to be taken into account. For example, the witness may
have moulded his testimony so as to make possible the legal
disposition which he considered most beneficial to the defendant
or the public. Or, if the witness is a psychiatrist at a
government hospital which receives persons found not guilty by
reason of insanity, his diagnosis may be designed to insure that
a person he considered untreatable or a troublemaker would not be
returned to the custody of his hospital. And even if
psychiatrists do not make a deliberate effort to frame their
diagnoses in terms of a preferred legal disposition, their
conclusions may still be colored by other factors not directly
related to the subject's condition. See, e. g., Brown. The
Doctor's Reasons for Referral, in The Prevention of
Hospitalization 131 (M. Greenblatt, R. Moore, R. Albert & M.
Solomon eds. 1963); Katz, Cole & Lowery, Studies of the
Diagnostic Process: The Influence of Symptom Perception, Past
Experience, and Ethnic Background on Diagnostic Decisions, 125
Am.J.Psych. 937 (1969).
Moreover, the use of conclusory labels often makes it
impossible for the jury to appreciate other potentially critical
shortcomings of the expert opinion. The expert witness may have
been unable to prepare adequately for trial, perhaps because he
lacked the time or the facilities to carry out an adequate
examination of the accused. Or he may have lacked the ability or
the training to evaluate an unusual condition. Perhaps the state
of psychiatric knowledge generally would not permit an
unequivocal diagnosis of the defendant's condition by even the
most outstanding expert. So long as these deficiencies hide
behind the experts' jargon and conclusions, the jury cannot
rationally deal with even the medical component of the
responsibility question. The solution is not, of course, to bar
expert testimony except where that testimony is utterly
unimpeachable. In the words of the Washington instruction to
expert witnesses in responsibility cases,
We recognize that an opinion may be merely a balance
of probabilities and that we cannot demand absolute
certainty. Thus you may testify to opinions that are
within the zone of reasonable medical certainty. The
crucial point is that the jury should know how your
opinion may be affected by limitations of time or
facilities in the examination of this defendant or by
limitations in present psychiatric knowledge. The
underlying facts you have obtained may be so scanty
or the state of professional knowledge so unsure that
you cannot fairly venture any opinion. If so, you
should not hesitate to say so. And, again, if you do
give an opinion, you should explain what you did to
obtain the underlying facts, what these facts are,
how they led to the opinion, and what, if any, are
the uncertainties in the opinion.
129 U.S.App.D.C. 29, 43, 390 F.2d 444, 458 (1967). The Court's
retention today of the bulk of the Washington instruction,
see page 1027 n. 43 infra, including the portion quoted
above, reaffirms our determination to advise the jury fully about
what we know - and what we do not know - about the defendant.
[fn22] 129 U.S.App.D.C. 29, 40-41, 390 F.2d 444, 455-456 (1967).
The reluctance of the court to enforce a rigid limitation on
expert testimony has been apparent from the start. Although the
Washington opinion expressly prohibits testimony "directly in
terms of `product,' or even `result' or `cause'" the sample
instruction to expert witnesses appended to the opinion does not
prohibit such testimony; it merely advises the expert that "it
will not be necessary for you to express an opinion on whether
the alleged crime was a `product' of a mental disease or defect
and you will not be asked to do so." Id. at 42, 390 F.2d at
457. See also the concurring opinion of Judge Fahy. Id. at
45-46, 390 F.2d at 460-461.
[fn23] There is, of course, great pressure on the experts to
decide the moral questions tacitly in the guise of making a
scientific determination, and thereby relieve society of the need
to make some difficult decisions. We can easily understand why
the experts yield to that pressure, but we cannot approve the
result or stop trying to force the moral questions out of the
scientific domain and into the public arena.
[fn24] See pages 1013-1014 supra.
[fn25] 102 U.S.App.D.C. at 236, 252 F.2d at 617.
[fn26] Carter acknowledged the problem at issue here, but
dismissed it as a "logician's nicety," stating that in the
ordinary case we made the "tacit assumption that if the disease
had not existed the person would have been a law-abiding
citizen." Id. Taken literally, that assumption amounts to an
assumption of productivity and hence of nonresponsibility.
Perhaps it would have been more accurate to say that in the
ordinary case it is not anticipated that the inquiry into
productivity will focus on the likelihood that the defendant
would have committed the act without his illness. As a prediction
that statement has proved false, and the problem should not be
ignored.
[fn27] Dr. Weickhardt testified that people with appellant's
illness certainly do not have as good control over their behavior
as other people, that in some cases they become irritable and
angry faster than normal people, and that under stress they may
react impulsively. Dr. Platkin testified that appellant's illness
involved emotional instability, "a low fuse level of tolerance,"
and a general pattern of getting involved in fights and reacting
way out of proportion to a situation.
