IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

DONNIE L. FISHER, Respondent,

 v. STATE OF MISSOURI, Appellant. 

WD73269

OPINION FILED: December 27, 2011

Appeal from the Circuit Court of Randolph County, Missouri The Honorable Michael L. Midyett, Judge

Before Division II: Mark D. Pfeiffer, Presiding Judge, and Victor C. Howard and Cynthia L. Martin, Judges

The State of Missouri (“the State”) appeals from the judgment of the Circuit Court of Randolph County, Missouri (“motion court”), granting Donnie L. Fisher's (“Fisher”) Rule 29.15 amended motion for post-conviction relief. The motion court found that Fisher's appellate counsel provided ineffective assistance by failing to raise as error, on direct appeal, the trial court's refusal to instruct the jury on self-defense and on lesser-included offenses for the charges of first-degree assault of a law enforcement officer. The motion court vacated Fisher's convictions on first-degree assault of a law enforcement officer and armed criminal action and placed the case on the trial setting docket. Because the motion court's ruling is clearly erroneous, we reverse.

Facts and Procedural Background^[1]

Fisher and Roy Sanford (“Sanford”) escaped from a Georgia prison. They stole a truck and a sawed-off shotgun and were considered armed and dangerous. The men returned to Huntsville, Missouri, where they hid and barricaded themselves in an unoccupied mobile home, which was owned by an acquaintance.

Aside from the fact that they were escaped prison convicts who knew and expected law enforcement would pursue and attempt to apprehend them, Fisher had seen his and Sanford's mug shots on a local television newscast and knew that the police in the area of the television viewing area (which included Huntsville) were actively looking for them and were closing in on the prison escapees. Other than law enforcement related personnel—which Fisher and Sanford knew and expected were lawfully looking for them—there was no other evidence adduced at trial of any other person the two escaped convicts believed might be unlawfully attempting to find and harm them.

At trial, Fisher stipulated that he and Sanford possessed a sawed-off shotgun and that they had made statements that they would not return to prison alive. In fact, at all relevant times, Fisher carried in a pocket on his person a letter which stated, in pertinent part:

To whom it may concern: Upon my capture, or should I say death, because that's what it's got to be, I choose to die rather than live like an animal in the midst of n[***]ers. My only request is that I ask to be buried in Owensville, Missouri, right beside my son. I want the tombstone to say, “Too fast to live, too young to die,” with a pistol on the front. Don‟t forget the little vase for flowers. . . .

 Fisher and Sanford remained in the mobile home for seven days before the owner informed law enforcement officers of the prison escapees' location. After warning the police that Fisher and Sanford were armed and had a police scanner, the owner provided law enforcement officers with a key to the mobile home and gave them permission to search the mobile home. Initially, the police officers (there were a total of five officers) attempted to use the key to gain access to the mobile home to capture the escapees without incident, but the front door entrance was barricaded and the back door could only be partially opened due to a chain locking mechanism.

Next, the law enforcement officers deployed non-lethal tear gas in an effort to flush the escapees out of the mobile home for apprehension. Because the officers were aware that Fisher and Sanford might have been in possession of a police scanner and that the escapees had indicated that they would not be taken into custody alive, the officers limited all radio traffic so as not to disclose their presence and tip off Fisher and Sanford that the police were coming to arrest them. At 5:30 a.m., Fisher and Sanford were asleep (but soon awakened) when the officers fired a total of sixteen canisters of tear gas through each of the windows of the mobile home (two canisters per window) with a 12-gauge shotgun. At trial, Fisher testified that Sanford stated “they” are using the tear gas to drive us out of the mobile home. Fisher testified that he responded to Sanford: “Man, I ain‟t going.”

Fisher and Sanford covered their faces with towels to avoid the effects of the tear gas and did not exit the mobile home. The officers waited approximately thirty minutes for the tear gas to take effect and force the escapees out, but to no avail. Shortly thereafter, several police officers approached the rear door of the mobile home to attempt to gain entry by prying it open with a “hooligan tool.” As the first police officer began to pry the rear door open, Fisher heard the noise at the rear door and fired the sawed-off shotgun in that direction twice, hitting the officer. The officer attempted to retreat, but was hit by a third shotgun blast—at which point the officer yelled, “Officer has been shot!” Two other police officers attempted to rescue their colleague and both officers were hit by Fisher's gunfire. The shootout between the police and the escapees then ensued; Fisher was ultimately shot in the shoulder and dropped the shotgun; the police scanner registered the communication of “Officers down”—which was heard by the escapees; Fisher suggested to Sanford that they surrender; Sanford picked up the sawed-off shotgun and fired two or three more shots; then, the escapees surrendered. Though none of the officers were killed, several were severely injured.

At trial, Fisher claimed he and Sanford had no way of knowing that police officers were the ones that had fired the tear gas into the barricaded mobile home he and Sanford were hiding in and that, because he was scared of being shot and killed, he fired the loaded sawed-off shotgun (that he had stolen) in what Fisher argues was lawful self-defense.

Fisher was charged by Felony Information with five counts of assault of a law enforcement officer in the first degree, § 565.081,[2] and five counts of armed criminal action, § 571.015.

During the jury instruction conference at trial, Fisher tendered self-defense instructions based on MAI-CR 3d 306.06 on the counts for first-degree assault of a law enforcement officer, which were refused by the trial court. Fisher also tendered instructions for second-degree assault of a law enforcement officer on the counts for first-degree assault of a law enforcement officer, which were also refused by the trial court.

The jury found Fisher guilty of all counts of the Information. The trial court sentenced Fisher to life imprisonment on each count of assault and five years imprisonment on each count of armed criminal action, all sentences to run consecutively.

Fisher appealed his convictions. His appellate counsel raised a single point on appeal: that the trial court abused its discretion in compelling him to remain shackled at counsel table when he testified. State v. Fisher, 45 S.W.3d 512, 514 (Mo. App. W.D. 2001). This court affirmed the judgment of convictions. Id. at 515.

Subsequently, Fisher filed a Rule 29.15 motion for post-conviction relief, which was later amended by counsel. In his motion, Fisher alleged that his appellate counsel was ineffective for failing to assert on direct appeal that the trial court erred in refusing to submit to the jury: (i) an instruction on self-defense for the assault counts, and (ii) an instruction on the lesser-included offense of assault of a law enforcement officer in the second degree for the assault counts. An evidentiary hearing was conducted.[3] The motion court concluded that both of Fisher's points were meritorious and granted his motion, vacating his convictions and ordering the case placed on the trial setting docket.

The State appeals.

Standard of Review

Rule 29.15 is the exclusive procedure by which a person convicted of a felony after trial may seek relief for a claim of ineffective assistance of appellate counsel. Rule 29.15(a). As the movant, Fisher had the burden of proving his claims for relief by a preponderance of the evidence. Rule 29.15(i). Appellate review of the motion court's disposition of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k). “Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000).

“A defendant is entitled to effective assistance of appellate counsel.” Storey v. State, 175 S.W.3d 116, 148 (Mo. banc 2005) (citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)). The standard for proving ineffective assistance of appellate counsel is high. Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc 2002). In reviewing whether appellate counsel's performance was constitutionally deficient, the test of Strickland v. Washington, 466 U.S. 668 (1984), is applied. Anderson v. State, 196 S.W.3d 28, 36 (Mo. banc 2006). “To prevail on a claim of ineffective assistance of appellate counsel, the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it.” Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006). The movant must also show prejudice—that “[t]he claimed error [was] sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different.” Id. (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)).

Analysis

Point I – Refusal to Submit Self-Defense Instruction

In its first Point on appeal, the State asserts that the motion court clearly erred in granting post-conviction relief based on Fisher's claim that his appellate counsel was ineffective for failing to raise as error, on direct appeal, the trial court's refusal to submit to the jury an instruction on self-defense for the counts relating to assault of a law enforcement officer in the first degree. Because the trial court did not err in refusing to submit a self-defense instruction and, consequently, Fisher's appellate counsel was not ineffective for failing to raise a non-meritorious claim in Fisher's direct appeal, Glover v. State, 225 S.W.3d 425, 429 (Mo. banc 2007), the motion court has clearly erred in granting Fisher's Rule 29.15 motion on this basis.

“In the State of Missouri, self-defense is a person's right to defend himself or herself against attack.” State v. Edwards, 60 S.W.3d 602, 612 (Mo. App. W.D. 2001) (citing State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984)). That right is codified in section 563.031.[4] Section 563.031.2 limits the justifiable use of deadly force upon another person to situations where the actor reasonably believes that such force is necessary to protect himself or another against, among other things, death or serious physical injury initiated by unlawful force. The use of deadly force requires “[s]ome affirmative action, gesture or communication by the person feared indicating the immediacy of danger, the inability to avoid or avert it, and the necessity to use deadly force as a last resort.” State v. Isom, 660 S.W.2d 739, 742 (Mo. App. E.D. 1983). “Something more than fear is required to justify such extreme conduct.” Id.

A defendant has the burden of injecting the issue of self-defense into the case by substantial evidence. § 563.031.4. “„Substantial evidence‟ is evidence putting a matter in issue.”

State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003). To permit the use of deadly force in self-defense, four elements must be present:

(1) an absence of provocation or aggression on the part of the defender; (2) a reasonable belief that deadly force is necessary to protect himself or herself against an immediate danger of death, serious physical injury, rape, sodomy, or kidnapping or serious physical injury through robbery, burglary or arson; (3) a reasonable cause for that belief; and (4) an attempt by the defender to do all within his or her power consistent with his or her own personal safety to avoid the danger and the need to take a life.

Edwards, 60 S.W.3d at 612 (citing § 563.031 and Chambers, 671 S.W.2d at 783). Whether the defendant has produced the quantum of evidence necessary to support the submission of a self-defense instruction is a question of law for the trial court. State v. Nunn, 697 S.W.2d 244, 246 (Mo. App. E.D. 1985).

The third element, the reasonable cause for the belief that deadly force is necessary, is viewed from the circumstances as they appeared to the defendant. However, the reasonableness of the belief itself, the second element, is determined by an objective test. This objective standard measures conduct based on what a hypothetical ordinary reasonable and prudent person would have believed and how they would have reacted.

Edwards, 60 S.W.3d at 612 (emphasis added) (numerous internal citations omitted).

Herein lies the problem with Fisher's self-defense argument: ordinarily reasonable and prudent people do not escape from prison, steal a sawed-off shotgun, hole themselves up in a barricaded mobile home, carry around a note declaring a conscious decision to die rather than permit re-capture by law enforcement, and then “reasonably” question whether law enforcement might be lawfully attempting to re-capture them when non-lethal tear gas is initiated into their hiding place. Further, under the circumstances that Fisher and Sanford created by their conduct and statements to others, they invited the use of deadly force by law enforcement and cannot, as a matter of law, now escape the consequences of their conduct under the guise of self-defense. 

“The right of an arrestee to self-defense does not arise when the arrestee creates a situation so „fraught with peril‟ as to invite the use of force to subdue it.” State v. Nunes, 546 S.W.2d 759, 763 (Mo. App. 1977). “When a man puts himself in a state of resistance and openly defies the officers of the law, he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and set up the excuse of self-defense.” Id. at 764 (citation omitted). “An officer is expected to be the aggressor, and is not to be placed on the same level as ordinary individuals having a private quarrel or denied that protection commensurate with the public duty exacted.” State v. Thomas, 625 S.W.2d 115, 122 (Mo. 1981) (internal citations and quotations omitted).

We conclude that the trial court properly determined as a matter of law that Fisher was not entitled to an instruction on self-defense, and consequently, we conclude that Fisher's appellate counsel could not be deemed to be ineffective for failing to raise a non-meritorious claim on appeal. Fisher stipulated that he was an escaped convict; he had seen his picture on television and knew the police were looking for him; he had stolen a truck and possessed a sawed-off shotgun; and he had asserted that he would not be taken back to prison alive. The officers shot non-lethal tear gas into the mobile home with a 12-gauge shotgun and waited thirty minutes before approaching the back door of the mobile home to pry the door open. Neither of these actions formed a basis for a reasonable belief that Fisher faced an immediate danger of deadly force or serious bodily injury. Furthermore, it would be unreasonable for Fisher to believe that anyone but law enforcement would shoot tear gas into an escapee's barricaded hideout prior to taking steps to apprehend the fugitives. There was no evidence that the officers used any force, deadly or otherwise, before Fisher opened fire. There was certainly no evidence that Fisher attempted “to do all within his power consistent with his personal safety to avoid the danger and the need to take a life.” Chambers, 671 S.W.2d at 783. At all times after his escape, Fisher could have avoided any danger by peacefully surrendering himself to law enforcement authorities. Instead, he stole a sawed-off shotgun and shot at the first person he suspected of entering his barricaded mobile home hideout.

Appellate counsel stated in her affidavit, introduced as evidence at the post-conviction evidentiary hearing, that she did not raise any point in Fisher's direct appeal concerning the trial court's refusal to instruct the jury on self-defense because she reviewed the trial record and court documents, discussed the case with her supervisor, and raised the only issue which she believed may have resulted in prejudice to Fisher. Fisher has not shown that his appellate counsel failed to raise a claim of error that a competent and effective lawyer would have recognized and asserted on appeal. Tisius, 183 S.W.3d at 215. Fisher has not shown that he was prejudiced by appellate counsel's failure to brief the issue or that had appellate counsel raised this claim on appeal “„the result of the proceeding would have been different.‟” Storey, 175 S.W.3d at 150 (quoting Williams v. Taylor, 529 U.S. 362, 390-91 (2000)).

Thus, the motion court clearly erred in granting Fisher's request for post-conviction relief on the basis that appellate counsel erred in failing to raise as error the trial court's refusal to submit to the jury an instruction on self-defense for the counts relating to assault of a law enforcement officer in the first degree.

Point I is granted.

Point II – Refusal to Submit Lesser-Included Offense Instruction

In its second Point on appeal, the State asserts that the motion court clearly erred in granting post-conviction relief based on Fisher's claim that his appellate counsel was ineffective for failing to raise as error, on direct appeal, the trial court's refusal to submit to the jury an instruction on the lesser-included offense of assault of a law enforcement officer in the second degree for the counts relating to assault of a law enforcement officer in the first degree. The State claims that there was no meritorious basis for appellate counsel to assert such a claim because: (i) there was no basis for the jury to acquit Fisher of first-degree assault of a law enforcement officer because Fisher testified that he shot a shotgun at an approaching person multiple times from close range, and (ii) Fisher was not prejudiced by the lack of the instruction because there was overwhelming evidence that he attempted to kill or cause serious physical injury. We agree.

The test to be applied to determine whether an offense is a lesser-included offense is the test established in Blockburger v. United States, 284 U.S. 299 (1932), which is codified at section 556.046[5] and is known as the same elements test. Peiffer v. State, 88 S.W.3d 439, 443 (Mo. banc 2002).

A person commits the crime of assault of a law enforcement officer in the first degree if he “attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer.” § 565.081.1. “Serious physical injury” is “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” § 565.002(6). A person commits the crime of assault of a law enforcement officer in the second degree if he “[a]ttempts to cause or knowingly causes physical injury to a law enforcement officer by means of a deadly weapon or dangerous instrument.” § 565.082.1(1). “Physical injury” is “physical pain, illness, or any impairment of physical condition.” § 556.061(20).

Assault of a law enforcement officer in the second degree is a lesser-included offense of assault of a law enforcement officer in the first degree, Hill v. State, 181 S.W.3d 611, 621 (Mo. App. W.D. 2006); the distinguishing element between the two crimes is that first-degree assault requires that the defendant intended to cause death or serious physical injury to a law enforcement officer, while second-degree assault requires that the defendant intended to cause physical injury to a law enforcement officer. Id. at 620-21; compare MAI-CR 3d 319.32, assault of a law enforcement officer in the first degree, with MAI-CR 3d 319.34, assault of a law enforcement officer in the second degree.

The motion court determined that appellate counsel was ineffective for failing to raise as error the trial court's refusal to instruct the jury on lesser-included offenses—specifically of assault of a law enforcement officer in the second degree—stating that “[i]f there is any doubt regarding the evidence[,] an instruction should be given on the lower degree of the offense, leaving it to the jury to decide which of the offenses the defendant is guilty, if any,” and “[a]n accused is entitled to an instruction on any theory that the evidence tends to establish.” Although this general proposition is correct, “[a] trial court is not required to instruct on a lesser included offense unless the jury has a basis to (1) acquit of the offense charged, and (2) convict of the lesser offense.” Hill, 181 S.W.3d at 620; § 556.046.2. Furthermore:

In order for there to be a basis for an acquittal of the greater offense, there must be some evidence that an essential element of the greater offense is lacking and the element that is lacking must be the basis for acquittal of the greater offense and the conviction of the lesser.

Hill, 181 S.W.3d at 620 (quoting State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004)).

There was no error in the trial court's refusal to instruct on the lesser-included offense of assault of a law enforcement officer in the second degree because the facts testified to by Fisher would not have supported an acquittal of assault of a law enforcement officer in the first degree. The facts did not support an inference that Fisher only intended to cause physical injury; rather, the facts established that he intended to kill or cause serious physical injury. Hill, 181 S.W.3d at 621. During the gun-fight, Fisher and Sanford both fired a sawed-off shotgun at the law enforcement officers, shooting all five. Even though all the officers survived, at least two officers were seriously and permanently injured. Fisher, 45 S.W.3d at 514. This constituted ample evidence for the jury to find that Fisher intended to cause the officers “serious physical injury.”

In addition, “[t]he failure to give a different lesser-included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser-included offense are given and the defendant is found guilty of the greater offense.” State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009). Fisher requested, and the trial court submitted, instructions for the lesser-included offense of assault in the first degree. Thus, the trial court's failure to give instructions for the different lesser-included offense of assault of a law enforcement officer in the second degree was not erroneous or prejudicial because the jury was instructed as to a lesser-included offense and found Fisher guilty of the greater offense. Id. at 576.

Appellate counsel stated in her affidavit, introduced as evidence at the post-conviction evidentiary hearing, that she did not raise any point in Fisher's direct appeal concerning the trial court's refusal to instruct the jury on the lesser-included offense of assault of a law enforcement officer in the second degree because she reviewed the trial record and court documents, discussed the case with her supervisor, and raised the only issue which she believed may have resulted in prejudice to Fisher. Fisher did not present the motion court with any evidence that would rebut the presumption that counsel exercised reasonable professional judgment in reaching this conclusion. Johnson v. State, 283 S.W.3d 279, 283 (Mo. App. S.D. 2009). Fisher's appellate counsel was not acting unreasonably by not raising the denied lesser-included offense instruction issue on appeal—and Fisher cannot show a reasonable probability that the outcome would have been different if she had—because the trial court's refusal to give the proffered instruction was correct. Id.

Thus, the motion court clearly erred in granting Fisher's request for post-conviction relief on the basis that appellate counsel erred in failing to raise as error the trial court's refusal to submit to the jury an instruction on the lesser-included offense of assault of a law enforcement officer in the second degree for the counts relating to assault of a law enforcement officer in the first degree.

Point II is granted.

Conclusion

Our full review of the record definitely and firmly reveals that the motion court clearly erred. Thus, the motion court's judgment is reversed and vacated. Fisher's convictions are ordered reinstated.

Victor C. Howard, Judge, and Cynthia L. Martin, Judge, concur.

[1] Generally, on appeal of a ruling on a Rule 29.15 motion for post-conviction relief, the facts must be viewed in the light most favorable to the verdict. Rousan v. State, 48 S.W.3d 576, 579 (Mo. banc 2001). However, because one of Fisher's points on appeal is the trial court's failure to instruct the jury on self-defense, we will view the evidence in a light most favorable to the defendant. State v. Crawford, 904 S.W.2d 402, 404 n.2 (Mo. App. E.D. 1995) (citing State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992)). Having said that, it should be noted that there was no testimony at the Rule 29.15 hearing, and most of the relevant facts were stipulated to by the parties.

[2] Because the events for which Fisher was convicted occurred on or about February 25, 1999, all statutory references are to RSMo 1994.

[3] No witnesses were called. Upon the request of Fisher's counsel, the motion court took judicial notice of the underlying criminal file and the transcript therefrom. Three exhibits were offered by Fisher's counsel and received into evidence: Exhibit 1: the brief filed in Fisher's direct appeal; Exhibit 2: our opinion in State v. Fisher, 45 S.W.3d 512 (Mo. App. W.D. 2001); and Exhibit 3: the affidavit of Fisher's direct appeal counsel. The motion court also heard arguments of counsel.

[4] Section 563.031 provides in pertinent part:

1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided:
        (a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; . . .
....

2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, . . . .

(Emphasis added.) The application of the 2010 amendments to this statute to these facts is not before the court, and we express no opinion as to any impact they may have on our analysis.

[5] Section 556.046 provides:

1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
     (1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
     (2) It is specifically denominated by statute as a lesser degree of the offense charged; or
     (3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.
2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

THE QUEEN v. DUDLEY AND STEPHENS

December 9, 1884

A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life.

At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1000 miles from land; that on the eighteenth day, when they had been seven days without food and five without water, D. proposed to S. that lots should be cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy, or one of themselves, they would die of starvation: --

Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy, and that they were guilty of murder.

INDICTMENT for the murder of Richard Parker on the high seas within the jurisdiction of the Admiralty.

At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes, November 7, 1884, the jury, at the suggestion of the learned judge, found the facts of the case in a special verdict which stated

“that, on July 5,1884, the prisoners, Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht, a registered English vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was committed. That2 on the twelfth day the remains the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted. That on the 24 th of July, the day before the act now in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and in point of fact there was no drawing of lots. That on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in sight by the morrow morning, the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for trial at Exeter. That if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one for the others to eat. That assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men." But whether upon the whole matter by the jurors found the killing of Richard Parker by Dudley and Stephens be felony and murder the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court shall be of opinion that the killing of Richard Parker be felony and murder, then the jurors say that Dudley and Stephens were each guilty of felony and murder as alleged in the indictment.”

The learned judge then adjourned the assizes until the 25th of November at the Royal Courts of Justice. On the application of the Crown they were again adjourned to the 4th of December, and the case ordered to be argued before a Court consisting of five judges.

Dec. 4.

Sir H. James, A.G. (A. Charles, Q.C., C. Mathews and Danckwerts, with him), appeared for the Crown. The record having been read, A. Collins, Q.C. (H. Clark, and Pyke, with him), for the prisoners, objected, first, that the statement in the verdict that the yacht was a registered British vessel, and that the boat in which the prisoners were belonged to the yacht, was not part of any finding by the jury; secondly, that the formal conclusion of the verdict, "whether upon the whole matter the prisoners were and are guilty of murder, the jury are ignorant," &c., was also no part of the finding of the jury, as they simply found the facts relating to the death of Parker, and nothing else was referred to them; thirdly, that the record could not be filed, for it had been brought Queen into the court by order only, and not by certiorari. Sir H. James, A.G., for the Crown. As to the first point, the Crown are willing that the statement that the yacht was a registered British vessel, and that the boat belonged to the yacht, should be struck out of the record. With regard to the conclusion of the verdict it is according to the form of special verdicts in the Reports: Rex v Pedley; Rex v. Oneby; Mackally's Case; Hazel's Case. As for the certiorari there was no necessity for it, for the Court of Assize is now part of this Court.

[THE COURT intimated that the points taken on behalf of the prisoners were untenable.]

With regard to the substantial question in the case -- whether the prisoners in killing Parker were guilty of murder -- the law is that where a private person acting upon his own judgment takes the life of a fellow creature, his act can only be justified on the ground of self-defence -- self-defence against the acts of the person whose life is taken. This principle has been extended to include the case of a man killing another to prevent him from committing some great crime upon a third person. But the principle has no application to this case, for the prisoners were not protecting themselves against any act of Parker. If he had had food in his possession and they had taken it from him, they would have been guilty of theft; and if they killed him to obtain this food, they would have been guilty of murder. The case cited by Puffendorf in his Law of Nature and Nations, which was referred to at the trial, has been found, upon examination in the British Museum, in the work of Nicholaus Tulpius, a Dutch writer, and it is clear. that it was not a judicial decision.^[1]

[He was stopped.]

A. Collins, Q.C., for the prisoners. The facts found on the special verdict shew that the prisoners were not guilty of murder, at the time when they killed Parker, but killed him under the pressure of necessity. Necessity will excuse an act which would otherwise be a crime. Stephen, Digest of Criminal Law, art. 32, Necessity. The law as to compulsion by necessity is further explained in Stephen's History of the Criminal Law, vol. ii., p. 108, and an opinion is expressed that in the case often put by casuists, of two drowning men on a plank large enough to support one only, and one thrusting the other off, the survivor could not be subjected to legal punishment. In the American case of The United States v. Holmes, the proposition that a passenger on board a vessel may be thrown overboard to save the others is sanctioned. The law as to inevitable necessity is fully considered in Russell on Crimes, Vol. i. p. 847 and there are passages relating to it in Bracton, VOL ii. p., 277; Hale's Pleas of the Crown, p. 54 and c. 40; East's Pleas of the Crown, p. 221, citing Dalton, c. 98, Stephens. "Homicide of Necessity," and several cases, amongst others McGrowther's case; Stratton's Case. Lord Bacon, Bac. Max., Reg. 5, gives the instance of two shipwrecked persons clinging to the same plank and one of them thrusting the other from it, finding that it will not support both, and says that this homicide is excusable through unavoidable necessity and upon the great universal principle of self-preservation, which prompts every man to save his own life in preference to that of another, where one of them must inevitably perish. It is true that Hale's Pleas of the Crown, p. 54, states distinctly that hunger is no excuse for theft, but that is on the ground that there can be no such extreme necessity in this country. In the present case the prisoners were in circumstances where no assistance could be given. The essence of the crime of murder is intention, and here the intention of the prisoners was only to preserve their lives.

Lastly, it is not shewn that there was jurisdiction to try the prisoners in England. They were part of the crew of an English yacht, but for anything that appears on the special verdict the boat may have been a foreign boat, so that they were not within the jurisdiction of the Admiralty: Reg. v. Keyn. The indictment is not upon the Act 17 & 18 Vict. c. 104, for an offence committed by seamen employed or recently employed in a British ship. The special verdict cannot be amended in a capital case by stating the real facts.

Sir H. James, A.G., for the Crown.

[LORD COLERIDGE, C.J. The Court conviction must be affirmed. What course do you invite us to take?]

To pronounce judgment and pass sentence. This was the practice even when, as formerly, the record was removed by certiorari: Rex v. Boyce; Rex v. Athos; Rex v. Cock. THE COURT intimated that judgment would be given on December 9th.

-- -- --

Dec. 9. The judgment of the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and Huddleston, BB) was delivered by

LORD COLERIDGE, C.J. The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 25th of July in the present year. They were tried before my Brother Huddleston at Exeter on the 6th of November, and, under the direction of my learned Brother, the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment.

The special verdict as, after certain objections by Mr. Collins to which the Attorney General yielded, it is finally settled before us is as follows. [His Lordship read the special verdict as above set out.] From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother's notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him, of any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the body of the boy they would probably not have survived," and that “the boy being in a much weaker condition was likely to have died before them." They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him. Under these circumstances the jury say that they are ignorant whether those who killed him were guilty of murder, and have referred it to this Court to determine what is the legal consequence which follows from the facts which they have found.

Certain objections on points of form were taken by Mr. Collins before he came to argue the main point in the case. First it was contended that the conclusion of the special verdict as entered on the record, to the effect that the jury find their verdict in accordance, either way, with the judgment of the Court, was not put to them by my learned Brother, and that its forming part of the verdict on the record invalidated the whole verdict. But the answer is twofold -- (1) that it is really what the jury meant, and that it is but the clothing in legal phraseology of that which is already contained by necessary implication in their unquestioned finding, and (2) that it is a matter of the purest form, and that it appears from the precedents with which we have been furnished from the Crown Office, that this has been the form of special verdicts in Crown cases for upwards of a century at least.

Next it was objected that the record should have been brought into this Court by certiorari, and that in this case no writ of certiorari had issued. The fact is so; but the objection is groundless. Before the passing of the Judicature Act, 1873 (36 & 37 Vict. c. 66), as the courts of Oyer and Terminer and Gaol delivery were not parts of the Court of Queen's Bench, it was necessary that the Queen's Bench should issue its writ to bring before it a record not of its own, but of another Court. But by the 16th section of the Judicature Act, 1873, the courts of Oyer and Terminer and Gaol delivery are now made part of the High Court, and their jurisdiction is vested in it. An order of the Court has been made to bring the record from one part of the court into this chamber, which is another part of the same court; the record is here in obedience to that order; and we are all of opinion that the objection fails.

It was further objected that, according to the decision of the majority of the judges in the Franconia Case, there was no jurisdiction in the Court at Exeter to try these prisoners. But (1) in that case the prisoner was a German, who had committed the alleged offence as captain, of a German ship; these prisoners were English seamen, the crew of an English yacht, cast a way in a storm on the high seas, and escaping from her in an open boat; (2) the opinion of the minority in the Franconia Case has been since not only enacted but declared by Parliament to have been always the law; and (3) 17 & 18 Vict. c. 104, s. 267, is absolutely fatal to this objection. By that section it is enacted as follows: -- “All offences against property or person committed in or at any place either ashore or afloat, out of her Majesty's dominions by any master seaman or apprentice who at the time when the offence is committed is or within three months previously has been employed in any British ship, shall be deemed to be offences of the same nature respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England.” We are all therefore of opinion that this objection likewise must be overruled.

There remains to be considered the real question in the case whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can be said has been urged before us, and we are now to consider and determine what it amounts to. First it is said that it follows from various definitions of murder in books of authority, which definitions imply, if they do not state, the doctrine, that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else. But if these definitions be looked at they will not be found to sustain this contention. The earliest in point of date is the passage cited to us from Bracton, who lived in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeve tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling, but the passage upon homicide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal, and the crime of murder, it is expressly declared, may be committed “lingua vel facto”; so that a man, like Hero "done to death by slanderous tongues," would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in the very passage as to necessity, on which reliance has been placed, it is clear that Bracton is speaking of necessity in the ordinary sense -- the repelling by violence, violence justified so far as it was necessary for the object, any illegal violence used towards oneself. If, says Bracton, the necessity be “evitabilis, et evadere posset absque occisione, tune erit reus homicidii” -- words which shew clearly that he is thinking of physical danger from which escape may be possible, and that the "inevitabilis necessitas" of which he speaks as justifying homicide is a necessity of the same nature.

It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justified homicide is that only which has always been and is now considered a justification. "In all these cases of homicide by necessity," says he, "as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale's Pleas of the Crown, p. 491). Again he says that "the necessity which justifies homicide is of two kinds: (1) the necessity which is of a private nature; (2) the necessity which relates to the public justice and safety. The former is that necessity which obligeth a man to his own defence and safeguard, and this takes in these inquiries: What may be done for the safeguard of a man's own life;" and then follow three other heads not necessary to pursue. Then Lord Hale proceeds: "As touching the first of these -- viz., homicide in defence of, a man's own life, which is usually styled se defendendo." It is not possible to use words more clear to shew that Lord Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called “self-defence.” (Hale's Pleas of, the Crown, i. 478.)

