Don Wade v. United States

n Notwithstanding admissibility however, answers, we think WADE, Appellant, Don granted plaintiffs new trial. must be charge jury court’s The district America, UNITED STATES of cautionary con- instruction contained no Appellee. cerning cross-examination. the lack of No. 22657. Indeed, jury was instructed as fol- Appeals, United States Court of lows: Ninth Circuit. testimony “The of witness who March present in reason cannot some testify from the witness writing, usually presented

stand is oath, deposi-

under in the form of a

tion, upon oral examination or written

interrogatories. testimony such is entitled to

“Now and,

the same consideration possible, insofar judged by you as to weighed

credibility by you in the way as if

same the witness himself present, although

had been you of course you him

cannot see cannot ob-

serve demeanor and he attitude as

testifies.”

Thus, told that was not weighing probative value of

sworn answers should consider that subject

the answers were to cross- Rather, jury may

examination. given

inferred from the instruction automatically the answers were ac weight testimony corded the same subject

which was to cross-examination.

Although plaintiffs’ counsel did not re

quest cautionary charge, instruction matter, importance

in view of the

we believe it was fundamental error for given

the district court not to have such charge. previously Our court has stat ed, in a case concerned with the admissi

bility incomplete deposition, of an oral ordinarily cautionary the lack of in

struction would be fundamental error. Pennsylvania Co., Derewecki R. R. su

pra. We think this rule is even more cogent party’s when a written answers interrogatories part are admitted as

of “his” ease. judgment of the district court

will be reversed and the case remanded

for a new trial.