[fn28] See page 1014 supra.
[fn29] A. Hollingshead & F. Redlich, Social Class and Mental
Illness (1958).
[fn30] Compare In re Betty Jean Williams, No. 27-220-3
(D.C.Juv.Ct., Oct. 20, 1959) (denying motion for mental
examination):
Her precocious sexual experiences are certainly
pathetic but neither in themselves nor in conjunction
with the associated mental symptoms are they
indicative of a mental disturbance sufficient to
prevent her understanding of the proceedings or
assisting in her defense. Such experiences are far
from being uncommon among children in her
socioeconomic situation with the result that the
traumatic effect may be expected to be far less than
it would be in the case of a child raised by parents
and relatives with different habits.
Memorandum opinion at 2.
The assumption that poor people are less seriously affected by
traumatic events and by mental illness provides a convenient
rationale for society's refusal to provide the resources that
would be necessary to deal honestly with their problems. The
underlying explanation for the Williams decision is not that
Miss Williams failed to present a convincing claim of mental
disorder, but rather that her claim was no more compelling than
that of many other children, more numerous than the court could
possibly help. "In view of respondent's personal history it is
scarcely surprising that she feels `tense and unhappy and in need
of psychiatric help.' But so do a vast number of the children
coming before this court." Id.
[fn31] Compare United States v. Carter, 141 U.S.App.D.C. 46, 55
n. 14, 436 F.2d 200, 209 n. 14 (1970) (concurring opinion of
Bazelon, C. J.) (rejecting psychiatrist's speculation that, had
appellant not suffered from anxiety, he might nevertheless have
become addicted to drugs, because he lived in an environment
where drug addiction was common).
[fn32] See page 1014 supra.
[fn33] The variety of approaches which hide behind ALI's language
are carefully delineated in the excellent brief filed by William
H. Dempsey, the amicus appointed by this Court, at 980-986. Mr.
Dempsey's brief focuses on the construction of the ALI test by
federal appellate courts. It would thus be a most useful line of
inquiry to determine how the differences on the appellate level
are reflected in the transcripts of cases tried in these other
jurisdictions. It may well be that the variation in approaches
revealed by Mr. Dempsey's study is only the tip of the iceberg.
[fn34] United States v. Eichberg, 142 U.S.App.D.C. 110, 118 n.
40, 439 F.2d 620, 628 n. 40 (1971) (Bazelon, C. J., concurring).
See page 1016 and n. 16 supra.
[fn35] Durham v. United States, 94 U.S.App.D.C. 228, 228, 235,
214 F.2d 862, 869 (1954), quoting Glueck, Mental Disorder and
the Criminal Law 138-39 (1925), and Rex v. Arnold, 16 How.St.Tr.
695, 764 (1724).
[fn36] See, e. g., Royal Comm'n on Capital Punishment 1949-53.
Report § 280 at 99:
Where a person suffering from a mental abnormality
commits a crime, there must always be some likelihood
that the abnormality has played some part in the
causation of the crime; and, generally speaking, the
graver the abnormality and the more serious the
crime, the more probable it must be that there is a
causal connection between them.
J. Page, Psychopathology: The Science of Understanding Deviance
30-32 (1971):
The label of "psychosis" is essentially restricted to
the most severe behavior disorders that occur in
adults and children. * * * A significant distinctive
feature of psychotic behavior is that it is
relatively independent of voluntary control or
external reality. * * * A second distinctive feature
consists of varying degrees of personality
disintegration with consequent significant impairment
in personal and social functioning. As a rule, the
behavior of psychotic individuals is so defective and
disorganized that they require care or supervision. *
* *
The psychotic person finds it difficult or
impossible to differentiate between fantasies and
actual experiences. Wishes tend to be confused with
facts; imagined dangers, slights, and misdeeds are
accepted as real, and real ones are grossly
exaggerated or misinterpreted. Whereas normal people
attempt to adapt their behavior to the expectations
and demands of the physical and social environment,
the psychotic's reactions are more or less
exclusively dominated by inner dictates. * * *
The personality disintegration and reality
distortion characteristic of psychoses are strikingly
apparent in delusions and hallucinations. * * * Other
types of mental patients, and normal persons as well,
may also hold onto false beliefs and experience
hallucinations. What distinguishes psychotic behavior
is not the presence or absence of delusions and
hallucinations per se, but rather the extent to which
they pervade, dominate, and distort the person's
perceptions, feelings, decisions, and actions.