But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear. For in the chapter in which he deals with the exemption created by compulsion or necessity he thus expresses himself: “If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact, for he ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector cum debito modera mine inculpatee tutelae." (Hale's Pleas of the Crown, Vol. i. 51.)

But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing; "theft is no theft, or at least not punishable as theft, as some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that herein England, that rule, at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is felony, and a crime by the laws of England punishable with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear -- as he is -- that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder?

It is satisfactory to find that another great authority, second, probably, only to Lord Hale, speaks with the same unhesitating clearness on this matter. Sir Michael Foster, in the 3rd chapter of his Discourse on Homicide, deals with the subject of " homicide founded in necessity"; and the whole chapter implies, and is insensible unless it does imply, that in the view of Sir Michael Foster “necessity and self-defence” (which he defines as "opposing force to force even to the death ") are convertible terms. There is no hint, no trace, of the doctrine now contended for; the whole reasoning of the chapter is entirely inconsistent with it.

In East's Pleas of the Crown (i. 271) the whole chapter on homicide by necessity is taken up with an elaborate discussion of the limits within which necessity in Sir Michael Foster's sense (given above) of self-defence is a justification of or excuse for homicide. There is a short section at the end very generally and very doubtfully expressed, in which the only instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them, and the conclusion is left by Sir Edward East entirely undetermined.

What is true of Sir Edward East is true also of Mr. Serjeant Hawkins. The whole of his chapter on justifiable homicide assumes that the only justifiable homicide of a private nature is the defence against force of a man's person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with the significant expression from a careful writer, “It is said to be justifiable.” So, too, Dalton c. 150, clearly considers necessity and self-defence in Sir Michael Foster's sense of that expression, to be convertible terms, though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own. And there is a remarkable passage at page 339, in which he says that even in the case of a murderous assault upon a man, yet before he may take the life of the man who assaults him even in self-defence, “cuncta prius tentanda.”

The passage in Staundforde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclusion which has been derived from it. The necessity to justify homicide must be, he says, inevitable, and the example which he gives to illustrate his meaning is the very same which has just been cited from Dalton, shewing that the necessity he was speaking of was a physical necessity, and the self-defence a defence against physical violence. Russell merely repeats the language of the old text-books, and adds no new authority, nor any fresh considerations. Is there, then, any authority for the proposition which has been presented to us? Decided cases there are none. The case of the seven English sailors referred to by the commentator on Grotius and by Puffendorf has been discovered by a gentleman of the Bar, who communicated with my Brother Huddleston, to convey the authority (if it conveys so much) of a single judge of the island of St. Kitts, when that island was possessed partly by France and partly by this country, somewhere about the year 1641. It is mentioned in a medical treatise published at Amsterdam, and is altogether, as authority in an English court, as unsatisfactory as possible. The American case cited by Brother Stephen in his Digest, from Wharton on Homicide, in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly, as my Brother Stephen says, be an authority satisfactory to a court in this country. The observations of Lord Mansfield in the case of Rex v. Stratton and Others, striking and excellent as they are, were delivered in a political trial, where the question was whether a political necessity had arisen for deposing a Governor of Madras. But they have little application to the case before us which must be decided on very different considerations.

The one real authority of former time is Lord Bacon, who, in his commentary on the maxim, "necessitas inducit privilegium quoad jura privata," lays down the law as follows:" Necessity carrieth a privilege in itself. Necessity is of three sorts -- necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life ; if a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy hunger is no larceny is hardly supported by Staundforde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited. And for the proposition as to the plank or boat, it is said to be derived from the canonists. At any rate he cites no authority for it, and it must stand upon his own. Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying upon principle and on the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day.

There remains the authority of my Brother Stephen, who, both in his Digest and in his History of the Criminal Law, uses language perhaps wide enough to cover this case. The language is somewhat vague in both places, but it does not in either place cover this case of necessity, and we have the best authority for saying that it was not meant to cover it. If it had been necessary, we must with true deference have differed from him, but it is satisfactory know that we have, probably at least, arrived at no conclusion in which if he had been a member of the Court he would have been unable to agree. Neither are we in conflict with any opinion expressed upon the subject by the learned persons who formed the commission for preparing the Criminal Code. They say on this subject:

We are certainly not prepared to suggest that necessity should in every case be a justification. We are equally unprepared to, suggest that necessity should in no case be a defence; we judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case.

It would have been satisfactory to us if these eminent persons could have told us whether the received definitions of legal necessity were in their judgment correct and exhaustive, and if not, in what way they should be amended but as it is we have, as they say, "to apply the principles of law to the circumstances of this particular case."

Now, except for the purpose of testing how far the conservation of a man's own life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one imposed upon men in the service of their Sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one's life. "Necesse est ut eam, non ut vivam," is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on necessity to which so much reference has been made. It would be a very easy and cheap display of commonplace learning to quote from Greek and Latin authors, from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or 'what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be "No" –

"So spake the Fiend, and with necessity

The tyrant's plea, excused his devilish deeds."

It is not suggested that in this particular case the deeds were "devilish," but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it.

It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.^[2]

[The COURT then proceeded to pass sentence of death upon the prisoners.^[3]]

Solicitors for the Crown: The Solicitors for the Treasury. 

Solicitors for the prisoners: Irvine & Hodges.

NOTES

[1] Huddleston, B., stated that the full facts of the case had been discovered by Sir Sherston Baker, a member of the Bar, and communicated to him as follows:

A Dutch writer, Nicholas Tulpius, the author of a Latin work, Observationum Medicarum, written at Amsterdam in 1641, states that the following facts were given him by eye-witnesses. Seven Englishmen had prepared themselves in the Island of St. Christopher (one of the Caribbean Islands) for a cruise in a boat for a period of one night only, but a storm drove them so far out to sea that they could not get back to port before seventeen days. One of them proposed that they should cast lots to settle on whose body they should assuage their ravenous hunger. Lots were cast, and the lot fell on him who bad proposed it. None wished to perform the office of butcher; and lots again cast to provide one. The body was afterwards eaten. At length the boat was cast on the shore of the Isle of St. Martin, one of the same group, where the six survivors were treated with kindness by the Dutch, and sent home to St. Christopher.

[2] My brother Grove has furnished me with the following suggestion, too late to be embodied in the judgment but well worth preserving: "If the two accused men were justified in killing Parker, then if not rescued in time, two of the three survivors would be justified in killing the third, and of the two who remained the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving."-- C.

[3] This sentence was afterwards commuted by the Crown to six months imprisonment.

[1075] Wayne Anthony Ross and Donald J. Miller, Miller & Ross, Anchorage, and Patrick Monoghan, Idaho, for appellants.

Elaine Vondrasek, Asst. Municipal Prosecutor, Allen M. Bailey, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee.

Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.^[*]

OPINION

RABINOWITZ, Chief Justice.

The facts underlying the four criminal convictions appealed from in this case are not in dispute.

On January 6, 1978, members of various anti-abortion groups staged a nationwide protest. In conjunction with that movement, members of Alaska Right to Life staged a demonstration outside of the building housing the Alaska Hospital and the Alaska Clinic in Anchorage. Having decided that they had "tried everything else" and that it was necessary "to try ... peacefully to stop the taking of human life," appellants Head, Fardig, Sigfried and Cleveland entered the Alaska Clinic to conduct a more emphatic protest than the one in progress outside the building. Head and Siegfried proceeded to attach themselves to the door of the Clinic's operating room with handcuffs and chains, while Cleveland and Fardig handcuffed themselves to the operating table.

Shortly after appellants had established themselves in the Clinic, Mingo, the building security supervisor, asked them to leave and then, in response to their refusal, obtained a set of boltcutters. Mingo first cut the handcuffs connecting Head and Sigfried to the door and escorted them from the building. He then returned and, overcoming relatively minor resistance, freed Fardig and Cleveland. Fardig was escorted outside and Cleveland, who refused to walk, was carried out on a sheet. All four were advised not to return unless they needed medical assistance.

Moments later, appellants re-entered the building and again approached the operating room; Mingo stopped them and again requested them to leave. Fardig, Cleveland and Siegfried then sat down on the floor, while Head removed himself to the building's main entrance and sat down there. At that point, city police were summoned. All four appellants were once again requested to leave the premises, and on refusing to do so, were arrested and then removed by police officers.

Appellants were each charged with violating Anchorage's criminal trespass ordinance^[1] [1076] and all were convicted under that ordinance in the district court. The convictions were affirmed on appeal to the superior court, and are now before us on appeal from the superior court's affirmance.

Appellants' primary defense at trial was to have depended on the claim that their actions were necessary to avert imminent peril to human life. They allege error in the district court's refusal to instruct the jury on the defense of necessity. Although the trial court excluded that defense, it did allow appellants to defend on the ground that they acted under an honest and reasonable, but mistaken, belief that the necessity defense would protect them from criminal prosecution for their actions. They allege error on the ground that the instructions given on this latter defense were so "confusing and contradictory" as to require reversal. Appellants also seek reversal on the ground that the criminal complaints relied on by the state were defective and on the ground that the cumulative impact of the alleged errors deprived them of their due process rights under the United States Constitution and the Alaska Constitution.

I. DEFECTS IN THE COMPLAINTS.

Appellants argue that the criminal complaints in this case were defective in two respects. First, Fardig, Cleveland and Sigfried claim that they were arrested in the Alaska Clinic rather than the Alaska Hospital as alleged in each of the complaints. Second, pointing to the literal language of the Anchorage trespass ordinance,^[2] appellants contend that they were not in violation of that ordinance because the person who requested them to leave the building was not an "owner or occupant thereof."

Under Alaska Dist.Ct.R.Crim.P. 1(a),^[3] a complaint constitutes the accusatory pleading by which an offense is charged in a district court proceeding; it serves the same function as does an indictment or information in the superior court. Under Alaska R.Crim.P. 7(c),^[4] a mere formal defect does not render an indictment insufficient unless it is of a magnitude sufficient to prejudice substantial rights of the defendant. Alaska Dist.Ct.R.Crim.P. 1 directs application of the general Criminal Rule provisions to district court proceedings "[w]herever practicable." In the present case, three of the four complaints were [1077] formally defective in that they alleged that the trespasses occurred in the Alaska Hospital rather than in the Alaska Clinic where they actually did occur. Appellant Head admits that he was arrested for trespassing in the Alaska Hospital as alleged. Both facilities, however, were in fact contained within a single building. Since no prejudice to any appellant is claimed, and since we can perceive none that could be claimed, this asserted defect did not warrant dismissal of the subject complaints. See Price v. State, 437 P.2d 330, 332 (Alaska 1968).

Appellants' second attack on the sufficiency of the complaints is that Anchorage Municipal Code 8.30.010(B)(3)^[5] requires that a trespasser be requested to depart from the premises by an "owner or occupant" before he can be found to have violated that ordinance. Mingo, the security supervisor for the whole Hospital-Clinic building, was, according to appellants, neither an owner nor an occupant of the building and therefore was not qualified to request them to leave.

Beyond his statements that he was "the building security supervisor" and that he was "employed by the Teamster[s] Union, Local 959," there is nothing in the record to indicate the precise nature of Mingo's employment arrangement with the Hospital or Clinic. Appellants' attack, however, is not based on the extent of Mingo's authority to act on behalf of the Clinic; it depends, rather, on a very literal reading of the trespass statute.^[6] Appellants' claim assumes without argument that under the ordinance, an "owner or occupant" can never make the request that trespassers depart by acting through an agent. In the absence of argument or authority to the contrary, we see no reason for suspending the general common law of agency in construing section 8.30.010(B)(3) of the Anchorage Municipal Code. Other courts have reasoned similarly. See Johnson v. State, 277 Ala. 655, 173 So.2d 824, 827-28 (1965); People v. Thompson, 56 Ill. App.3d 557, 14 Ill.Dec. 312, 372 N.E.2d 117, 121-22 (1978). The record indicates that Mingo was a duly authorized agent of an "owner or occupant" of the Clinic acting within the scope of his employment, and his request that appellants leave the premises therefore satisfied the requirements of Anchorage Municipal Code 8.30.010(B)(3). Thus we also reject this facet of appellants' attack on the sufficiency of the complaints.

II. THE DEFENSE OF NECESSITY.

Appellants' primary claim is that in attempting to prevent the performance of abortions at the Alaska Clinic, they acted in the reasonable belief that their actions were necessary to protect human life from imminent peril. In spite of both argument and testimony offered at trial that is in apparent conflict with their present position, appellants now insist that:

It is vital to understand that these appellants, by their actions on January 6, 1978, were not protesting abortion in general, or engaging in symbolic acts which they hoped would lead the public to sympathize with the profile cause. Rather, they were directly intervening to protect the particular human lives threatened with imminent destruction at Alaska Hospital and Clinic in the abortion chambers they entered, on that very day.

In support of their position appellants cite newspaper articles^[7] describing two unreported Fairfax County, Virginia, district court cases^[8] in which trespassers in an abortion clinic were acquitted on this theory.

[1078] The defense of necessity requires a showing of three essential elements:

1) The act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disproportionate to the harm avoided.^[9]

It is available if the accused reasonably believed at the time of acting that the first and second elements were present, even if that belief was mistaken; but the accused's belief will not suffice for the third element. An objective determination must be made as to whether the defendant's value judgment was correct, given the facts as he reasonably perceived them. Nelson v. State, 597 P.2d 977, 979, 980 n. 6 (Alaska 1979).

Relying heavily on State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the district court refused to allow the jury to consider the defense of necessity. Appellants argue that their presence "prevented the killing of children which was imminent" because "the potential victims and their mothers could not be brought to the abortion chambers through hallways and doors which the appellants were blocking."

There are several flaws in appellants' argument. First, the emergency which produces the "necessity" behind the charged act must generally be a result of the "physical forces of nature." W. LaFave & A. Scott, Criminal Law § 50, at 381. Generally, when the threatened harm emanates from a human source, an actor who violates the law in response to it can defend only on the grounds of duress, defense of others, or crime prevention. Id.^[10] The defense [1079] of duress is clearly inappropriate here since appellants do not claim that their illegal acts were compelled by "the unlawful threats of another." E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology 289, 290 (1974). The other two related defenses — defense of others and crime prevention — require that the harm avoided by the charged act be unlawful. R. Perkins, Criminal Law 1019 (2d ed. 1969).^[11] Abortion, or the "killing of unborn children" as appellants characterize it, is not unlawful in this state, as appellants concede.^[12] Given these principles, appellants' argument must fail since the alleged harm sought to be avoided did not arise from a natural source and was not unlawful.

Second, we find the reasoning of the Hawaii Supreme Court in State v. Marley, 509 P.2d 1095 (Hawaii 1973), persuasive. In Marley, the defendants were convicted of criminal trespass after entering the offices of Honeywell Corporation in an attempt to stop the "war crimes" being committed by Honeywell. As in the present case, the Marley defendants' behavior was nonviolent but was disruptive of normal business operations. Id. at 1099. Their necessity defense was rejected for three reasons, two of which we find applicable here: first, "[w]here there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law. Other forms of non-criminal protest were and are available to defendants to enable them to dramatize, and hence hopefully terminate, conduct which they may view [as] harmful." Marley, 509 P.2d at 1109 (citations omitted). Second, defendants are "unentitled to the defense of `necessity' because their actions were not reasonably designed to actually prevent the threatened greater harm... . Under any possible set of hypotheses, defendants could foresee that their actions would fail to halt" the practices to which they objected. Id.

Appellants seek to distinguish Marley on the ground that the alleged harm in that case — the manufacture of weapons to be used in the Vietnam war — was specially and temporally remote from the site of the trespass whereas the abortions they prevented were scheduled in the very rooms appellants occupied and blocked, within minutes of the time of their entry. However, the lack of "imminence" in Marley was only one of the three grounds relied upon by the court, and the differences between this case and Marley do not render [1080] the other two grounds less applicable. In other respects, the facts of the two cases are closely analogous. In both cases, it was obvious to the trespassers that their actions could not halt the alleged greater harm to which society had given its imprimatur, but rather that, at best, the harm could be only postponed for a brief interval, following which society's normal operations would reassert themselves. This was simply not the kind of emergency situation contemplated by the defense of necessity.

Further, in spite of appellants' protestations to the contrary, their acts, like the acts of the Marley defendants, are much more appropriately characterized as protesting with the intent to "dramatize, and hence hopefully terminate, conduct which they may view [as] harmful," id. at 1109, then, as appellants describe their own behavior, "directly intervening to avert an imminent threat to human life." Appellants' protest was, in fact, part of a nationwide protest that resulted in several similar arrests in other cities. Appellants appear to concede that if their actions are best described as a protest, the necessity defense would be unavailable. We think it manifest that it would be inappropriate to characterize these trespasses as anything other than a protest, and that appellants' argument of necessity must therefore be rejected.

Third, the defense of necessity requires a showing that the harm sought to be avoided was greater than the harm reasonably foreseeable as resulting from a defendant's illegal actions. Nelson v. State, 597 P.2d 977, 980 (Alaska 1979). That is, the harm reasonably foreseeably resulting from a failure to act must be balanced against that foreseeably resulting from the illegal action. We believe that harm to both the Clinic and its patients was reasonably foreseeable to the trespassers. The Clinic's schedule was disrupted and its operating room required resterilization; and it was certainly foreseeable that the patients scheduled to undergo abortions at the time the demonstration occurred would suffer emotional distress as a result of appellants' invasion of their privacy during a particularly sensitive period.

Against this must be weighed the foreseeable results of appellants' failure to intervene — the routine performance of abortions, or, as appellants regard it, the killing of human life. Appellants acknowledge that the Supreme Court of the United States has expressly rejected the identification of fetuses as "persons" in this context. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 728-730, 156-59, 35 L.Ed.2d 147, 179-80, reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973). Appellants' view is that Roe v. Wade, although foreclosing the possibility of action by state officials to protect fetuses until viability, does not prohibit similar actions by individuals. The question, then, is a familiar one: whether appellants can, by appeal to a "higher law," justify their illegal attack on a form of government-approved behavior. Citing this court to two unreported cases^[13] and the Nuremberg Trials,^[14] appellants seek a ruling that, as a general principle, abortion is a more significant evil than trespass.

However, even assuming that appellants are correct in arguing that Roe v. Wade does not control as to the weight to be accorded "potential life" in this context,^[15] the United States Supreme Court is not the only authority to which we must defer in [1081] this area. The Alaska legislature is better suited to strike the balance than is this court. Indeed, the law of necessity itself requires us to consult the legislature's enactments:

The defense of necessity is available only in situations wherein the legislature has to itself, in its criminal statute, made a determination of values. If it has done so, its decision governs.

LaFave and Scott, supra, § 50 at 382.^[16]

Alaska's legislature has, we think, already spoken as to the balancing before us, and concluded that the interests in potential life appellants sought to vindicate are outweighed by the very privacy interests appellants sought to invade.^[17] Thus, we cannot agree that any abortions that were delayed by appellants' demonstration can be characterized as sufficiently harmful to outweigh the harm that was the foreseeable result of appellants' behavior.

We hold that the trial court's rejection of appellants' necessity defense was proper.^[18] We are in agreement with the District of Columbia Court of Appeals' response to the [1082] necessity defense raised by participants in a similar anti-abortion demonstration:

Unlike medical necessity or other emergency situations, the necessity cited by appellants cannot shield them from criminal liability for their acts.

The rights to free speech, to assembly, and to petition the government for grievances are a cornerstone of the American system. So, too, is the right to be free from criminal interference. These appellants trespassed on the rights of others and did so without excuse.

Gaetano v. United States, 406 A.2d 1291, 1295 (D.C.App. 1979).

III. JURY INSTRUCTIONS.

Appellants assert that the following three instructions were so "confusing and contradictory" as to require reversal:

[NO. 7]

In the crime charged in the complaint, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law.

[NO. 8]

In this case, if you find from the evidence that a defendant honestly believed that he or she had a right to remain on the premises occupied by Alaska Hospital and Clinic even after being instructed to leave, and that such belief was based upon reasonable grounds, and that the conduct of each defendant would have been lawful and proper had the facts been such as defendant honestly believed them to be, then you must find such defendant not guilty.

[NO. 9]

To constitute the defense of necessity, the defendants would have had to show that they were attempting to prevent some harm that was within their presence. Since the facts of this case have shown that the defendants were not attempting to prevent harm within their presence, the defense of necessity is not applicable. Therefore, you may not consider the defense of necessity in your deliberations.

On appeal, the superior court agreed that the instructions were inconsistent, but held that the inconsistency did not require reversal. In its written opinion, the superior court stated:

The real problem is that instruction no. 8 states a proposition of law that is inapplicable to these cases. In essence, instruction no. 8 is an instruction on mistake of law as a defense. Mistake of law is not a defense applicable to the municipal trespass ordinance (AO 8.30.010) under which appellants were charged. Consequently, the judge gave an unwarranted instruction. The fact that instructions nos. 7 and 9 were inconsistent with no. 8 simply served to cure the error of giving no. 8. The error was harmless, as it is clear that the jury rejected the erroneous mistake of law instruction, so that `the jury was not substantially swayed or affected by the error.' Adkins v. Lester, 530 P.2d 11, reh. den., 532 P.2d 1027 (Alaska 1974).

Instruction number eight was based upon the trial court's view that, although appellants could not defend on the basis of necessity, they could seek to excuse their conduct [1083] on the ground that they honestly and reasonably believed that that defense justified their presence at the Clinic. Three of the four appellants testified that they were aware of two judicial decisions in which, on facts virtually identical to those in the present case, defendants were acquitted on the ground of necessity.^[19] All four testified that they believed they had a legal right to enter the Clinic in an attempt to prevent abortions from being performed. The instruction, then, would have required acquittal had the jury found these beliefs to be both honest and reasonable.

At trial, the state argued that the mistake of law defense, as presented by appellants, is only applicable if the mistaken reliance is upon the statutory, administrative, or case law of either the United States or the state in which the illegal actions were committed. We have found no authority, and appellants cite none, for the proposition that an individual is justified in relying on the case law of other jurisdictions in deciding on a course of conduct.

Since the cases relied upon by appellants were both decided by a trial court in Fairfax County, Virginia, the defense of "reliance of a judicial decision" is inapplicable to the present case. The district court therefore committed error in giving instruction number eight.

We must agree with appellants' claim that the three instructions taken together were confusing. Instruction seven explains, correctly, that the criminal intent necessary to convict does not include intent to violate the law. Instruction eight, however, indicates that if the appellants honestly and reasonably believed their actions did not violate the law, they were not guilty. Instruction nine states the court's correct finding that the necessity defense was not available. Instructions eight and nine, taken together, express the court's erroneous view that an honest and reasonable belief in the availability of that defense could excuse the appellants' violations. Instruction seven, on the other hand, indicates that appellants need not have intended that their conduct be illegal to be convicted even if he thinks his conduct is legal and that he cannot be convicted. The instructions seem to say both that a defendant can be convicted if he reasonably and honestly believes his conduct to be legal.

As the superior court pointed out, instruction eight described a defense that was unavailable to appellants in this case. That instruction could have only operated in appellants' favor, however, and we agree with the superior court's conclusion that "it is clear that the jury rejected the erroneous ... instruction." We also agree with the superior court's further conclusion that "the jury was not substantially swayed or affected by the error"; as such, it did not affect appellants' substantial rights and was therefore harmless under Love v. State, 457 P.2d 622, 631 (Alaska 1969).

Having discerned only the single harmless error discussed above, we perceive no merit in appellants' final claim — that the cumulative effect of the errors alleged to have been committed by the trial court deprived them of the "level of procedural fairness" required by the due process clauses of the United States and Alaska Constitutions. The convictions of appellants are AFFIRMED.

DIMOND, Senior Justice, concurs.

COMPTON, J., not participating.

DIMOND, Senior Justice, concurring.

I agree with the majority that the defendants' convictions must be affirmed. It seems possible to me that under certain circumstances the defense of necessity should justify what would otherwise be illegal conduct engaged in to prevent the performance of an abortion. The defense is clearly inapplicable in this case, however, because as the majority notes the defendants' conduct can only be characterized as a general protest against abortions.

The defense of necessity is designed to justify otherwise illegal conduct taken to [1084] prevent a specific harm from occurring. See, e.g., W. LaFave & A. Scott, Criminal Law § 50 (1972). Public policy prohibits applying the defense of necessity to exonerate a person of liability for his or her legal conduct engaged in as a form of civil disobedience, no matter how laudable the person's goals may be. Thus, the defense of necessity has been ruled unavailable in other prosecutions for trespass at abortion clinics (Gaetano v. United States, 406 A.2d 1291, 1294 (D.C.App. 1979); Minnesota v. Rasmussen, 47 U.S.L.W. 2331 (Minn.Mun. 1978)) and in prosecutions for trespass and vandalism protesting the Vietnam War (United States v. Berrigan, 283 F. Supp. 336, 338-40 (D.Md. 1968); State v. Marley, 509 P.2d 1095 (Hawaii 1973)). The court in United States v. Berrigan aptly expressed this rationale:

No civilized nation can endure where a citizen can select what law he would obey because of his moral or religious belief. It matters not how worthy his motives may be. It is axiomatic that chaos would exist if an individual were permitted to impose his beliefs upon others and invoke justification in a court to excuse his transgression of a duly-enacted law.

283 F. Supp. at 339. A person who chooses to disobey a law because he or she believes it is necessary to do so in pursuit of a moral cause must accept responsibility for the illegality of that conduct. This was particularly well stated by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1008 (4th Cir.1969):

From the earliest times when man chose to guide his relations with fellow men by allegiance to the rule of law rather than force, he has been faced with the problem how best to deal with the individual in society who through moral conviction concluded that a law with which he was confronted was unjust and therefore must not be followed. Faced with the stark reality of injustice, men of sensitive conscience and great intellect have sometimes found only one morally justified path, and that path led them inevitably into conflict with established authority and its laws. Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.

Adherents and practitioners of civil disobedience who have reached this conclusion are too many to list. One need only allude to Socrates, Sir Thomas More, Henry David Thoreau, Ghandi, and Martin Luther King, Jr. whose actions supported this proposition. The Lutheran and Episcopal Churches in America have endorsed civil disobedience, but only if action is non-violent and the actor is willing to accept the consequences of his action.

Id. at 1008 & n. 21 (footnote integrated into text) (footnote omitted).

I empathize with the defendants' sorrow over the loss of human lives caused by abortions. I believe the United States Supreme Court burdened this country with a tragic decision when it held in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that the word "person," as used in the fourteenth amendment, does not include the unborn, id. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180, and that states cannot "override the rights of the pregnant woman" by "adopting one theory of life." Id. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. I do not agree with the Court's conclusion that a state's interest in potential life does not become "compelling" until the fetus has [1085] attained viability. It stated its explanation for this conclusion as follows:

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.

410 U.S. at 163, 93 S.Ct. 731-32, 35 L.Ed.2d at 183. As Professor Tribe indicates, "One reads the Court's explanation several times before becoming convinced that nothing has inadvertently been omitted." Tribe, Forward to The Supreme Court 1972 Term, 87 Harv.L.Rev. 1, 4 (1973) (footnote omitted). I agree with Professor Tribe when he states, "Clearly, this [analysis] mistakes `a definition for a syllogism,' and offers no reason at all for what the Court has held." Id., quoting Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973) (footnotes omitted).

In effect, the Supreme Court held that because there is no consensus as to when human life begins it must act as though it were proven that human life does not begin until birth so as to preserve to women the right to make their own decision whether an abortion takes a human life or not. It would make more sense to me if, in the face of uncertainty, any error made were made in favor of the fetus, which many believe to be human life.

The development of a zygote into a human child is a continual, progressive development. No one suggests that the born child is not a human being. It seems undeniable, however, that human life begins before birth. As Professor Curran states:

[T]he fetus one day before birth and the child one day after birth are not that significantly or qualitatively different in any respect. Even outside the womb the newborn child is not independent but remains greatly dependent on the mother and others. Birth in fact does not really tell much about the individual as such but only where the individual is — either outside the womb or still inside the womb.

C. Curran, Transition and Tradition in Moral Theology 209 (1979). Similarly, viability does not mark the beginning of the truly human being.

[V]iability again indicates more about where the fetus can live than what it is. The fetus immediately before viability is not that qualitatively different from the viable fetus. In addition viability is a very inexact criterion because it is intimately connected with medical and scientific advances. In the future it might very well be possible for the fetus to live in an artificial womb or even with an artificial placenta from a very early stage in fetal development.

Id. (footnote omitted). I join with those persons who believe that truly human life begins sometime between the second and third week after conception.

Biological information heavily influences this judgment, but the ultimate reason rests on the recognition that individuality, which is a most fundamental characteristic of the truly human being, is not achieved before this time, up to which twinning and recombination can occur. Before this time there is no organizer which directs the differentiation of the pluripotential cells, and without this organizer hominization cannot occur. Also this theory contends that the large number (perhaps as many as 50 percent) of fertilized ova which are spontaneously aborted without the mother being aware of having conceived are not truly human beings.

Id. at 212.

I therefore believe that abortions performed after the second or third week of pregnancy cause the taking of a human life, which should be prohibited under most circumstances. Furthermore, I believe that if a majority of people within a state reach the conclusion that a human life entitled to protection exists some time before birth the people should be able, through their legislature, to enact statutes in accordance with [1086] their "theory of life," as the Court phrased it in Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. Nonetheless, persons who share these convictions must work through the political process to achieve their goals or accept the consequences imposed by our legal system for attempting to achieve their goals by unlawful action.^[1]

[*] Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

[1] Anchorage Municipal Code 8.30.010 reads, in pertinent part, as follows:

Trespass — Posting of property — Penalty

A. It is unlawful for any person, firm or corporation to commit a trespass upon either public or private property without consent of the owner of the property.

B. Without constituting any limitation upon the provisions of subsection A hereof, any of the following acts by any person, firm or corporation shall be deemed included among those that constitute trespasses in violation of the provisions of subsection A, and appropriate action may be taken hereunder at any time, or from time to time, to prevent or punish any violation or violations of this section.

The aforesaid enumerated acts shall include:... .

2. the pursuit of any course of conduct or action upon the land of another in violation of a notice posted or exhibited at the main entrance to the premises or at any point of approach or entry, or in violation of any notice, warning or protest given orally or in writing by any owner or occupant thereof;

3. a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof; ... .

[2] Appellants rely on Anchorage Municipal Code 8.30.010(B)(3), under which "a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof" constitutes a trespass.

[3] Alaska Dist.Ct.R.Crim.P. 1(a) reads, in part:

"A criminal action is commenced by the filing of a complaint."

[4] Alaska R.Crim.P. 7(c) reads, in part:

No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant.

[5] See note 2 supra.

[6] Appellants define "occupant" to mean "one having possession" of the premises.

[7] J. Beck, Success in Trespass Gives Right-to-Lifers a Legal Lift, The Washington Star, October 19, 1977, at B1; M. Weil, Va. Abortions Law Held Unconstitutional, The Washington Post, February 11, 1978, at B3.