of the issue of whether more modern of crim- standards for the determination responsibility adopted. inal No should be except other the First continues Circuit rules, M’Naghten rely on the ancient not, and that insofar as we Circuit find, opportunity can for recon- had eight years.1 sideration the last decision, Since the date of our Ramer rejected three more Circuits have M’Naghten. States, v. United Blake (5th 1969) (unanimous F.2d 908 Cir. decision); en v. banc United States (6th 1968); Smith, 404 F.2d 720 Cir. (argued), Johnson of Rob- E. Jonathan Chandler, United States v. 393 F.2d 920 Carmack, Brown, erts, & Hunt- Johnson (4th 1968) (unanimous banc de Cir. en er, Angeles, Cal., appellant. Los cision). (argued), U. Asst. Alan H. Friedman a record Here we have a case with Byrne, Atty., U. S. Matthew S. Wm. complete different and far more Angeles, Cal., appellee. Atty., Los were those in Ramer and Church. Wade BARNES, HAM- CHAMBERS, Before disclosed introduced evidence which MERRILL, KOELSCH, LEY, BROWN- derangement. history probable CARTER, ELY, ING, DUNIWAY, testimony There was medical WRIGHT, HUFSTEDLER, KILKENNY amply justified a determina- would have Judges. TRASK, Circuit tion that insane under Wade was American Law Penal Code for- Institute Judge: ELY, Circuit responsibility.2 He mulation again requested to consider en banc we sit the District to instruct Once Court viability challenging test, jury appeal in terms of the A.L.I. but an recently do, obliged M’Naghten as 1968 adhered, As it rules. the court as was M’Naghten cases en in the consolidated banc We have con- we sat rules. longer v. and Church stand States cluded we should no of Ramer v. United (9th States, alone; Cir. hold virtually 390 F.2d we United therefore application neither of decided that Wade was entitled appropriate rec- responsibility contained such in terms cases of criminal 4.01(1). reach the merits us to would allow ord Penal Code § Model Eighth connection, Beltran Circuit See Amador In this 1962). (1st require, applica- permits, Cir. 302 F.2d 48 does * * * explained, “The defendant contends on variations based tion of tests longer Eighth M’Naghten Rule is no Circuit rules. responsibility. however, proper require, of all test of criminal admission does pass is broad men- care to on this do not relevant defendant’s We evidence charge recogniz- However, capacity we com sue on a bare record. and a tal varying gradations possibility the district attention mend to court’s Pope Currens, types incapacity. v. cases such as United States 735-736, Cir., request 1961, 290 F.2d 1967) (en lane), trial, it on the new if determines de vacated on properly distinguish grounds, fendant could between right wrong, See note nevertheless make 20 L.Ed. findings may, further so that need infra. be, give consideration to this matter.” Draft, (Final reported 2. Model Penal Code 4.01 § Id. at 52-53. Our research reprinted subsequent opinions section We have decisions discloses no insanity by any page in our text federal court tests infra. the First Circuit. ley, dissenting, joined We need discuss Merrill and great detail, Browning) (Ely, rules in since dissenting). and at 583 widely Ramer, majority holding Ex- treated and criticized. summaries contained in Unit- properly cellent the issue of was not Chandler, raised, expressed 924- States v. on the con 1968); viability United States tinued of the ancient test.3 606, Freeman, (2d 615-622 357 F.2d Cir. apply- dangers of The weakness and Currens, 1966); United v. 290 States ing M’Naghten as criteria the traditional 1961); 751, (3d Dur F.2d Cir. 763-767 openly insanity are of determinant States, U.S.App.D.C. 94 ham v. United M’Naghten fruit- apparent. rules The 228, (1954); 862, 864-874 Gra punishment lessly attempt to relieve Commonwealth, ham v. 420 S.W.2d 575 persons mentally who those diseased McHoul, (Ky.1967); Commonwealth v. cognitive capacity who have no —those (1967); 544, 352 226 N.E.2d 556 Mass. qual- and are unable know the nature Con Second Circuit Annual Judicial ity were the acts their acts or of Defense, Insanity ference, 37 as a wrong. does not com- formulation This also, (1964). See State 365 F.R.D. knowledge port with modern 200, 521 Schantz, 403 P.2d Ariz. 98 being complex mentally is a individual Dhaemers, Minn. (1965); 276 State v. degrees varying with awareness.4 In Ramer (1967). 332, 150 N.W.2d problem presented to attack also fails judges our nine four of the then may have an accused in a case wherein use have abolished court would incapable understood his actions but was M’Naghten Ramer v. Unit rules. per- controlling Such behavior. States, supra, (Ham danger F.2d at 577 to remain a son has been allowed witness before the British mission F.2d 725 See, United 1968) ; F.2d 1111 sideration of the its bility. no evidence Accordingly, M’Naghten required have followed curiam). Three-judge panels the court States, 368 F.2d 735 The late Mr. Justice Similarly, it. terests tainly then I think the be arrested at the formulated. knowledge “I do those who e. breach * * * are, broadly g., 372 F.2d 93 is, by trying in the absence of Smith v. United expressed other test Johnson v. United I see Capital Punishment, in Maxwell v. United rules was of the and not in the think, to raise the also us— why * * * (9th I think that to have rules Sauer, have to 396 F.2d 434 challenge Cir. to be more law holding the real the rules of law Kilpatrick time when Cir. state of speaking, (9th inappropriate, Frankfurter, 1969) ; serves its best in- note 9 If administer Cir. therein en you situation, in that case. observance— psychological honest about Royal honoured in of this court banc recon States, on the 1967) (per discredited they find there was Oliver v. (9th infra, stated: responsi- should States, them, Com- issue. rules were aas mer- cer- Cir. 765. See wrong cide Mind: ly between test, Id. at 760-767. The who are “Our institutions contain M’Naghten absurdity See also United States v. ishment Currens court British are people en Rules are tious therefore cept by # which distorts measure which cannot nullifies them able diseased lack of strong word, sanity (1955). therefore, ^[*] 751, system. Psychiatry people Royal 1949-1953, report, right ^[*] insane large ft generally it, 705-767 almost or and who know the difference I Rules in order to determine abandoned say, of the defendant think the Commission insanity, and not difficult very process measure shams. That * * * referred to rationally * * * knowledge ‘We’ll and the Law of Homi- meaningless.” mentally wrong. and often (3d J. difficult I application think the Biggs, the mental health M’Naghten They just juggle on many patients at 102 * * * is not a desir- ill or mental- practice, interpretation Currens, Capital 1961). for conscien- “[t]he justified also are in enough practically right * * M’Naght- Id. at (1953). Guilty noted, them’ Rules large Pun- vast The ex- among leg- ing, latter, whenever, society states wherein under to himself power particular in the field has be- islative imprisoned without M’Naghten, he is thought g„ may pro- be exclusive. See e. treatment afforded such Moeller, 110, later, potential- 433 P.2d State v. 50 Haw. rehabilitation duce Dhaemers, (1967); State v. recidivistic, ly released.5 (1967). Minn. 150 N.W.2d shortcomings serious Schantz, 98 Ariz. See also State v. by the rules are overcome Compare 403 P.2d im- “irresistible of the so-called addition Malumphy, 105 Ariz. State applied in nu- pulse” has been test which (Dec. 3, 1969). P.2d 677 including ours. jurisdictions, merous held test was a combined of such The use time, suggested that our At one was prejudi- Supreme not to be Court rules reexamination States, error Davis v. cial foreclosed decisions of Su- 476-477, 40 L.Ed. 16 S.Ct. observing, preme After Court. Sauer impulse (1895). irresistible 499 States, (9th Cir.), 241 640 United F.2d v. however, subject test, at least two to 1405, denied, 940, cert. 354 U.S. 77 S.Ct. a only is there major objections. Not very (1957), “it 1 L.Ed.2d 1539 among such psychiatrists whether debate question open the doubtful also, exist, test actually the impulses but one,” we ventured a the issue belief scope. lan- The test's in is too narrow Supreme Court was foreclosed the sudden, explo- guage impliedly refers since, Sauer, the at the time of actions, the often sive, more fit-like hegem- escape Appeals to the Court of is un- allegedly acts of one criminal M’Naghten ony the had been of the rules exces- follow conduct control his able in Durham District Columbia Circuit melancholy. brooding United and sive 228, States, U.S.App.D.C. v. United 94 supra, at Freeman, F.2d 357 v. States Nevertheless, (1954). after 214 F.2d 862 Wechsler, citing The Criteria 620-621, decision, an- one Circuit after our Sauer Responsibility, U.Chi.L.Rev. 22 Criminal M’Naghten rejected rules other has the v. United 367, (1955). Maxwell See 393 persuasively demonstrated and has (9th 735, Cir. States, 741 F.2d 368 Supreme fixed Court has never set a the only a foregoing are considerations responsibility. of criminal standard led, many in among that have the few States, generally 390 Ramer v. United aban- years, universal almost recent (Ham- 1968) 564, (9th F.2d 582 Cir. M’Naghten-irresistible of the donment M’Naghten dissenting). ley, rules Appeals. impulse the Courts test rejected as an exclusive have date been among Moreover, the consider- by, of Co- the District test in addition lately wide- induced ations which Third, Second, Circuit, lumbia by presti- spread criticism Eighth, Seventh, Fifth, Sixth, Fourth, groups, medico- gious and bar courts, scholars, includ- doubts legal and state Tenth Thus Circuits.6 satisfied), permissible Con- Annual Judicial if criteria en 5. See Second Circuit 651, ference, Insanity Defense, grounds, 37 F.R.D. a 392 U.S. as vacated on other ; (1968) (1964). 1317 396-397 88 S.Ct. 20 L.Ed.2d States, F.2d 420 v. 325 Wion United F,2d Freeman, denied, (10th Cir.) (en banc), 606 357 v. 6. United States cert. 377 (2d ; 1966) Cur States v. United L.Ed.2d 309 Cir. U.S. 84 S.Ct. 12 1961) ; (3d Unit Cir. 290 F.2d 751 rent (4th Chandler, Freeman, supra, F.2d 920 We read from 357 F.2d v. 393 States ; (en banc) 1968) Blake v. United Cir. States, 613-614: (en (5th 1969) “Despite government’s arguments Cir. Smith, contrary, however, banc) ; we not be- F.2d do United States v. placed Supreme (6th 1968) ; Court States v. lieve that Cir. United (en 1967) approval M’Naghten, stamp Shapiro, its 383 F.2d 680 banc) ; Pope and we find this United the cases cited clearly (M’Naght- proposition readily (en banc) 1967) against Sauer stand alone raised The District Circuit, of Columbia subsequent avalanche of authoritative supra, Durham v. United adopted agreeing rea- with opinions. Now, Pike, a test not unlike that of State v. opinions, soning these (1870), N.H. 399 forth set in which there had been shortcomings acknowledged judicial departure from the first light im- irresistible M’Naghten M’Naghten Durham Under rules. pro- rules, test, guil- we could found not act defendant or uncontrollable pulse ty by act were tests reason of alternative review brief to a ceed disease product of defect. responsibility. Supreme of insani- the area Court cases Thus, Davis distinguishable. ty tests: 469, 16 S.Ct. (I), States foregoing quite aside “But Davis (1895), L.Ed. think, is, and a more another there (II), 165 U.S. States approach important more valid (1897), do 41 L.Ed. problem the be- leads us to holding suf- square represent a today Supreme would Court lief that the former M’Naghten. The ficiency of apply Rules for- burden issue of concerned was mulating charge for a United States applicable proof —rather * * * assumed, Even if it be court. primarily in- the latter standard —while be, that as we think it should not court’s the trial claim volved charge import was most favor- of these decisions not even so narrow Rules, ad- able to the benefit give full defendant assuredly has vance of medical science short, case, M’Naghten. Neither vastly background against altered the M’Naghten question whether raised the * * * they must be considered. by supplemented replaced or be Should century great of Since the turn the tests. alternative psychia- strides in the advancement equally “Subsequent barren cases are try have since be- been made. And the M’Naghten. challenges direct ginning of II World War the treat- States, 186 U.S. Hotema v. United mentally ill, ment and the cure the (1902), 46 L.Ed. 22 S.Ct. insane, progressed the ing pace. has at an astound- sufficiently charge merely jury held * * * particular defense the broad to embrace Supreme “We believe that Court v. United Matheson there asserted. present in view of the state 33 S.Ct. 227 U.S. knowledge, approve would not charge (1913), which the in L.Ed. impose Rules and would not strikingly much later- foreshadowed the applied today by them as the test to be rule, developed Durham turned on jury a sponsibility to determine the re- criminal actually given fact that the instructions mentally of a ill defend- essentially by requested were those ant in a trial in a federal court.” remaining defendant. The decisions cit added, unanimously The Tenth Circuit government, finally, ed concern banc, Wion, supra, en in 325 F.2d at applied prose not a test federal 425: cutions, but propriety under the Fourteenth Amend rather the constitutional responsibility “Since criminal in Fed- decision, eral courts is a rule of based process’ ment’s ‘due adoptions M’Naghten clause of state upon concepts, common law is al- or other varia ways appropriate to re-examine and re- M’Naghten. tions of In Leland v. appraise rule, light Oregon, 790, 800, State of 343 U.S. prompted considerations which 1002, 1008, 72 S.Ct. 96 L.Ed. 1302 M’Naghten, Federal courts to abandon (1952), example, Mr. Justice Clark for what believe en- a more psychiatry wrote: ‘The science of lightened determining responsi- rule for made tremendous strides since that test bility for criminal conduct.” M’Naghten’s was Case, laid down in Circuit, unanimously The Fifth also en progress but the of science has not reac bane, Blalce, supra, F.2d at point learning where its would Supreme concluded that Court has compel require us to the states to elim not restricted the discretion of the Courts right inate wrong test their Appeals of responsibility: to fashion rules of criminal ” criminal law’ “We treat the Davis test Cúrreos, supra The Third Circuit in as a dictum and in no event it a stric- 770-771, following F.2d at supervisory power made the adopt ob- ture on our concerning prior servations the effect of a new standard.” defect,” terms “mental disease or adhered When we at 875. F.2d Sauer, determining purposes respon rules in sibility, “any Dur- urged by defined were to mean ab Sauer was alternative rule normal rejected the Durham test be- condition of the mind which sub ham. We stantially pos- grave mental or over emotional concern affects had cause processes entangling problems substantially impairs behavior sibility causation perplexities cont in policy rols.”7 Since a successful fundamental of,” sanity the new Durham- defining “product “mental under defense the words necessarily United McDonald disease,” must be built and “defect.” Sauer upon substantially States, supra, ca 241 F.2d at 646-647. affected subsequently pacity substantially ex- behav phrase “product of” affected was capacity, appears plained ioral and since it Carter (1957), prosecution normally cannot over U.S.App.D.C. F.2d by showing relationship be- require exist come the defense that a “product the act act was not a of” the substan disease and tween defect tially ca inference is a reasonable affected mental and behavioral there such that pacity, important not have been commit- we fail see differenc the act would the Durham-McDonald rule or defect. disease es’ between ted for the but compart- of assumed the American Institute test ex problem is one Law here mind, pressed 401(1) namely, Model Penal Code § mentalization produces (Final supposedly Draft, defect discussed below disease urged by issue If the Wade in case. not others. this some acts and the a defendant raised noteWe also the test of criminal re negated the ex- prosecution then has not sponsibility adopted by the Cir Third or defect be- a mental disease istence Currens, cuit in United States v. doubt, it would seem yond reasonable (3d 1961): “The prosecution practically impossible must be satisfied that at the of com time gain show- a sufficient conviction mitting defendant, prohibited act the produet not the act defect, as a result mental disease or sense, the defect. disease or the capacity lacked substantial conform super- product portion of test seems the requirements his conduct to the of the fluous. alleged law he is violated.” have the Dur problem This test is on based the behavioral com Another serious by ponent phrase no standard of the “to is there is A.L.I. test. ham rule appreciate criminality jury whether the of his conduct” can determine which the responsi purposely ought to held was omitted to avoid be over the defendant cognition emphasizing which, experts testified the have if medical ble significant.” produced thought, rarely “would be act was the defendant’s problem at decla 290 F.2d n. 32. Since the or defect. The mental disease criminally person respon Burger, concur ration that a exposed was States, judgment ring, sible his actions a moral in Blocker v. United community, the Currens formula the U.S.App.D.C. cogni rejected for of a (1961). Cir was its omission The District Columbia States, scope vagueness in Wion v. United the tive standard cuit reduced the in McDonald v. Unit F.2d Similar the Durham rule Freeman, ly, U.S.App.D.C. F.2d we read in United States supra, banc), (en (1962) can understand the “While we wherein ” ‘product,’ or ‘cause.’ even ‘result’ Circuit further or The District Columbia proscribe however, not, emphasized separation ex- The court did of functions the speaking perts jury Washington expert or of “mental disease medical although defect,” part U.S.App.D.C. 29, the ultimate is- jury, precluded terms the because these sue for The court F.2d significance. Id. testifying at 456. psychiatrists “in terms of to], jury reluctance Court’s stress would [in Currens] “leave [it deter- cognitive personality of the element mine whether at the time of the act the light M’Naghten’s emphasis suffering on that accused was from disease of formulation; aspect, accept (or deficiency) cannot its we mental mind to such gravamen psychiatric objections degree ought that he not to held re- be Rules, seen, sponsible.” test, to the as we have at 116. this Id. Under cognitive they jury expected was not that looked to meet the ultimate personality, undeniably cases, feature of a moral issue involved all significant aspect man, jury given guidance total but the they exclu looked this element than direct resort to its collective con- sively.” accept 357 F.2d at 624. We science. Other tests are more commend- proposition appreci according that one cannot able because set— wrongfulness ate the of his community act should moral sense of —sensible punished legal not ingly, guide be as a jury criminal. Accord standards to as to prefer, formulations, of the reaching two factors to be considered in their proposal. Conceptually the A.L.I. conclusion. may significantly two tests not be dif test, quoted The other British appreciate If a defendant cannot ferent. Currens, United States v. wrongfulness act, of his it seems (3d 774 n. 32 reads: probable acquitted that he would be un jury that, person may der either “The must test because such a be satisfied go committing inevitably astray law, act, the cused, of the time of dem ac- thus onstrating capacity also a lack a result of to con disease of the (or deficiency) (a) Nevertheless, mind form to it. did the function of insanity charge quality know nature and is to communicate (6) act or did was standards under which there know that it incapable wrong (c) acquittal pre- insanity. be because of venting committing appreciate If wrongfulness it.” those himself from who cannot criminality of their con essentially The test is acquitted, are to duct should impulse irresistible rules in con- recast clearly jury. communicated to the temporary language. Government, responsi- we, Ramer, Two British tests of criminal when asked it to select bility Royal proposed were the British among existing formulations of criminal Capital Commission Punishment responsibility, favored this second Brit- 1949-1953, Report (1953). The first extent, however, ish test.8 To the incorporated deranged person into The Government who lacks substantial Supplemental capacity this case its Brief on crim- pun- to control his conduct is responsibility inal re- Chandler, furnished us at our ished. See United States v. quest supra, 929; in F.2d Ramer v. United 393 F.2d at United States 1968). favoring Freeman, 615; In supra, 357 F.2d at test, urges Currens, supra, second British the Government States v. 290 F.2d at 773. emphasize an extra instruction adequately We believe that the A.L.I. test jury’s pass conveys function ultimate is not to to the the relevant standards defendant, necessary proper the mental health of the but to make a moral de- morally to determine whether he is blame- termination. worthy ought punished light 4.01(1), to be Model Penal Code Alternative § (a) (Tent. of his mental illness. See id. at 575 n.10. Draft No. offers a agree half-way We the mere fact that a de- station between the Govern- request fendant has mental disease is not deter- ment’s for an added instruction on responsibility jury’s minative of criminal is ultimate moral decision and the significant requested by to the extent that he final draft A.L.I. test Wade. powers lacked normal of control This alternative test reads: purposes person responsible choice. None of the for enforc- “A is not for crim- except isolation, criminal law which inal conduct if at the time of such con- may only temporary and without re- duct as a result of mental disease or de- habilitation, mentally capacity appreciate are served when a fect his either to M’Nagh- may differences re- between the be to concern Government’s aptly cognition impediment ten examined or A.L.I. tests were quire total Shapiro, supra, in United States v. and to avoid which control standards recognize at 684-685. or defect While mental disease “perverted deranged deranged person’s capacity rules refer to impair a reject position condition by degrees, of the and moral facul- we ties,” already test, like note 4 and A.L.I. the Durham- stated. reasons See text, swpra. tests, McDonald and Currens refers accompanying defect,” phrase “mental disease or In- now to the American Law We turn meaningful juries deemed more test, as forth in its Model stitute set light expert testimony of the Penal reads: Code. ordinarily hear. While impulse responsible and irresistible person rules contem- “(1) is A not insane, plate, totally one is such who devoid time of criminal conduct cognitive capacity, or behavioral as a of mental disease conduct result incapac- require A.L.I. test does not total capacity ei- defect he lacks substantial ity cognition of either Here volition. criminality appreciate ther again, phraseology the A.L.I. is more con- [wrongfulness] of conduct or testimony sonant with usual medical require- his conduct conform that of the more narrow tests. The ments of law. Shapiro concluded, “It our impression Article, that in this field difficult ab- “(2) As in this used realistic, solutes are ALI terms, do or defect’ ‘mental disease preferable.” approach is more Id. at 685. abnormality manifested an include only by repeated formulation, or otherwise approving the A.L.I. adopted note we that three conduct.” Circuits antisocial “wrongfulness” (the word A.L.I.’s Draft, (Final 4.01 Code Model Penal § suggested place alternative) of “crim- Durham-McDon- Aside from the inality” in order from the to exclude above, tests, discussed ald and Currens criminally responsible category those approved in all test has A.L.I. who, knowing criminal, com- act except remaining federal Circuits mitted it of a delusion that because justified.9 the First. morally ours and likewise act was We criminality [wrongfulness] of his con- ‘just’ morally the circumstances. his conduct Wechsler, duct or conform Re- The Criteria of Criminal substantially requirements Chicago of law so sponsibility, L.Rev. ofU. impaired justly be held (1955).” he cannot added.) (Emphasis responsible." Although express we on the view test, merits the above we must observe received this test The Government fail to share Government’s Ap- comment and stated favorable present concern that under A.L.I. Supplemental pellee’s Ramer Brief at test, requested mentally Wade, de- supra: ranged people mor- nevertheless more “For the federal courts we believe responsible ally might acquitted. Since present suitable than the formulation essentially the A.L.I. reflects * * (2) [quoted *. above] alternative society, moral standards and concerns of rejected early be- This alternative was perceive it is to how defendant difficult squarely to it submitted ‘the issue cause “morally responsible” can be if he at the justice’ jury’s rather sense of capacity same time “lacks substantial ‘inquiry confining its to fact.’ See appreciate criminality either to Code, on the Model Comments Penal [wrongfulness] of his conduct or to con- p. No. Tentative Draft requirements form his conduct to the But was found to a fatal defect what be (Final law.” § Model Penal Code 4.01 precisely we what believe to be the Draft, 1962). federal touchstone a suitable stan- namely, jury’s Freeman, decision 9. United States v. F.2d 606 dard — essentially (2d 1966) ; should be it deems what Cir. Blake v. United “wrongfulness” Viewpoint, the term believe trist’s 529- 48 A.B.A.J. (no (1962) preferable. entity such mental as a “abnormality by repeat- manifested approve paragraph (1) of While we or otherwise con- anti-social test,10 above, quoted are as we the A.L.I. psychopathic personalities have duct” — comparable para- unable to find merit symptoms). numerous additional graph of the (2). The drafters A.L.I. Circuit, noting “great dispute Sixth framing intended, apparently test psychiatric over the section soundness of paragraph, certain second to exclude 4.01(2),” adopt expressly to refused “psychopathic personalities,” from those Smith, supra, it. United States v. might suffer be found to who otherwise F.2d n. at 727 defect.” a “mental disease Code, 4.01, important at Model Penal Comments § Even more than the need (Tent. 1955); compare preserve insanity Draft No. defense for those Smith, supra, 404 F.2d paragraph (1) United States v. who meet test po- authorities society’s protected at 8. Noted medical 727 n. need be para- responded may the second have tential recidivists. Persons who be graph purpose experts fails its “psychopathic” to achieve in- labeled meaningful any test. seriously to establish fails clude those who are ill and See, Diamond, g., e. From incapable persistent, liv- ordered Currens, Beyond, any Although per- Calif.L.Rev. kind. these (A.L.I. purported (1962) might poor subjects 193-94 sons for success- personalities psychopathic treatment, definition of ful should release, does not make and discriminates prison sense some sent after against economically poor defendants likely period, United fixed recidivists. expert likely produce Currens, who are less supra, at 762. States v. 290 F.2d testimony disclosing manifestations 4.01(2) inclusion of an § beyond illness or other- “criminal no im- should have little or instruction Overholser, conduct”); anti-social wise pact on the determination of the criminal Responsibility: Psychia- A deranged Criminal responsibility any mentally banc) ; 1969) (en (5th appropriate Cir. than another in the be less Shapiro, testimony F.2d 680 light particular States v. in a 1967) (en banc). might and which case tend to live long after more rational solutions Chandler, In 393 F.2d United States v. been uncovered. 1968) (era lane), the Fourth short, approval “In while our imposition sought to avoid the Circuit rigid Law American Institute’s formulation unequivocal formulas: pro- unreserved, we egregious ought “We not fall into the scribe form of words which Ap- century, may appear error appropriate of the last however. given more in a proval form of in- standard or generally case now or cases in the not, not, struction need and should future.” solidify language thought. freeze the 926-927. formulating specific spirit instructions we While share the which moved jury or the Circuit, standards which control through the Fourth Chief findings, particular court’s circum- Haynsworth, comments, to make its we may stances of the case not be disre- unnecessary expressly adopt think it garded, and the issue as framed quoted language. If, at some future ¿estimony may changes require in the time, should we become convinced that * * * choice of words. There should satisfactory some new and more adaptation exigencies be room for supplant should that which we herein particular larger cases and still room adopt, shall, course, accept it. constructive innovation and im- Meanwhile, we think it desirable our provement. today’s We embrace ad- nothing permitting contain in- vances, abjure any but we terpretation formalistic inconsistent with our inten- approach might supply foreclose varia- tion now our district courts prescribe tion. We should not for in- precise guidelines. variable use a form of words not, essary defendant, psychopathic because the defendant remains a whether Ty- society practically inconceivable threat to to himself. it since is would, dings, Guilty A Federal Verdict Not or defect a mental disease By Subsequent (2), Insanity paragraph Reason and a be “manifested terms Procedure, only by repeated otherwise Commitment criminal or 27 Md.L.Rev. added.) (1967); Note, (Emphasis Federal Commitment conduct.” anti-social Guilty By Not Rea- Found of Defendants enough us to for It reason would be Insanity Proposed Legislation, son of 4.01(2) — approve on the to § refuse 52 Iowa L.Rev. 930 The need grounds accomplish the fails to it legislation for some form of to remove value, for only purpose, one debatable vagaries gaps area of intended, it that would which it was procedure federal is clear. Federal law juries an courts and burden trial provide, time, present for does en- have lit- which should instruction extra trusting to defend- state authorities any necessary tle, any, impact fac- incompetent is ant who trial.11 stand however, is, There tual determination. law, however, 18 U.S.C. 4244. No re- § our This additional for concern. cause quires hospital- to confine or states ambiguity. paragraph’s It un- is the is prisoners, ize the nor released federal 4.01(2) require would clear whether § any requirement acquitted there de- legally considered that a defendant be fendants bound over to state authori- if, although only acts man- sane overt present, need not ties. We base our re- ifesting defect were “crim- disease or solely position considered on our confi- anti-social,” there inal or otherwise safeguard dence in state authorities infer- from his acts a reasonable arises public mentally interest when de- derangement be- of mental either ence ranged persons have accused been or because cause of the nature of acts violating federal rather than state laws. medical or evidence. credible paramount controlling factor us, 4.01(2) ambiguous it is Since § judicial re- that we cannot abdicate our that an instruction reasonable believe sponsibility by prolonging antiquated incorporating equal- section would be responsibil- common law rule criminal jurors. ly ambiguous confusing and ity merely legislation on collat- because Therefore, 4.01(2), adopt the as to we § pending. eral matters is still Conse- position of the Sixth Circuit. quently, we overrule our decision in Sau- Throughout opinion, our States, supra. er United considered, paramount, have as inter public protected est of the Our determina new rule for the dangerous imperative responsibility individuals. tion of deranged mentally deranged mentally operate that a offender ac shall quitted insanity advantage because be immediate of those whose convictions subject ly procedure already to determine to a have become final. Durham necessity compulsory hospitaliza U.S.App.D.C. long (1954), tion he remains menace. and United Columbia, Shapiro, Outside of the District of how States v. ever, procedure a formal federal new rules was held that the accomplishment purely prospective applica ends has been these should have lacking. Proposals recently change so affected tion that the Congress spe placed provide appellants directly before in the involved two plea insanity cial com appeals defenses and defendants trials hearing determine, procedure mencing after a after the date the decisions. defense, case, however, com is successful whether Neither discussed mitment to a mental institution is nec- in United confronted sue Additionally, prison- to state authorities. convicted federal be entrusted upon expiration er of his 4247-4248. §§ sentence U.S.C. 74 (2d Tarrago, F.2d 621 Cir. v. 898 atrist with information on the of States basis 1968) banc), slightly which, part, psychiatrist wherein dif- a form {en the can Tarrago, result was reached. ferent the defendant’s applied policy con- the Second Circuit state at the time offense. If the Supreme psychiatrist forth subsequently permitted siderations set Denno, testify during prosecution Court Stovall v. 388 U.S. for the 296-297, trial, 18 L.Ed.2d 1199 may the result be that the defend- (1967), adoption of and decided that its against ant’s own words used him. are United Therefore, in Freeman cooperation A.L.I. rule v. coerced with swpra, should “limited retro- psychiatrist have not chosen the accused activity” may so as to extend the Freeman privi- violate the fifth amendment holding pending ap- lege cases on the two justified it unless can or one peal at the date of Freeman decision. more of various theories been that have 398 F.2d at 623-625. The Fifth and discussed both courts and commenta- recently Sixth Circuits have followed See, g., Corcoran, tors. e. Thornton v. Tarrago opinion in connection with their U.S.App.D.C. 407 F.2d 695 rules. abandonment (1969); Albright, United States v. (5th Blake v. United 407 F.2d 908 1968); F.2d 719 French Cir. 1969) (in banc); Cir. United States v. Ct., District Colo. P.2d Smith, 1968). 404 F.2d 720 (1963); Danforth, Death Knell Pre- Commonwealth, Brumley also See Privilege Trial Mental Examination? (Ky.1964). agree- S.W.2d We Against Rutgers Self-Incrimination, 19 holding present ap- ment. Our will be (1965); Comment, Compul- L.Rev. 489 plied retroactivity with limited so as to sory Mental Examinations the Privi- defendants, affect those in addition lege Against Self-Incrimination, 1964 Wade, begun yet whose trials have not Wis.L.Rev. 671. whose or convictions become quite grave It is obvious that a consti-

