A test for criminal responsibility under which a defendant is not criminally responsible if his or her unlawful act was the product of mental disease or defect — i.e., defendant would not have committed the unlawful act “but for” his or her mental defect or disease.

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Bethea v. United States, 365 A. 2d 64, 69, n. 11 (1976).

The Durham court had adopted the following standard: ‘[A]n accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.’ 94 U.S.App.D.C. at 240-41, 214 F.2d at 874-75 (footnote omitted). This test was further illuminated in McDonald v. United States, 114 U.S.App.D.C. 120, 124, 312 F.2d 847, 851 (1962) (en banc): ‘[A] mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.’

Sauer v. United States, 241 F.2d 640 (9th Cir. 1957).

The rule of the Durham case refers to the test of criminal accountability enunciated in Judge Bazelon’s provocative opinion, a test which is neither linguistically complex nor verbose. In Judge Bazelon’s own words,

‘It is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.’ 214 F.2d at pages 874-875. The test adopted in the Durham case is not new. It is based almost wholly, as the court itself recognized, on the decisions in two old New Hampshire cases.10 Those case were decided over eighty years ago. Yet the majority of no other American court, until the Durham case, and no State legislature, saw fit to accept that formulation of the rule of criminal responsibility. And it is interesting to note, that the three appellate Federal courts which have considered the question since the Durham decision was handed down, have all rejected that approach.11

A. Advantages Seen in the Durham Rule.

The chief advantage of the Durham test, according to its proponents, is that under it the jury is no longer required to rely on specific and particular mental symptoms in determining criminal responsibility, but that all relevant evidence as to mental condition goes to the jury on the ultimate question of fact.12 The court pointed out that psychiatry now recognizes that man is an integrated personality; that the forces that drive him cannot be compartmentalized. Hence, it is urged that the M’Naghten test, which emphasized the intellect or cognitive element and consequently de-emphasizes the volitional and emotional facets of personality, is not only misleading and inadequate, but an impossible guide.13 The Durham decision is said to have further effect of permitting the expert witness to carry out his proper role of informing the jury of the nature of the mental disorder suffered by the accused, without limiting him to the ‘moral’ question of right and wrong.

One evident consequence of the Durham decision is to shift the entire question of criminal responsibility to the jury. Some say this is as it should be, viewing the question of responsibility as solely one of fact. Under the M’Naghten rules, a division of authority exists. It is the function of the court to develop a standard of criminal responsibility, based on the moral and ethical standards of the community, and it is for the jury to ascertain, first, whether the accused is in fact a victim of mental disorder, and secondly, whether his affliction meets the criteria established by the courts.

The Durham opinion has generally been regarded as a response by the law to progress achieved in the field of psychiatry. It has been the recipient of much favorable comment.14 But it is far from having obtained universal acceptance.

B. Disadvantages Seen in the Durham Rule.

The Durham rule has been subjected to articulate and persuasive criticism by distinguished commentators.15 Though the psychiatrists view the Durham opinion as their Magna Carta, it appears that it may raise almost as many questions as it resolves.

Grave concern has been expressed over the interpretation to be given the words, ‘disease,’ ‘defect,’ and ‘product.’16 The two former words are defined in the Durham decision; the latter is not. The defined words have been construed by some to include the psychopath, and a subsequent opinion by the District of Columbia Court of Appeals indicates that that construction may be correct.17 If it does– and we do not pass on the question– it would raise fundamental problems involving public policy and the purposes of the criminal law.18 This is not an appropriate occasion to undertake such a basic review.

The word ‘product’ has been termed too indefinite. As Judge Brosman stated in his excellent opinion in the Smith case, supra, at p. 322,’In the first place, we are– it must be confessed– somewhat troubled by the uncertainty of the criterion set down in Durham to the effect that, to be exculpable, a criminal act must be the ‘product’ of mental abnormality. Indeed, there may be some controversy concerning the scientific validity of the premise that a criminal act may be committed which is not, in some sense, a product of whatever abnormality may coexist.’

See also the Wechsler article, supra. If the word means that the jury must find that the accused would have committed the act even if he had not suffered from the abnormality involved, the test is too broad. If the test is, as Judge Sobeloff believes, one of causation, then the court is introducing into an area already burdened with serious problems a concept which has plagued the law of torts since its inception.

Furthermore, the release of psychiatrists from the ‘strait jacket’ of M’Naghten’s Rules can hardly be regarded as a panacea for the problem of communication from medical expert to layman.19 This communication is a semantic problem that faces judges and attorneys daily. It is difficult to solve, but the solution may better lie, not in the layman accommodating the specialist, but rather in the adjustment by the specialist of his technical vocabulary to the language of the layman. It should be added that some of the ‘strait jacket’ argument is based on a lack of a real understanding of the operation of trial courts. There appear to be some who believe that the expert witness is asked but one question: ‘Did the accused know right from wrong?’ Nothing could be further from the truth. The inquiry quoted is but the ultimate question. For example, in the instant matter, Dr. Vernon Miller, the court appointed psychiatrist, testified at length regarding the appellant’s disorders before he was asked the critical question. The appellant’s entire mental condition was brought to the attention of the jury. Dr. Miller cogently and concisely described appellant’s abnormality in language that could be clearly understood by the jury. If he was verbally confined in a ‘strait jacket,’ it is apparent that he did not know it and that no one took the effort to inform him of it.