[8] County of Fairfax v. Gaetano, No. 13974 (Gen.Dist.Ct. of Fairfax County, Va., October 17, 1977); County of Fairfax v. Smith, No. ___ (Gen.Dist.Ct. of Fairfax County, Va., February 11, 1978).

[9] Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). See E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.Law & Criminology 289, 294 (1974); W. LaFave & A. Scott, Criminal Law § 50 at 385-88 (1972). See also AS 11.81.320, directing the courts to apply the common law to the defense of necessity in most situations.

[10] LaFave and Scott note that this requirement may be relaxed in some contexts:

With the defense of necessity, the pressure must come from the physical forces of nature (storms, privations) rather than from other human beings. (When the pressure is from human beings, the defense, if applicable, is called duress rather than necessity).

... .

The typical duress case, however, has involved a situation in which A has ordered B to engage in certain conduct prohibited by the criminal law or else suffer certain consequences. It might well be argued that when an individual acts to avoid a greater harm from a person who has not given such an order — e.g., see People v. Richards, 269 Cal. App.2d 768, 75 Cal. Rptr. 597 (1969), where defendant alleged he escaped from prison to avoid being killed by other inmates — the situation ought to be dealt with as a form of necessity rather than duress. In Richards, the court held the defense of duress was not available because `there was no offer to show that anyone demanded or requested that the defendant escape.'

W. LaFave & A. Scott, Criminal Law § 50 at 381-82 (1972) (footnote integrated into text). Some jurisdictions have agreed. See, e.g., People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (Cal. App. 1974) (under certain circumstances, necessity defense based upon threats of forcible sodomy may be raised in prosecution of prisoner on escape charges). The United States Supreme Court has defined very narrowly the situations in which a necessity defense to an escape charge may be available, United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), holding that defendants must produce evidence of a bona fide attempt to surrender or return to custody as soon as the claimed necessity had lost its coercive force. We do not disagree with this expansion of the necessity defense to encompass human threats, but we are in agreement with those commentators who have noted that it should be limited to cases in which the threatened man-made harm is illegal:

The courts which have held the [necessity] defense inapplicable based their decisions primarily on the holding that first trimester abortions are legal. These opinions imply that whenever the harm emanates from a human source, this harm must be unlawful before the necessity defense can be used. This assumption, although not explicit in the cases or statutes, is solidly based in the common law as developed in both older and more recent cases. The early cases did not face the question as they dealt only with harms caused by natural forces, which can never be illegal. When faced with cases involving human-created harms, the courts modified the necessity doctrine and required that the threatened harm be illegal. This requirement continued in the prison escape cases. Although these decisions held necessity to be a proper plea when the threatened harm emanated from a human source, the facts of the cases involved human-created threats of unlawful acts, usually rape, homicide or felonious assault. Recent codifications and judicial opinions discuss the necessity defense in broad terms, neither expressly designating the source of the threatened harm nor its character. They are meant to codify the common law and can fairly be assumed to embody common-law principles. Several states' inclusions of self-defense and defense of another, which both justify otherwise unlawful conduct in the face of another person's unlawful act, support this thesis.

Note, Necessity as a Defense to a Change of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 513 (1979).

[11] Prof. Perkins explains that the "defense of others" doctrine was originally limited to others within the defendant's family or household, or some other group as to whom he had a legal or socially recognized duty of protection. The common-law privilege of using force for crime prevention was not limited in terms of those to whose aid the defendant could come, but was limited to crimes involving felonious attacks. Both have been expanded beyond these original limitations. "The present position, which represents a merging of the privilege of crime prevention with the privilege of defending others, is that one may go to the defense of a stranger if that person is the innocent victim of an unlawful attack." R. Perkins, Criminal Law 1019 (2d ed. 1969).

The new criminal code requires, for both self-defense and defense of others, that the defendant be responding to "what he reasonably believes to be the use of unlawful force." AS 11.81.330(a); 11.81.340.

Thus, even assuming that a fetus should be regarded as an "other" in the context of a "defense of others" claim, the requirement that the threatened harm be illegal precludes such a claim here.

[12] Appellants do argue, however, that abortion is violative of international law. Similar arguments were raised and rejected in Marley. State v. Marley, 509 P.2d 1095, 1109-12 (Hawaii 1973).

[13] See note 8 supra.

[14] United States of America v. Greifelt, 4 Trials of War Criminals Before the Nuernberg Military Tribunal 608 (1949).

[15] However, we are not certain that the distinction is a plausible one. By carving out a necessity defense in abortion protest cases, i.e., judicially sanctioning private attempts to deprive pregnant women of rights the Supreme Court has declared them to have as against the state, this court itself might trigger the "state action" requirement of the Fourteenth Amendment. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). If the legislature cannot delegate a "veto power" to the patient's parent or spouse, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), we think it unlikely that a state court could delegate such a "veto power" to strangers, to be exercised in such an obtrusive manner.

We note that, in Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045 (4th Cir.1980), the court upheld a district court injunction and contempt order under 42 U.S.C. § 1985 against Mr. Gaetano and other demonstrators who, under the protection of the Fairfax County rulings noted above in n. 8, were systematically blocking access to the abortion clinic without being prosecuted. The complaint charged these demonstrators, with the complicity of the state court judges and prosecutors (who had temporarily suspended prosecutions in such trespass cases), with denying the abortion clinic and its patients the right to perform and obtain abortions in conformity with the Federal Constitution.

[16] The new criminal code contains a similar limitation at AS 11.81.320:

Justification: Necessity. Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when

(1) neither this title nor any other statute defining the offense provides exemption or defenses dealing with the justification of necessity in the specific situation involved; and

(2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear.

[17] AS 18.16.010 reads:

Abortions. (a) No abortion may be performed in this state unless (1) the abortion is performed by a physician or surgeon licensed by the State Medical Board under AS 08.64.200; (2) the abortion is performed in a hospital or other facility approved for the purpose by the Department of Health and Welfare or a hospital operated by the federal government or an agency of the federal government; (3) consent has been received from the parent or guardian of an unmarried woman less than 18 years of age; and (4) the woman is domiciled or physically present in the state for 30 days before the abortion. `Abortion' in this section means an operation or procedure to terminate the pregnancy of a nonviable fetus. Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section.

(b) A person who knowingly violates a provision of (a) of this section, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than five years, or by both.

We express no opinion as to the constitutionality of these provisions. We only cite the statute to note that the legislature has resolved the "choice of evils" questions appellants would have us decide.

[18] A recent law review article cites several policy considerations that lead to the same conclusion:

When a court justifies an illegal act, it creates a new rule of law to govern the same dilemma in the future. In the clinic trespass context, this would mean that all sincere anti-abortion protesters who invaded clinics to prevent abortions would not be subject to criminal liability. There is even authority that clinic personnel or other persons could not use force to stop these justified actions. This could effectively close all abortion clinics so that women would have no means by which to effectuate their decision. This would occur even though clinic action causes no legal harm. There has never been an application of the necessity defense having such profound effects. The prison escape cases do not provide an adequate parallel since courts treat each case as unique, requiring a specific threat to the particular defendant. In the clinic cases a mere showing that abortions were being performed would be enough to acquit the anti-abortion intruder. Necessity was never meant to be applied in such an abusive manner.

The doctrine was developed to deal with unusual circumstances — ones never contemplated by the criminal or civil law. Abortions are not rare occurrences. They are sanctioned by the Constitution and by a substantial portion of society. This is not an area in which the law is silent. When a court applies necessity, its balancing of the harms reflects society's consensus. Necessity is meant to justify action that society would clearly want to exonerate. Trespasses that interfere with constitutional rights do not fall within this purpose.

Allowing necessity to justify these protests permits defendants to choose which laws they will obey based on their own moral code. This would justify acts of civil disobedience. The fact that these protests are the only means available at the moment to stop the abortion does not change the major purpose of the action which protesters and their lawyers admit is to change the law with regard to abortion. This simply cannot be accepted as a proper use of the necessity defense. [footnotes omitted]

Note, Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 514-15 (1979).

[19] See note 8 supra.

[1] I would not categorically reject the argument that the defense of necessity may be invoked to justify conduct intended to prevent a particular abortion form being performed, as opposed to conduct intended to protest abortions in general. For example, if a husband were to trespass at a clinic to prevent his wife from obtaining an abortion after the third week of her pregnancy, I believe the harm he would be seeking to prevent would be greater than the harm he would cause. If there were no other adequate means by which he could prevent the abortion, I think the defense of necessity could justify his conduct.

The majority has suggested several reasons why, under even these circumstances, the defense would be unavailable (e.g., the defense is unavailable if the harm being sought to be prevented emanates from lawful human conduct). However, it seems inappropriate to give these issues extensive consideration, inasmuch as it would not affect the outcome of this case. I believe it is preferable to address these issues when and if a case that involves this particular factual situation comes before this court.

7 USCMA 543, 23 CMR 7

UNITED STATES
v.
 FLEMING

No. 7943
Decided February 8, 1957

[23 CMR 11] On petition of the accused below. CM 377846, reported below at 19 CMR 438. Affirmed.

Major Frank C. Stetson, Allen E. Gramza, Esq., and Alfred E. LaFrance, Esq., argued the cause for Appellant, Accused.

First Lieutenant Arnold I. Burns argued the cause for Appellee, United States. With him on the brief was Lieutenant Colonel Thomas J. Newton.

Opinion of the Court

HOMER FERGUSON, Judge: The accused Army officer was tried by general court-martial for three specifications alleging violations of Article of War 95, 10 USC § 1567 (1946 ed) (Charge I), two specifications reciting similar acts-allegedly violative of Article of War 96, 10 USC § 1568 (1946 ed) (Charge II), one specification of violating Article 133, Uniform Code of Military Justice, 10 USC § 933 (Charge III), and an identical specification purportedly violating Article 134, Uniform Code of Military Justice, 10 USC § 934 (Charge IV). He pleaded not guilty to all charges and specifications but was convicted with certain exceptions and substitutions of specification 3 of Charge I, specification 2 of Charge II, and the specifications and Charges III and IV. The accused was sentenced to total forfeitures, and to be dismissed from the service. After modifications of the findings, the convening authority approved the findings and sentence. An Army board of review, exercising its fact-finding powers, disapproved the findings of guilty of Charges III and IV and, after excepting an allegation from the identical specifications laid under Articles of War 95 and 96, supra, affirmed the findings of guilty and the sentence. In order to more clearly understand the case, the now remaining allegations in the two identical specifications of which the accused now stands convicted state as follows:

That the accused, "then Major and held as a prisoner of war by the enemy, did at or in the vicinity of Pyongyang, North Korea, between 1 February 1951 and 30 May 1951, willfully, unlawfully, and knowingly, collaborate, communicate, and hold intercourse directly with the enemy by joining with, participating in, and leading discussion groups and classes reflecting views and opinions that the United Nations and United States were illegal aggressors in the [23 CMR 12] Korean conflict, . . .^[1] and by participating in the preparation and making communist propaganda recordings designed to promote disloyalty and disaffection among United States troops, by praising the enemy and attacking the war aims of the United States, which recordings were later broadcasted in English over the Pyongyang radio, to wit: a statement which was broadcasted on or about 13 April 1951, stating in effect that the communists were treating prisoners of war in accordance with the principles' of humanity and democracy, and that the United States made a grave error in interferring [sic] in Korean internal affairs and should leave at once; an appeal to the 'Five Great Powers' (USSR, Peoples Republic of China, United Kingdom, United States, and France) broadcasted on or about 24 April 1951, urging them to sign a peace pact, and urging that anyone of the powers which refused to attend conferences for that purpose be considered a government with aggressive intentions; an appeal to President Truman and General McArthur [sic] broadcasted on or about 24 April 1951, urging them to withdraw United Nations forces immediately from Korea; a surrender appeal  broadcasted on or about 27 April 1951, inviting United Nations Troops to surrender and promising kind treatment by the communists; and a round-table conference or panel of five prisoners of war broad casted on or about 4 May 1951,urging support for the Communist sponsored Second World Peace Congress, in which he served as moderator; thereby giving aid and comfort to the enemy."

This Court granted the accused's petition for review, setting forth in pertinent part the following issues:

1. Whether the evidence is sufficient to support the findings of guilt.

2. Whether the law officer erred by instructing the court that in order to excuse a criminal act on ground of coercion, compulsion, or necessity, one must have acted upon a well-grounded apprehension of immediate and impending death or of immediate serious bodily harm.

3. Whether the law officer erred by refusing to give the defense requested instructions on partial mental responsibility.

4. Whether the law officer erred by instructing the court that the punishment for the offenses of which the accused was convicted included confinement at hard labor for life.

5. Whether the law officer erred by admitting into evidence Prosecution Exhibits 3, 5, 3a and 5a.

6. Whether employment by the accuser and the convening authority of pleadings designated by the accused as embodying a "shot gun" technique prejudiced the accused.

The record before us in this case is voluminous and the two specifications remaining for consideration recite a course of conduct which permeates the entire trial record. Therefore a detailed statement of the facts will be necessary. There is, however, little dispute between the parties as to what happened. Basically the issue boils down not so much as to what the accused did or did not do, but rather to the justifications for his actions. As stated in the defense appellate brief, "the issues with which we are here concerned are not the acts of the accused but whether the affirmative defenses of these acts were rebutted by the prosecution evidence."

The accused was captured by the Chinese Communists near the Yalu River in the northern reaches of Korea. After his capture he was marched to different locations and ended up being interned in the Valley Camp for about two months and for a month at a camp near Pyoktong. At the Valley Camp an English-speaking North Korean officer, whom we will hereafter refer to as Colonel Kim or Kim, informed the accused that arrangements were being [23 CMR 13] made to enable the prisoners to broadcast radio messages informing their families of their whereabouts. On January 29, 1951, Colonel Kim notified the accused, Lieutenant Colonel, then Major, Liles, and Major MacGhee, the three senior American officers in this particular prisoner of war group, that the time had arrived for the broadcast. The day following, these three officers, in company with seventeen other prisoners, departed by truck for Pyongyang. En route, the party stopped at the badly damaged village of Tackchon. The populace was hostile and evinced a threatening attitude toward the prisoners. A People's Court or Town Meeting was called, attended by about eighty-five Korean civilians. Questions were asked by the villagers as to why the Americans had come to Korea. According to a number of witnesses at the trial, most of the questions were answered by the accused and Colonel Liles through Colonel Kim, who acted as interpreter. Captain Galing testified that the accused stated that South Korea was the aggressor; that the war was propagated at the instigation of the imperialistic war mongers of Wall Street; and that President Truman and General MacArthur were the tools of the Wall Street conspiracy. Major MacGhee could not recall the accused specifically answering any questions; however he did remember that the answers given were to the effect that the United States was the aggressor in Korea; that its forces had no business there, and that the war and slaughter should be ended. The accused admitted that in order to placate Kim and the hostile and threatening crowd, he might have used some "party line" phrases.

Upon arrival at Pyongyang on February 2, 1951, the accused was elected compound leader. Not only was he responsible for the discipline and organization of the prisoners but he was also the link between the prisoners and Colonel Kim. He transmitted the captors' orders to the prisoners of war, and, conversely, the complaints and requests of the group to their captors. The accused held the position of group leader until June 1, 1951, at which time Captain Allen succeeded him.

After arrival at Pyongyang, Kim informed the prisoners that they were to prepare radio scripts describing their capture and Korean experiences. The accused testified that up to this time his idea had been only to let his wife know he was alive. To that end the accused submitted a short script. This was returned and he was informed by Kim that his broadcast time had been lengthened to fifteen minutes. The script was written, rewritten and revised some twenty or thirty times until finally broadcast. According to the accused he resisted the propaganda directed against President Truman along with demands that only United Nations troops be withdrawn from Korea. He testified that he succeeded in getting by with comments about the Roosevelt administration and a statement that all foreign armies—which of course included the Chinese—be withdrawn from Korea. Also included in the broadcast were statements that the prisoners were being treated according to the principles of democracy and humanity, and that the United States erred when it interfered in the internal affairs of Korea.

The accused testified that after the broadcast, Kim informed him that he was dissatisfied with the cooperation he had been receiving from the prisoners. They were insincere and, apparently to educate them, he was going to commence round-table discussions. The accused objected, but he was forced to pick four other prisoners to participate in a panel discussion, of which he was to act as moderator. Subsequently a month was spent in preparation of the script, after which time the panel discussion recording was made. The subject matter was the "Second World Peace Congress." The accused testified that Kim had inserted in the script as broadcast a number of his own Communist line phrases. A member of the panel, Lieutenant Wilson, testified that included among the points discussed were reduction of armaments and the outlawing of mass destruction weapons.

While the round-table script was being prepared, Kim read several "appeals" to the prisoners. The substance of these appeals is related in the specifi [23 CMR 14] cations. In brief, they were for a Five Great Powers Peace Pact; for President Truman and General MacArthur to withdraw United Nations forces from Korea; and for the United Nations troops to lay down their arms and surrender, being assured of kind treatment by the Communists. Each appeal was reduced to writing on a separate sheet of paper. They were laid on a table and a blank sheet for signature was placed underneath. The accused testified that he wrote his name on two of the blank sheets of paper. However, blank sheets of paper, or not, he pointed out that it made little difference whether the prisoners did or did not sign the appeals, for the Communists had already obtained the prisoners' signatures and would simply superimpose any signature upon any publication or article they desired.

Toward the end of April 1951, the prisoners were taken to a Korean house, which had electricity, where the roundtable discussion and the appeals were to be recorded. After the panel discussion was recorded, the appeals were read into the microphone. When an appeal was read, each prisoner by order of rank trooped to the front of the room and "voice signed" his name, rank and serial number. The accused admitted voice signing the Five Great Powers Peace Conference Appeal. However, he and the other prisoners objected to signing a demand to President Truman and General MacArthur to withdraw United Nations troops from Korea. The prisoners finally prevailed in that the word "demand" was changed to "appeal." The accused then voice signed it. In addition he admitted voice signing the surrender appeal. After the accused and Colonel Liles had voice signed the latter appeal, dissension began to develop among the prisoners in the back of the room. This dissension grew into outright refusal to sign this appeal. The objections became so vehement that Kim thereafter abandoned any attempt to secure voice signatures to the surrender appeal.

To keep the picture in focus, it is advisable at this point to drop back and pick up the coercive circumstances leading up to the accused's surrender, and his participation in the propaganda broadcasts. The accused testified that just before his capture, while firing upon the enemy, he was rendered unconscious by a shell blast. The blast resulted in approximately fifteen superficial wounds in his back and legs. His first recollection after the blast was being kicked in the head by a Chinese soldier. He struggled to his feet and noticed a wounded fellow officer who had been his assistant as an advisor to a South Korean regiment. While prevented at bayonet point from rendering aid to this officer, another Communist soldier walked over to where he lay and killed him with a burp gun. The accused was marched south about seventy miles. He was questioned on numerous occasions and during one of the interrogations, when he continued to refuse to give more than his name, rank and serial number, he was physically abused by being slapped, knocked down, kicked, and pushed around on the floor. For about ten days he was given practically no food and water. He was subsequently taken to the Valley Camp. By this time, due to wounds, mistreatment, malnutrition and debilitation, he had lost approximately forty pounds. Conditions at the Valley Camp—not only according to the accused, but other prisoners as well—were extremely bad. Few of the captured soldiers had other than summer clothing. The accused in company with twelve other prisoners, occupied one small room. There was not enough space for all the prisoners to lie down at night and stretch out. Two cups of millet per day constituted the daily sustenance. Approximately sixty per cent of the prisoners were unable to walk and the mortality rate was so high that the dead were not buried for days, merely stacked up like cordwood outside in the freezing weather. The accused made numerous demands upon his captors for more food and for other necessities of life, such as medical attention and medical supplies for the sick and wounded. He felt that he was able to restore some type of discipline, organization, and the will to live among the prisoners. Toward the end of 1950 the prisoners were marched to another location. The accused testified that due [23 CMR 15] to his intercessions, the sick and wounded were carried in ox carts, instead of being marched on foot, which would have resulted in death to a sizable number. The accused was himself so weak that he was unable to carry his own knapsack. Conditions at the new camp were as bad, if not worse than those at the original location. The accused continued his efforts to obtain better treatment from his captors.

After the twenty prisoners arrived at Pyongyang, the food and living conditions markedly improved.

Before making the broadcasts, the accused testified that he was constantly harangued and pressured by Colonel Kim. According to Kim, there were two kinds of people: those for peace and those against peace. Those against peace were war criminals and not fit to live. If the accused fitted into that category he would be put in a "hole" and would never come out. But if he were for peace, he was a friend. His actions would indicate whether he was for or against peace. When the accused initially refused to do the acts to prove his "friendliness," he was asked if he wanted to return to the previous camp up north. The accused replied in the affirmative and Kim informed him that he could start walking the 150-200 mile distance. It was midwinter, the accused's shoes had been stolen, and he was wearing rags wrapped around is feet. These factors, plus his greatly weakened physical condition, led the accused to the conclusion that he would never reach the north camp alive. Thereafter, on each occasion when the accused objected to Kim's propaganda efforts, he was threatened with the walk north.

Colonel Liles testified that when Kim insisted on the manuscripts being prepared, the accused informed him that the prisoners could not comply unless more food was forthcoming. Kim, promised to try to accomplish that objective, but subsequently returned and said he was unable to secure additional rations. In the meanwhile nothing more had been done on the manuscripts. Kim was angry and declared that any man who refused to make a radio recording would march back to Pyoktong on foot. After this threat, the writing commenced. Major Allen also testified to numerous threats to march the prisoners north to the Yalu River. In his opinion, none could have survived the march.

The accused ascribed as further reasons for lending support to the roundtable panel and the appeals, the fact that due to his weakened physical condition and the constant psychological hammering of Colonel Kim, he was in a state of complete confusion, frustration, and hopelessness. Morale among the prisoners had reached bottom. The food was barely sufficient to sustain life, and during the arguments over the appeals Kim even threatened to cut that off.

Also Kim's subsequent threat of the caves made to the accused and the other prisoners of war unless they cooperated undoubtedly affected prisoner cooperation. After completion of the accused's broadcast at Pyongyang, the prisoners were moved to a location near the caves. The latter were recesses in the hillside. They were wet and muddy with little or no heating facilities. The prisoners lived in the muck and mire like animals. Primarily the caves were used for South Korean prisoners, but also some American and British soldiers were incarcerated there. Also a great many transient, sick and wounded, and in some instances recalcitrant prisoners, resided in the caves. The mortality rate in the indescribable filth and privation of these holes in the ground was extremely high. The prisoners felt that a sentence to the caves was almost tantamount to a sentence of death. Of the prisoner group with whom the accused was associated at least eight were punished by being sent to the caves. Fortunately these eight survived, except that one officer died shortly after being taken out of the caves because of his weakened condition. Almost all who testified were of the opinion that had their confinement in the caves lasted much longer, they would have died. Major MacGhee, one of the officers sentenced to the caves, testified that all twenty-three Ameri [23 CMR 16] cans already there when he arrived died.

The accused testified that when he objected to a round-table discussion, Kim took him to see fourteen recently captured young American enlisted men huddled together in the filth of a small cave. They were sick, dirty, had no latrine, little water, and no hope. The accused tried to get them moved to his camp, and they pleaded with him to try to accomplish this objective. Kim kept the accused "dangling" with vague promises. According to the accused, whenever he balked on the propaganda, Kim reminded him of the Americans in the caves and again took him to see them. Each time marked fewer numbers. On the last trip only one American remained. He was lying in the mud, too sick to rise, and he informed the accused that all the rest had died, and that he too was dying.

Discussion groups were formed and classes were held in the prisoner of war camp. Initially, Mr. and Mrs. Suh came over in the evenings and discussed political matters. These discussions and subsequent developments will be related through the witnesses.

According to Captain Galing, after the twenty prisoners were taken to Pyongyang, Kim or his secretary, Suh, came to their rooms on a number of occasions and one or two hour discussions would be held with respect to who started, and who was responsible for the Korean war. Magazine articles were sometimes read, followed by questions. The accused responded to these questions and some of his statements were to the effect that South Korea was the aggressor; that Americans had no business interfering in a Korean civil war, and that Wall Street was backing the war for financial gain.

Major MacGhee testified that study classes were supervised by Suh or Colonel Kim. These classes were held in the evenings after Communist propaganda for study had been given to the accused for distribution to the prisoners during the day. During the study sessions one of the prisoners would be called upon to read a portion of the material and thereafter the group would discuss it. MacGhee recalled that on one such occasion, the accused made remarks with respect to business in America, which highlighted the decadence of capitalism. Quite often the Korean who had commenced the class would leave. When that happened, normally the accused or Colonel Liles led the discussion.

Lieutenant Wilson testified that he remembered the general tenor of one of the articles discussed was that the "people" were speaking out for peace, disarmament, and the outlawing of weapons of mass destruction. Wilson was aware of the fact that the accused participated in a number of the discussions, but he had no present recollection of what he said.

Master Sergeant Christie recalled that he remembered hearing the accused and other prisoners of war discuss the eventual collapse of the monopoly controlled American economy. On one occasion the accused used as an example Argentina, pointing out that with a lower standard of living, it could produce wheat on the world market cheaper than the United States.

When the twenty prisoners, together with another group of fifteen prisoners who had joined them two weeks earlier, were moved to the new location near the caves—sometime in March 1951—two-hour indoctrination classes were held during the day followed by two-hour evening discussion periods. Sergeant Gardiner testified that the accused appeared to be in charge of these evening sessions. He could not recall that anything anti-American was stated by the accused. A number of witnesses testified that when the Korean monitors left the room, the accused would slant his discussion favorably to the United States.

John Narvin, formerly private first class, recalled being posted by the accused to watch for the Koreans during one of the discussions. Colonel Liles testified that when the captors were absent the accused attempted to point out flaws in the Communist system.

An article appearing in a North Korean magazine bore the accused's name and picture. It stated that United States forces should leave Korea. The [23 CMR 17] accused testified that although he did not author the article it appeared to contain language similar to his first broadcast. He pointed out that it was an easy matter for the Communists to obtain one's picture and signature on any publication they desired. They frequently took pictures of the prisoners and had everyone's signature.

After June 1st, 1951, Captain Allen was elected group leader and the accused was made librarian. He was responsible for a considerable quantity of Communist propaganda. He did not let the prisoners use the material for toilet paper because it was inventoried and he was held responsible for the missing items.

The accused's policy with respect to cooperation with the enemy by the other prisoners was predicated upon his belief that every prisoner had to be guided by his own conscience. The record is clear that Fleming did make statements to that effect to a number of the prisoners. But there is also testimony in the record that he urged some of the prisoners to complete propaganda writings and not hold back from involvement in the political activities, or else Kim might make some changes. The accused's idea of his policy as to the propaganda activities can best be described by his own testimony. He testified:

"A. I know in my own mind that if I had taken the policy of saying to these men: 'Resist them; everybody resist them,’ that information would have gone to headquarters so fast that they would have known it about as fast as everybody else. And I had a pretty good idea of what would happen to me.

"Secondly, I then would be the individual responsible for any beatings, tortures or deaths that may occur to anyone of the men there.

"Another thing was that a policy like that was absolutely not practical because you have to take human nature into this thing. They wouldn't have done it.

"So it had to be one where the individual himself, in the final analysis, was going to be the one that said: ‘I stop here regardless of what happens.'

"And I am firmly convinced in my own mind that the policy was right. It proved itself right when the flare-up came during the recordings of the so-called appeals; when some of these people went to the end and stopped, and that was it.

"That is the only policy I could see that would have any practicability at all and be workable.

"By doing that we could resist in every way that we could think of as individuals. I resisted in every way that I could, and I know that every other individual resisted in every way that he could, and the resistance was different as the situations developed. Some of it was blunt resistance; some of it was passive; some of it took the turn, as I have mentioned so many times, of delay, double talk, sabotage, not understanding, everything we could think of to hold off.

.     .      .      .      .

"A. I felt this way, and this was certainly nothing new at Camp Twelve. It had started long before I had anything to do with Camp Twelve. The most futile thing in the world was a dead prisoner of war in North Korea. And I had determined a long time before this that I was going to do everything in my power to keep those people alive. By doing so I was, in some small way, defeating what the Communists were trying to do.

"As I said before, the best thing that could happen to the Communists was to have us all die. And, secondly, in a situation like that you have many thoughts of home. I thought, and everyone else thought-not only thoughts of just yourself getting home, but the thoughts of those people at home that are waiting for you to get home, the mothers, and the wives, and the fathers. And the way I feel about it personally is, and I think I am right, that for these men that came hack that may have done things wrong over there, it means more to their mothers and their families than a little bit of Com [23 CMR 18] munist indoctrination that actually may have more Communist heroes than anything else.

"A. I feel that there are innumerable officers and enlisted men that have had a long-time experience as prisoners of the Communist armies, that can give invaluable information to not only the American military establishment as to what can be done to better the situation if and when we fight the Communists again, for those that may be captured in the future; lessons that were learned by our mistakes, and by the suffering of the men that were over there. But also to show the American people our side of what Communism really is. And, believe me, the American people need to be shown.”

There is evidence in the record that by virtue of the accused's efforts more favorable conditions were obtained for the prisoners. A kitchen was set up with some degree of cleanliness, which helped reduce dysentery which was fatal to so many prisoners in Korea. Some semblance of discipline was restored and the prisoners were forced to exercise and follow a more or less military routine. They were not allowed, as Fleming testified, to merely lie down, give up and die. On at least one occasion, the accused obtained hospitalization for two prisoners which possibly saved their lives. Also he was able to secure a certain amount of medical attention and supplies. He pushed some of his demands so forcefully that, according to his testimony, on at least two occasions Colonel Kim flew into a ranting rage, pulled out his pistol, and threatened to kill him. Other witnesses testified that they recalled one instance when the accused was forced to get up before the prisoner group and condemn himself for his persistent behavior.

To counterbalance the scale, there is evidence that a number of prisoners reached a point from which they refused to budge with regard to Communist propaganda. These prisoners unquestionably knew that their refusal would mean banishment to the caves.

They nevertheless threw back the challenge to their Communist captors and refused to go any further. One British soldier, Sergeant O'Hara, refused from the inception to have anything to do with the Communist propaganda. A devoutly religious man, he was apparently able to withstand the Communist pressure. He eventually ended up in the caves but survived the war.

Evidence was introduced of the accused's outstanding military record.

There was psychiatric testimony that the accused was able at the time of the commission of the offenses to distinguish right from wrong and to adhere to the right. However, both psychiatrists—one for the accused and one for the Government—declared that under the circumstances described, the extreme stress and privation impaired the accused's ability to adhere to the right.

The assignments of error in this case will be taken up seriatim:

I

Is the evidence sufficient to support the findings of guilty?

As previously stated, there is actually little dispute on the facts. For all practical purposes the accused admits that he committed the acts alleged but insists that under the circumstances he was justified in so doing. According to the accused the acts were committed (1) to protect the lives and well-being of the fellow-prisoners of war; (2) under coercion and duress; and (3) while incapable of adhering to the right. These defenses will be dealt with chronologically.