final date this decision. Could, question presented. tutional Finally, example, against noted must be that Wade an accused whom presented insanity imposed has issue, question addition to the such an order was be barred great importance presenting defense yet satisfactorily deranged mentally has not as an- he were so as to be any incapable extending swered question this This cooperation Circuit. court, required by Compare whether a trial when Robin- order? appointing psychiatrist California, examine son v. State 370 U.S. pursuant defendant U.S.C. 82 S.Ct. 8 L.Ed.2d 758 On § pursuant powers, may hand, inherent problem its the other a different properly order presented that the examination cov- would be had the District competency both restrictive, er to stand trial and Court’s order been sim- more responsibility ply barring present- criminal alleged at the time the defendant importantly, testimony any expert More offense. as- suming valid, ques- given order is personal to whom he himself had history similarly tion is raised whether a court has the in- cooperated unless he power order, expert herent appointed by the District with the the court. did, Baird, here Court that the must defendant United States v. F.2d 700 cooperate provide (2d information to the concluded, We have how- court-appointed psychiatrist, ever, light disposition or else be our “precluded at the time of trial from of- possibility case before us fering upon again arise, evidence question the defense of insanity.” need not the constitutional issue decide present on the record. type requires This of order the defend- supply court-appointed psychi- ant to Reversed and remanded. TRASK, Judge, Supreme approved whom Court Circuit KOELSCH, M’Naghten BARNES, CHAMBERS, rule v. Unit- Davis KILKENNY, States, 373, 378, and CARTER 17 S.Ct.