(Emphasis supplied.)
[fn37] See, e. g., Page, supra note 36, at 33-35. Of course,
even some psychoses may be substantially encapsulated, in which
case a productivity problem could obviously arise. Page points
out that "[i]n contrast to other psychotic reactions that are
accompanied by a general disorganization of personality and gross
impairment in general functioning, paranoia and paranoid states
consist mainly of a capsulated persecutory or grandiose
delusional system in an otherwise relatively intact personality.
The patient's functioning is unaffected in areas outside of his
delusional system." Id. at 32. Thus, it is possible to imagine
a perplexing question of productivity in a case involving, for
example, a businessman who had cheated on his income tax for many
years, and who eventually developed a full-blown paranoid
delusional system. If he continued to falsify his return after
the onset of his illness, the question of productivity would
presumably present great difficulty.
[fn38] See amicus brief of William H. Dempsey at 18-19, citing,
inter alia, an explanatory comment by the Reporter of the Model
Penal Code, Professor Wechsler: "[I]t was thought that the
criterion should ask if there was * * * a deprivation of
`substantial capacity' to know or to control, meaning thereby
the reduction of the capacity to the vagrant and trivial
dimensions characteristic of the most severe afflictions of the
mind." Wechsler, Codification of Criminal Law in the United
States: The Model Penal Code, 68 Colum.L.Rev. 1425, 1443 (1968)
(emphasis added).
[fn39] See amicus brief of William H. Dempsey at 19-31.
[fn40] Id. at 16 (footnotes omitted).
[fn41] Of the other Circuit opinions cited by the Court at page
979 supra, only one even acknowledges the existence of a
causality question under the ALI test. See United States v.
Freeman, 357 F.2d 606, 623 (2d Cir. 1966):
Relieved of their burden of divining precise causal
relationships, the judge or jury can concentrate upon
the ultimate decisions which are properly theirs,
fully informed as to the facts.
[Emphasis added.]
[fn42] Washington, of course, made clear that psychiatrists
"should not speak directly in terms of `product,' or even
`result' or `cause.'" 129 U.S.App.D.C. 29, 41, 390 F.2d 444,
456 (1967) (emphasis added).
[fn43] The Court does retain, however, the portion of the
Washington instruction unrelated to the issue of productivity. I
applaud that decision because of the significant salutary effect
that the instruction has had on the adjudication of the
responsibility issue in this jurisdiction. See page 1018 n. 21
supra.
[fn44] Compare Heard v. United States, 121 U.S.App.D.C. 37, 40,
348 F.2d 43, 46 (1965): "[T]here was no evidence that
appellant's capacity to control his behavior was impaired. * * *
[T]he McDonald standard for submission of the criminal
responsibility issue was not met * * *" (emphasis supplied).
[fn45] See United States v. Eichberg, 142 U.S.App.D.C. 110,
116 & n. 31, 439 F.2d 620, 626 & n. 31 (1971) (Bazelon, C. J.,
concurring), citing
J. Elkes, Word Fallout: or, on the Hazards of
Explanation, in The Psychopathology of Adolescence
118 (1970) (presidential address, Am.
Psychopathological Ass'n); R. Leifer, In the Name of
Mental Health, 196-98 (1969); K. Menninger, Toward A
Unitary Concept of Mental Illness, in A
Psychiatrist's World 516 (1959); K. Menninger,
Changing Concepts of Disease, in A Psychiatrist's
World 670 (1959): M. Roth, Seeking Common Ground in
Contemporary Psychiatry, 62 Proceedings of the Royal
Soc'y of Medicine 765 (1969) (presidential address,
section of psychiatry); M. Susser, Community
Psychiatry 10-20 (1968); T. Szasz, The Myth of Mental
Illness (1961).
The medical model of mental illness has been
questioned ever more extensively by behavioral
scientists outside psychiatry. See, e. g., G. Albee,
The Uncertain Future of Clinical Psychology, 25
American Psychologist 1071 (1970) (presidential
address, Am. Psychological Ass'n); E. Wolf, Learning
Theory and Psychoanalysis, 39 British Journal of
Medical Psychology 525 (1969) (paper and critical
evaluations); The Mental Patient: Studies in the
Sociology of Deviance (S. Spitzer & N. Denzin ed.
1968).
Cf. Blocker v. United States, 110 U.S.App.D.C. 41, 48,
288 F.2d 853, 860 (1961) (Burger, J., concurring) ("no rule of law
can possibly be sound or workable which is dependent upon the
terms of another discipline whose members are in profound
disagreement about what those terms mean"); Campbell v. United
States, 113 U.S.App.D.C. 260, 266, 307 F.2d 597, 603 (1962)
(Burger, J., dissenting).