There is considerable evidence in the record indicating that the accused was motivated—in part at least—by the well-being of his fellow-prisoners of war. There is other evidence, however, which casts a doubt as to the accused's primary motivation. Major MacGhee testified that when he refused to make a recording, Fleming informed him that he, Fleming, would have to report to Colonel Kim that MacGhee had double-crossed him. Within a short space of time thereafter MacGhee was transferred to the caves. According to Ser [23 CMR 19] geant Gardiner, the accused informed him that if he didn't straighten out he would be "shipped to the caves." Lieutenant Van Orman recalled that the accused told him that Kim's "got his eye on some of the people laying down around here and trying to get by and not get involved in the political program." And "Kim is getting sick of people hanging around here who are not producing, and is thinking about lowering the strength of the camp." Van Orman took the last statement to mean that if he didn't start cooperating, he would be transferred to the caves. But under the circumstances of this case, as it pertains to the issue now under discussion, we will assume that the motives of the accused were to "protect the lives and well-being of his fellow prisoners of war." However, good motives are not a defense to a crime.

In United States v Batchelor, 7 USCMA 354, 22 CMR 144, the Court had before it the defense contention that under the law officer's instructions the members of the court-martial could convict the accused if they were satisfied that he had voluntarily and knowingly communicated with the enemy without proper authority "even though the accused believed his acts contributed to world peace and the best interests of his fellow-prisoners and his country." The Court concluded that "the instruction is a good statement as to what the law is in this field," adding:

". . . The question then becomes one of whether what might be a laudable motive—in entirely different circumstances—will serve to exculpate a defendant charged with improper communication with the enemy.

"In Chandler v United States, 171 F2d 921 (CA 1st Cir) (1948), the accused, an American citizen, was charged with treason. It was argued that treason is a crime dependent upon the actor's motives, and that the jury should have been told that the defendant could not be found to have had an 'intent to betray' if they believed that he acted from patriotic motives upon a firm conviction that what he did was for the best interests of the United States. The Circuit Court rejected this argument, and we believe its language is appropriate here. Chief Judge Magruder, the organ for the court, disposed of the matter as follows:

‘. . . if appellant's argument in this connection were sound, it would of course be applicable whatever might be the character of the overt acts of aid and comfort to the enemy. Suppose Chandler had obtained advance information of the Anglo-American plans for the invasion of North Africa and had passed the information on to the enemy. Would a treason prosecution fail if he could convince the jury that, in his fanatical and perhaps misguided way, he sincerely believed his country was on the wrong side of the war; that he sincerely believed his country's ultimate good would be served by an early withdrawal from the war; that he sincerely believed that the best, perhaps the only, way to accomplish this good end was to bring it about that the first major military operation of the United States should be a resounding fiasco, thereby stimulating such a revulsion among the American people that the perfidious administration would be forced to negotiate a peace? It is hardly necessary to state the answer to that question.

'When war breaks out, a citizen's obligation of allegiance puts definite limits upon his freedom to act on his private judgment. If he trafficks with enemy agents, knowing them to be such, and being aware of their hostile mission intentionally gives them aid in steps essential to the execution of that mission, he has adhered to the enemies of his country, giving them aid and comfort within our definition of treason. He is guilty of treason, whatever his motive.'''

In United States v Schniederman, 106 F Supp 906, 930 (S .D. Calif) (1952), the Federal District Court had before it, allegedly, violations of the Smith Act; i.e., teaching and advocating the [23 CMR 20] overthrow of the United States Government by force and violence. With respect to motive, the court made the following observation:

"Intent and motive should never be confused. Motive is that which prompts a person to act. Intent refers only to the state of mind with which the act is done.

"Personal advancement and financial gain are two well-recognized motives for much of human conduct. These laudable motives may prompt one person to voluntary acts of good, another to voluntary acts of crime.

"Good motive alone is never a defense where the act done is a crime. If a person intentionally does an act which the law denounces as a crime, motive is immaterial except insofar as evidence of motive may aid determination of the issue as to intent." [Emphasis supplied.]

The evidence in the instant case is ample to support the conclusion that the accused intended to do the acts charged. Since, as we will hereafter discuss, the offenses here require no specific intent, the accused's motives are immaterial, except, of course, as they relate to the determination of an appropriate sentence.

The accused next argues that the evidence is insufficient because he was excused from the legal consequences of his actions by virtue of duress and coercion. In substance, the law officer instructed the court that in order to convict it had to find beyond a reasonable doubt that the accused did not act under a well-grounded apprehension of immediate and impending death, or of immediate serious bodily harm. The trial court did not so find. The members of the court had all the facts laid before them. Whether or not they chose to believe Fleming and, if so, to what extent, was a matter solely within their province. They had the right to assess to the witnesses, including the accused, whatever weight they desired, in the light of all the testimony in the case. Being the sole judges of the credibility of the witnesses, they were entitled to accord to the evidence such weight as they considered under all the circumstances of the case it merited under proper instructions. The real issue then is whether the instructions on the claimed defense of duress and coercion were legally correct. This issue is decided in subdivision II hereinafter. Since this Court cannot weigh the facts as to this, for the accused to prevail we would have to find as a matter of law that the accused's actions were committed under a well-grounded apprehension of immediate death or serious bodily harm. Although by civilized standards conditions in the prisoner of war camp were deplorable, we cannot conclude as a matter of law that the threat of duress or coercion was so immediate as to legally justify the accused's acts. Admittedly, lingering in the background at the camp was the threat of the caves. Moreover it appears that the accused was threatened with a 150-200 mile hike back north. At the time of this threat the accused was without shoes and he deduced that he would be unable to successfully accomplish the trip alive. However, assuming this fact to be true, the court-martial did not find that the threat, standing alone, fell within the immediacy contemplated by the law. Perhaps they felt that accused should have determined by refusal what would have then happened; whether and under what conditions the threat would have been carried out. He might have been given shoes. He might have been called upon to make the march in stages that he could have endured. We note that as a matter of fact many threats were made by the Communists which were not carried out. Major MacGhee testified that after several months' captivity, he definitely concluded that his captors would not carry out their threats to the death. He thereafter refused to "cooperate" and although sent to the caves, he survived. Also, the court-martial could have found that daily life in the prisoner camp did not equate to fear of immediate death or great bodily harm. During the accused's tenure as group leader, not a single prisoner of war died. Many people who resided in the caves died; many did not. Of the eight prisoners in Colonel Fleming's group [23 CMR 21] who eventually ended up in the caves, all survived. One, Lieutenant Crockett, died shortly after his release; he had long been seriously ill. At one time he had been hospitalized by his captors. The rigors of prison life eventually exacted their toll and this fine officer—like many others—died. Further, there is evidence in the record which indicates that the accused had already communicated and cooperated with his captors prior to his knowledge of the caves. He testified that he made his initial recording in Pyongyang and then moved to the new location near the caves. Before the move he had not been impressed with Kim's threats to put him into a "hole," and it was not until later that he was aware of the fact that the threat actually referred to the caves. But prior to that time he had made a recording allegedly stating that prisoners were being treated humanely and the United States had made a mistake in interfering in Korea. He had addressed the town meeting in Tackchon, purportedly declaring that the war was being fought at the behest of the Wall Street profiteers. He had also participated in some of the discussion groups. Finally, the fact-finders could have concluded that the prisoners were not—with isolated exceptions—physically abused. A number of witnesses testified that they were not subjected to physical abuse and that they had never noticed marks of physical violence upon the accused.

After a careful study of the facts in this case, we cannot conclude that the court-martial erred as a matter of law in not finding that the threats of duress and coercion fell within the law officer's definition of immediacy, which would excuse the accused's conduct. Stated differently, the court on the evidence of record could have reasonably found that the accused acted without any well-grounded apprehension of immediate death or serious bodily harm.

The accused next maintains that the evidence is insufficient in that his ability to adhere to the right was so impaired or diminished by harassment, deprivation, degradation, or physical impairment as to make it impossible for him to refuse his captor's demands or to adhere to the right with respect to the particular acts charged.

The expert psychiatric testimony adduced by both the prosecution and the defense was to the effect that although the accused was responsible for his acts and could adhere to the right, his ability with respect to the latter was limited or impaired. In this regard this Court has repeatedly approved the test set out in paragraph 120b, Manual for Courts-Martial, United States, 1951, which provides:

". . . A person is not mentally responsible in a criminal sense for an offense unless he was, at the time, so far free from mental defect, disease, or derangement as to be able concerning the particular act charged both to distinguish right from wrong and to adhere to the right. The phrase 'mental defect, disease, or derangement' comprehends those irrational states of mind which are the result of deterioration, destruction, or malfunction of the mental, as distinguished from the moral, faculties. To constitute lack of mental responsibility the impairment must not only be the result of mental defect, disease, or derangement but must also completely deprive the accused of his ability to distinguish right from wrong or to adhere to the rig ht as to the act charged." [Emphasis supplied.]

The law officer in his charge to the court gave this portion of paragraph 120b practically verbatim. There is simply no evidence of record that the accused's ability to distinguish right from wrong or adhere to the right was completely impaired. Evidence that the accused's ability to adhere to the right was impaired is not a good defense. Furthermore, under the facts of this case, the fact-finders were justified in finding that the accused could adhere to the right. The accused testified on two occasions he was so adamant in his stand that Colonel Kim threatened to kill him, and he told Kim to go ahead and pull the trigger. And after he left the Pyongyang area, according to his testimony, he no longer cooperated with [23 CMR 22] his captors and was considered a reactionary. These factors do not indicate even a partial inability to adhere to the right.

II

Did the law officer err by instructing the court that in order to excuse a criminal act on grounds of coercion, compulsion, or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate serious bodily harm?

That part of the law officer's instruction on duress and coercion, objected to by the accused, is set forth below:

"However, this doctrine of coercion, compulsion or necessity is hedged about with certain positive rules of law and is recognized only in clear cases. In order to excuse a criminal act on the ground of coercion, compulsion, or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate, serious, bodily harm.

"Fear of injury to one's property or of remote bodily harm does not excuse a crime. Moreover, the threat of immediate and impending death or of serious and immediate bodily injury must have continued throughout  the entire period of time during which the crime was allegedly committed. If the accused had a reasonable opportunity to avoid committing the crime without such danger, he cannot invoke duress as a defense. In other words, this coercion or compulsion that will excuse a criminal act must be present, immediate and im1Jencling, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done." [Emphasis supplied.]

During an out-of-court conference, the defense counsel, after objecting to the wording of the law officer's proposed instruction—as above given—offered a substitute:

". . . First of all, with reference to the instruction on coercion and compulsion, we object to the last sentence on page 21, which carries on to page 22, in which the Law Officer proposes to instruct the Court as follows:

"'In order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate, serious, bodily harm.'

"We submit that in lieu of the statement just read the following be incorporated in the instruction:

"'Coercion, which will excuse the commission of an act, otherwise criminal, must be immediate and of such nature as to induce a well-grounded apprehension of immediate, imminent, or impending death, or serious bodily injury, and leave no reasonable opportunity to escape the compulsion without committing the act.'

"Now, in this connection it is our position that in light of the testimony in this case, notwithstanding the Manual instruction on the subject, it would be improper to instruct a jury that one must have acted under a well-grounded apprehension of immediate and impending death.

"The fear of mediate or a delayed, or a wasting death from starvation, deprivation or other like conditions, can just as well spell coercion and compulsion as the fear of immediate death.

"The instruction that we have requested is substantially taken from the case of R. I. Recreational Center vs Aetna Casualty & Surety Company, 172 [sic, 177J Fed. 2d, 603, and cited in 12 ALR 2d, at page 230, and in 14 CMR, at Page 350 [sic 356].” [Emphasis supplied.]

A similar instruction was before this Court in United States v Olson, 7 USCMA 460, 22 CMR 250. In that case Judge Latimer, writing for the Court, upheld the instruction as being in accordance with the Federal holdings.

In their brief, counsel for the accused admit that the law officer's instruction on duress and coercion is a correct statement of the law when prof [23 CMR 23] fered as a defense to a routine crime committed in a civilized society. However, in a case such as this the defense argues that "to attempt to apply such law to the situation overwhelmingly shown by this record of trial, and by history to have existed in the prisoner of war camps, where every breath was drawn under constant pressure by unscrupulous captors, and in the ever present shadow of death, is to ignore reality to the grave prejudice of the accused." To buttress his position, the accused cites an 1865 opinion of  the Judge Advocate General of the Army  to the effect that the severe rule of duress, as laid down in Respublica v McCarty, 2 Dallas 86 (US 1781) (which held that the only excuse for joining the King's forces was the fear of immediate death), could not be properly applied in all its strictness to cases of Union prisoners—during the war between the States—who were held in Confederate prisons and allegedly subjected to "authenticated cruelties" and were thereby "induced" to join the Southern forces. This opinion, however, is not the law and merely expounds a policy pertinent to those times, that certain recaptured Union prisoners should not be court-martialed. On the other hand, we have ample Federal law on this precise subject which is as the law officer instructed.

In Iva Ikuko Toguri D'Aquino v United States, 192 F2d 338 (CA9thCir) (1951) the defendant was convicted of treason, which arose from radio broadcasts from Japan (Tokyo Rose) during World War II. The defendant raised the defense of duress and coercion. The Court of Appeals held that:

". . . The Court instructed the jury at length upon the defense that the criminal act was not committed voluntarily but was the result of coercion, compulsion or necessity. The instruction included the statement that 'in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one's property or remote bodily harm do not excuse an offense.'  It will be noted that the court's instruction was almost identical to that approved in Gillars v. United States, supra, 182 F. 2d at page 976, note 14. The charge was a correct statement of the law upon this subject. United States v. Vigol, 2 Dall 346, 2 U.S. 346, 1 L. Ed. 409; Respublica v. McCarty, 2 Dall 86, 2 U.S. 86, 1 L. Ed. 300; Shannon v. United States, 10 Cir., 76 F. 2d 490; R. I. Recreation Center v. Aetna Casualty & Surety Co., 1 Cir., 177 F. 2d 603, 12 A.L.R. 2d 230. [Emphasis supplied.]

"Appellant seriously contends that however correct the instruction might be in an ordinary case where a person accused of crime committed in his own country claims to have been coerced by an individual, the instruction of the court was in error particularly in its requirement of apprehension of immediate and impending death, or of immediate bodily harm, in a case where the accused person was in an enemy country, unable. To get protection from the United States and where the compulsion is on the part of the enemy government itself.

“. . . We know of no rule that would permit one who is under the protection of an enemy to claim immunity from prosecution for treason merely by setting up a claim of mental fear of possible future action on the part of the enemy. We think that the citizen owing allegiance to the United States must manifest a determination to resist commands and orders until such time as he is faced with the alternative of immediate injury or death. Were any other rule to be applied, traitors in the enemy country would by that fact alone be shielded from any requirement of resistance. The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch."

In Gillars v United States, 182 F2d 962 (CA DC Cir) (1950), the defendant, Mildred Gillars, was convicted of treason for taking part in psychological warfare against the United States by [23 CMR 24] broadcasting radio programs from Germany during World War II (a German Tokyo Rose). The defense of duress and coercion was raised and the jury instructed as set forth in Footnote 14:

"'Moreover, the force and fear, in order to constitute a defense in a case of treason, must continue during all the time of such service with the enemy, and one who makes force his defense must show that he left the service as soon as he could. In other words, ladies and gentlemen of the jury, this coercion or compulsion that will excuse a criminal act must be present, immediate and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.

"'* * * Nor is it sufficient that the defendant thought she might be sent to a concentration camp, if you so find, nor are threats to other persons sufficient. * * *'" [Emphasis supplied.]

The court concluded "The instructions which were granted were indeed all that the evidence warranted." We must necessarily note that both the civil and the military have repeatedly affirmed this same test over a period of many years. See Shannon v United States, 76 F2d 490 (CA10th Cir) (1935); United States v Floyd, 18 CMR 362; Winthrop's Military Law and Precedents, 2d ed, 1920 Reprint, pages 297, 635; Snedeker, "Military Justice under the Uniform Code," § 2405 (b) (1) (1953); Davis, "A Treatise on Military Law of the United States," 3d ed, page 138.

In the present case the board of review had this to say about the defense of coercion and duress (United States v Fleming [CM 377846], 19 CMR 438, 450):

"We are not unmindful of the hardships or the pressures to which the accused and his fellow prisoners were subjected prior to the time of his collaboration with the enemy. Obviously living conditions were not good, the diet was poor, and threats were made of worse things to come if cooperation was not forthcoming. It could hardly be argued that the accused was not under great pressure. However, it is important to note that,: at the times accused committed the acts alleged, the food ration, though scarcely abundant, was considerably improved over the ration in Camp Five. Furthermore, we cannot overlook the fact that accused cooperated with his captors upon the mere assertion of the threats. Thus, when first threatened with being forced to walk north to Pyoktong, the accused immediately proceeded to write and record his propaganda broadcast, without attempting to ascertain that his captors actually meant to carry out their threat. These circumstances preclude a finding that accused's fears were well grounded. But even assuming that accused was justified in believing that his captors would execute their threat, the defense of duress was not established, for the threat was not of immediate and impending death or serious bodily harm. It was not at all certain at the time the threat was made that walking north to Pyoktong would cause death at all, much less immediately. By way of comparison, if, for example, accused's captors had actually made him start on foot for Camp Five, and it then became evident that he could not survive the march, a valid defense of duress might have arisen for capitulation at that point. But that is not this case. Here the danger of death was problematical and remote. Even more damaging to the cause of the accused was the instance of the 'surrender appeal.' Accused 'voice-signed' this monstrous item of propaganda apparently upon the threat of having the food rations cut off or curtailed, and of being sent to the 'Caves'. The junior officers and enlisted men present refused en masse, although they were subject to substantially the same pressures as accused. Despite the example of capitulation set by the accused, a field grade officer and their leader, they at least were willing to determine whether their captors would send them to the Caves or cut off the food if they refused to collaborate. [23 CMR 25] Accused was not. As the court stated in D'Aquino v. United States, supra, 'The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch' (182 F. 2d at 359 ). Accused's resistance had not 'brought him to the last ditch'; the danger of death or great bodily harm was not immediate. Accused can not now avail himself of the defense of duress."

The final disposition here as to duress and coercion must be determined by the law which is without exception that the defense is only available under a reasonably grounded fear of immediate death or great bodily harm. The fact-finders found such not to be the fact in this case.

III

Did the law officer err by refusing to give the defense requested instructions on insanity?

The defense requested, during an out-of-court hearing, the following instruction as to the effect of physical impairment on the accused's ability to adhere to the right and resist his captors:

"In connection with your consideration of the elements of coercion and duress about which I have just instructed you, you are further instructed that you may take into consideration, in your deliberations, the elements of harassment, deprivation, degradation, and physical impairment, if any, as revealed by all of the evidence in this case. If, in your determination of the accused's ability to adhere to the right, you find, from the testimony that has been offered in this case, that the ability of the accused so to do was so impaired or diminished by harassment, deprivation, degradation, or physical impairment, so as to make it impossible for the accused to refuse to comply with the demands of his captors or to adhere to the right, then, you must find him not guilty of those charges in which these elements are involved." [Emphasis supplied.]

We have already noted that the instructions given by the law officer on duress and coercion were correct. The above requested instruction appears to be an effort to combine elements of the duress, coercion, and insanity defenses. We further observe that the law officer thereafter instructed the court concerning the approved test with respect to the ability to adhere to the right. Without ruling whether such an instruction as requested by the defense here would ever be required, suffice it to say that the defensive theories of duress and coercion were adequately covered by the law officer. The requested instruction would have changed the test of insanity as approved by this Court and set forth in paragraph 120b of the Manual for Courts-Martial, supra (and as given by the law officer) which declares that lack of mental responsibility must result from mental defect, disease, or derangement. Under the instruction as requested, the accused could have been acquitted by reason of mental irresponsibility even though he was not suffering from a disease of the mind. In addition, the requested instruction would have permitted acquittal of the accused by a showing that his ability to adhere to the right had only been impaired or diminished by factors other than mental sickness whereas the law as recognized by this Court requires complete deprivation of the ability to adhere to the right.

The only evidence of record touching upon mental capacity was the testimony of Drs. Arnold and Baker, psychiatrists, who testified that the accused was not suffering from mental defect, disease or derangement of the mind, but that his ability to adhere to the right was possibly impaired or diminished due to the stresses and strains of prison life and nutritional deficiencies. Defense witness, Dr. Baker, testified that the accused was not suffering from a psychiatric or psychoneurotic disorder. It is quite apparent, therefore, that the accused was not suffering from the type of physical infirmity recited by the Manual and approved by this Court.

One further facet of the accused's [23 CMR 26] argument as to insanity should be commented upon. The accused attempts to bring himself within the rule of United States v Kunak, 5 USCMA 346, 17 CMR 346, and United States v Dunnahoe, 6 USCMA 745, 21 CMR 67, wherein it was held that partial mental irresponsibility arising from a mental impairment falling short of legal insanity was a defense to an offense requiring a specific criminal intent. The difficulty with this argument, however, is that the accused does not stand convicted of offenses requiring a specific criminal intent. The charges here are similar to the offense defined by Article of War 81, 10 USC § 1553 (1946 ed). The argument was raised in United States v Batchelor, supra, that Article 104 (the aiding the enemy Article of the Uniform Code of Military Justice which replaces Article of War 81) required a specific criminal intent. The Court held that the offense of knowingly communicating, corresponding, or holding intercourse with the enemy, in violation of Article 104, does not require a specific intent; that an instruction requiring only a finding of general criminal intent and a finding of words importing criminality is sufficient. We hold that the same reasoning should apply to the offenses now before this Court. See also paragraph 183d, Manual for Courts-Martial, supra, and paragraph 169c, Manual for Courts-Martial, U. S. Army, 1949.

Also throughout the lengthy record of this trial, it was never claimed by the accused or defense witnesses that he did not know he was communicating with the enemy. The accused testified at considerable length that he not only was aware that he was communicating with the enemy, but he resisted their efforts by delay, technicalities, and general sabotage. He recalled with vigor—and we believe him—that he never for an instant believed any of the "malarky" they were trying to get across to the prisoners. Absent is the claim that the accused was acting under any type of mental illness which deprived him of the ability to form a criminal intent.

IV

Did the law officer err by instructing the court that the punishment for the offenses of which the accused was convicted included confinement at hard labor for life?

According to the Manual for Courts-Martial, U. S. Army, 1949, the sentence for a conviction under the Article of War 95 was dismissal, and for Article 96 as a court-martial might direct. Paragraph 117c of the 1949 Manual, supra, provides that:

". . . If an offense not listed in the table [Table of Maximum Punishments] is included in an offense which is listed and is also closely related to some other listed offense, the lesser punishment prescribed for either the included or closely related offense will prevail as the maximum limit of punishment."

So if no punishment is listed in the Table of Maximum Punishments with respect to an offense, we must examine the Table for a closely related offense. See United States v Stewart, 2 USCMA 321, 8 CMR 121; United States v Blevens, 5 USCMA 480, 8 CMR 104. The only similar offense to the instant one is Article of War 81 which provided that any person who, without proper authority, "knowingly holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial or military commission may direct." However the Table does not list a maximum punishment for that offense. We are therefore referred back to the Article itself. Thus it would appear that the law officer did not err by instructing the court that the maximum punishment was life imprisonment.

V

Did the law officer err by admitting into evidence Prosecution Exhibits 3, 5, 3a and 5a? The parties stipulated that Prosecution Exhibits 3 and 5 were magnetic tape recordings of radio broadcasts, purportedly emanating from the Central Broadcasting Station of the Democratic People's Republic of Korea located at Pyongyang, Korea. The broadcasts [23 CMR 27] were intercepted and recorded on the tapes on Okinawa by the United States Foreign Broadcast Information Service. Prior to their introduction into evidence, the records were played during an out-of-court hearing. Several witnesses identified their own and other voices and recognized segments of the recordings as containing appeals to the Five Great Powers, President Truman, and General MacArthur. Sergeant Mares identified the accused's voice and Warrant Officer Coxe believed that one of the voices was similar to the accused. Lieutenant Wilson testified that besides recognizing his own voice, he recognized the voices of the accused and other individuals who participated in the panel discussion. When the court reopened Wilson identified the panel discussion recording. It is quite true that the records were garbled with extraneous noises and obviously the witnesses had difficulty recognizing clearly and distinctly the participants. However, since the source of the broadcasts was admitted and agreed upon by the parties, any difficulty in understanding portions of the broadcast would appear to affect only the weight to be assessed to the exhibits by the fact-finders, not their admissibility.

In United States v Schanerman, 150 F2d 941 (CA3d Cir) (1945), the accused was prosecuted for bribery of a draft board member to obtain a deferment. The court declared:

"No error is found, as charged by appellant, in the refusal of the district court to instruct the jurors to disregard what they had heard when records of conversations between Appellant and Finneran were 'played' in the hearing of the jury during the trial. This type of evidence was admissible upon the authority of Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 . . . but the mere fact that certain portions of the mechanically recorded conversations were less audible than others did not call for exclusion of what the jurors personally heard from the 'playing' of the records. There would be no more valid reason for exclusion of the mechanically recorded conversations than there would be for excluding competent conversations, overheard in part, by human witnesses."

Besides the garbled nature of the tapes, the accused argues that the broadcasts should also have been excluded because the Communists may have through trickery altered the recordings after they had been made. This possibility would also affect weight rather than admissibility. If valid, certainly such an argument should in all instances comparable to this render recordings from enemy territory inadmissible. However, similar recordings were admitted in the Iva Ikuko Toguri D' Aquino and Gillars cases, supra.

One further complaint remains with respect to the recordings. After the president of the court  expressed his dissatisfaction about the lack of clarity of the tapes, an alleged expert in the field of radio and audiofrequency ran the recordings through an electric audio filter process and re-recorded them. This "expert" testified at the trial that since this filtering process removed only the high frequency noises it would not materially alter the sound characteristics of a male voice. The re-recordings were admitted into evidence as Exhibits 3a and 5a. The defense strenuously objected that since the original tapes were available, the best evidence rule precluded the admissibility of the secondary evidence. We agree with the holding of the court in People v Stephens, 117 Cal App2d 653, 256 P2d 1033 that re-recordings made from a tape and wire recording "would appear . . . admissible in evidence and that the best evidence rule is not applicable." In the present case the recordings were improved by the filtering process and the contents thereof were not changed. There is no logical reason why the benefits of scientific developments should be denied access to the courtroom so long as the rights of the accused are fully protected.

Moreover, in this case the accused never denied that he made recordings for his captors. His defensive posture [23 CMR 28] was that he committed the acts but under the unusual circumstances he was justified. On the witness stand, he admitted recording the round-table discussion and voice signing the appeals. Besides the accused, other witnesses testified to the content of the recordings. As we stated in the beginning of this opinion, the issue was not whether the accused did the acts, but whether the illegality thereof was more than offset by the accused's explanation—along with other evidence—justifying his conduct. We hold, therefore, that the accused was not prejudiced by the admission of these recordings into evidence.

VI

Was the accused prejudiced by the Government's use of a “shot gun" type of pleading?

The accused stoutly contends that his rights were substantially prejudiced by frivolous pleadings on the part of the Government. He attempts to support his argument by quoting from a dissenting opinion of Judge Brosman in United States v Voorhees, 4 USCMA 509, 16 CMR 83, wherein the Judge condemned a "shot gun" type of pleading, which evinced an attempt to get a conviction despite the merits or lack of evidence as to all of the particular specifications and charges. The defense points the accusing finger at one of the specifications wherein it was alleged that during a crowded truck ride, the accused stomped on the foot of Corporal Gorr. The investigating officer recommended that the charge be dropped because, "I do not believe that the alleged offense committed under such circumstances was sufficiently serious as to warrant trial." Perhaps the advice of the investigating officer should have been heeded. But the convening authority has discretion in referring the charges. Under the circumstances we do not believe the accused was prejudiced or that the convening authority abused his discretion in referring this charge to trial. United States v Greenwalt, 6 USCMA 569, 20 CMR 285.

We are not unmindful of the rigors and horrors of the prisoner of war camps in Korea. Our sympathy goes out to the men who were unfortunately forced to endure the inhuman treatment foisted upon them by their barbaric captors. However, we cannot let a hard case make bad law. "War is a harsh business and Colonel Fleming was a field grade officer in the United States Army. He was senior to most of the other prisoners of war in his group and acted as a group leader. The exigencie s of the situation called upon him to be an example to his men. If anything, due to his superior rank and senior position, he was called upon to exercise a conduct more exemplary than the other prisoners. In this regard we think a quotation from the board of review holding in United States v Floyd [CM 374314], 18 CMR 362, is appropriate:

". . . As a commissioned officer of the United States Army, Colonel Keith, whether the senior American officer present in the particular camp   or not, and although deprived of many of the functions and prerogatives of his office by his Communist captors, had the responsibility and duty to take such actions as were available to him (and if the senior officer present to exercise such command as he was able) to assist his fellow prisoners, to help maintain their morale, and to counsel, advise and, where necessary, order them to conduct themselves in keeping with the standards of conduct traditional to American servicemen."

The court-martial, convening authority, and the board of review found that he failed to meet those high standards demanded by the Army of an officer of his rank. Under the circumstances we cannot hold that they were wrong.

The decision of the board of review is affirmed.

Judge LATIMER concurs.

QUINN, Chief Judge (concurring in the result):

I disagree with a number of statements made in the majority opinion. Most important is my disagreement with the majority's conclusion that, as a matter of law, a threat of confinement in the caves did not constitute a sufficient [23 CMR 29] threat of, at least, grievous bodily harm. The principal opinion itself notes that the "prisoners felt that a sentence to the caves was almost tantamount to a sentence of death"; that twenty-three Americans died in the caves between Major MacGhee's confinement and release; that the accused was taken to see fourteen newly captured prisoners confined in the caves, and by his last visit, all had died except one, and "he too was dying." In my opinion, this evidence is sufficient to raise a defense of coercion or necessity.

Raising a defense, however, does not mean that the court-martial was bound to accept it. Other evidence shows that the accused had freely and materially cooperated with and helped the enemy before he had heard or seen anything of the caves. Acts of misconduct prior to those charged can be considered by the court-martial in determining the accused's purpose or design in the commission of the offenses alleged. United States v Dickenson, 6 USCMA 438, 456, 462, 20 CMR 154. And, as the majority opinion indicates, there is evidence tending to show that the accused freely helped his enemy captors in enforcing their efforts to subjugate the prisoners. On the basis of this evidence, the court-martial could reject the accused's defense and find that he committed the acts charged without duress or compulsion. The question then is whether the court-martial received proper instructions from the law officer on the legal principles relating to the defense.