JAMES M. dissenting. join, Judges, 41 L.Ed. 750. It has not re-examined its Circuit position time, notwithstanding since that major- togetherness, the of In a burst plethora conflicting among of decisions longer ity it should no decides the circuits. join alone”, virtually should but “stand rejection of of an “avalanche” history Learned of discussion the of M’Naghten responsi- of criminal test psychiatric the rule and the considera- adopts In- bility. Law the American tions involved have been belabored in the test instead. stitute courts all of circuits. Appeals profession the Courts has decisions claimed its share of the have fore- in the other circuits debate. weight M’Naghten impressive lend sworn rule test ALI has, M’Naghten test choice. The this to margin.1 M’Naghten set are forth in the guiding however, principle been the expanded by been has Circuit Ninth determining in a as a defense impulse to include irresistible test years. for more than criminal action updated by defining which has been init such a of time for To test withstand terms “uncontrollable act”. Maxwell span it must would alone indicate States, (9th 368 F.2d sturdy abandon possess To some merit. 1966). Cir. Each test therefore encom- change established to means now passes “cognitive” capacity in nine states courts rule federal individual as well as his “volition”. Forty-nine Territory divi- Guam. “irresistible-impulse” With test of the United Courts sions of District phrased act”, “uncontrollable the voli- as having more are affected States portion only tion of the test will cover not people within twenty-four millions of “sudden, explosive, fit-like actions” but to geographical this Court area. For resulting also uncontrollable acts from change legislate judicially a substantial brooding melancholy. excessive require to seem of such moment would Thus, M’Naghten test in this circuit what only examination not a careful “cognition” only also not consequences embodies discarding but we are change. capacity to control be- “volition” and the of the M’Naght clearly forth, Daniel this was set the test was not Case, Eng.Rep. (H.L. evidence had been en’s not material because Hamley approved support circuit: this it. form introduced “ used, Maxwell), ‘Insane,’ (who means such a as here in his dissent wrote deranged perverted of a condition calls attention Ramer v. United departure quoted language person’s and moral faculties in the incapable adopted by actually dis- the House of him either render the test right wrong, tinguishing or between Lords. knowing capable the act the nature of Institute test: American Law responsible committing; person “(1) con- or where he is is not A he he is the time such the nature of act criminal conduct at scious of distinguish committing or be- mental disease and able to conduct as a result of capacity right wrong, substantial and knows the defect he lacks tween criminality yet will, appreciate wrong, which I his either act power mind, governing [wrongfulness] or to con- of his of his conduct mean the destroyed requirements completely his to the so form conduct subject it, but are law. his actions Article, beyond “(2) control.” Maxwell v. United As used in this or defect’ do n. 7 terms ‘mental disease 368 F.2d abnormality 1966). manifested include an by repeated p. that, otherwise anti- criminal or al- The court indicated portion though conduct.” act” social the “uncontrollable composite wrong (c) incapable prevent- havior—a entire action pattern committing of man.2 himself from it.” subject framework, plus Nor is rule of circuit With this a basic leeway adapt frequently particular stated criticism that it words cir- psychiatric testimony unduly testimony, restricts cumstances or a workable psychiatrist express requires standard ity would be available for all insan- judgment. possibly Chandler, All moral relevant cases. United States v. evidence complete picture to reveal the is admissible most 926-927 the and accused his equally compre- A second alternative mind and his motivations. Sauer v. hensive, equally simple equally and sound States, 640, 647, (9th United F.2d 241 suggested by is that Burger then Circuit 940, 1957), denied, Cir. cert. 354 U.S. concurring opinion in a in Block- 1405, (1957). 77 1 S.Ct. L.Ed.2d 1539 States, v. U.S.App.D.C. er United 110 Pope States, See also v. United 372 F.2d 41, (1961): 288 F.2d 853 710, 1967); (8th 736 Cir. v. United Wion “The defendant is not to found be 420, States, 325 F.2d 430 Cir. charged guilty as unless it is estab- denied, 946, 84 cert. 377 U.S. S.Ct. beyond lished a reasonable doubt 1354, 12 L.Ed.2d As act, first, when he committed the having psychiatrist express risk the appreciated he understood and that the judgment hypo in answer to a moral law, second, act was a violation of and question in the terms of thetical framed capacity that he had the his exercise involved, particular the test the same If, will and choose not do it. be- objection applies to formulation. cause of some abnormal mental condi- short, as the test is de- tion, either of these elements is lack- applied, and fined in this circuit as it is ing, guilty. he cannot be found To the criticisms are traditional substantial- guilty find, jury hold him the must ly dissipated. beyond doubt, a reasonable both that appreciated he understood and act the considered, an alternative Should charged was a violation law and adopts the the formulation which best of possessed capacity that he com- the M’Naghten, language, modernizes its petence to choose to do refrain it easily it makes nearly understood and most doing at it.” F.2d all includes of the elements recom- by psychiatrists mended seem would Judge Burger compared formula by Royal approved to be that the British being essentially as one in the same terms Capital Commission on As Punishment. Report Royal as that of the Com- Currens, stated in United States v. Capital mission on Punishment. Blocker 751, (3rd 1961) F.2d it n. 32 States, 41, U.S.App.D.C. reads as follows: agree 853, 288 F.2d n. 33. We jury that, “The must satisfied the statement in Blocker that neither committing possesses act, infallibility the time of cused, the ac- tests these Holy a result disease seems Writ. Per contra each (a) deficiency) (or mental did defects which mind avoid bring fundamental quality of not know the the other tests forum nature into the (b) did it act or not know that was too far from criticism. Both by court, given 2. “The instruction the trial allowed stance three-test instruction quoted 7, Supreme in note contains three tests in v. Court Davis United 360, insanity, any which, States, one of met under case, require approved by the facts of this would ac- this L.Ed. quittal. purposes discussion, Cir., States, For these v. Andersen United (1) will as: tests be referred to Maxwell v. United 127-128.” ‘right-wrong’ test; (2) States, the ‘nature 368 F.2d 741-742 test; (3) act’ act’ ‘uncontrollable follows, test. This in sub- instruction tion, necessity pal- this it as a to becloud use test modified psychiatrists seems unneces- virtue liative the basic All have circuit. easily sary. modifying more simple creates The word being propounded in terms explanation average layman. problems it solves. an understood mystical approaches the su- so INSTITUTE LAW AMERICAN THE pernatural. It is difficult believe TEST Maxwell, proposed in the definitions closely approximates test The ALI Royal Blocker Commission circuit, hobgoblin Maxwell psychia- use which the raise the United difficulty 368 F.2d Sauer imagine. is that trists goes an well word too far and suggestions except here, alternate made impact beyond How intended. glaring “sub- one word. That word is “substantial” know what Otherwise, ap- except stantial”. the ALI test anyone know means? How does ingredients pears to contain the basic gives un- definition the user? ex- all common to formulations. area in an real touch Alice Wonderland given planation thing for the the Institute the last that is where law use this modifier is as follows: The world that is needed. twenty-five percent a could believe that addressing impairment of “In itself to ac- and capacity is “substantial” lack cognitive capacity, de- morally re- quit is otherwise one who impairment complete; that mands may men- sponsible. have a “An accused So, too, the not know. the actor must deficiency in some and tal disorder presup- impulse irresistible criterion mentally competent still be cases poses capac- complete impairment of legally crime.” responsible for his held ity extremity of for self-control. The Mims conceptions is, point think these poses largest psychia- difficulty to that upon to trists when called aid in their The a worm word “substantial” is schizophrenic, apple. (1) administration. The is It be noted that reality; example, (Ninth Circuit) is disoriented from not test does extreme; “substantial”; (2) it is the disorientation is use the word rarely psychotics re- Royal total. Most will not British Commission test does “substantial”; spond (3) someone command of use the word authority hospital; Burger’s within the mental not word “sub- does use the capacity they stantial”; (4) con- thus some Law have American very dif- to a But is only form norm. connection with Institute uses it they question protective providing ferent from the whether de- sections capacity re- constituting to conform to have the tention treatment quirements imme- remaining that are not thus portion of article the entire diately symbolized by “Responsibility”. an attendant am See infra. on I Nothing majori- policeman elbow. persuaded its use that responsibility inquiry ty into mis- makes other than serious here can cause psychiatrist more unreal for the chief. ulti- limitation the issue to some objection use Another serious incapacity, when mate extreme of total necessarily en- it of the words is grad- only experience clinical reveals may larges category persons who way.” along the ed scale with marks acquittals “sub- are win because Code, Comments, Tent. Model Penal means) stantially” (whatever lack- p. No. Draft capacity. ALI committee recognized reporter and consultants the courts the definition Since they provided safe- legal pronounce this effect.3 But upon defini- is a called gray. recognize shades with different tent itself when must 3. “The law accordingly, draft, demand does must con- there no and white is black guards. majority (2) hearing here what the That is Provision is made for longer dangerous the dominant rea- not do. That is release him- does son for this dissent. self or to others. group Law Institute The American apparent para- It is the sections propounded under the definition which phrased that the Criminal Law Commit- distinguished group consideration is stop did not tee when it had liberalized great public performed a serv- insanity. the definition of This complicated area ice in an intricate and part only coverage of the Article they performed of the law. The task recognized “Responsibility”. also formalizing beyond a test went far insanity. They proposed custody impera- and treatment were a codification tive.5 law on “Re- a section of the criminal majority propose adopt here sponsibility”.4 “Re- Their codification insanity liberalized test out of the sec- sections, sponsibility” of ten consists “Responsibility” incorpo- tion on without integral, 4.01(1) albeit an safeguards. ration of the limitations or part. important, The other sections anxiety join In their broth- with their simply just vital one however are they open er circuits the throttle to full particu- lift out of the article this cannot speed checking ahead without ever doing lar violence to section without brakes. the District Courts of the perti- plan. sections