[fn46] The circularity of our new test becomes apparent when the
three facets - ALI, McDonald, and the "broad consensus" - are
read together and in proper sequence. Henceforth, a person is not
criminally responsible if, as a result of mental disease or
defect, which is (a) an abnormal condition of the mind which
substantially affects mental or emotional processes and
substantially impairs behavior controls, and (b) an ascertainable
condition characterized by a broad consensus that free will does
not exist, he lacks substantial capacity either to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law.
[fn47] United States v. Eichberg, 142 U.S.App.D.C. 110, 114-115,
439 F.2d 620, 624-625 (1971) (Bazelon, C. J., concurring).
[fn48] The Court continues with a quotation from Williams v.
Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446
(1970), pointing out that the essential feature of a jury "lies
in the interposition between the accused and his accuser of the
commonsense judgment of a group of laymen, and in the community's
participation and shared responsibility that results from that
group's determination of guilt or innocence."
[fn49] Cf. Holloway v. United States, 80 U.S.App.D.C. 3, 4,
148 F.2d 665, 666 (1945): "The application of these tests
[McNaghten and irresistible impulse], however they are phrased,
to a borderline case can be nothing more than a moral judgment
that it is just or unjust to blame the defendant for what he
did."
[fn50] Thus, it is distressing to find in the case at bar that
the prosecutor and the court below seemed concerned with
establishing that appellant's epileptoid disorder may have been
"physiological as over against mental." The determination of
criminal responsibility cannot turn on the outcome of a debate
about whether epilepsy is a mental illness or a physical one.
[fn51] Model Penal Code § 4.01, Comment at 159 (Tent.Draft No. 4,
1955) (emphasis added). See ALI Proceedings 206-20 (May 21, 1955)
(unpublished).
[fn52] In United States v. Alexander & Murdock, 152 U.S.App.D.C.
___ at ___-___, 171 F.2d 923 at 960-965 (April 21, 1972),
(separate opinion), I pointed out that changes in the reach of
the responsibility defense could have important ramifications for
the doctrine of civil commitment. If we diminish the class of
persons who can be found criminally responsible, we may produce a
concomitant expansion in the class of persons who can be
subjected to involuntary civil commitment. Adoption of a jury
instruction like the minority ALI test would presumably not give
rise to such an expansion since the test does not expand the
category of persons who can be exculpated by a responsibility
defense. It merely gives explicit recognition to the jury's
function in resolving a question of degree. That same function is
implicit in every test of criminal responsibility.
[fn53] The Court's refusal to reverse the conviction rests in
part on the doctrine of "curative admissibility." There may be
cases in which a party's introduction of irrelevant or otherwise
inadmissible testimony confers on his adversary the right to
introduce in rebuttal further evidence that would otherwise be
inadmissible. But such a rule is discretionary and cannot be
invoked when it would subvert a fundamental substantive policy
like that of Washington, to preserve for the jury its critical
role in assessing criminal responsibility, See United States v.
Winston, 145 U.S.App.D.C. 67, 447 F.2d 1236 (1971); United States
v. Thompson, 150 U.S.App.D.C. 403, 465 F.2d 583 (May 8, 1972).
See generally 1 J. Wigmore, Evidence § 15 (3d ed. 1940,
Supp. 1964). Defense counsel's inquiry into productivity here was
undoubtedly inspired by the certain knowledge that the government
would ground its case on evidence of nonproductivity. Before any
expert testimony was presented, the trial court correctly stated
the Washington rule, but failed to apply it during the ensuing
examination of both prosecution and defense witnesses. We cannot
say that the effect of the prosecution's impermissible testimony
was neutralized by that of the defense. The proper approach was
not to admit both but to exclude both.
[fn54] One recent study of jury behavior in responsibility cases
suggests that jurors have a systematic tendency to view a
defendant as sane when the expert testimony is in conflict. See
Klein & Temerlin, On Expert Testimony in Sanity Cases, 149 J.
Nervous & Mental Disease 435 (1969). Summarizing the study, which
was based on the behavior of 96 mock juries, the authors conclude
that
jurors were influenced by expert testimony when the
testimony was not conflicting. In cases of
conflicting expert testimony, or when there was no
expert witness, there was a tendency for the jury to
vote sane even though the defendant was clearly
psychotic by the usual clinical criteria.
Id. at 438. Earlier in the same article, the authors described
the "tendency" as "overwhelming." Id. at 437. See also R.
Simon. The Jury & the Defense of Insanity (1967).
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