It is conceded, and the cases support the concession,^[2] that the law officer's instructions are a correct general statement of the law. However, at the trial the accused contended that the court members should not be instructed that to establish his defense of coercion, it must appear that he "acted under a well-grounded apprehension of immediate and impending death,” but that it would be sufficient if he were confronted with death, “or a wasting death from starvation, deprivation or other like conditions.” As I have already noted, in my opinion, the evidence of the many deaths that occurred in the caves provides a basis from which the court members could find that a threat of confinement therein was sufficient for a "well-grounded apprehension" of immediate and impending death or serious bodily harm, especially since the threat bears the "color" of the conditions that existed there. See United States v Olson, 7 USCMA 460, 22 CMR 250. The requested instruction, however, does not present that issue. On the contrary, it attempts to substitute a general fear of future possible mistreatment for the requirement of a present threat of present harm. Accordingly, the law officer was justified in rejecting the request to instruct. Since the instructions which he gave are correct and appropriate, the accused cannot complain.

Further particularization of my disagreement with statements in the majority opinion is unnecessary. Suffice it to say that I agree with the conclusions on the points discussed. Consequently, I join in the result.

Notes 

[1] This omission "and extolling the virtues of communism" is the portion of the specifications excepted by the board of review in their decision dated July 28, 1955.

[2] Parenthetically, I do not read the 1865 JAG opinion cited by the majority as expressing merely a policy not to punish returned Union prisoners. It seems to me that the JAG opinion approaches the modern view that a threat of serious bodily harm as well as a threat of death gives rise to the defense of coercion or necessity. See United States v Olson, 7 USCMA 460, 22 CMR 250.

While the jury is the ultimate finder of fact, we fail to see how evidence of a defendant's demeanor before and after a crime can have much probative value when a schizophrenic defendant is involved.. ..

. . . .

 

 

The proposition that a jury may infer that a person's actions before and after a crime are "indicative of his actual mental health at the time of the" crime is logical when dealing with a defendant who is not prone to delusional or hallucinogenic episodes. However, when a defendant has a serious and well-documented mental disorder, such as schizophrenia, one that causes him to see, hear, and believe realities that do not exist, such logic collapses. . . .

HIGH COURT OF AUSTRALIA

THE KING against PORTER.

Criminal Law - Insanity - Temporary - Charge of Murder.

Charge to the jury upon a plea of temporary insanity set up to an indictment for murder.

TRIAL on Indictment.

On 31st January and 1st February 1933 (before the passing of the Seat of Government Supreme Court Act 1933) Bertram Edward Porter was tried on indictment for murder at Canberra before Dixon J. sitting in the original jurisdiction of the High Court under sec. 30B of the Judiciary Act 1903-1932.

It appeared that the prisoner had administered strychnine to his infant son aged eleven months and had then attempted to take strychnine himself but had been interrupted by the entry of the police. The child died, and this was the murder with which he was charged. His defence was that he was insane at the time he committed the act.

The facts set up in support of the defence were briefly as follows :- After a period of separation from his wife during which he looked after the child, he had made desperate but unsuccessful efforts to fleet a reconciliation. He became extremely emotional and showed symptoms of a nervous breakdown. He was sleepless, and took quantities of aspirin, phenacetin and caffein. He then travelled with the child from Canberra to Sydney in circumstances which made it probable that he was without sleep for three nights. On his return he had a final interview with his wife, in which he appeared to have lost all control of his emotions. On her refusing to have anything to do with him or the child, he told her he would poison himself and the child and hastened away to obtain the strychnine. She informed the police, who found him shut in his house, sobbing. He had just given the strychnine to the child and was about to take it himself.

P. V. Storkey, for the Crown.

O'Sulliva.n and Hidden, for the prisoner.

DIXON J., in summing up, said :-

The accused stands charged under the name of Bertram Edward Porter, for the murder of his child, Charles Robert Porter, committed on 28th November 1932. The crime of murder is committed when, without any lawful justification, without any excuse, without any provocation, a person of sufficient soundness of mind to be criminally responsible for his acts intentionally kills another. To begin with, every person is presumed to be of sufficient soundness of mind to be criminally responsible for his actions until the contrary is made to appear upon his trial. It is not for the Crown to prove that any man is of sound mind; it is for the defence to establish inferentially that he was not of sufficient soundness of mind, at the time that he did the actions charged, to be criminally responsible. On the other hand, every person is to be presumed to be innocent of the actions charged against him until it is proved to the satisfaction of the jury beyond any reasonable doubt that he committed them.

You will see, gentlemen, that the presumptions are not of equal strength. The criminal law requires that, when a crime is charged, the things which constitute that crime shall be proved to the complete satisfaction of the jury; that they shall be so satisfied that those things were done that they have no reasonable doubt about it. On the other hand, when that is proved, and the jury turn from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel, has merely to make it appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise.

You will therefore see that the first questions in this case for your consideration are these: Did the prisoner administer strychnine to his infant son with the intention of causing his death; and, did its death result from his so doing? Unless you are so satisfied, beyond reasonable doubt, that he did administer strychnine to the child with the intention of causing his death, and that death resulted from strychnine, then it is your simple duty to return a plain verdict of not guilty, because he would not have done the things which constitute murder.

Probably you will have no difficulty at all in arriving at the conclusion that the prisoner did administer strychnine to his son with the intention of causing its death, and that death did result from the strychnine. I am bound to add that it is entirely for you to give effect to that evidence, and, if you think the evidence is not so strong as Ind the Crown Prosecutor have suggested it is, you will stop the case at that stage. You will not go any further and consider the question of insanity.

[His Honour referred to the facts material to the commission of the acts constituting the crime and proceeded :--]

The facts, as I have said, appear to me to be clear, but if you disagree with that, you should give effect to your disagreement by finding the prisoner not guilty. The responsibility is yours, and not mine. If, on the contrary, you are satisfied beyond reasonable doubt, to the exclusion of all doubt, of these three matters – (1) that he did administer strychnine to the child; (2) that he did so with the intention of killing it; and 3) that the child's death did result from that administration – then you will turn and proceed to consider whether, at that particular time when he did those things, his state of mind was such as to make him criminally responsible for his act. That means, has it been made out to your reasonable satisfaction that, at the time, the prisoner’s faculties were so disordered that he is not in law criminally responsible for what he did. If you form the opinion that his faculties were so disordered that he is not criminally responsible, you will find a verdict of not guilty on the ground that the prisoner was insane at the time the offence was committed. You do not find him guilty but insane, as they do in some British countries. According to the law in this country the technical verdict is such a case is: Not guilty on the ground of insanity at the time of the commission of the offence charged. It is your function specifically to state that ground for your verdict of not guilty, because the legal consequences are quite different from those which follow a plain verdict of not guilty on the ground that the prisoner did not do the things charged. If you think it is not proved that the prisoner poisoned his child and brought about his death, your verdict, of course, will be simply not guilty, and he will be completely free. If, however, you think that he did the things charged against him, but that, at the time, his mind was so disordered that he could not be held responsible, then you will find him not guilty on the ground of insanity at the time of the offence charged.

There is a legal standard of disorder of mind which is sufficient to afford a ground of irresponsibility for crime, and a ground for your finding such a verdict as I have indicated. It is my duty to explain that standard to you. It is plain from what passed the witness-box this morning, when Dr. Henry was giving evidence, that the legal standard is a matter which he himself wished to discuss, but I prevented him, and kept him to his medical function. In my judgment, from remarks which have been made at the Bar in the course of speeches, it appears that some difference of opinion between learned counsel exists as to what that legal standard is. You will take my explanation of it, and disregard the attempts which have been made elsewhere to explain it, because mine is the responsibility of laying down what the law is. Yours is the responsibility of applying it to the facts.

Before explaining what that standard actually is, I wish to draw your attention to some general considerations affecting the question of insanity in the criminal law jn the hope that by doing so you may be helped to grasp what the law prescribes. The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law, so that when people have committed offences the law considers that they merit punishment, but its prime purpose is to preserve society from the depredations of dangerous and vicious people. Now, it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment; if they cannot understand what they are doing or cannot understand the ground upon which the law proceeds. The law is not directed, as medical science is, to curing mental infirmities. The criminal law is not directed, as the civil law of lunacy is, to the care and custody of people of weak mind whose personal property may be in jeopardy through someone else taking a hand in the conduct of their affairs and their lives. This is quite a different thing from the question, what utility there is in the punishment of people who, at a moment, would commit acts which, if done when they were in sane minds, would be crimes. What is the utility of punishing people if they be beyond the control of the law for reasons of mental health? In considering that, it will not perhaps, if you have ever reflected upon the matter, have escaped your attention that a great number of people who come into a Criminal Court are abnormal. They would not be there if they were the normal type of average everyday people. Many of them are very peculiar in their dispositions and peculiarly tempered. That is markedly the case in sexual offences. Nevertheless, they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect I of punishment. It would be very absurd if the law were to withdraw that check on the ground that they were somewhat different from their fellow creatures in mental make-up or texture at the very moment when the check is most needed. You will therefore see that the law, in laying down a standard of mental disorder sufficient to justify a jury in finding a prisoner not guilty on the ground of insanity at the moment of the offence, is addressing itself to a somewhat difficult task. It is attempting to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like. With that explanation I shall tell you what that standard is.

The first thing which I want you to notice is that you are only concerned with the condition of the mind at the time the act complained of was done. That is the critical time when the law applies to the man. You are not concerned, except for the purpose of finding out how he stood at that moment, what his subsequent condition was or what his previous condition was. He may have been sane before and he may have been sane after, but if his mind were disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence. It is helpful in finding out how he was at the time to find out how we has before and after. It is merely because it is helpful that we go into it in this case, not because it is decisive.

The next thing I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing. If that existed it must then have been of such a character as to prevent him from knowing the physical nature of the act he was doing or of knowing that what he was doing was wrong. You will see that I have mentioned two quite different things. One state of mind is that in which he is prevented by mental disorder from knowing the physical nature of the act he is doing; the other is that he was prevented from knowing that what he was doing was wrong. The first relates to a class of case to which so far as I am concerned I do not think this case belongs. But again, that is my opinion of a matter of fact and it is for you to for you to form your opinion upon it. In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object. In such a case he would not know the physical nature of what he was doing. He would not know the implications and what it really amounted to. In this case, except for the prisoner's own statement from the dock that after a certain time he remembered nothing of what he did, there seems to be nothing to support the view that this man was in such a condition that he could not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that is involved in the destruction of life. It is for you to form a conclusion upon that matter, but I suggest to you that the evidence of what he said to the police when he was found after he had given the poison to the child and was about, apparently, to administer it to himself, shows that he understood the nature of life and death and the nature of the act he was doing in bringing it about. But you are at liberty to take into account that he said he knows nothing of what he did at that time. If you form the conclusion that notwithstanding the evidence which I have mentioned the mental disorder of this man was such that he could not appreciate the physical thing he was doing and its consequences, you will acquit him on the ground of insanity at the time he did the thing charged.

The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression "disease, disorder or disturbance of the mind." That does not mean (as you heard from the doctor's replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing- with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression "know," "knew that what he was doing was wrong." We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong?

If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally.

[His Honour reviewed the circumstances affecting the question of the prisoner's state of mind at the time of the commission of the acts charged and the medical evidence and proceeded:~]

In conclusion I go back to what I consider the main question of the case and it is whether you are of the opinion that at the stage of administering the poison to the child the man whom you are trying had such a mental disorder or diseased intelligence at that moment that he was disabled from knowing that it was wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness. If you answer that question in his favour you will find him not guilty on the ground of insanity at the time of the commission of the offence charged. If you answer the question against him, and you have already formed a conviction on that question, that he committed the actual act which constituted murder with the necessary intention of bringing about death, you will find him guilty of murder. I repeat that the burden of establishing to your complete satisfaction to the exclusion of all reasonable doubt that he did all the acts with the requisite intention of killing which constitutes murder and brought about death, is upon the Crown. I think upon the evidence you will have little difficult on that point.

The burden of establishing to your reasonable satisfaction, not to the exclusion of all doubt but on the balance of probability, that his state of mind was one which I have described is upon the prisoner. If you are in the condition of mind of being quite unable to answer that question it will be your duty then to find him guilty, assuming that you have arrived at the conclusion that you are convinced that the act, if that of a sane man, would amount to murder. Three verdicts upon this view of the case are open to you. You may find him completely not guilty, which would mean that you are not satisfied beyond reasonable doubt that he caused the death but at the time his intelligence was so disordered that he was in such a state that he was not criminally responsible for his act. 
Finally, you may find him guilty of murder.

You will now retire to consider your verdict.

The jury returned the following verdict :-
Not guilty on the ground of insanity at the time of commission of the act charged.

Solicitor for the Crown, W. H. Sharwood, Crown Solicitor for the Commonwealth.
Solicitor for the prisoner, Felix Mitchell, Cooma.

DANIEL M'NAGHTEN'S CASE.

May 26, June 19, 1843.

[Mews' Dig. i. 349; iv. 1112. S.C. 8 Scott N.R. 595; 1 C. and K. 130; 4 St. Tr. N.S, 847. The rules laid down in this case have been accepted in the main as an authoritative statement of the law (cf. Beg. v. Townley, 1863, 3 F. and F. 839; Beg. v. Southey, 1865, 4 F. and F. 864; Beg. v. Leigh, 1866, 4 F. and F. 919). But they have been adversely criticised both by legal and medical text writera (see 2 Steph. Hist Crim. Law, 124-186; Mayne Ind. Crim. Law (ed. 1896), 368), have been rejected by many of the American States (see e.g. Parsons v. State, 1887, 81 Ala. 577), and frequently receive a liberal interpretation in England. On point as to questions to the Judges, see note to London and Westminster Bank Case, 2 Cl. and F. 191.]

Murder-Evidence-lnsanity.

The House of Lords has a right to require the Judges to answer abstract questions of existing law (see London and Westminster Bank Case, ante [2 Cl. and F.], p. 191 [and note thereto].

Notwithstanding a party accused did an act, which was in itself criminal, under the influence of insane delusion, with a view of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable if he knew at the time that he was acting contrary to law.

That if the accused was conscious that the act was one which he ought not to do; and if the act was at the same time contrary to law, he is punishable. In all cases of this kind the jurors ought to be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction: and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of commiting the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong.

That a party labouring under a partial delusion must be considered in the same situation, as to responsibility, as if the facts, in respect to which the delusion exists, were real.

That where an accused person is supposed to be insane, a medical man, who has been present in Court and heard the evidence, may be asked, as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong.

The prisoner had been indicted for that he, on the 20th day of January 1843, at the parish of Saint Martin in the Fields, in the county of Middlesex, and within the jurisdiction of the Central Criminal Court, in and upon one Edward Drummond, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said Daniel M'Naghten, a certain pistol of the value of 20s., loaded and [201] charged with gunpowder and a leaden bullet (which pistol he in his right hand had and held), to, against and upon the said Edward Drummond, feloniously, wil-fully, and of his malice aforethought, did shoot and discharge; and that the said Daniel M'Naghten, with the leaden bullet aforesaid, out of the pistol aforesaid, by force of the gunpowder, etc., the said Edward Drummond, in and upon the back of him the said Edward Drummond, feloniously, etc. did strike, penetrate and wound, giving to the said Edward Drummond, in and upon the back of the said Edward Drummond, one mortal wound, etc., of which mortal wound the said E. Drummond languished until the 25th of April and then died; and that by the means aforesaid, lie the prisoner did kill and murder the said Edward Drummond. The prisoner pleaded Not guilty. 

Evidence having been given of the fact of the shooting of Mr .Drummond, and of his death in consequence thereof, witnesses were called on the part of the prisoner, to prove that he was not, at the time of committing the act, in a sound state of mind. The medical evidence was in substance this: That persons of otherwise sound mind, might be affected by morbid delusions: that the prisoner was in that condition: that a person so labouring under a morbid delusion, might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception; and that he was not capable of exercising any control over acts which had connexion with his delusion: that it was of the nature of the disease with which the prisoner was affected, to go on gradually until it had reached a climax, when it burst forth with irresistible [202] intensity: that a man might go on for years quietly, though at the same time under its influence, but would all at once break out into the most extrava- gant and violent paroxysms.

Some of the witnesses who gave this evidence, had previously examined the prisoner: others had never seen him till he appeared in Court, and they formed their opinions on hearing the evidence given by the other witnesses.

Lord Chief Justice Tindal (in his charge): -The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him. 

Verdict, Not guilty, on the ground of insanity.

This verdict., and the question of the nature and extent of the unsoundness of mind which would excuse the commission of a felony of this sort, having been made the subject of debate in the House of Lords (the 6th and 13th March 1843 ; see Hansard's Debates, vol. 67, pp. 288, 714), it was determined to take the opinion of the Judges on the law governing such cases. Accordingly, on the 26th of May, all the Judges attended their Lordships, but no questions were then put.

On the 19th of June, the Judges again attended the House of Lords; when (no argument having been [203] had) the following questions of law were propounded to them:-

1st. What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons: as, for in- stance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?

2d. What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and in-sanity is set up as a defence?

3d. In what terms ought the question to be left to the jury, as to the prisoner's state of mind at the time when the act was committed?

4th. If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?

5th. Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?

[204] Mr. Justice Maule :--I feel great difficulty in answering the questions put by your Lordships on this occasion :-First, because they do not appear to arise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts, not inconsistent with those assumed in the questions: this difficulty is the greater, from the practical experience both of the bar and the Court being confined to questions arising out of the facts of particular cases :-Secondly, because I have heard no argument at your Lordships' bar or elsewhere, on the subject of these questions; the want of which I feel the more, the greater are the number and extent of questions which might be raised in argu- ment:-and Thirdly, from a fear of which I cannot divest myself, that as these ques- tions relate to matters of criminal law of great importance and frequent occurrence, the answers to them by the Judges may embarrass the administration of justice, when they are cited in criminal trials. For these reasons I should have been glad if my learned brethren would have joined me in praying your Lordships to excuse us from answering these questions; but as I do not think they ought to induce me to ask that indulgence for myself individually, I shall proceed to give such answers as I can, after the very short time which I have had to consider the questions, and under the difficulties I have mentioned; fearing that my answers may be as little satisfactory to others as they are to myself.

The first question, as I understand it, is, in effect, What is the law respecting the alleged crime, when at the time of the commission of it, the accused knew he was acting contrary to the law, but did the act [205] with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?-If I were to understand this question according to the strict meaning of its terms, it would require, in order to answer it, a solution of all questions of law which could arise on the circumstances stated in the question, either by explicitly stating and answering such questions, or by stating some principles or rules which would suffice for their solution. I am quite unable to do so, and, indeed, doubt whether it be possible to be done; and therefore request to be permitted to answer the question only so far as it comprehends the question, whether a person, circumstanced as stated in the question, is, for that reason only, to be found not guilty of a crime respecting which the question of his guilt has been duly raised in a criminal proceeding? and I am of opinion that he is not. "'There is no law, that I am aware of, that makes persons in the state described in the question not re.:ponsible for their criminal acts. To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong. The terms used in the question cannot be said (with reference only to the usage of language) to be equivalent to a description of this kind and degree of unsoundness of mind. If the state described in the question be one which involves or is necessarily connected with such an unsoundness, this is not a matter of law but of physiology, and not of that obvious and familiar kind as to be inferred without proof. 

Second, the questions necessarily to be submitted to the jury, are those questions of fact which are [206] raised on the record. In a criminal trial, the question com- monly is, whether the accused be guilty or not guilty: but, in order to assist the jury in coming to a right conclusion on this necessary and ultimate question, it is usual and proper to submit such subordinate or intermediate questions, as the course which the trial has taken may have made it convenient to direct their attention to. What those questions are, and the manner of submitting them, is a matter of discretion for the Judge: a discretion to be guided by a consideration of all the circumstances at- tending the inquiry. In performing this duty, it is sometimes necessary or con- venient to inform the jury as to the law; and if, on a trial such as is suggested in the question, he should have occasion to state what kind and degree of insanity would amount to a defence, it should be stated conformably to what I have mentioned in my answer to the first question, as being, in my opinion, the law on this subject.

Third, there are no terms which the Judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the dis- cretion of the Judge, are proper to assist the jury in coming to a right conclusion as to the guilt of the accused.

Fourth, the answer which I have given to the first question, is applicable to this. Fifth, whether a question can be asked, depends, 'not merely on the questions of fact raised on the record, but on the course of the cause at the time it is proposed to ask it; and the state of an inquiry as to the guilt of a person charged with a crime, and defended on the ground of insanity, may be such, that such a question as either of those suggested, is proper to be asked and answered, though the witness has [207] never seen the person before the trial, and though he has merely been present and heard the witnesses: these circumstances, of his never having seen the person before, and of his having merely been present at the trial, not being necessarily suffi- cient, as it seems to me, to exclude the lawfulness of a question which is otherwise lawful; though I will not say that an inquiry might not be in such a state, as that these circumstances should have such an effect.

Supposing there is nothing else in the state of the trial to make the questions suggested proper to be asked and answered, except that the witness had been present and heard the evidence; it is to be considered whether that is enough to sustain the question. In principle it is open to this objection, that as the opinion of the witness is founded on those conclusions of fact which he forms from the evidence, and as it does not appear what those conclusions are, it may be that the evidence he gives is on such an assumption of facts, as makes it irrelevant to the inquiry. But such ques- tions have been very frequently asked, and the evidence to which they are directed has been given, and has never, that I am aware of, been successfully objected to. Evi- dence, most clearly open to this objection, and on the admission of which the event of a most important trial probably turned, was received in the case of The Queen v. M'Naghten, tried at the Central Criminal Court in March last, before the Lord Chief Justice, Mr. Justice Williams, and Mir. Justice Coleridge, in which counsel of the highest eminence were engaged on both sides; and I think the course and practice of receiving such evidence, confirmed by the very high authority of these Judges, who not only received it, but left it, as I understand, to the jury, without any remark derogating from its [208] weight, ought to be held to warrant its reception, notwith- standing the objection in principle to which it may be open. In cases even where the course of practice in criminal law has been unfavourable to parties accused, and entirely contrary to the most obvious principles of justice and humanity, as well as those of law, it has been held that such practice constituted the law, and could not be altered without the authority of Parliament.

Lord Chief Justice Tindal :-ly Lords, Her Majesty's Judges (with the exception of Mr. Justice Maule, who has stated his opinion to your Lordships), in answering the questions proposed to them by your Lordships' House, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time danger- ous to tbe administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your Lord- ships' questions.

They have therefore confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your Lordships; and as they deem it unnecessary, in this peculiar case, to deliver their opinions seriatim, and as all concur in [209] the same opinion, they desire me to express such their unanimous opinion to your Lordships.

The first question proposed by your Lordships is this: "What is the law respect- ing alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of re- dressing or revenging some supposed grievance or injury, or of producing some sup- posed public benefit ?"

In answer to which question, assuming that your Lordships' inquiries are con- fined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redress- ing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land.

Your Lordships are pleased to inquire of us, secondly, "What are the proper ques- tions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?" And, thirdly, "In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when [210] the act was committed? " And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be. that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be respon- sible for his crimes,until the contrary be proved to their satisfaction ; and that to estab- lish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not, know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. 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 believe that an actual knowledge of the law of the land was essential in order to lead to a convic- tion ; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was con- scious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore [211] has been to leave the question to the jury, whether the party accused had a suffi- cient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.

The fourth question which your Lordships have proposed to us is this :-"If a person under an insane delusion as to existing facts, commits an offence in conse- quence thereof, is he thereby excused?" To which question the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsi- bility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that-the deceased had in- flicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

The question lastly proposed by your Lordships is :-" Can a medical man con- versant with the disease of insanity, who never saw the prisoner previously tothe trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commis- sion of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and [212] what delusion at the time?" In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.

Lord Brougham:- My Lords, the opinions of the learned Judges, and the very able manner in which they have been presented to the House, deserve our best thanks. One of the learned Judges has expressed his regret that these questions were not argued by counsel. Generally speaking, it is most important that in questions put for the consideration of the Judges, they should have all that assistance which is afforded to them by an argument by counsel: but at the same time, there can be no doubt of your Lordships' right to put, in this way, abstract questions of law to the Judges, the answer to which might be necessary to your Lordships in your legislative capacity. There is a precedent for this course, in the memorable instance of Air. Fox's Bill on the law of libel; where, before passing the Bill, this House called on the Judges to give their opinions on what was the law as it then existed.

Lord Campbell :- My Lords, I cannot avoid express-[213]-ing my satisfaction, that the noble and learned Lord on the woolsack carried into effect his desire to put these questions to the Judges. It was most fit that the opinions of the Judges should be asked on these matters, the settling of which is not a mere matter of speculation; for your Lordships may be called on, in your legislative capacity, to change the law; and before doing so, it is proper that you should be satisfied beyond doubt what the law really is. It is desirable to have such questions argued at the bar, but such a course is not always practicable. Your Lordships have been reminded of one prece-dent for this proceeding, but there is a still more recent instance; the Judges having been summoned in the case of the Canada Reserves, to express their opinions on what was then the law on that subject. The answers given by the Judges are most highly satisfactory, and will be of the greatest use in the administration of justice. 

Lord Cottenham :- My Lords, I fully concur with the opinion now expressed, as to the obligations we owe to the Judges. It is true that they cannot be required to say what would be the construction of a Bill, not in existence as a law at the moment at which the question is put to them; but they may be called on to assist your Lord- ships, in declaring their opinions upon abstract questions of existing law.

Lord Wynford :- My Lords, I never doubted thatyour Lordships possess the power to call on the Judges to give their opinions upon questions of existing law, proposed to them as these questions have been. I myself recollect, that when I had the honour to hold the office of Lord Chief Justice of the Court of [214] Common Pleas, I com- municated to the House the opinions of the Judges on questions of this sort., framed with reference to the usury laws. Upon the opinion of the Judges thus delivered to the House by me, a Bill was founded, and afterwards passed into a law.

The Lord Chancellor :- My Lords, I entirely concur in the opinion given by my noble and learned friends, as to our right to have the opinions of the Judges on ab- stract questions of existing law; and I agree that we owe our thanks to the Judges, for the attention and learning with which they have answered the questions now put to them.

—N.J.—

STATE OF NEW JERSEY, Plaintiff-Appellant, 

v.

BOYCE SINGLETON, JR., Defendant-Respondent.

SUPREME COURT OF NEW JERSEY

No. 067756

Argued January 31, 2012 – Decided July 30,2012   

On certification to the Superior Court,   Appellate Division, whose opinion is   reported at 418 N.J. Super. 177 (2011).   

Frank J. Ducoat, Deputy Attorney General,   argued the cause for appellant (Jeffrey S.   Chiesa, Attorney General of New Jersey,   attorney).   

John W. Douard, Assistant Deputy Public   Defender, argued the cause for respondent   (Joseph E. Krakora, Public Defender,   attorney).  

JUSTICE LaVECCHIA delivered the opinion of the Court.

In New Jersey, we adhere to the general proposition that a defendant who has the mental capacity to know basic societal mores that distinguish objectively between right and wrong is legally responsible for his criminal conduct.  See State v. Sikora, 44 N.J. 453, 470 (1965).  Mental illness does not in and of itself eliminate moral blameworthiness under the test for criminal insanity enshrined in the Code of Criminal Justice 2  (Code).  See N.J.S.A. 2C:4-1.  As our Model Jury Charge illuminates for jurors, “[t]he law adopts a standard of its own as a test of criminal responsibility, a standard not always in harmony with the views of psychiatrists.”  Model Jury Charges (Criminal), § 2C:4-1 Insanity (Oct. 17, 1988).  And, moreover, jurors are informed that the law does not require that the defendant actually consider the wrongness of his act when accomplishing the deed.  Rather,  

[t]he question is not whether the defendant, when (he/she) engaged in the deed, in fact actually thought or considered whether the act was right or wrong, but whether defendant had sufficient mind and understanding to have enabled (him/her) to comprehend that it was wrong if defendant had used (his/her) faculties for that purpose.

[Ibid.] 

Thus, the test hinges on a defendant’s general knowledge of society’s mores and objective expectations about behavior.  In State v. Worlock, 117 N.J. 596 (1990), a narrow caveat was added for the delusional defendant who, at the time of a homicidal act, affirmatively acts under a direct command from God to kill the victim.  This appeal raises an issue concerning Worlock’s applicability.   

In September 2005, defendant Boyce Singleton Jr. killed his pregnant girlfriend, Michelle Cazan.  He was indicted and tried in June 2008, on a charge of first-degree murder and other 3 related offenses, including tampering with evidence and hindering.  Defendant has never disputed that he killed Cazan.  His defense at trial was keyed to whether he should be found not guilty by reason of insanity.  Afflicted with schizoaffective disorder, defendant had developed the delusional religious belief that he was in a form of communication with God and that he was authorized to kill those who violated “God’s word.” Defendant’s mental illness was the centerpiece of the parties’ summations and the trial court included the model charge on the insanity defense, which refers to the defendant’s ability to comprehend that his action is wrong, in its instructions to the jury.  Defendant interposed no objection to the insanity charge’s content.

Defendant’s insanity defense proved unsuccessful as the  jury convicted him of murder, as well as the other charged  offenses.  In a motion for a new trial, defendant claimed for the first time that the jury should have been provided with a variant of the insanity-defense jury charge informing the jury  that a defendant can be found not guilty by reason of insanity  if he lacks the capacity to understand that his actions are  morally wrong, even if he understands that they are legally  wrong.  In Worlock, supra, we recognized in dicta that such a  jury charge might be necessary in cases where a defendant claims  to have been compelled by a “command from God.”  117 N.J. at 4611; cf. State v. Winder, 200 N.J. 231 (2009) (rejecting  Worlock’s applicability to facts of case).  Finding no evidence  that defendant acted under compulsion of a command from God when  he murdered Cazan, the trial court concluded that circumstances  warranting a “Worlock” variation to the model charge were not  present.  The court denied the motion for a new trial and  imposed sentence on September 12, 2008.

Defendant appealed and a panel of the Appellate Division reversed the conviction and remanded for a new trial based on finding the insanity-defense jury charge to have been incomplete.  State v. Singleton, 418 N.J. Super. 177, 204-05 (App. Div. 2011).  

The State filed a petition for certification, which was granted.  207 N.J. 188 (2011).  We now reverse.

I.

A. Background   

Defendant’s expert in forensic psychology and the State’s   expert agree that defendant suffers from schizoaffective   disorder.^[1] At trial defendant produced lay witnesses –- five family members and one friend –- and testified on his own behalf  to provide insight into his mental illness prior to and during the events related to Cazan’s death.  That testimony showed that defendant had developed a set of delusional religious beliefs derived from his perspective on scripture.  Importantly, he believes that he has an obligation to kill sinners, especially sinners who attempt to deter him from honoring God’s word according to his strongly held, personal interpretation of the Bible’s Old Testament.  

Defendant’s mental illness significantly manifested itself during his relatively brief period of attendance at college.  In 2003, he turned to religious study for guidance, discipline, and a means of control over his life, but soon developed a preoccupation with the Bible and God and became obsessed with the Old Testament.  His interpretation of scripture developed into a delusional system that, the experts agree, distorts his logical reasoning.  For example, defendant came to believe that money was the root of all evil because people idolized it, rather than God.  On one occasion, his distaste for money led him to choose imprisonment for failure to pay a court fine over violating his belief in the wrongness of using money.  His mother obtained his release by paying the fine herself.  