entire The other United States when an defense (in substance) follows: nent here are guilty” sustained a “not verdict 4.03(1) or defect Mental disease returned, person walk out Defense, (2) Notice an Affirmative By hypothesis the courtroom a free man. given; (3) the defense must be When person he is a awith mental defect or ground acquitted on defendant is disease which caused him to commit that defect, mental verdict disease or dangerous person. He crime. is a There judgment shall so state. may be differences of how by Psychiatric examination 4.05 many acquittals more result from will court-appointed psychiatrist. by the adulteration of the standard 4.08(1) acquitted defendant is When use of the word “substantial” out of con- ground of mental or defect on excluding responsibility, disease plan. poll text with the whole One cannot shall any the court after the fact and obtain re- placed appropriate in- order in an him inquiring liable information whether custody treatment. stitution application of a standard would different capacity. complete impairment It [consulting psychia- er] trist]) Guttmacher impair- substantial asks instead original.) (Emphasis in ment.” Institute, 4. See American Model Pe- Law Code, Comments, Tentative Model Penal Proposed Draft, May Code, nal Official 4, p. Draft No. 158. 4, 1962. principle “I state the have tried to exculpate just 4.08, makes 5. In its comments on Section the com- condemnatory-punitive judgment mittee said: persons seriously provision sanction are af- who “The for automatic commit- practice I flicted disease. have tried to state ment is in accordance with the principle leniently England minority more in and a of American impulse, jurisdictions. provides only irresistible or It Hampshire, public even in- New as the test is with the maximum immediate terpreted By relaxing protection, in that state. but also work to the rigor somewhat, advantage mentally of the criterion I have or de- diseased psychia- by making tried to make it easier for the fective defendants de- give enlarge irresponsibility acceptable trist his evidence and to fense of more public jury.” the cases in which a conscientious man and to the give meaning- Comments, would feel Code, that he could Model Penal Tentative opinion.” (Emphasis added.) 4, p. ful Draft No. Comments, Code, Model Penal Tentative 4, p. (Wechsler [report- Draft No. possible consequences of this any verdict. with in the difference have made verdict it enacted statute Jurors, humanly, liberalization their believe directing hospi say it commitment to a would doubtless was correct any changed by treatment subtle so detention not have tal been would different, acquitted on was quite defendant That a modification. mentally irrespons ground having in modifier he however, Unfortunately, beginning no such statute and the ible.6 in the the definition other circuit testimony, expert opinion, existence instruction apply acquittals in federal courts. argument upon it. based disclosed, survey ex The statistical information only statistical number increase in the pected, a marked Dur compiled with reference greater acquittals.7 A similar of Columbia. District in the ham test de under inevitable increase seems States, 94 Durham v. United majority. cision (1954). The App.D.C. 214 F.2d 862 of ac- number in the The increase go use so far as to did not Durham test upon in- quittals 1960 statistical based elimi it did “substantial” the word necessarily over- related to formation M’Nagh criterion nate the “absolute” the number information on all statistical to some information That committed. thus broaden crimes ten and reassuring.8 is not Congress concerned so became extent. figures percent. from the Uni- are These 24-301(d), Code. of Columbia District §6. published Reports the Fed- Lynch dissenting Grime Clark Mr. Justice form Investigation. Re- These Bureau of Overholser, eral 369 U.S. only ports indicators (1961), national 1063, 1073, stated: 8 L.Ed.2d But, as the America. statute, my view, of crime is not “The designed recognizes, must be used with public protect FBI from the criminally incompetent caution. . same but at the large gap re- purpose between “There the humanitarian time has ported In 1967 the true rates. rates and affording hospitalization for those En- Law therefore, Commission on President’s is, treatment. need of of Justice Administration importance forcement and com- to this the utmost major true rate of total munity.” stated high roughly twice as crime was violent obtained information 7. From statistical reported rate.” as the District of the U. S. the records Report on the of National Commission Columbia, St. Court for the District Violence, Prevention of Causes and Hospital, and the Police De- Elizabeth’s Eisenhower, Milton S. Chairman Dr. partment it Columbia of the District of 1969), (November, pp. 1-2. in was found 1960 that: “Any enforcement of law evaluation brought rule a Durham has “[T]he meaningless without sixties would be acquittals by significant increase in the cursory pic- the crime look at least a * ** insanity. In reason of During 1960, period. there for that ture years prior decision, four there reported. 2,014,600 serious crimes were acquittals were 13 such District complete for are not statistics 1969 While yet available, Court, prim- of Columbia’s the District reports preliminary show years ary trial court. the five during percent first crime rose that since, 78, 30 of them there have been compared first with the when months year 30, ending 1959.” in the June serious 1968. Almost 4.5 million half of Durham, Clayton, Years James Six After were recorded 1968. crimes June, 1960, p. Soe’y, I. Am. Jud. “Thus, crime has soared the volume points p. The same author out-at 20: population percent while has since 1960 acquitted “More murderers have percent. Also, risen 11 since 1960 under the rule than other offenders with being crime a victim of a serious risk running and housebreakers robbers nearly Indeed, crime has doubled. second.” close heavy our socie- become such a burden on ty many 1968, it authorities believe the national that 8. “Between 100,000 prob- per most internal serious homicide the nation’s rate criminal percent, population increased 36 the rate lem.” Bulletin, rape percent, aggravated Enforcement Law F.B.I. forcible p, percent, robbery December assault and of Don Wade robbed a 1968), bank. used a He Cir. cert. de gun. questions nied, ofOne framed for the 89 S.Ct. 21 L.Ed. psychiatrist was (1968), as follows: dissenting opinion 2d 138 ad vocated ALI test and mentioned the “Q. Doctor, you opin- formed an policy argument against liberalization un ion as to whether or as the Congress provided til for detention and result of his mental disease Only paragraph rehabilitation. terse one defect Don lacked substan- Wade problem of the dissent was devoted to the capacity tial to conform his con- which was dismissed as an irrelevant so requirements duct to ciological relying by consideration cita law time at the he was upon opinion tion in United States v. bank on November 1966? Shapiro, 383 F.2d “A. Yes. case, A reference to that how ever, Shapiro “Q. shows that looks likewise opinion? What is that by mentioning way prob the other I “A. don’t think he was able to do saying: lem and then probably that for weeks several agree “We that there is an unde- bank, before in the he was includ- gap procedure solving sirable period certainly on problem arises, it when which must day I saw him.” under insanity, definition of the defense applied On the basis of ALI test to be do but we not deem the exist- majority Don Wade well gap ence reason for sufficient away walk from the courtroom a free rejecting the ALI definition.” judge legal man. The district has no That in turn cites United States guaranteeing be, means will he (2d Freeman, 625-626, detained examination and treatment. Currens, and United States happens What when he next suffers supra, authority 775-776, 290 F.2d at “psychotic depression” and his hand supporting statement. In Freeman its gun ready? recognized the court a result inappropriate rule, to consider the adoption “ef- its of the liberalized policy arguments urged Indeed, procedures herein. fective institutionaliza- the circuits have done so but with faint criminally ir- tion and treatment praise. protection public responsible implementation are vital as an important added). if not today’s vital consideration (Emphasis to Then, decision”. law, the administration of the irrespon- appalling with somewhat and if substantive rules sibility part standards own its the court ex- changed by judicial fiat, are to be the presses Congress hope the' do will changes proposed should careful something treatment, receive about detention and Congress consideration as to their on the effect and that does not that the public. majority Neither the de “criminally in this irresponsible promptly be cision, majorities in of the nor most turned over to for commit- state officials spe other circuits have done so. To pursuant procedures”. be to state ment States, Ramer added) In 390 (Emphasis cific: 357 F.2d at 626.10 “shocking 9. For a in in upon instance which the Commenting 10. on reliance the states sanity plea successfully invoked”, was see problem, solve the federal Senator 640, Tydings Sauer v. United 241 648 F.2d states: 1957), denied, system justice n. 21 354 cert. “A federal that relies 1405, pro- U.S. 1 1539 77 S.Ct. L.Ed. on such fortuitous circumstances another, (1957). Tydings, society persons For see A tect and assure suf- Guilty By fering Federal Verdict Not Reason diseases receive ade- Insanity Subsequent quate hardly worthy and a Commit care can of ment be Procedure, great public ju- Md.L.Rev. esteem. The federal (1967). system rely dicial cannot continue to us. in the case now before ed the same fanciful same Currens offers Judge Barnes stated: answer: barren another, possibly “But there is ac- event, Currens should “In reason, why significant this most trial, the federal new his quitted at existing modify refuse to court must bring his him and should authorities implicitly assume law. Most observers state the attention condition present law that in criticism of their may he not to the end authorities criminal if is set free on the the accused position he in which remain in confined on will be side he public.” danger to himself or abe Unfortunately, is not civil. added). (Emphasis at 776.11 might were, If court it this case. procedures com- Obviously for state disposed alter its current more much criminally enact- insane were mitment today juris- The choice in views. federal; prosecutions and for state diction not between confinement procedure prompt for transfer commitment, con- is no but rather between there insane to state 241 F.2d at criminal of the federal finement freedom.” added). (Emphasis 650. authorities; is no uni- there custodial among processing changed formity for the with the states choice has not argument passage insane,12 of time. If this criminally with of the significant in com- should be notoriously conditions overcrowded pelling in 1970. no assurance institutions there is state point Justice Clark makes Mr. assume the state would should Lynch clearly in dissent v. his Over- responsibility. federal holser, supra: system federal in the “ * ** offenders are no less insane grips really come being society ir- menace to held problem Sauer the Ninth Circuit impose responsible, and reluctance to F.2d 640 blame on not re- such individuals does denied, U.S. cert. quire community their release. The Although (1957). 1 L.Ed.2d protecting public has an interest considering the alter there the court was whether committed antisocial acts persons. principle sane or insane We have rule, involv- Durham native posed by problems As stated Mr. in his Justice Clark fortune to solve Lynch Overholser, guilty person being of federal dissent found 1063, 1075, 725-727, charges 82 S.Ct. 8 L.Ed. introduction after criminal presently gap insanity 2d 211: evidence. procedure existing in federal present [May, “At time 1962] stat- must be closed.” provide mandatory utes commitment Joseph Tydings, Verdict A Federal D. persons acquitted by reason of in- Insanity Cuilty By Reason Not sanity Virgin in 12 and the States Subsequent Proce- Commitment mid England Islands as well as in and the dure, Md.L.Rev. per- District of Columbia. Six States judge. mit commitment if in dissent trial Hastie noted As authority Eighteen provide mandatory Currens, more Court had no discretionary commitment the trial order commitment: judge finds that au- the defendant’s whether the federal “[I]t is doubtful require discharge continues or that the restraint would be thorities could dangerous peace. appellant public psychiatric treatment mandatory and, Rico, in of States and Puerto be retried reason if he should n finding by illness, guilty. I commitment follows a like found not his mental therefore, jury. and, trial a second think we need not should three States standards civil risk release one found to commit- not thus of psychopath ment met.” must be be a criminal when restraint med- seem desirable both treatment ically socially.” at 777. ** sweeping declarations persons Such recognized who be- long suggest dangerous of the au- a closer examination are illness of mental cause may thorities. be re- others or to themselves against inter- their will Overholser,13writing strained in the Amer- Dr. safety their public seek and to of est rehabilitation, en- Association ican Bar Journal ” * * * at 369 U.S. ALI fol- Durham and as dorsed assessed 8 L.Ed.2d 724, 82 at lows: correctly assessed Brosman also already I have “I have indicated Smith, problem in United States mildly, reservations, put some he when said: U.S.C.M.A. concerning the American Law Institute authority irresponsibili- “The to determine criminal formulation of ty. appears shall be committed as insane should The formulation me practice linked with determina- be a combination of the be acquitted appreciate (‘capacity of tion who shall be men- crim- rule inality') tally irresponsible impulse in the ordi- and the irresistible —since case, person acquitted nary properly (‘conform test quirements his conduct the re- insanity requires law’). of treat- reason of This formula- Yet, approval majority in a un- ment mental institution. tion met of procedures Institute; adopted by commitment inte- are less has grated fact, however, of with the administration it is a all three of law, psychiatric criminal there more than a fair on the com- consultants may exception an accused risk that avoid both take mittee it.” A.B. jail asylum.” (1962). A.J. professor Psychology A Clinical at THE STATE OF AUTHORITIES Minnesota, University the Meehl, Paul E. teamed with a member the law majority opinion quick takes a look faculty, Joseph Livermore, making M. at the circuits and concludes that with searching analysis of the several tests respect authorities, “we should insanity including the ALI test and longer virtually alone,” stand at an- concludes: place points other to “almost universal M’Naghten-irresist- abandonment “While more refined formulations impulse ible test.” It is true possible, it is our contention circuits little has been written of the con- 124-year-old M’Naghten that the rule siderations which should lead to a reten- cognitive impairment with its focus on M’Naghten. Having tion of served the standpoints from the sounder justice administration of purposes law, present of the criminal long has, as it it deserves better treat- psychiatric knowledge, and of ease of ment. On its ap- record alone it would judicial administration than pear M'Naght- that it cannot be all bad. the newer tests.” Livermore and en, however, been deserted. Meehl, M’Naghten, The Virtues might One led to believe from a read- Minn. (1967). L. Rev. ing of some of the federal decisions cited Mueller, M’Naghten See also Remains by majority that because of disaffec- Irreplaceable: Recent Events in the Law among psychiatrists, tion the ALI test is Incapacity, Geo.L.J. among one favor them. majority also “wide-spread doubt, refers however, There is no criticism [M’Naghten] by many psychiatrists unhappy with prestigious groups, M'Naghten. bar and They unhappy med- are also ical-legal tests, including scholars test, and state courts the ALI Overholser, Sup’t. George Dr. Winfred Washington University Eliz- St. School Hospital, Washington, O.; Medicine; President, Psychi- abeth’s D. American Psychiatry Professor Emeritus atric Association 1947-1948.