The abdication of responsibility for determining the standard of criminal responsibility by the court in the Durham case exposes the court to the same criticism levied against the New Hampshire decisions.20 The Smith case also casts doubt as to the wisdom of a rule which furnishes no guide for the jury to employ in its deliberations.20A Without a channeling instruction, Smith indicates, there is little chance of securing a uniform and consistent rule. The resulting uncertainty would breed disrepute of the law. Moreover, the plea of insanity, presently under heavy criticism as a frequently used ruse in homicide cases, would thus be made even more attractive to an accused.21

Most importantly, however, the Durham case must be examined in the light of the purposes of the criminal law. It is here that the new rule must face its final test. And it appears that at least one eminent authority may not believe that it measures up.22

Whatever we may conclude to be the objectives of the criminal law, one traditional result has been punishment. Functioning under such a system, our society does not assess punishment where it cannot ascribe blame. It is inimical to the morals and ideals of an organized social order to impose punishment where blame cannot be affixed. Man is regarded as a moral being. Modern psychiatry to the contrary, the criminal law is grounded upon the theory that, in the absence of special conditions, individuals are free to exercise a choice between possible courses of conduct and hence are morally responsible. Thus, it is moral guilt that the law stresses.

At least one purpose of the penal law is to express a formal social condemnation of forbidden conduct, and buttress that condemnation by sanctions calculated to prevent that which is forbidden. The ultimate goal is deterrence. In attempting to achieve this end we employ means which secondarily satisfy the retributive feelings of society. Any theory of criminal responsibility must be evolved in light of these purposes, else it will be unacceptable to some considerable segment of society.

Much of the conflict over the rules of criminal responsibility is attributable to a basic misconception as to the nature of the problem. Criminal responsibility is a legal not a medical question.23 Involved is legal consequence, not medical diagnosis. Indeed, we are told by recognized authorities that the word ‘insanity’ has no medical significance;24 that no such condition has been found; and that there are serious doubts that such condition exists. This information is transmitted by voices tinged with alarm. The fears are misplaced. The law is not endeavoring to pioneer in medical science. When the word ‘insanity’ is used, it can be no more and no less than a shorthand legal expression to describe the consequences which certain symptoms of various mental diseases or defects produce in the law. Its meaning may vary with the purpose at hand. It may mean one thing in respect to capacity to make a valid contract and a far different thing as it pertains to criminal responsibility. Perhaps the confusion would be alleviated if the term ‘insanity’ could be relegated to the wastebasket.

It seems plain that, as the Supreme Court stated in the Leland case, supra, 343 U.S. at page 801, 72 S.Ct. at page 1008, the ‘choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility.’

IV. The Present Majority Solution to the Problem.

The majority of American courts, having from time to time weighed progress in psychiatry against the fundamental concepts and purposes of the criminal law, have re-adopted M’Naghten’s rules as the exclusive test of criminal responsibility. Some fourteen states and the Federal courts have supplemented the traditional rules with varying definitions of an ‘irresistible impulse’ test.

The right and wrong test has withstood the onslaught of critics, not because it is scientifically perfect, but because the courts regard it as the best criteria yet articulated for ascertaining criminal responsibility which comports with the moral feelings of the community.

Calling attention to semantic problems in the Durham rule does not mean that we feel there are none that arise in connection with the M’Naghten rules as to the meaning that should be given certain words. The two most troublesome are ‘know’ and ‘wrong’. As to the former, there is surprisingly little authority in the cases as to whether it means mere verbal knowledge or emotional appreciation. If juries construe it in the former manner, the test is indeed severe. Professor Hall recommends that the latter interpretation be given the word so that the right and wrong test may be coordinated with modern psychiatry which views man as an integrated personality.25 The usual practice is to just say ‘know’ to the jury, and let it go at that.

As to ‘wrong,’ the question is whether that means legal or moral wrong? The English courts, and two of our state courts that have ruled on the question, hold that knowledge that the act contravenes the law of the land is sufficient to impose criminal liability. Reg. v. Windle, 1952, 2 Q.B. 826; McElroy v. States, 146 Tenn. 442, 242 S.W. 883; Harrison v. State, 44 Tex.Cr.R. 164, 69 S.W. 500. In the Smith case,26 the court declared that a belief in the moral rightness of the act would not constitute a defense if the accused realized its legal wrongfulness. And it would appear that the language in the Hotema case, supra, supports that decision. However, in People v. Schmidt, 216 N.Y. 324, 110 N.E. 945, L.R.A.1916D, 519, Judge Cardozo, speaking for the court, states, a notion that the act was morally right would excuse the defendant. Here again, 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. A penetrating insight on this function of the jury is contained in an opinion written by Judge Thurman Arnold.27

The expansion of the strict M’Naghten test to include those persons who although they know right from wrong cannot, because of mental disorder, choose between them, is a recognition that volition as well as intellect is a component of the capacity for self-control. Most courts recognize this volitional incapacity in terms of ‘irresistible impulse.’ See for a leading case on the point, Parsons v. States, 1887, 81 Ala. 577, 2 So. 854. Such wording has been criticized by writers insofar as it connotes only, and is limited to, spontaneous sudden feeling. Such urges may be the result of long periods of brooding and reflection. Hence, ‘irresistible impulse’ is perhaps an inept phrase, but it can be used until a better semantic handle has been created. The fact that the trial court here used that term cannot constitute prejudicial error, in light of previous cases approving it, and the entire instruction on criminal responsibility.

Skepticism concerning its existence medically, (one psychiatrist, Wertham, doubts its validity; most other psychiatrists feel it is clinically discernible) and the difficulty of proof, have led many courts to reject various formulation of the ‘irresistible impulse’ rule. However, it was adopted by the District of Columbia in Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 70 A.L.R. 654.28

Perhaps a revision of the rules of criminal responsibility would be forthcoming if the law felt it could place greater trust and confidence in psychiatry. The spectacle not only of individual psychiatrists in disagreement, but also entire divergent schools of thought is not an inspiring one. As one authority stated, ‘Psychiatry is still more of an art than a science.’29

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