According to defendant, over time, he became convinced that he was a “soldier” for God.  He testified that he came to believe that God communicates with him, although he does not 6  claim to hear a distinct voice speaking or commanding him.  Rather, he receives messages or communications from God while asleep.^[2]  As he explained in his testimony, and in a statement to police after Cazan’s death, he felt a general obligation to kill sinners who did not comport themselves in accordance with his beliefs about God’s expectations, once he explained those expectations to them.  Indeed, in 2005, not long before Cazan’s murder, defendant, who had moved back into his parents’ home, told his older sister, Lakeisha, “if I didn’t love you so much, you would have already been dead, because the voices told me to kill all of you all because you’re sinning.” 

On another occasion, during the spring of 2005, defendant threatened the gay friend of his younger sister Shakia, who was staying at their parents’ home.  Defendant claimed that he “heard something say to me go downstairs and kill him because he was homosexual.”  Shakia’s friend left the home without being physically harmed, but by July 2005, defendant’s beliefs and behaviors had become too extreme for his mother and siblings. Although defendant had not yet acted on his beliefs, he was asked to leave the home.^[3]

On July 27, 2005, he moved in with Michelle Cazan, a friend of Shakia and a participant in the same bible studies group as defendant’s mother and Shakia.  The relationship became intimate within one week’s time and, on September 12, 2005, Cazan told defendant that a home pregnancy test had confirmed that she was pregnant.  Defendant killed her the next day.  We turn next to the murder and subsequent events. 

B. Cazan’s murder

On September 13, 2005, while Cazan was at work, defendant went with a friend to an Air Force and Army recruiting center to discuss enlistment, which he explained was motivated by a desire to help his “family,” meaning his parents and siblings who were struggling, not Cazan.  He claimed that he trusted in God to look after Cazan and the baby that was on the way.  Still, he was conflicted about enlisting even to help his parents and siblings because he would be working for money, which would be contrary to his religious beliefs.  

That afternoon defendant picked up Cazan from work later than she expected, causing her to miss an appointment she had  scheduled with an organization that might have provided a source of employment for defendant.  He knew that she was not happy about missing the appointment, but testified that they did not argue about it.  However, there was tension between the two and they had a discussion during which he considered leaving Cazan’s vehicle, but did not.  Instead, he agreed to accompany her on a visit to her hometown of East Rutherford to see places that were important to her, including her brother’s gravesite.  

During the trip north, the two quarreled over their future.  Cazan was concerned about his ability to provide for the baby.  As for defendant, he had reached the conclusion that he would not enlist in military service because he was uncomfortable with the idea of serving “a God other than my God” by earning “evil” money.  And, he became increasingly disturbed over Cazan’s change of heart from earlier discussions in which they had talked about going “into the woods” and living apart from a money-based civilization.  He felt she had turned from the religious beliefs and principles he thought they shared.  He grew more upset with Cazan during that conversation because he felt as though she had not fully adopted his religious beliefs and, worse, she was driving a wedge between him and God.  He testified that he began to view Cazan “[a]s a prostitute,” because “she was prostituting herself to another God.”  Defendant said he “didn’t trust her,” and that he “didn’t want 9  to be around her . . . [or] with her anymore.”  Moreover, on arriving in East Rutherford, defendant did not respond favorably as Cazan showed him the area.  He said he became “enraged” by her “stories of mob activity” that allegedly had occurred in the vicinity.  He regarded her as “bragging” about it, which offended him.

At approximately 10:30 p.m., the two arrived home at Cazan’s condominium in Mansfield.  Defendant claims that, at this point, he was very upset.  After using the first-floor bathroom, he went upstairs to the bedroom where Cazan was and asked her to give him the keys to her BMW.  She refused.  He admitted at trial that had she given him the keys he would have left.  However, when she would not give him the car keys, he pulled a revolver from his waistband and shot her four times, emptying the gun.  One bullet went through her face and out behind her ear, another entered her chest and passed through her rib cage, chest cavity, and lungs, exiting through her lower back.  Forensic evidence showed that Cazan was shot twice more in the back while on her hands and knees.  One bullet traveled through her trachea and exited through her neck.  Cazan began to choke on her own blood.  Defendant said he “didn’t want her to suffer,” so he stabbed her, four times, in the chest and abdomen, one of which pierced her lung.  The stab wounds were between three and six inches in depth.  She died within minutes.

Defendant took the knife, but left behind the handgun, and drove Cazan’s car to the home of his friend William Britt, where both William and his brother John were.  There he washed his hands of blood and gunshot residue and changed his clothes.  During the next few hours, defendant and his friends drank alcohol and smoked marijuana.  Although defendant told William and John that he had killed Cazan, neither believed him.  

Early the next morning, defendant left Cazan’s car around the corner from Britt’s home in Trenton and walked to Morrisville, Pennsylvania where his parents lived.  Along the way, he threw the knife into a canal.  He did so because he said he had learned from “movies” that “you’re supposed to get rid of the murder weapon.”  According to defendant, at that time, he “planned on running” and “kill[ing] everybody . . . until [he] got killed.”  However, when he arrived in Morrisville at about 2:00 a.m., he met his older sister Lakeisha also arriving home and asked her to drive him to Cazan’s house.  According to Lakeisha, he told her that he had shot and stabbed Cazan, that she was dead, and that he had left the gun behind at the house.  Lakeisha testified that during this trip, defendant had “many rambling conversations” in which he was not talking directly to her:  “Whoever he was talking to or whatever he was hearing, he was responding to.  But the conversation wasn’t for me.”  At Cazan’s home, he asked Lakeisha to let him out in the back of the home and to wait for him in the car.

According to defendant, after determining that no police or others were in or around Cazan’s home, he went inside, retrieved his gun, wiped down the door handles, and otherwise attempted to clean the blood splatter.  He placed the gun and the cleaning materials he had used in a garbage bag and left, returning to Lakeisha’s car.  He asked her to take him to Britt’s home.  Along the way she convinced him to go instead to their parents’ home in Morrisville.  There he told his father what he had done and fled the area, intending to go to a family member’s home in North Carolina, along the way retrieving his duffle bag from Britt’s home.  In his later statements he explained that the police were his enemy because, if he was captured, he could not serve God.  However, when he reached Baltimore, he abandoned his plan and returned home after talking with his mother.  

Arriving back at his parents’ home, he told his family that he planned to turn himself in but wanted to “hold Cazan” before doing so.  So, on September 15, he drove Cazan’s BMW to her home.  His brother, Damon, rode with him, and Lakeisha and his mother followed in a separate car.  Damon testified that during the trip defendant “was talking to someone” other than him.  Defendant entered Cazan’s home alone, repositioned her body and clothing, and placed a stuffed animal, sprayed with perfume, at her side.  Concerned by the amount of time that had elapsed, Damon entered the condo and said that he found defendant holding Cazan’s body, “trying to wake her [and] telling her [to] wake up.”  Meanwhile, defendant’s mother had arranged for the police to be contacted by one of Cazan’s neighbors.

Mansfield Patrolman Jason Abadia responded and, after backup arrived, he arrested defendant.  Abadia testified that defendant stated, “I killed her.  I killed her.  Don’t leave her like that.  Cover her up.  I killed her.”  Abadia read defendant his Miranda^[4] rights and defendant again stated that he had killed Cazan, explaining also what he had done with the knife and gun.  

Detective Sergeant Lindsey Cooper of the New Jersey State Police took over the investigation approximately one hour later.  To obtain a recorded statement from defendant, Cooper reread the Miranda rights to defendant.  During the interrogation, defendant admitted killing Cazan and claimed that he could see a vision of her smiling through the window of the squad car when he was first placed under arrest, and later from the vantage of the room in which he was interrogated.  In explaining his killing of Cazan, he stated that he was angry because of “that damn book,” which he clarified as referring to the Bible.  Defendant told the officers, “I lost it and the devil kept f...ing with me, he just kept f...ing with me and I lost it . .   . .”  When asked if anyone else was involved in Cazan’s killing, defendant answered, “No, the devil, god and the devil (inaudible) inside of me, outside of me, all over the place, all over the place.”  

C.  Trial

Defendant was charged with first-degree murder, N.J.S.A.  2C:11-3(a)(1) and (2); second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a); thirddegree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1).

At trial, in addition to the family members who testified, Dr. Maureen Santina, a clinical and forensic psychologist, testified as an expert for defendant.  She diagnosed defendant with schizoaffective disorder which causes hallucinatory experiences and delusional perceptions. ^[5]  She testified that as a result of his delusional system, defendant lost his “ability to regulate his interpretation of the world and his reaction to the world.”  She explained that defendant became obsessed with his delusions, including his belief that God wanted him to kill sinners, even his own family, and concluded as follows: 

I think that he knew that he was killing her but I don’t think that he understood the nature of his killing her.  In other words, I think that he believed that he was supposed to kill her.  Whether he wanted to or not, he was supposed to kill her.  And that he was supposed to kill her because God was ordering it.

On redirect, Dr. Santina clarified,

As I said, [defendant] believed that God was telling him to do it.  He said, I didn’t want to kill her.  He in the past, had family members that he had said God was telling him to kill them because he was seeing these people as being bad.  And saying I don’t want to do it but feeling he had to.  He even talked to himself as not having the courage to do what God wanted.

So in that moment  when he feels that God wants him to do it he says I have to do it, I’m supposed to do it because God wants me to do it.  He believed that he was following God’s word.  And God as being the supreme authority who has the right to decide what’s right or wrong.

The State’s expert, Dr. Elliot Atkins, agreed with Dr. Santina’s conclusion that defendant suffered from the severe mental illness of schizoaffective disorder.  The State’s expert further agreed that defendant operated under a delusional system.  However, Dr. Atkins disagreed with Dr. Santina’s conclusion that defendant was legally insane at the time of the killing.  Dr. Atkins emphasized that defendant admitted to not  hearing voices at the time of the killing.  Rather, Dr. Atkins testified that defendant was merely acting on his interpretation of what God wanted.  On direct examination, Dr. Atkins testified:  

For example, he said that he only really heard the voices when he was sleeping.  He said that most of these were really not voices, but just thoughts in his head.  That he wasn’t even able to describe the voice.  And he said to me it was probably just some subconscious thing going on rather than a voice.

That the last time God had spoken to him was two years before the killing.  That although he indicated that the idea that he should hurt someone came from God, he said that that information had never been transmitted to him from any voices.  And he said it was just my interpretation.  I never heard the voice of God.

When I asked him whether he had heard any voices on the night of the incident, he said no.  So, although I agree that he was mentally ill at the time, what was going on at that time was not a psychotic episode where a voice is saying this is what you’ve got to do.  

 When asked on cross-examination whether defendant believed he could talk to God, Dr. Atkins responded, “he clarified for me that he didn’t believe God was actually talking to him.  But he believed in this delusional system that what he was thinking was God’s wishes or God’s will.”

Dr. Atkins also pointed to several considerations that, in his opinion, indicated defendant knew what he was doing was wrong.  First, defendant had a history of violence and aggression toward women, pointing to defendant’s experiences with the mother of one of his children, and to the fact that he had been fighting with Cazan on the day of the killing.  Second, defendant had stated that he stabbed Cazan, not to serve God, but to put her out of her misery.  Third, Defendant drank alcohol and smoked marijuana at the Britts’ apartment, which could indicate that defendant sought to dull the guilt he felt.  Last, defendant’s forensic evaluation test results indicated he was trying to “make himself look better . . . by claiming that it was God that had him do this.”  Dr. Atkins also noted that defendant’s decision to evade police was inconsistent with his claims of righteousness.  Based on his evaluation of those considerations, Dr. Atkins opined that defendant was not acting in accordance with his delusional system at the time of the killing and that, therefore, “he knew that what he was doing was wrong.”  

The jury instruction that the court and all parties agreed would be given in this matter was the Model Jury Charge for the insanity defense.  Drawing from the model charge, the court instructed the jury as follows:

Apart from his general denial of guilt, the defendant maintains that he is not guilty of the crimes charged by reason of insanity. . . .  

 . . . .   

A hostile act, that is an illegal act, may in one case spring from wickedness, and in another from some infirmity or sickness of the mind, which the  individual did not design. . . .

. . . .  

The law adopts a standard of its own as a test of criminal responsibility, a standard not always in harmony with the views of psychiatrist[s].  If, at the time of committing the act, the defendant was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if defendant did know it, that he did not know what he was doing was wrong, defendant –- the defendant is then legally insane, and therefore, not criminally responsible for his conduct.  

As you can see, the law regards insanity as a disease of the mind.  It may be temporary or permanent in its nature, but the condition must be a mental disease.  An accused may have the most absurd and irrational notions on some subject.  He may be unsound in mind and be a fit subject for confinement and treatment in a mental hospital, but if at the time of the offenses, the defendant had the mental capacity to distinguish right from wrong, and to understand the nature and quality of the acts done by him, he is subject to the criminal law.

 . . . .

The question is not whether the defendant, when he engaged in the deed, in fact actually thought or considered whether the act was right or wrong, but whether the defendant had sufficient mind and understanding to have enabled him to comprehend that it was wrong, if the defendant has used –- had used his faculties for that purpose. 

The jury rejected defendant’s insanity defense and convicted him of murder and the other charges.  His post-trial challenge to the insanity-defense jury instruction was denied by the court.  At sentencing, the court imposed a fifty-year term of imprisonment, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A.  2C:43-7.2, on the murder conviction, and a five-year prison term for the hindering conviction, to be served consecutively to the fifty-year term.  The judge also imposed lesser terms that were made concurrent to the sentences for the murder and hindering convictions.

On appeal, the Appellate Division reversed the conviction and remanded for a new trial.  Singleton, supra, 418 N.J. Super.  177.  The panel held that defendant had presented sufficient evidence at trial to have required the trial court, sua sponte, to fashion a deific-command variant to the insanity-defense jury charge based on Worlock.  Id. at 202-04.  The panel was persuaded that the instruction was necessary because defendant testified that he believed killing his girlfriend was “the right thing because it was something God was telling [him] to do.” Id. at 202.  The panel noted also the confirming expert testimony that defendant believed he was compelled to obey what he perceived to be a command from God.  Id. at 201.  In light of that evidence, the panel concluded that failure to provide a deific-command instruction constituted plain error requiring reversal of the conviction.  Id. at 203-04.  On remand for a new trial, the panel held that “the judge must instruct that the defendant may not be held responsible for his actions ‘where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.’”  Id. at 204 (quoting Winder, supra, 200 N.J. at 251).^[6]    

We granted the State’s petition for certification.  207 N.J. 188 (2011).

II.  

The State offers alternative arguments why the decision of the Appellate Division should be reversed.  First, the State maintains that the evidence presented at trial supports the trial court’s decision to give only the model charge for the insanity defense and forego the deific-command variation described in Worlock.  The Worlock charge is only appropriate in the “clearest and narrowest category of cases” in which a defendant believes that he or she has received a direct command from God ordering the defendant to commit an illegal act.  Winder, supra, 200 N.J. at 251.  The State contends that defendant’s decision to kill Cazan sprang not from a perception that he had received a direct deific command, but rather from defendant’s subjective, religiously derived, moral code under which he was generally obligated to kill those who did not interpret the Bible and follow God in the way that he did.  Moreover, the State emphasizes that the circumstances surrounding the killing indicate that defendant’s immediate motivation for murdering Cazan was his anger over Cazan’s pregnancy and refusal to hand over her car keys, not his religious beliefs.  

In the alternative, the State asks that we reject Worlock, “abandon the ‘deific decree’ variation of the insanity defense and abolish the distinction between legal and moral wrong.”  The State argues that Worlock introduced uncertainty and subjectivity into the operation of the insanity defense.  The State contends that reinterpreting the insanity test, so that a defendant who is able to understand the nature and quality of his acts can only invoke the defense if he is unable to comprehend that his acts are illegal, would create a more objective and workable standard.

Defendant argues that the Appellate Division correctly concluded that a Worlock jury charge was necessary in this matter.  He points to several instances in the record, many relied on by the Appellate Division, where he claimed to have received direct communications from God.  Defendant also contends that Worlock does not require a defendant to experience actual auditory hallucinations of the voice of God to secure a deific-decree jury charge; rather, he argues that it is enough that a defendant delusionally believes that God wants him to kill.  In this case, defendant claims that there is no real dispute that he “suffered from a relatively stable delusion, over a period of years, that he was communicating with God, and that God was telling him to kill those who violated the Word.”  

In response to the State’s argument that the deific decree jury charge should be abandoned, defendant contends that the charge is required by the statutory language of the test for legal insanity in New Jersey.  Because the Legislature adopted that language, defendant argues that only the Legislature can discard the Worlock charge.  Moreover, even if the courts were free to abandon it, to do so in this case would violate the Ex Post Facto clauses of the United States and New Jersey Constitutions. See U.S. Const. art. I, § 10, cl. 1; N.J. Const.  art. IV, § 7, ¶ 3.  

III.

A.  

The insanity defense exists in criminal law not to identify the mentally ill, but rather to determine who among the mentally ill should be held criminally responsible for their conduct.  Sikora, supra, 44 N.J. at 470.  As a sister jurisdiction has observed, “[t]he insanity defense is not available to all who are mentally deficient or deranged; legal insanity has a different meaning and a different purpose than the concept of medical insanity.”  State v. Crenshaw, 659 P.2d 488, 491 (Wash. 1983) (en banc).  In New Jersey, N.J.S.A. 2C:4-1 sets forth the test for legal insanity:

A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.  Insanity is an affirmative defense which must be proved by a preponderance of the evidence.

N.J.S.A. 2C:4-1 codifies the common-law M’Naghten^[7] test for legal insanity, which was originally formulated in England in the 1840s.  See Winder, supra, 200 N.J. at 242-45 (discussing history of M’Naghten test in England and New Jersey); Worlock, supra, 117 N.J. at 602-04 (same).  Our state adopted the M’Naghten test shortly after it was introduced in England, see  State v. Spencer, 21 N.J.L. 196, 204-05 (Oyer and Terminer 1846), and has employed it consistently thereafter, see, e.g., State v. Coleman, 46 N.J. 16, 39 (1965); State v. Lucas, 30 N.J.  37, 72 (1959); State v. Maioni, 78 N.J.L. 339, 341-42 (E. & A. 1909).  When the Legislature adopted N.J.S.A. 2C:4-1 in 1978, L.  1978, c. 95, it chose to preserve the M’Naghten test in spite of a recommendation from the New Jersey Criminal Law Commission to abandon it in favor of the Model Penal Code test.  See 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:4-1, at 96-97 (1971).  

The M’Naghten test provides two distinct paths for a defendant to demonstrate that he was legally insane at the time he committed an act and therefore not criminally responsible for his conduct.  First, a defendant can show that “he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing.”  N.J.S.A. 2C:4-1.  Second, even if the defendant did know the nature and quality of the act, he can still establish legal insanity if, because of a “disease of the mind,” “he did not know what he was doing was wrong.”  Ibid.

In the century-and-a-half since the M’Naghten test was formulated, courts have recognized that the term “wrong” in the second part of the test is susceptible of multiple interpretations.  See People v. Schmidt, 110 N.E. 945, 946-49 (N.Y. 1915) (recognizing ambiguity and discussing possible interpretations); see also Diestel v. Hines, 506 F.3d 1249, 1271-73 (10th Cir. 2007), cert. denied, 553 U.S. 1079, 128 S. Ct. 2875, 171 L. Ed. 2d 812 (2008) (same); Crenshaw, supra, 659 P.2d at 492-94 (same).  One interpretation would equate the term “wrong” with illegality.  Under that understanding, a defendant invoking the insanity defense must demonstrate that despite knowing “the nature and quality of the act he was doing,” he suffered a disease of the mind that prevented him from understanding that the act was illegal.  See N.J.S.A. 2C:4-1.  A minority of states that follow the M’Naghten test have adopted that interpretation.  See State v. Hamann, 285 N.W.2d 180, 183 (Iowa 1979); State v. Boan, 686 P.2d 160, 168 (Kan. 1984); see also Regina v. Windle, 2 Q.B. 826 (1952) (interpreting “wrong” to mean legal wrong in England).   

However, a majority of states following the M’Naghten test have interpreted “wrong” as encompassing legal as well as moral wrong.  See State v. Skaggs, 586 P.2d 1279, 1284 (Ariz. 1978); People v. Skinner, 704 P.2d 752, 764 (Cal. 1985); People v. Serravo, 823 P.2d 128, 137 (Colo. 1992) (en banc); State v. Cole, 755 A.2d 202, 210 (Conn. 2000); Schmidt, supra, 110 N.E.  at 949; State v. Pittman, 647 S.E.2d 144, 170 (S.C. 2007); State v. Cameron, 674 P.2d 650, 653–54 (Wash. 1983) (en banc); Wilson v. State, 78 N.W.2d 917, 920 (Wis. 1956); see also United States v. Ewing, 494 F.3d 607, 617 (7th Cir. 2007) (discussing federal courts’ position that wrong encompasses “the broader meaning of moral rather than criminal wrongfulness” (citation omitted)).  Under that interpretation, a defendant who understands that his actions are contrary to law nonetheless may successfully invoke the insanity defense if he lacked the capacity to understand that his actions were morally wrong.  Courts that follow that approach generally assess moral wrong from a societal, and not a personal, standard, requiring a defendant to show that he did not understand that his actions contravened generally accepted objective societal notions of morality.  See, e.g., Serravo, supra, 823 P.2d at 137-38 (adopting that standard and citing other jurisdictions adopting same approach); Crenshaw, supra, 659 P.2d at 493-94 (same). 

B.  

Our Court addressed the ambiguity in the term “wrong” for the first time in Worlock.  In that case, the defendant was convicted of murder after shooting and killing two friends.  Worlock, supra, 117 N.J. at 599-01.  At trial, the defendant did not deny his involvement in the killings, but relied instead on a defense of legal insanity.  Id. at 601.  He claimed to have believed the killings were justified because “might makes right” and the laws of society are only meant for “subservient people,” and the defendant did not consider himself to be in that category.  Id. at 614.  After the defendant presented his defense, the trial court charged the jury with the legal definition of insanity, but did not define the meaning of the term “wrong.”  Id. at 612.  On appeal, the defendant argued that the trial court should have instructed the jury that the term “wrong” can mean either legal or moral wrong, so that the jury would have known that it could acquit in the event it found that he did not understand that his actions were morally wrong, even if he knew them to be against the law.  Id. at 606.

We held that the term “wrong” embraces more than just the concept of legal wrong, id. at 610, and that “a defendant’s ability to appreciate society’s morals may be relevant to the determination of his sanity,” id. at 609.  Importantly, we added that

[i]n the vast majority of cases, if the defendant was capable of understanding that he was acting contrary to law, he would also have sufficient capacity to understand that he was acting contrary to the morals of society.  Law is largely the crystallization of societal morals.  Rarely would an allegedly illegal act not also be wrongful morally.  Thus, “wrong” as used in the insanity defense will generally incorporate notions of both legal and moral wrong. [Id. at 609-10.]

Because legal and moral wrong are usually “coextensive,” especially when the criminal act at issue is murder, we held that a jury charge explaining that “wrong” encompasses both legal and moral wrong is almost always unnecessary and would more often than not only serve to confuse the jury.  Id. at 610-11.  But, in the odd case in which a defendant is able to recognize that his actions are legally wrong but is nonetheless incapable of understanding that they are morally wrong, we held that “the court should instruct the jury that ‘wrong’ encompasses both legal and moral wrong.”  Id. at 611.  

We emphasized that the insanity defense has always been premised on a “defendant’s ability to comprehend whether his or her actions would ordinarily be disapproved by society.”  Id. at 610.  Thus, we held that “the concept of moral wrong must be judged by societal standards, not the personal standard of the individual defendant.  As a general rule, it will not be sufficient, therefore, that a defendant’s personal moral code justified a killing otherwise prohibited by law and societal morals.”  Ibid. (citations omitted).  In other words, in order to warrant a jury charge explaining the concepts of legal and moral wrong, a defendant would have to show that, at the time he committed the crime, he believed that his actions were morally right under prevailing social norms, not just his own “idiosyncratic code of morality.”  Id. at 614.

We observed that there is only one “generally-recognized” situation in which legal and moral wrong become sufficiently distinct to necessitate a jury charge defining the term wrong:  when “the defendant contends that he or she knowingly killed another in obedience to a command from God.”  Id. at 611.  In such a scenario, a defendant could justifiably believe that although he acted contrary to law, society would consider his actions to have been morally right.  Ibid.  We noted that there might be situations other than a deific decree to kill in which a defendant could at the same time understand that his actions were legally wrong but believe them to be morally right under prevailing social values, but declined to speculate on what those scenarios might be.  Ibid. 

Applying the above standard to the facts of the case, we held that Worlock had not demonstrated that he believed society would have approved of his killings.  Id. at 614.  Indeed, we noted that he “viewed society with contempt” and candidly admitted that the moral code by which he lived was not for “the folly-ridden mass.”  Ibid.  Thus, because it was clear that Worlock had the capacity to understand that his actions were morally wrong under conventional notions of morality, we held that the trial court did not err in declining to define the word “wrong” for the jury.  Ibid. 

Recently, we had occasion to revisit the standard introduced in Worlock and again consider whether a defendant had presented the kind of insanity defense that would necessitate a jury charge defining the term “wrong.”  In Winder, supra, the defendant shot and killed a cab driver outside of a police station, and immediately turned himself in to confess to the crime.  200 N.J. at 238.  The defendant maintained that he killed the driver because he believed that his parents were trying to kill him and was convinced that prison was the only place he could be safe from them.  Id. at 238, 249.  The defendant pursued an insanity defense at trial, presenting an expert witness who testified that he suffered from paranoid schizophrenia and heard voices compelling him to kill.  Id. at 239.  At the charge conference, defense counsel requested that the jury be given an insanity instruction that, following Worlock, included an explanation that the term “wrong” encompasses both legal and moral wrong.  Id. at 240.  The trial court denied the request and instructed the jury with the model insanity charge.  Ibid.  The jury found the defendant guilty of first-degree murder and related weapons offenses.  Ibid. 

On appeal, the defendant challenged the trial court’s decision to forego the Worlock charge, contending that his case presented one of the “‘other delusion-based exceptions’” that we intimated could necessitate a jury charge on the definition of “wrong.”  Id. at 249 (quoting Worlock, supra, 117 N.J. at 611).  We disagreed, and reemphasized that, outside of the “deificcommand delusion” discussed in dicta in Worlock, situations in which a defendant could understand that his actions were illegal but be incapable of understanding that society would disapprove of them are exceedingly rare.  Id. at 249-50.  We explained that

[o]ur reference to other delusion-based exceptions in Worlock was not meant to expand the narrow field of potential exceptions to the general understanding that legal and moral wrong, particularly in murder cases, are coextensive.  The hurdle to overcoming societal disapproval of the killing of another human being cannot be accomplished easily by references to subjective beliefs, personal preferences, or even alternative notions of morality, unrelated to mental illness, that clash with the law and the mores of society. [Id. at 250.]  

We held that the defendant in Winder was not entitled to a Worlock charge because his actions immediately before and after the killing “demonstrated knowledge of the social unacceptance of his deed.”  Id. at 249.  Moreover, the defendant’s delusions had no apparent impact on his ability to appreciate the way in which society would view the murder.  Id. at 250.  The defendant believed that the only way he could be safe from his parents’ machinations was to go to prison, and settled on murder as the best way to effect his entry.  Id. at 249.  There was no indication that the defendant delusionally believed that society would give its blessing to his use of murder to escape his parents.  Id. at 250.  Thus, because we could discern “no credible claim of moral rightness” flowing from the defendant’s delusions, we upheld the trial court’s decision to give the standard insanity charge.  Ibid.  

IV.

We dispense at the outset with the State’s argument that we should abandon Worlock’s recognition of a deific-command exception to the general charge covering criminal insanity.  Stare decisis and other stabilizing principles of the law compel us to reject that request.

As recently as this term we noted that “[s]tare decisis is a principle to which we adhere for the sake of certainty and stability.”  State v. Shannon, 210 N.J. 225, 226 (2012) (citations omitted).  Nonetheless, stare decisis is not so inviolate that it should “foreclose reanalysis” when warranted.  Ibid. (citations omitted).  It is undeniably a healthy practice for a court of last resort to re-examine its own doctrine, but, consistent with the practice of other courts of last resort, we have required “special justification” to overturn the persuasive force of precedent.  See Luchejko v. City of Hoboken, 207 N.J.  191, 208-09 (2011) (citations omitted); State v. Brown, 190 N.J.  144, 157 (2007).  Finding such circumstances can depend on whether a particular decision has proven to be unsound or unworkable in practice, as the State here argues.  See AlliedSignal, Inc. v. Dir., Div. of Taxation, 504 U.S. 768, 783, 112 S. Ct. 2251, 2261, 119 L. Ed. 2d 533, 549 (1992).  However, in matters where a judiciary may rely on legislative correction, special justification for disturbing precedent is difficult to establish.   

Statutory-based decisions are less likely to be subject to reconsideration because the legislative branch can correct a mistaken judicial interpretation of a legislative enactment.  Indeed, as a principle of statutory construction, the legislative branch is presumed to be aware of judicial constructions of statutory provisions.  See White v. Twp. of N. Bergen, 77 N.J. 538, 556 (1978) (“[T]here is ample precedent in New Jersey to support the proposition that, where a statute has been judicially construed, the failure of the Legislature to subsequently act thereon evidences legislative acquiescence in the construction given the statute.”); 2B Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 49:10 at 137 (7th ed. 2008) (“A number of decisions have held that legislative inaction following a contemporaneous and practical interpretation is evidence that the legislature intends to adopt such an interpretation.”).  Thus, legislative acquiescence to an interpretation of a statute renders the judicial decision an unlikely candidate for abandoning stare decisis.  That is precisely the circumstance here.   

Worlock’s explanation of the general confluence of legal wrong with moral wrong in the legislative use of the single term, “wrong,” in N.J.S.A. 2C:4-1, and our holding out of the possibility that a special instruction may be necessary to explain a divergence of the two only in the clearest and narrowest category of class of cases, occurred more than two decades ago.  Worlock’s interpretation of the M’Naghten test, adopted by the Legislature in N.J.S.A. 2C:4-1, has stood since, without reaction by the legislative branch in the interim.  Nor has there been a legislative reaction since Winder reinforced a restrictive approach to the application of Worlock, not a more expansive one as the concurrence in Winder had urged.  Due to the Legislature’s longstanding acceptance of Worlock, and the fact that we are addressing a settled interpretation of case law, we decline to accept the invitation to overturn Worlock at this point in time, even were we to concede some merit to the argument.

We turn therefore to consider whether there was plain error in the trial court’s jury instruction on the insanity defense in this matter.  

V.   

A.