83 M’Naghten test Commonwealth What Durham.14 pleased with most seem 104, Rightnour, 644 Pa. A.2d 435 253 all v. displease most of them appears to (1969) v. Ma legal of de- Arizona State system method as has its 200, lumphy, P.2d 105 Ariz. 461 677 by artful cross-exam- veloping evidence (1969). Enough to has said es been ination.15 M’Naghten has received tablish also Legal courts and the scholars On “almost abandonment”. universal uni “almost not the there is divided contrary appears far the to be - M’Naghten of the versal abandonment among is in prevailing It rule states. impulse that has test” irresistible jurisdictions rule where the the state majority. nine suggested by In the expected its to most fre would be geo constituting jurisdictions state quent application, test. and its severest Cir Ninth graphical boundaries M’Naghten.16 cuit, Idaho adhere all but concluding majority para- in its Code Penal the Model In the Comments subject recognizes graphs “as on this (Tenta Institute Law the American public paramount” interest of p. 1955) 25, 4, April No. tive Draft protected dangerous from individuals. adopted 161, shown to have 30 states are any protection points It the lack others, right-wrong and 14 test present system our federal impulse. right-wrong plus irresistible society threat individual British Commonwealth unconditional criminal- release M’Naghten either stated ly successfully insane who have asserted (p. M’Naghten impulse plus irresistible recognizes defense. need for Supreme United Court something majority Then the be done. M’Naghten. approved Davis States hastily, apologetically, almost states 373, S.Ct. 165 17 responsi- judicial “we cannot our abdicate (1897). 360, 41 L.Ed. 750 bility” by continuing antiquated legis- merely rule because changes re some have been There pend- is still lation collateral matters adopted the ALI date. Idaho has cent ing words, merely because noth- —in 153, White, 456 93 Idaho test. State v. public protect has been done (1969). re-examined P.2d 797 Iowa I find the liberalized definition. supported authorities and has completely Harkness, statement unconvinc- such a 324 160 N.W.2d v. State (Iowa 1968). Pennsylvania ing. points majority has adhered to no break- 110, Roche, Philip Moeller, Prof. Q. M.D. Assistant Haw. Hawaii: State v. 50 Pennsylvania; University Psychiatry, Mc’Naghten (1967). 433 P.2d 136 statutory; Guttmacher, M.D. Chief Manfred S. criticized but adhered to Supreme Bench, Officer, 153, White, Balti- 456 Medical Idaho: Idaho State v. 93 Psychiatric test) ; (1969). (Adopts consultant Am. more Md. and ALI P.2d 797 Gregory Institute; Zilborg, 284, Noble, M.D. Law Montana: v. 142 Mont. State lecturer, practicing psychiatrist, author, ; (1963) 384 P.2d 504 writing Insanity Symposium, 25, State, all Nevada: v. 81 398 Bean Nev. Critique (1965) ; denied, Criminal of Durham Law —A 251 P.2d cert. 384 U.S. 1012, 1932, v. 86 U.Chi.L.Rev. L.Ed.2d (1955). (1966) ; State, See also Williams v. 848, ; (Nev. 1969) P.2d Comments, Guttmacher, 15. Dr. ALI Model Oregon: 463, Gilmore, 242 State v. Or. Code, 4, p. Draft Penal Tenative No. 179- (1966) ; 410 P.2d 240 Washington: White, v. State 60 Wash.2d State, 16. Alaska: v. Chase 551, (1962) ; denied, 369 P.2d 997 374 P.2d 942 cert. (Alaska 1962) ; 375 U.S. 84 S.Ct. 11 L.Ed.2d Malumphy, Arizona: State v. Ariz. (1963) ; City Hill, of Seattle ; (1969) 461 P.2d (1967), Wash.2d 435 P.2d 692 People Quicke, California: Cal.2d denied, cert. 393 U.S. 89 S.Ct. Cal.Rptr. 617, 390 P.2d 393 21 L.Ed.2d 142 (1964) (Opinion by Traynor, Chief Justice) ; ‘insane,’ ‘insanity’ of crim- down in administration or which are a kind might lawyers by inal law which be caused con- of catchall and have no clinical ** * M'Naghten tinuing meaning. legal or re- with a more defini- insanity impossible ALI of strictive version of the test.17 The tion is almost criminally Biggs, upon.” Jr., effect is that more insane to come John “The Guilty Mind,” penal p. will be in so institutions and not 117.1 change many on streets.18 The is Dictionary, “Bovier’s Law Rawles by any not of dictated decision the Su- Edition, legal 3d bluntly states preme Court, by any or con- statute insanity the medical ideas of are es- provision stitutional or As Mr. doctrine. sentially different, and difference Justice Clark once said: is one of substance.” Id. exclamation reminded of the “One is outstanding representa- That which victory Pyrrhus: more such of ‘One ” legal pro- tives of * both the * *, utterly undone.’ and we are do, fessions confess cannot the law Noia, Fay 372 U.S. requires jury reason, For this do. 9 L.Ed.2d 837 exists, judiciary if no other should respectfully dissent. For these reasons I slowly carefully move and most in re- dissenting BARNES, Judge, Circuit defining subsequently terms which re- majority opinion and from the concur- quires lay juries comprehend and uti- ring dissent- in Circuit TRASK’S determining lize in or the innocence ing opinion: guilt process of a defendant. This of divergence “The law usually thought between redefinition to involve part by