Certain principles pertain in the review of jury instructions.  Jury charges must provide a “comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.”  State v. Green, 86 N.J. 281, 287–88 (1981).  The charge as a whole must be accurate.  State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Thompson, 59 N.J. 396, 411 (1971).  If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant’s case.  State v. Macon, 57 N.J. 325, 333–34 (1971).  

At trial, defendant did not challenge the jury instruction that used the model charge on insanity until after a guilty verdict had been returned.  Thus, the question here presented is whether the trial court erred in not sua sponte including additional language separating defendant’s ability to appreciate legal wrong from moral wrong based on “deific commands” to kill. ^[8]   

Appellate review applies the plain-error standard when a defendant fails to object to a given jury charge.  See R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 (2007) (“[T]he failure to object to a jury instruction requires review under the plain error standard.”).  Plain error is that which is “clearly capable of producing an unjust result.”  R. 2:10-2.  In respect of a late claim of error in a jury instruction, “plain error requires demonstration of ‘legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.’”   State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).   

B.

In State v. Walker, 203 N.J. 73 (2010), we recently addressed the issue of “when a trial court should instruct the jury on the defense to statutory felony murder in the absence of a request to charge from counsel.”  Id. at 86.  We determined that a requested jury instruction should be given if “there is a rational basis in the record to give it . . . .  On the other hand, if counsel does not request the instruction, it is only when the evidence clearly indicates the appropriateness of such a charge that the court should give it.”  Id. at 87.

The delusional command variation of the insanity defense is a much more limited defense than that which we considered in Walker.  See Winder, supra, 200 N.J. at 250-51; Worlock, supra, 117 N.J. at 611.  We said clearly in Worlock that “[b]elief in an idiosyncratic code of morality does not constitute the defense of criminal insanity.”  117 N.J. at 614; see also  Crenshaw, supra, 659 P.2d at 493-94 (concluding that personal moral beliefs will not exculpate defendant when he or she knew killing was contrary to societal moral and legal norms).  “Worlock cracked open the door only to a command delusion that, objectively viewed, could have rendered it impossible for its hearer to know the difference between right and wrong.”  Winder, supra, 200 N.J. at 249.  A rigorous standard was expressed and applied in Winder consistent with the few decisions around the country to have grappled with such circumstances. ^[9] 

Applying to this case that stringent standard for qualification into the narrow and clear class of case envisioned to satisfy a deific command to kill, we conclude that the evidence does not clearly indicate that it was impossible for defendant to appreciate that killing Cazan was contrary to society’s morals.  The Worlock variation of the insanity-defense jury charge is not available to all those who intuit reprehensible obligations or develop idiosyncratic moral compulsions from interpreting religious material.  Were that all that was required in order to constitute a deific “command,” then acting pursuant to any such personal belief system would qualify as lack of knowledge of having committed “moral” wrong and a defendant would no longer have to show that he believed that society would not objectively disapprove of the moral wrongness of the action.  The decision in Winder was circumscribed carefully to ensure that such a result would not come to fruition.  See Winder, supra, 200 N.J. at 248-51.

Here, defendant claimed to have formed a general belief that he ought to kill sinners who refused to follow his explanation of God’s expectations.  In essence, defendant had an idiosyncratic personal belief system analogous, albeit in different form, to that in Worlock.  See also State v. DiPaolo, 34 N.J. 279, 292-93 (1961) (distinguishing between insane delusion that negates consciousness of immorality of act from delusion that does not prevent defendant from simultaneously appreciating that deed was contrary to law); Crenshaw, supra, 659 P.2d at 494-95 (holding that defendant claiming Moscovite belief system that calls for killing as retribution for adultery is not entitled to deific-command adjustment to jury charge on criminal insanity).

Defendant’s personal belief system was based on his own interpretation of scripture, fortified through dreams in which he believed to receive communications from God, which does not render his belief system in his “right to kill” certain sinners the equivalent of a command from God to kill.

Moreover, defendant had demonstrated on prior occasions the ability to exercise his own will and resist the obligation he perceived from God’s teachings.  Defendant had chosen not to kill his family or their friends despite his religious delusions generally and his specific belief, expressed on occasion, that they were sinners.  Defendant also determined that he would not kill anyone to whom he had not had a chance to explain his religious beliefs.  For example, he decided that he would not attempt to hurt or kill Britt’s brother because defendant had not taught him to believe in God’s word as defendant interpreted it, and also because he was bigger and apparently stronger than defendant.  Defendant’s inconsistent application of “God’s will” and the concomitant deific desire that he kill sinners, which he claims to have perceived, and his reluctance to kill those whom he had not tried to convert, indicates his awareness of an objective societal disapproval of the personal religious belief system he had developed.  

Defendant also has failed to demonstrate entitlement to a Worlock charge because the evidence does not clearly indicate that he was acting pursuant to a delusional command at the time of the killing.  As explained in Winder, an amplified criminal insanity charge differentiating between legal and moral wrong is available only to a defendant whose will is overborne by a perceived divine command that overcomes the ability to be conscious of society’s law and mores disapproving of that “command.”  See Winder, supra, 200 N.J. at 247-48 (citing Crenshaw, supra, 659 P.2d at 494-95; DiPaolo, supra, 34 N.J. at 293).  There is a necessary temporal proximity to the action for which a defendant is charged and the overbearing of his will by God’s order or command at the time of the action.  In rejecting a Worlock instruction in Winder, we curbed expansion of Worlock  in part because there was no showing that the defendant was operating under a direct command from God at the time of the killing.  Here, defendant admitted that he never heard a voice or saw a vision that commanded him to kill Cazan when he committed the murderous act. ^[10]  Moreover defendant admitted that he had not received any specific command to kill Cazan at the moment of the killing, and indeed had not received any communications from God for some time.

Nothing in Winder’s application of the law to its facts supports the extrapolation made by the appellate panel in this matter, which would permit anyone who interprets a religious text in an outrageous and violent manner to a deific-command, insanity-defense charge.  Isolated references to voices, and to communication with God through scripture and in dreams, are not the equivalent of a command from God, at the time of the killing, sufficient to demonstrate that it deprived defendant of his ability to appreciate society’s disapproval of his action.  The appellate panel mistakenly accepted defendant’s belated argument that the charge, given in its classic form, was insufficient for the jury to consider his insanity defense.  Plain error is not present in the charge given here on this record.

Defendant’s complaints post-trial and on appeal that, in light of Worlock and Winder, the charge required clarification are not consistent with precedent as to the factual requirements needed to trigger a deific command variation to the insanity defense jury charge. ^[11]   What the record shows is that, based on defendant's interpretation of the Bible, he believed Cazan was a sinner.  And, he similarly interpreted “God’s word” to direct that he kill sinners.  That is not the type of case to which we referred in Winder when we discussed a deific-command clarification to the insanity-defense charge.  And, more pointedly, there is too tenuous a connection between any “alleged” deific-command and the murder that occurred in this matter on which to base a reversal on plain error.  Defendant admitted that he would have left and not killed Cazan if she only had given him the car keys.  He thereafter stated that he stabbed Cazan, not to kill her, but to put her out of her misery.  Since the killing, defendant has questioned whether it was God’s will for him to kill Cazan. ^[12]

In sum, we conclude that the evidence does not clearly indicate defendant killed Cazan as a result of a deific command.  Defendant was entitled to assert an insanity defense, and he did.  He received an insanity jury charge.  The trial court did not commit plain error by failing to give, sua sponte, a Worlock  charge as part of the insanity-defense jury instruction.  Defendant’s conviction should not have been reversed on appeal on that basis.  We express no view on the other claims of error raised on appeal that were not addressed by the Appellate Division.  Those issues can be addressed on remand.   

VI.

The judgment of the Appellate Division is reversed and the matter is remanded to the Appellate Division for consideration of defendant’s remaining claims of error.

JUDGE WEFING (temporarily assigned) joins in JUSTICE LaVECCHIA’s opinion.  JUSTICE PATTERSON, joined by CHIEF JUSTICE RABNER, filed a separate opinion concurring in the judgment. JUSTICE HOENS filed a separate, dissenting opinion in which JUSTICE ALBIN joins.

JUSTICE PATTERSON, concurring.

I concur with the majority opinion, which reverses the determination of the Appellate Division panel and holds that defendant Boyce Singleton, Jr. was not entitled to the deific command jury instruction addressed by this Court in State v. Worlock, 117 N.J. 596, 611 (1990).  The majority opinion faithfully follows the reasoning in Worlock and State v. Winder, 200 N.J. 231 (2009).  For the reasons articulated by Justice LaVecchia, I agree that defendant’s belated invocation of the deific command variation of the insanity defense was unsupported in the circumstances of his crime.  

I write separately because in my opinion, the deific command concept is neither mandated by the Legislature in N.J.S.A. 2C:4-1 nor firmly rooted in our jurisprudence, and should not be part of our law.  It invites a defendant to exploit a core value of our society, respect for the religious beliefs of others, for tactical advantage.  The deific command concept does not meaningfully guide a jury’s exploration of the intricate issues raised by the insanity defense.  Instead, it can reduce the dispassionate analysis of a defendant’s mental state, envisioned by the Legislature when it codified the insanity defense, to a superficial review of the defendant’s religious utterances.  Application of the deific command results in inequitable treatment of defendants who have committed similar crimes based on nothing more than one person’s assertion of a religious delusion.  In my view, a defendant’s claim that he or she heeded a deity’s purported instruction to commit a murder or other crime should not prompt a jury instruction that suggests a finding of legal insanity within the meaning of N.J.S.A. 2C:4-1.

Neither the plain language nor the legislative history of N.J.S.A. 2C:4-1 warrants special consideration for defendants who claim that deific commands prompted their crimes.  The statute at issue bars the imposition of criminal responsibility for conduct if, at the time of the crime, the defendant “was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.”  N.J.S.A. 2C:4-1.  The Legislature did not expressly or by implication define the word “wrong” as used in N.J.S.A. 2C:4-1.  It provided no instruction that a defendant’s failure to comprehend that his or her act was “wrong” should mean anything other than he or she did not understand that it was an illegal act.

As the majority notes, the statute codified the test articulated by the House of Lords in M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843), long accepted as the formulation of the insanity defense in New Jersey case law.  Statement to Senate Bill No. 738, at 3 (May 15, 1978).  The M’Naghten rule, reflected in our statute, did not differentiate between defendants who invoke deific commands and defendants who do not.  In this Court’s articulation of the M’Naghten rule -- relied on by the drafters of New Jersey’s Penal Code, 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:4-1, at 96 (1971) -- the Court held that a defendant could invoke the insanity defense if “the accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.”  State v. Coleman, 46 N.J. 16, 39 (1965).  That construction, adopted nearly verbatim by the Legislature in N.J.S.A. 2C:4-1, refers to “wrong” without reference to religious belief.  It does not contemplate a deific delusion as part of the test for insanity. 

To the extent that the deific command permutation of the insanity defense has gained a foothold in New Jersey law, it has done so through this Court’s dicta, not legislative action.  The concept originated in the New York Court of Appeals, finding its source in dicta written by Judge Cardozo in People v. Schmidt, 110 N.E. 945 (N.Y. 1915).  There, the defendant concocted -- and later recanted -- an elaborate account of visions and voices conveying directions from God that he should kill a woman “as a sacrifice and atonement.”  Id. at 945.  Although the defendant conceded “that he never saw the vision and never heard the command,” id. at 950, Judge Cardozo nonetheless introduced to New York law a distinction between legal and moral “wrong” illustrated by a hypothetical scenario:

A mother kills her infant child to whom she has been devotedly attached.  She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice.  It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong. [Id. at 949.]   

Schmidt was first noted by this Court in State v. DiPaolo, 34 N.J. 279, 292-93, cert. denied, 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961).  However, it was not until 1990, more than a decade after the enactment of N.J.S.A. 2C:4-1, that the Court  suggested in Worlock that the statute could be construed to incorporate the deific command concept.  

As the majority recounts, the principle that a deific delusion could illustrate a potential distinction between legal and moral wrong was addressed for the first time by this Court in Worlock, supra, 117 N.J. at 608-09.  Like the discussion of the deific command in Schmidt, the Court’s first articulation of this theory was in dicta and did not apply to the facts of the case.  The defendant in Worlock attributed his killing of two friends not to a purported deific command, but to his stated belief that he was exempt from the laws of society, which in his view were intended to govern only the “subservient.”  Id. at 614.  The Court discussed the distinction between “legal” and “moral” wrong, noting that in most cases the two concepts converge.  Id. at 610-11.  The Court made the following observation:   

Occasionally, however, the distinction between moral and legal wrong may be critical.  For example, if the defendant contends that he or she knowingly killed another in obedience to a command from God, a jury could find that the defendant was insane.  Schmidt, supra, 110 N.E. at 949; see also DiPaolo, supra, 34 N.J. at 291-93 (“The experts disagreed upon whether there was evidence of a psychosis to support the alleged delusion, but none suggested that if defendant in fact suffered an insane delusion that God commanded the deed, he nonetheless was legally sane if he simultaneously appreciated that the deed was contrary to law.”). [Id. at 611.]

Although the Worlock defendant had not suggested that the murders he committed were directed by any deity, the Court postulated that in an “exceptional case, such as the deific exception in which the defendant claims that he or she acted under a command from God, the court should instruct the jury that ‘wrong’ encompasses both legal and moral wrong.”  Ibid.  For defendant Worlock, the Court found no such exceptional circumstances.  Id. at 613-14.  

In Winder, the Court recognized its prior discussion of the deific command, but nonetheless rejected the defendant’s claim that he was entitled to a jury charge regarding the distinction between legal and moral wrong in his trial for the murder of a taxi driver.  Winder, supra, 200 N.J. at 250.  The Court concluded that the defendant in Winder, who attempted to justify his act by professing his belief that his parents were trying to kill him, was not entitled to the jury instruction that he sought.  In doing so, the Court reiterated the narrow scope of any “delusion-based” exceptions to the rule that legal wrong and moral wrong are coextensive.  Id. at 248.  Thus, in the three cases in which it has considered the “deific command” issue –- Worlock, Winder, and the present case -- the Court has never concluded that a defendant is entitled to a deific command charge.

Given this history, I respectfully submit that the deific command concept has a tenuous connection to New Jersey law.  Special consideration for defendants relying on a deific command theory is not, in my view, compelled by the Legislature’s use of the term “wrong” in N.J.S.A. 2C:4-1, which codifies M’Naghten  but makes no reference to the notion of a defendant’s inability to perceive “moral wrong.”  The concept was not introduced to our law by the circumstances of an actual case involving a deific delusion.  Instead, in both New York and New Jersey, it originated as nothing more than a hypothetical illustration of a setting in which a defendant could perceive an act as legally but not morally wrong.  Schmidt, supra, 110 N.E. at 949;  Worlock, supra, 117 N.J. at 608-09.  Its limits were further underscored by the Court in Winder, supra, 200 N.J. at 248.

The jury instruction formulated by the Appellate Division panel below -- to be given in a retrial of defendant -- would direct the jury to find defendant not guilty by reason of insanity if he proved by a preponderance of the evidence that he acted pursuant to a delusion of receiving a deific command, or “‘where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.’”  State v. Singleton, 418 N.J. Super. 177, 204 (App. Div. 2011) (quoting Winder, supra, 200 N.J. at 251).  The Appellate Division’s proposed jury instruction demonstrates the hazards of the deific command concept.  The instruction could be construed to suggest that a defendant’s invocation of a deific command presumptively resolves what should be a fact-sensitive, dispassionate inquiry into the psychiatric condition of a criminal defendant.  It poses the real danger of confusing and distracting a jury, and could reward the defendant who fabricates an account of visions, voices and divine commands.  In my opinion, the insanity defense should be reserved for a defendant whose psychiatric condition renders him or her unable to appreciate the illegality of the crime at issue, and the deific command theory should be jettisoned.

I fully subscribe to the majority’s observations about the principle of stare decisis; it is an important foundation of our legal system, “‘to which we adhere for the sake of certainty and stability.’”  Ante at ___ (slip op. at 31) (quoting State v. Shannon, 210 N.J. 225, 226 (2012)).  However, I consider this case to present the unusual setting in which the principle of stare decisis does not compel the Court to precisely conform its holding to prior decisions.

Given the factual setting of Worlock, its discussion of the deific command is dicta.  In Winder, the Court also declined to apply the deific command theory to the defendant in that case.  Winder, supra, 200 N.J. at 250-51.  As a result, the discussions are authoritative even though they were not essential to the disposition of either case.  See State v. Rose, 206 N.J. 141, 182-84 (2011).

But even if we were to treat the dicta in Worlock and Winder as though they had the full weight of precedent, there are still “special justifications” that would warrant overturning the deific command construct.  Luchejko v. City of Hoboken, 207 N.J. 191, 209 (2011).  Such justifications include “when a rule creates unworkable distinctions [or] when a standard defies consistent application by lower courts,” ibid., or when “‘conditions change and as past errors become apparent,’” White v. Twp. of N. Bergen, 77 N.J. 538, 551 (1978) (quoting Fox v. Snow, 6 N.J. 12, 27 (1950) (Vanderbilt, C.J., dissenting)).  In my opinion, that standard is easily met here.  The deific command concept is not required by the text of the statute or its legislative history.  Our Court has not once held that the facts before it have entitled a defendant to an expanded jury instruction based on this theory.  Such an instruction has the tendency to mislead and confuse jurors, and raises the specter of rewarding the fabrication of deific delusions.  Its arguable utility is therefore offset by its potential to lead to inequitable results.  

The majority characterizes this case as one in which the judiciary may rely on legislative correction, and finds the deific command concept to be fortified by the Legislature’s failure over the years to nullify it by statute.  Ante at ___ (slip op. at 32) (citing White, supra, 77 N.J. at 556).  In this regard, I must part company with the majority.  As we have held, “[t]he Legislature need not explicitly amend a statute . . . every time [a court] takes action inconsistent with it in order to avoid the implication that the Legislature concurs.”  State v. Cannon, 128 N.J. 546, 566-67 (1992).  The Court has noted in other contexts that “[l]egislative inaction has been called a ‘weak reed upon which to lean’ and a ‘poor beacon to follow’ in construing a statute.”  GE Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 313 (1993) (citations omitted); see also  Amerada Hess Corp. v. Dir., Div. of Taxation, 107 N.J. 307, 322 (1987), aff’d, 490 U.S. 66, 109 S. Ct. 1617, 104 L. Ed. 2d 58 (1989). 

Here, the Legislature enacted N.J.S.A. 2C:4-1 before this Court construed the simple word “wrong” to permit an insanity defense based on deific command delusions, whether in dicta or in any holding.  I cannot presume that the Legislature’s failure to address this specific issue, given its many priorities, amounts to an endorsement of the deific command.  In my view, the inclusion of a deific command notion as part of N.J.S.A.  2C:4-1 is the creation of our case law.  The principles of stare decisis do not require that we apply it now or in the future.  

Except as noted above, I join in the majority’s decision to reverse the determination of the Appellate Division panel and remand to the Appellate Division for consideration of defendant’s remaining arguments.  

CHIEF JUSTICE RABNER joins in this opinion. SUPREME COURT OF NEW JERSEY

JUSTICE HOENS, dissenting.

A man, having given himself over to the study of religious texts and tracts, believes that he is called by God to carry out various acts that no sane man would perform.  His family grows fearful of his numerous expressions of what he believes he has been called to do in order to cleanse the world of them or to cleanse them of their sins.  Some of his pronouncements include expressions that he is resisting God’s orders; others make it plain that he is intent on complying with God’s will as he understands it, even to the point of putting others to death.   

His family first tries to use the powers of reason in an effort to convince him that his views do not comport with traditional religious teachings and in order to convince him of the errors in his increasingly bizarre and frightening pronouncements.  Failing that, they essentially force him from their home.  He moves in with a woman who then becomes pregnant with his child.  Believing that she is nothing more than a harlot in the eyes of God and that she is in need of cleansing, he kills her.  In the aftermath of that horrific act, his behavior includes some actions that appear to be consistent with efforts to elude detection and some lucid statements, but his family members report that he is babbling, obviously talking to and hearing the voice of someone they can neither see nor hear.   

By the time of his trial, the explanations he has given about his behavior to the mental health professionals include both assertions that he was acting in accordance with what he believed to be the will of God and expressions of remorse that he now recognizes that he was duped by the devil into doing things contrary to the will of God.  Nonetheless, his own testimony at trial explained that sometimes he heard directives and sometimes the “Spirit ministered to me and that I received like — a talk from Him” and that killing his girlfriend “was the right thing because it was something God was telling me to do.”  Expert testimony included the opinion that defendant killed his girlfriend because he “believed that he was being compelled to do this by God and that therefore he had to obey that belief.”

No one disputes that defendant Boyce Singleton is mentally ill.  The question before the Court today is whether the factual setting in which he acted and the expert testimony concerning his mental status is sufficient to meet the test that we have devised for the deific command variation on the traditional insanity defense.  See State v. Winder, 200 N.J. 231, 246-48 (2009) (considering difference between deific command and personal moral code); State v. Worlock, 117 N.J. 596, 611 (1990) (recognizing deific command variation on insanity defense).  More to the point, the question before this Court is whether, in light of that record, the trial court’s failure to charge the jury in accordance with Worlock was an error that entitles defendant to a new trial.  The Appellate Division concluded that it was, as do I.  Therefore, I respectfully dissent.   

I.

We have long recognized that “clear and correct jury instructions are fundamental to a fair trial.”  State v. Adams, 194 N.J. 186, 207 (2008).  In the context of a criminal trial in particular, we have cautioned that erroneous jury charges presumptively constitute reversible error, State v. Jordan, 147 N.J. 409, 422 (1997), and are “poor candidates for rehabilitation under the harmless error philosophy,” State v. Vick, 117 N.J. 288, 289 (1989) (citation omitted).  Those expressions of our deeply held concern for ensuring that all defendants are accorded a fair trial are no more compelling than they are in the case of one facing a charge of murder.

To be sure, we have fixed different standards against which to test such errors based upon whether a defendant requested a charge or failed to do so.  In the latter circumstance, we have established a stringent standard, one that requires the defendant to demonstrate that the failure to include the charge was plain error and therefore clearly capable of producing an unjust result.  R. 2:10-2; see State v. Burns, 192 N.J. 312, 341 (2007).  Although the plain error standard is an exacting one, the record in this case, fairly and objectively viewed, surely meets it.

Indeed, it is only by redefining the meaning of Worlock’s deific command variation on the insanity defense, by imposing a new and exceedingly narrow view of the type of command that will qualify for that defense, by altering our previously-accepted notion of the difference between a true deific command and acts based on a personal moral code, and by ignoring the abundant evidence adduced at trial through fact and expert testimony in support of the conclusion that defendant fit within the traditional bounds of the deific command defense, that the majority can conclude that the failure to give the charge sua sponte did not amount to reversible error.  In adopting this approach, the majority has created a test so narrow as to be essentially non-existent.  It is, therefore, a new test that stands in clear disregard of the statutory definition of insanity, that is contrary to our previous decisions explaining the sources from which that statute was drawn and that is at odds with both religious practices and psychiatry.   

Whether a jury would find that defendant met the definition of insanity had they been correctly charged we cannot know; that defendant has been deprived of the chance to be judged fairly in accordance with the statutory commands that define insanity in terms of both legal and moral wrong is the essence of injustice.  

II.

The essential reasons for my disagreement with the majority’s reasoning and conclusion can be explained succinctly.  First, the majority fails to recognize that the issue presented in Worlock, as to which the deific command discussion was but a small component, was nothing less than this Court’s clear articulation of the fundamental basis upon which we, and our Legislature, have embraced a definition of insanity that includes both legal and moral wrong.  Worlock, supra, 117 N.J.  at 606 (describing issue as one of first impression).  It was there that this Court traced the concept back to its roots in M’Naghten, see id. at 603-07, there that the Court described the evolution of the concept here and around the country, id. at 608-09, and there that this Court adopted Judge Cardozo’s reasoning that serves as the essential underpinning of our now well-established recognition of the deific command defense, ibid. (quoting People v. Schmidt, 110 N.E. 945, 949 (1915)).  To dismiss that scholarly explanation on such an important subject as a “narrow caveat,” ante at ___ (slip op. at 2), suggests that the majority deems both this Court’s decision in Worlock and the entire notion of the deific command defense to be unworthy of our attention.  

Second, the majority overemphasizes the confined focus that this Court had in the more recent Winder decision, implying that Winder forged new ground.  In fact, this Court in Winder merely recognized that a defendant who acts based on a personal moral code cannot claim the benefit of the deific command defense that we authorized in Worlock.  The defendant in Winder made little effort to suggest that he acted pursuant to a deific command.  Rather, his defense was that there were “other delusion-based exceptions” that Worlock suggested might be available and for which he qualified.  Winder, supra, 200 N.J. at 249.  Although the Court referred to the deific command defense as a narrow one, the Court did so in the context of a refusal to expand it to one who failed to demonstrate that the delusion he identified could or did fall into the category of legal but not moral wrong.  Id. at 249-50.  Nothing in that decision suggests, as the majority today prefers, that the true deific command has lost any of its vitality as a variant of the insanity defense.  

Third, the majority’s analysis of the record today alters the distinction we recognized and applied both in Winder and in Worlock between defendants who respond to true deific commands and those whose criminal acts are instead motivated by adherence to a personal moral code.  The defendant in Worlock believed that he was permitted to kill his victims because “they’re the folly-ridden mass, they’re controlled by their popular beliefs” and because he lived by the code of “might makes right,” not because he was responding to any deific directive.  Worlock, supra, 117 N.J. at 614.  The defendant in Winder contended that he feared his parents were planning to kill him and murdered an innocent cab driver in order to be sent to prison where he would be safe from them.  Winder, supra, 200 N.J. at 236-39.  That logic, too, had all of the hallmarks of a purely personal code of conduct and none of the criteria by which a deific command can be identified.  It was in that context that we cited precedents of our own, see id. at 247-48 (citing State v. DiPaolo, 34 N.J. 279, 293 (1961)), as well as the leading authority from another jurisdiction, id. at 247 n.6 (discussing State v. Crenshaw, 659 P.2d 488, 494-95 (Wash. 1983)), that demonstrate that a belief system that is contrary to societal mores is not sufficient.

This accepted distinction between deific commands and personal moral codes is best illustrated by the decision of the Supreme Court of Washington.  See Crenshaw, supra, 659 P.2d at 494-95.  There, the defendant acted in conformance with his Muscovite beliefs which, he contended, obligated him to kill his wife for her infidelity.  Rejecting his assertion that he was entitled to claim the “sanctuary of the insanity defense,” the court held that “some notion or morality, unrelated to a mental illness, which disagrees with the law and mores of our society is not an insane delusion.”  Id. at 495.  Such a set of beliefs would no more be insane and would no more be a defense than the man who, coming from a culture where women are property and beating them is the accepted norm, claimed entitlement to walk free from the crime of assault if he beat his wife here.  See  S.D. v. M.J.R., 415 N.J. Super. 417, 431-33 (App. Div. 2010) (rejecting contention that asserted religious beliefs about husband’s marital rights negated ability to form criminal intent); see also Reynolds v. United States, 98 U.S. 145, 166, 25 L. Ed. 244, 250 (1879) (concluding that First Amendment’s guarantee of freedom of religion did not shield defendant from polygamy conviction).

The reliance on a moral code that is on its face rational but unacceptable to our legal system is not a form of insanity.  But that is not what deific commands are all about.  The reason that the deific command qualifies as a defense to murder is that it is the one corner of insanity in which legal and moral wrong do not coincide.  See Worlock, supra, 117 N.J. at 610-11.  One who acts in accordance with a sincerely held belief that he has been directed by God to carry out a murder may well appreciate that the crime is legally wrong, but will nonetheless act on the directive because he equally believes that it is a moral imperative.  And it is only by recognizing the deific command that we, as a Court, can give full meaning and content to the Legislature’s statutory definition of insanity.  N.J.S.A. 2C:4-  1.  That body chose the word “wrong” rather than the word “illegal” in defining the insanity defense; it made that choice against the backdrop of the decades, in fact more than a century, of precedent extending back to the M’Naghten  formulation of the distinction between legal and moral wrong.  This Court is not free to abandon that distinction through today’s crabbed interpretation.

Fourth, the majority redefines Worlock and Winder to suit the current purpose.  It does so by altering the meaning of deific command so that it means one thing and one thing only, namely a direct, apparently verbally transmitted, command from God to do a specific act that the defendant then cannot help himself from carrying out.  That view of deific command, however, finds no real support in any of this Court’s prior cases, nor in the precedents on which they were based.  The majority’s decision expresses a new and rigid view of just what sort of a command from God it now believes is needed to so blur the line between legal and moral wrong as to call for the Worlock charge.  Apparently only a booming voice from heaven, presumably admitting of only a singular direction, will meet the test for deific command.  That constricted version of the test serves only to substitute as part of the fabric of our law an exceedingly narrow view of religious traditions found only in the cinema.

More troubling to me, that articulation of the sort of command that the majority now finds will define the Worlock  variant on the insanity defense is sadly lacking in an understanding of either religion or psychiatry.  While I do not profess to be expert in either, there is abundant support for the proposition that deific commands come in many forms and that courts do not reject the defense based on the manner in which the instruction has been purportedly received or revealed.  See, e.g., People v. Coddington, 2 P.3d 1081, 1111 (Cal. 2000) (permitting insanity defense for defendant who believed, among other things, that God communicated to him through traffic signals and numbers), overruled in part on other grounds, Price v. Superior Court, 25 P.3d 618, 633 n.13 (Cal. 2001); State v. Blair, 732 A.2d 448, 449 (N.H. 1999) (permitting insanity defense based on defendant’s contention that God appeared while he was in “trance”); State v. Lafferty, 20 P.3d 342, 363 (Utah 2001) (permitting insanity defense for Mormon fundamentalist who killed his sister-in-law and her infant child based on God’s “removal revelation”).   

The majority’s suggestion that henceforth only a very specific variation of a command from God will suffice also ignores the fact that entirely sane people of faith profess to receive directions from God in ways far different from the cinematic version of how God speaks.  They see visions, they find directions in dreams, they feel called, they express their knowledge of the will of God in myriad different ways.  By extension, why would an insane person who believes he is directed by God to do something we would all say is illegal not similarly profess to have received that command in one of these other, entirely traditional manners?   

Indeed, if we accept, as the majority apparently does, that for an insane person, there is but one version of a deific command and that it takes the sole form of an audible voice directing an immediate action, we are resurrecting, without perhaps intending to do so, the irresistible impulse approach to insanity that we long ago discarded.  See State v. Cordasco, 2 N.J. 189, 196 (1949) (adhering to M’Naghten rule and rejecting irresistible impulse formulation of insanity); Mackin v. State, 59 N.J.L. 495, 496-97 (E. & A. 1896) (same).  This is so not because of the requirement that it be a voice, but because the majority has coupled that requirement with notions about commands, orders, and “do this now” language as to which the recipient cannot but comply.  I see no basis for such a remarkable alteration in the law that governs the insanity defense.

Nor does the majority’s opinion remain faithful to the psychiatrists’ view of what might qualify as a delusional deific command.  The experts in this case did not quarrel over whether the form in which defendant said he had received his instructions from God would suffice, they in fact agreed that defendant suffered from delusions that caused him to believe he had been called in some way by God.  What they disputed was whether it was a call to commit this murder or whether the murder was instead triggered by defendant’s history of aggressions against women, his strained and troubled relationship with the victim, or the victim’s refusal to turn over the car keys when he asked for them.  For the majority to substitute its newfound belief that God only speaks in one way, or more precisely, that we will only recognize that an insane person hears the instruction from God or the call of God in a single format, is a dramatic and unsupported departure indeed.

Fifth, the majority, rather than reviewing the evidence in the record in accordance with our usual principles concerning the review on appeal of whether there is enough evidence in the record to require that the jury be charged sua sponte, proceeds instead to draw its own conclusions about the result it would have reached about whether defendant was insane.  We have held that the trial court is obliged to charge a jury sua sponte “only when the evidence clearly indicates the appropriateness of such a charge[.]”  State v. Walker, 203 N.J. 73, 87 (2010) (considering court’s obligation to charge statutory defense to felony murder without request); see State v. Rivera, 205 N.J.  472, 488-90 (2011) (applying same standard to evaluate court’s obligation to charge any defense sua sponte); State v. Denofa, 187 N.J. 24, 41 (2006) (applying same standard in considering requirement to charge lesser-included offenses).

Utilizing our well-established test, the question is whether the evidence in the record “clearly indicates the appropriateness” of the Worlock charge.  Tested in accordance with that standard, rather than tested in accordance with the majority’s approach of viewing the evidence through the lens of its new definition of the contours of the deific command variation of insanity, one can only conclude that the substantial evidence concerning defendant’s behavior, beliefs and rationale sufficed. That there is evidence suggesting that defendant was not insane, or did not act in accordance with a deific command is not the point; rather, the existence of such evidence and the manner in which it should have been weighed and balanced is the proper function of a jury and not of this Court.  The fundamental error of the majority’s analysis is that it tries to make rational sense out of what in the end is clear evidence of a disordered and delusional mind.  Mistaking a few glimmers of lucidity or perhaps some sane behaviors for an organized thought process, the majority finds so little evidence of the deific command that it deprives defendant of the defense entirely.  In doing so, it inappropriately substitutes its view for that of the finder of fact.

III.

In the end, I dissent because the majority has adopted a crabbed view of Worlock, has announced a view of Winder not expressed by the majority of the Court who joined it, and has retreated to an indefensible understanding of concepts of insanity and deific commands.  I therefore respectfully dissent.

JUSTICE ALBIN joins in this opinion.

[1] The evidence concerning defendant’s mental illness was presented to support defendant’s insanity defense and also to show that mental illness could have affected his capacity to knowingly or purposely commit the offense. Defendant’s claim of error based on the trial court’s failure to give a diminished capacity instruction was not addressed in the Appellate Division’s resolution of this matter.

[2] In explaining an instance of such a communication that occurred prior to the events surrounding Cazan’s death, he identified a message related to his younger sister who suffered from serious seizures and was on medication. Defendant awoke one morning to inform her that he had received a message from God that she should cease taking the medication. He described the communication as follows: “His Spirit ministered to me and that I received like — a talk from Him, yes. Not, per se, did I hear His — His voice, specifically.” He explained, “I was happy that God was talking to me. I mean, I was happy about that. You know, I felt like He used me, so if He used me, there was something about me that He obviously was pleased with.”

[3] In fact, as a result of the incident involving Shakia’s friend, defendant’s family started to pursue eviction proceedings against him.

[4] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 13

[5] As explained by Dr. Santina, a hallucination occurs when the mentally ill person hears a voice or sees visions. A person experiencing delusions does not necessarily experience hallucinations, but rather he or she will come to know God is speaking to them “within themselves” and then act accordingly; thus, a delusional person may believe he or she is receiving commands from God without hearing a voice or seeing a vision.

[6] The panel granted relief on this basis alone. Although defendant had other points of error, which the State contested, the panel did not address them in light of its holding on the jury-charge issue.

[7] M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843).

[8] Like the situation in the cases cited by the dissent, see post at ___ (slip op. at 10), defendant was not denied the opportunity to assert an insanity defense, and the jury received the model jury charge on the defense, see People v. Coddington, 2 P.3d 1081, 1139-40 (Cal. 2000), overruled in part on other grounds, Price v. Superior Court, 25 P.3d 618, 633 n.13 (Cal. 2001); State v. Blair, 732 A.2d 448, 450 (N.H. 1999); State v. Lafferty, 20 P.3d 342, 363 (Utah 2001). Our dissenting colleagues’ observation that “deific commands come in many forms and that courts do not reject the defense based on the manner in which the instruction has been purportedly received or revealed” misses that essential point when seemingly asserting that those cases undermine what occurred in this matter. Post at ___ (slip op. at 10). Defendant’s insanity defense was not “rejected” by the trial court.

[9] In one of the few jurisdictions to have addressed such circumstances, Washington state courts similarly have hewed to a path in respect of deific commands, requiring a substantial showing that a defendant’s will has been “subsumed.” Crenshaw, supra, 659 P.2d at 494-95 (requiring that will be subsumed in order for specialized instruction to be utilized). See, e.g., State v. Rice, 757 P.2d 889, 904 (Wash. 1988) (adhering to strident test that authorizes jury instruction on legal-moral dichotomy only when defendant presents evidence that “his free will has been subsumed by his belief in the deific decree”), cert. denied, 491 U.S. 910, 109 S. Ct. 3200, 105 L. Ed. 2d 707 (1989).

[10] It is insufficient that defendant can point to isolated references he made to hearing a voice, or “hearing” God speaking to him through his scripture study or in his dreams. The Appellate Division’s citation to such examples, here and there, in the record do not comprise the quality or quantity of evidence that was contemplated by our earlier decisions. See Singleton, supra, 418 N.J. Super. at 197-99.

[11] Winder signaled a restrictive application of a deific-command variation to the model charge on criminal insanity, to the extent it would ever be allowed. The Appellate Division’s interpretation of Winder, as well as the dissent’s, instead expands it and would send even more arguable cases than this one to the jury.

[12] The defense expert testified to the following: “And [defendant] said to me that now in retrospect looking at it, he felt that God, that Satan had actually tricked him into thinking that it was God. And that God was actually trying to stop him but that he was tricked by Satan.”

[T]his Court has held that involuntary drug addiction may constitute a "mental disease or defect" bearing on the defendant's criminal responsibility. United States v. Bass, 490 F.2d 846 (5th Cir.1974). In Bass, a case strikingly similar to the case at bar, this Court concluded that evidence of involuntary drug addiction could, and did in the particular circumstances of that case, constitute relevant evidence on the issue of the defendant's sanity. In Bass, as in the instant case, the defendant was charged, inter alia, with obtaining narcotics by misrepresentation, deception, fraud, and subterfuge. More importantly, Bass and the case sub judice both dealt with defendants involuntarily addicted to the narcotics they illegally obtained. In Bass, the defendant had become involuntarily addicted to Demerol as a result of medical treatment aimed at alleviating the defendant's regional enteritis, an acutely painful disease of the lower gastro-intestinal tract. Bass, 490 F.2d at 849.

In the instant case, the defendant's proffer indicates that Lyons became involuntarily addicted to pain medication, including Demerol, as a result of medical treatment designed to alleviate the barrage of illnesses suffered by Lyons during the three-year period prior to the commission of the charged offenses. No meaningful distinction between Bass and the case sub judice can be discerned.^[3] In both cases, the defendant embarked upon a course of narcotics use not by choice, but pursuant to doctor's orders — orders presumably aimed at treating an admittedly painful physical disorder. Additionally, in both cases, the defendant offered expert testimony, which, if believed by the jury, would establish that the defendant lacked substantial capacity to conform his conduct to the requirements of applicable law due to his involuntary drug addition.

"[1] [E]ven if you determine that the defendant does have a mental disease or defect, lack of criminal responsibility is not present when the defendant knows or in the circumstances had reason to know that his consumption of a substance will cause him to be substantially incapable of either appreciating the wrongfulness of his conduct or conforming his conduct to the requirement of law or both."

 

[2] In determining what the defendant had reason to know about the consequences of his consumption of a substance, you should consider that question solely from the defendant's point of view, including his mental capacity."

 

[3] If the Commonwealth persuades you beyond a reasonable doubt that the defendant committed the crime and did not have a mental disease or defect when he committed the crime, or that the mental disease or defect was activated by the voluntary consumption of drugs, then it has proved that the defendant was criminally responsible and you need go no further" (emphasis added).

"There is one exception to the principle just stated. A defendant who loses the substantial capacity I have just described after he consumes drugs or alcohol, who knows or had reason to know that consumption would trigger or intensify in him a mental illness or condition that could cause him to lack that capacity, is criminally responsible for his resulting conduct. In deciding what the defendant had reason to know about the consequences of his consumption of drugs or alcohol, you should consider the question solely from the defendant's point of view, including his mental capacity and his past experience with drugs or alcohol. But you must keep in mind that . . .

 

[or]

"that the defendant did not suffer from a mental disease or defect; or

 

"that if the defendant did suffer from a mental disease or defect, he nonetheless retained the substantial capacity to appreciate the wrongfulness [440] of his conduct or to conform his conduct to the requirements of the law; or

 

"that if the defendant lacked the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to legal requirements, his lack of such capacity was solely the result of voluntary intoxication by alcohol or other drugs; or

 

"that if the defendant lacked the substantial capacity I have just described due to a combination of a mental disease or defect and his voluntary consumption of alcohol or other drugs, he knew or should have known that his use of the substance[s] would interact with his mental disease or defect and cause him to lose such capacity.

[970] [971] [972] 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.

[973] 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.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges, sitting en banc.

Argued En Banc April 12, 1972.

ON REHEARING EN BANC

LEVENTHAL, Circuit Judge:

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).

In the course of our reconsideration of the rule governing the insanity defense, we have studied 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.

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).

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.

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.

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^[1] opinion en banc. Others are prompted by the submissions which raised, [974] as points of objection to the ALI rule, matters that we think can be fairly taken into account by clarifying comments. For the assistance of the reader we insert at this point a Table of Contents identifying the topics discussed in this opinion.

TABLE OF CONTENTS

A.  The Trial Record .............................. 974

B.  Prior Developments of the Insanity
    Defense in this Jurisdiction .................. 975

C.  Insanity Rule in Other Circuits ............... 978

D.  Comments Concerning Reason
    for Adoption of ALI Rule and
    Scope of Rule as Adopted by
    This Court .................................... 981

   1. Need to depart from "productivity"
      formulation and
      undue dominance by experts
      .............................................. 981

   2. Retention of McDonald definition
      of "mental disease
      or defect" ................................... 983

   3. Interest of uniformity of
      judicial approach and vocabulary,
      with room for variations
      and adjustments .............................. 984

   4.  Consideration and rejection
       of other suggestions ........................ 985

       a. Proposal to abolish insanity
         defense ................................... 985

      b. Proposal for defense if
         mental disease impairs
         capacity to such an extent
         that defendant "cannot
         justly be held responsible." .............. 986

   5. ALI rule is contemplated as
      improving the process of adjudication,
      not as affecting
      number of insanity acquittals ................ 989

   6. Elements of the ALI rule
      adopted by this court ........................ 990

      a. Intermesh of components                     991

      b. The "result" of the mental
         disease ................................... 991

      c. At the time of the conduct ................ 991

      d. Capacity to appreciate wrongfulness
         of his conduct ............................ 991

      e. Caveat paragraph .......................... 992

      f. Broad presentation to the
         jury ...................................... 994

E.  Inter-related Doctrines and Implementing
    Instructions ................................... 995

     1. Suggested instruction ...................... 995
        Burden of Proof ............................ 996

     2. The "Lyles" instruction —
        as to effect of verdict of not
        guilty by reason of insanity ............... 996

     3. Mental condition, though insufficient
        to exonerate, may
        be relevant to specific mental
        element of certain crimes
        or degrees of crime ........................ 998

F.  Disposition of the Case ....................... 1003

     1. Issue of Causality Testimony .............. 1003

     2. Prosecutor's conduct ...................... 1003

     3. Remand .................................... 1004

G.   Supplement to Clarify Matters
     Discussed in Separate Opinion ................ 1005

Appendix A ........................................ 1007

Appendix B ........................................ 1008

A. The Trial Record

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 [975] 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."

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.

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.

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.

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 convulsive 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.

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."

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.

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).

B. Prior Developments of the Insanity Defense in this Jurisdiction

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 [976] the past, it suffices for our purposes to review a handful of our opinions on the insanity defense.

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^[2] and irresistible impulse.^[3] 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.

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.

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.

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,^[4] 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.

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 [977] defendant's mental condition, without regard to the supposed restrictions of the test used to define insanity for the jury.^[5]

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).

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).

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.

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.^[6] 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 [978] 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.^[7]

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.

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.

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.

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.

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 [979] than retained for the jurors representing the community.

The problem was identified by then Circuit Judge Burger in his concurring opinion in Blocker:^[8]

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. . .

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.

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).

C. Insanity Rule in Other Circuits

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."

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.

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.

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).

[980] These opinions show that the ALI rule has proved peculiarly subject to successful adaptation, permitting variations but within a framework of uniformity.

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).

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.

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.

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.

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.)

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.

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.

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 [981] 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.

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.

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.)

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.

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.

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.

D. Comments Concerning Reason for Adoption of ALI Rule and Scope of Rule as Adopted By This Court

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.^[9]

1. Need to depart from "product" formulation and undue dominance by experts.

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 [982] 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.

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,^[10] and the laymen serving on the jury as the representatives of the community.

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.^[11] 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).

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 [983] 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.

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.

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.

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.

2. Retention of McDonald definition of "mental disease or defect."

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.

McDonald v. United States, 114 U.S.App. D.C. at 124, 312 F.2d at 851.

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, [984] that the McDonald definition be engrafted on to the ALI rule.^[12]

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."

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.

3. Interest of uniformity of judicial approach and vocabulary, with room for variations and adjustments

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.

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,^[13] 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.^[14] 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.

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.^[15] While the courts adopting the ALI rule have stated variations, as we have noted, these were all, broadly, in furtherance of [985] one or more of the inter-related goals of the insanity defense:

(a) a broad input of pretinent 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.

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.

4. Consideration and rejection of other suggestions

a. Proposal to abolish insanity defense

A number of proposals in the journals recommend that the insanity defense be abolished altogether.^[16] This is advocated in the amicus brief of the National District Attorneys Association as both desirable and lawful.^[17] 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.^[18]

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.^[19] However, we are convinced that the proposal cannot properly be imposed by judicial fiat.

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.

[986] The concept of lack of "free will" is both the root of origin of the insanity defense and the line of its growth.^[20] 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^[21] or fails "to show proper respect for the personality of the criminal [who] is liable to resent pathology more than punishment."^[22]

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.

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.

b. Proposal for defense if mental disease impairs capacity to such an extent that the defendant cannot "justly be held responsible."

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."

This was the view of a British commission,^[23] 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.^[24] In the ALI, the contrary view prevailed because of a concern over presenting to [987] the jury questions put primarily in the form of "justice."

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.^[25]

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.'"

Nor is this solely a prosecutor's concern.

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."

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."^[26] 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.^[27] 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.

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).

[988] 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.^[28]

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.

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.

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 [989] harmonizes with its sense of justice.^[29] 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.^[30] 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.

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.

5. ALI rule is contemplated as improving the process of adjudication, not as affecting number of insanity acquittals

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.

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.^[31] 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.^[32] 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.^[33] We perceive no basis in these data for any conclusion that the number of percentage of insanity acquittals has been either excessive or inadequate.

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" [990] that reflects judgments outside the domain of expertise.^[34] 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.^[35]

b. Some judges have viewed the ALI test as going beyond Durham in enlarging the category of persons who may win acquittals.^[36] 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.

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^[37] but on the application reflecting the underlying sense of responsibility of the jury, as the community's surrogate.^[38]

6. Elements of the ALI rule adopted by this court

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 [991] 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.

The two main components of the rule define (1) mental disease, (2) the consequences thereof that exculpate from responsibility.

a. Intermesh of components

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.

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.^[39]

b. The "result" of the mental disease

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.

c. At the time of the conduct

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.

d. Capacity to appreciate wrongfulness of his conduct

As to the option of terminology noted in the ALI code, we adopt the formulation that exculpates a defendant [992] 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.^[40]

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.

e. Caveat paragraph

Section 4.01 of the Model Penal Code as promulgated by ALI contains in subsection [993] (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.

The purpose of this provision was to exclude a defense for the so-called "psychopathic personality."^[41]

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.

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.^[42] 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^[43] defining all criminality as reflective of [994] 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.

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.

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.

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.

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.

f. Broad presentation to the jury

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,^[44] 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,^[45] and that the Government and defense may present, in Judge Blackmun's words, "all possibly relevant evidence" bearing on cognition, volition and capacity.^[46] We agree with the amicus submission of the National District Attorneys Association [995] 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.^[47]

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.

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.

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).

E. Inter-related Doctrines and Implementing Instructions

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.

1. Suggested instruction

Appendix B contains a suggested instruction in the thought that the trial judges may consider it useful for their consideration and guidance in the [996] task of making the adjustments in practices and routines required by our ruling.

Burden of Proof

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:^[48] "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."

Questions have been raised as to the constitutionality of this 1970 provision,^[49] 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.^[50] 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.

2. The "Lyles" instruction — as to effect of verdict of not guilty by reason of insanity

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).

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.

The court provided for omission of such an instruction on the affirmative request of a defendant.

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 [997] 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.

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).

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.

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 [998] 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.

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.^[51]

3. Mental condition, though insufficient to exonerate, may be relevant to specific mental element of certain crimes or degrees of crime.

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.

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,^[52] but rather with determining whether the defendant had the mental state that must be proved as to all defendants.

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.

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).

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.^[53] [999] 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.

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."

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.

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.

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.

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.

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 [1000] subject for the exercise of legislative power or at least for the discretion of the courts of the District."

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.^[54]

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,^[55] Colorado,^[56] New Jersey,^[57] Iowa,^[58] Ohio,^[59] Idaho,^[60] Connecticut,^[61] Nebraska,^[62] New Mexico^[63] and Nevada.^[64] They have joined the states that spoke out before Fisher — New York, Rhode Island, Utah, Wisconsin and Wyoming.^[65]

The pertinent reasoning was succinctly stated by the Colorado Supreme Court as follows:^[66]

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 [1001] 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.)

On the other side of the coin, very few jurisdictions which have recently considered this question have held to the contrary position.^[67]

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."^[68] 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,^[69] 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.

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.^[70] 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"^[71] 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.^[72] 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,^[73] or, where appropriate, halfway houses or requirement of outpatient care.^[74] These statutory provisions provide a shield against danger from persons [1002] with abnormal mental condition — a danger which in all likelihood bolstered, or even impelled, the draconic Fisher doctrine.

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.

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.

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.^[75]

[1003]

F. Disposition of the Case

1. Issue of Causality Testimony

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."

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.

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.^[76]

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.

2. Prosecutor's conduct

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.^[77]

[1004] 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.

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.^[78] 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.

3. Remand

Our action today in stating a new rule for insanity, and for receipt and consideration of expert testimony on [1005] 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.^[79] However, under established doctrines of the judicial function we conclude that the benefit of the rule cannot wholly be with-held from the defendant in whose case it was established.^[80] 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.^[81]

G. Supplement To Clarify Matters Discussed in Separate Opinion

A number of matters are discussed in the separate opinion of Chief Judge [1006] 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:

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).

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.^[82] 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."^[83]

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, [1007] 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.

* * *

The case is remanded for further consideration by the District Court in accordance with this opinion.

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

[1008]

APPENDIX B

SUGGESTION FOR INSTRUCTION ON INSANITY^[*]

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 [1009] 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. [1010] 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.

BAZELON, Chief Judge, concurring in part and dissenting in part:

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.^[1]

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.

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.

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.

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 [1011] 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.^[2] 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.

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^[3] 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.

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 [1012] 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.

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.

If Brawner is not responsive to the problems uncovered by Durham and makes no fundamental change in the operation of the defense,^[4] 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.^[5] 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 [1013] 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 wastd.

TABLE OF CONTENTS

  I. The Trial Record ......................... 1013
 II. The Origins and Development of
     the Durham Rule of Criminal Responsibility
     .......................................... 1014
                                               -1017
III. The Need to Abandon the Durham-McDonald
     Test ..................................... 1017
                                               -1021
 IV. The Court's Articulated Reasons
     for Replacing Durham-McDonald
     With ALI-McDonald ........................ 1021
                                               -1030
     A. The Interest of Uniformity
        ....................................... 1021
                                               -1030
     B. The Need to Depart from the
        Product Formulation ................... 1021
                                               -1022
   V. The Advantages of a Rule that
      Instructs the Jury to Acquit the
      Defendant if He Cannot Justly Be
      Held Responsible ........................ 1022
   VI. Practical Problems of the Defense
       and the Disposition of This
       Case ................................... 1034
                                               -1039
  VII. Conclusion ............................. 1039

I. THE TRIAL RECORD

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.

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.^[6] 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 . . . ."^[7] The Hospital's summary report stated that appellant was competent for trial; that he was mentally ill at the time of the act; and [1014] that the act was not causally related to his illness.

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,^[8] 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.

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.^[9] Appellant was said to have severe feelings of inadequacy,^[10] 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.

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."

II. THE ORIGINS AND DEVELOPMENT OF THE DURHAM RULE OF CRIMINAL RESPONSIBILITY

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."^[11] 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 [1015] 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.^[12] 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.

Psychiatrists vociferously criticized that approach to the problem of criminal responsibility on 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.^[13] 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.^[14] 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 [1016] 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,^[15] 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.

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.

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.

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.

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.^[16] Consequently, it [1017] 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.

III. THE NEED TO ABANDON THE DURHAM-McDONALD TEST

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.^[17] 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.^[18]

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.^[19] Later McDonald v. United States sought to do the same for the term "mental disease or defect"^[20] by discouraging the use of psychiatric labels which often served to hide the fact that [1018] the experts were providing virtually no information about the defendant's underlying condition.^[21] 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.^[22] We said that the existence of disease was a medical question [1019] 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.

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.

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.^[23] 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.^[24] 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.

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."^[25] 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.^[26]

The abuses of the productivity inquiry are strikingly illustrated by the record [1020] 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.

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.^[27] 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.^[28]

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.

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,^[29] and we are bound to give it the same significance in dealing with their residents as we do in dealing with other people.^[30] If appellant's [1021] 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,^[31] or even because the examining psychiatrist believed that "under the same circumstances I would want to get even with somebody who broke my jaw."^[32]

IV. THE COURT'S ARTICULATED REASONS FOR REPLACING DURHAM-McDONALD WITH ALI-DONALD

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.

A. THE INTEREST OF UNIFORMITY

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.^[33] 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.

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.

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 [1022] 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.

B. THE NEED TO DEPART FROM THE PRODUCT FORMULATION

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.

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.

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.

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.

Notwithstanding the expectations to the contrary of the courts and commentators [1023] who examined the Durham rule,^[34] 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 test 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).

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).

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.

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, [1024] no more than * * * a wild beast,'"^[35] 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.^[36] 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.

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.^[37] In these [1025] cases disputes will often arise concerning the relationship of the act to the impairment. And snce 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.

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.^[38] Under that interpretation, which is apparently accepted by at least some other federal jurisdictions,^[39] 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."^[40] 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.

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.

[1026] 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.

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,^[41] 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.

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 [1027] 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.

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.

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.^[42] 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.

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^[43] is not the only — and perhaps not the most important — step backward. The Court identifies the productivity requirement as the chief villain that permits [1028] 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).

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.

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.

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.

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.^[44]

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 [1029] 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.^[45] Nor does the Court explain what it means by "convincing evidence" of the existence of a "broad concensus." 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?

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.

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.^[46] If [1030] 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.

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.

V. THE ADVANTAGES OF A RULE THAT INSTRUCTS THE JURY TO ACQUIT THE DEFENDANT IF HE CANNOT JUSTLY BE HELD RESPONSIBLE

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.^[47]

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 [1031] own sense of justice to help it determine the matter. [Emphasis added.]

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.]

Majority opinion at 982.^[48] See also majority opinion at 990.

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.

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.

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 [1032] that initially brought this case to our attention.

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.^[49]

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.

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,^[50] 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.

United States v. Alexander & Murdock, 152 U.S.App.D.C. ___ at ___-___, 471 F.2d 923 at 960-961 (April 21, 1972), (dissenting opinion).

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 [1033] 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.

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.

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.

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."^[51] 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.

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.

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.

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 [1034] 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.

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 reshuffles 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.^[52]

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.

VI. PRACTICAL PROBLEMS OF THE DEFENSE AND THE DISPOSITION OF THIS CASE

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 [1035] 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.

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.

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?

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?

The witness replied:

It was my conclusion that there was no causal relationship between his mental disorder and the alleged offense.

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.

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.^[53]

[1036] 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).

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.

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), [1037] 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).^[54]

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?

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.

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.

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 [1038] 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.

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).

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.

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 [1039] of specific intent where the defendant is charged with murder in the first degree.

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.

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.

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.

VII. CONCLUSION

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.

[1] McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (en banc, 1962).

[2] 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.

[3] 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.

[4] 10 Clark & F. 200, 2 Eng.Rep. 718 (H.L. 1843).

[5] A. Goldstein, The Insanity Defense 54 (1967), citing 1 Wigmore Evidence § 228 (1940) and numerous cases.

[6] 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. . . ."

[7] 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.

[8] Blocker v. United States, 110 U.S.App.D.C. 41, 51, 288 F.2d 853, 863 (en banc 1961).

[9] 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).

[10] 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.

[11] 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).

[12] 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.

[13] 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.).

[14] 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."

[15] 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 depature from Durham-McDonald spawn confusion.

[16] "[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).

[17] It suggests that a mental condition be exculpatory solely as it negatives mens rea.

[18] 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.

[19] 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).

[20] 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.

[21] 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).

[22] Citing Harris, Respect for Persons in Ethics and Society 129-130 (R. De George ed. 1966).

[23] 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.

[24] 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).

[25] See authorities cited supra, note 6.

[26] 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).

[27] 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.)

[28] A. Goldstein, The Insanity Defense 81-82 (1967).

[29] 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).

[30] 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).

[31] 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.

[32] 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.

[33] 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.

[34] 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.

[35] 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).

[36] 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.

[37] 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.

[38] 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.

[39] Defendant is also exculpated if he lacks substantial capacity to appreciate the conduct is wrongful.

[40] 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.

[41] 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.

[42] 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).

[43] See, e. g., D. Abrahamsen, Who Are the Guilty? 125 (1952).

[44] 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).

[45] E. g., the opinions in Durham, Carter, McDonald and Washington, and Judge Burger's concurring opinion in Blocker.

[46] Pope v. United States, 372 F.2d 710, 736 (8th Cir. 1967).

[47] 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."

[48] By § 207(6) of the D.C. Court Reform and Criminal Procedure Act of 1970, P.L. 91-358.

[49] 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."

[50] United States v. Thompson, 147 U.S. App.D.C. 1, 452 F.2d 1333 (1971).

[51] 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.

[52] 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.

[53] 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).

[54] 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.

[55] 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).

[56] 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).

[57] 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).

[58] State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964).

[59] State v. Nichols, 3 Ohio App.2d 182, 209 N.E.2d 750 (1965).

[60] State v. Clokey, 83 Idaho 322, 364 P. 2d 159 (1961).

[61] State v. Donahue, 141 Conn. 656, 109 A.2d 364 (1954).

[62] Starkweather v. State, 167 Neb. 477, 93 N.W.2d 619 (1958).

[63] State v. Padilla, 66 N.M. 289, 347 P. 2d 312 (1959).

[64] Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957).

[65] 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).

[66] Battalino v. People, 118 Colo. 587, 199 P.2d 897, 901 (1948).

[67] 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).

[68] 127 U.S.App.D.C. at 189-190, 382 F. 2d at 138-139.

[69] See Belton v. United States, 127 U.S. App.D.C. 201, 203, 382 F.2d 150, 152 (1967).

[70] 78 Stat. 944 (1960), 21 D.C.Code § 501 et seq.

[71] Millard v. Harris, 132 U.S.App.D.C. 146, 150, 406 F.2d 964, 968 (1968).

[72] In re Alexander, 124 U.S.App.D.C. 352, 372 F.2d 925 (1967).

[73] Lake v. Cameron, 124 U.S.App.D.C. 264, 364 F.2d 657 (1966).

[74] S.Rep.No. 925, 88th Cong., 2d Sess., 31 (1964).

[75] 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.

[76] 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."

[77] "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."

* * * * *

[78] 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. . . .

[79] 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.

[80] Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

[81] 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.

[82] 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.

[83] 2 J. Stephen, History of the Criminal Law of England 128 (1883).

[*] 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.

[1] 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).

[2] 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).

[3] 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.

[4] 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.

[5] 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."

[6] 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).

[7] 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).

[8] "Psychologic brain syndrome associated with convulsive disorder," "personality disorder associated with epilepsy," "explosive personality, or epileptic personality disorder," "explosive personality with epileptoid personality disorder."

[9] 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.

[10] 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.

[11] 94 U.S.App.D.C. 228, 240-241, 214 F.2d 862, 874-875 (1954).

[12] 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).

[13] 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.

[14] 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).

[15] See R. Leifer, In the Name of Mental Health 196-98 (1969); T. Szasz, Law, Liberty, and Psychiatry 136-37 (1963).

[16] 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).

[17] 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).

[18] 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).

[19] 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.

[20] 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.

[21] 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.

[22] 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.

[23] 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.

[24] See pages 1013-1014 supra.

[25] 102 U.S.App.D.C. at 236, 252 F.2d at 617.

[26] 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.

[27] 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.

[28] See page 1014 supra.

[29] A. Hollingshead & F. Redlich, Social Class and Mental Illness (1958).

[30] 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.

[31] 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).

[32] See page 1014 supra.

[33] 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.

[34] 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.

[35] Durham v. United States, 94 U.S. App.D.C. 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).

[36] 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 distintegration 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.)

[37] 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.

[38] 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).

[39] See amicus brief of William H. Dempsey at 19-31.

[40] Id. at 16 (footnotes omitted).

[41] 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.]

[42] 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).

[43] 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.

[44] 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).

[45] 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).

[46] 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.

[47] United States v. Eichberg, 142 U.S. App.D.C. 110, 114-115, 439 F.2d 620, 624-625 (1971) (Bazelon, C. J., concurring).

[48] 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."

[49] 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."

[50] 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.

[51] Model Penal Code § 4.01, Comment at 159 (Tent.Draft No. 4, 1955) (emphasis added). See ALI Proceedings 206-20 (May 21, 1955) (unpublished).

[52] 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.

[53] 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.

[54] 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).