psychiatry is caused policy legislative matters of reserved for by legal represented the words fiction bodies to determine. Rightnour, 435 Pa. 17. In Commonwealth v. Moreover, during ther aberrations. (1969), the at 650 104 at 253 A.2d 644 Supreme incarceration, permitted he will be or re- Pennsylvania quoting, Court quired to submit to whatever minimal ex- approval ease, another said: amination and treatment if available Woodhouse, “In Commonwealth “substantially” he is insane. U.S.C. supra, a Pa. 164 A.2d defend- provides § for examination murdering ant his six- was convicted of board, prisoners alleged mentally teen-year-old adopted daughter and the defective or unsound mind. At- imprison- penalty life fixed torney-General report on the basis insanity, ment. While the defense prisoner order such to be removed to many reviewed different Court hospital the United States for defective psychiatric tests which had been ad- delinquents sanity until restored to or rejected them, years over the vanced health until sentence served. again M’Naght- and once reaffirmed the “Insanity purely legal is a term which respect en M’Naghten Rule.” With legally by has to be defined the court in pertinently Rule, the Court according which it is used law (pages 258-259, page said 164 A.2d prevailing in that court. In medicine the rule, 107: “Until some than meaning. term has no There ‘M’Naghten,’ based the firm founda- insanity.” Werthem, no disease called opera- tion in scientific fact for effective Violence," p. “The Show 15 and protection security tion in the p. 86. society, forthcoming, we shall adhere “ * * * ‘Insanity’ is a word which blindly it. We shall not follow the medical, believe, has no legal clear nor I psychiatric and medical * * meaning *. In what circumstances experts legal princi- and substitute for a mitigate illness should ple proven prac- which durable and * * * responsibility question, is a decades, vague pro- ticable for rules that lawyers doctors, society but for positive (Emphasis vide no standards." Quotation decide.” from a letter W. original.) Brain, M.D., Royal Russell President rule, least At under the College Surgeons (1952) quoted in Zil- convicted, the defendant is removed from borg’s Psychology “The the Criminal society period during for a time pp. Act and Punishment." 18 and 19. public is free of the risk his fur- “psychopathic change to exclude Change A.L.I. merely for the sake personalities,”3 judges. and its omission is Our no adulation merits say any way met practical solutions goal seek should be to —other paragraph medico-legal “fails to its vexing problems, to second achieve to any change. purpose any, to mean- some, That and establish fails for search ingful particular change, test.” or a opposes one is change, one satisfied mean does not though “great a Even there exists This so present definitions. with expressed psychiatric dispute soundness over in Sauer itself 4.01(2)” as it, to me seems Section 640, 644-645 reject it, adopt much a reason to disregard certainly no is reason correctly majority opinion states entirely. it opinion, the so-call- Sauer since our rejected been rule has of this court’s The most serious defect Ninth. First and but the all circuits problem proposed solution to the difficult paid lip-service is before us unanimity of Yet there has * * * new one of various opinion to which paramount interest “[the] Durham, 94 U.S. is the best. definitions public protected from (1954) was App.D.C. 214 F.2d 862 imperative dangerous It is individuals. solution, urged originally ultimate as the deranged mentally offender ac- a that quitted longer even yet unmodified it is no immedi- be because psychia- same circuit—and the its own ately subject procedure to deter- a applauded it now deni- once trists who compulsory necessity hos- mine the grate it. pitalization long as he remains as' a menace.” (Professors Reporters the A.L.I. And Wechsler, Louis Schwartz B. Herbert Having im- so immediate stated “the comments, Tappan) ex- in their Paul W. majority opinion points perative,” the repudiate pressly decision. Durham now ex- out that no such result can presently pected, possible to nor it is dissenting opinion points Judge Trask’s know it con- when can must await be. significant and ma out the most gressional action. present our difference between terial rejection im- immediate of “the “legislation Maxwell) Such (Sauer plus standard perative” on collater- because standard, proposed the one word is A.L.I. pending” is is a contra- al matters still agree Judge Trask I “substantial.” terms, poor a reason diction permit would that such “standard” a change. immediate go any psychiatrists a wide latitude to expert opinions. This is given their where in this choice to this court and today, desire, juries, it as it in 1957 psychiatrists circuit’s but what some written, Sauer, supra, was is not when want, or need? the courts what “between confinement and commitment objection I have fundamental One between confinement rather majority that which freedom,” passing upon a defend- when reason” “the dominant Trask states is insanity. claimed ant’s portion dissent, namely —but recognized that the defini- A.L.I. on “Re- recommended the A.L.I. article requires certain safe- tion guards. advocates adopted. sponsibility” proposed (4.03(1) 4.08(1).) The 4.01(2) adopted, 4.01(1) is but Sec. Sec. por- majority opinion, adopting but a attempt rejected. The latter is p. Guilty Mind," Biggs, Jr., “The 3. John (9th Cir. 368 F.2d 735 already decided, merely give standards, does not cases tion of A.L.I. previously unacceptable recognize requirement. status rule is, it, going beyond per- as I see far reasons, respectfully dis- I For these judicial missible function. sent. Judge, CHAMBERS, dissent- Circuit ing: psychiatrist, going to see If we were bring let us our

I am he would not sure along. psychia- When own couches America, UNITED STATES of officially over to see us trists come Appellee, testify, reason I can see there is valid on our should not do business GOAD, Jr., Appellant. Luther Jarold terms, rule. wit: enough And, usually been there have America, UNITED STATES of willing to use But now them it. we bend Appellee, our knee them. change WAYMIRE, Appellant. Charles Vernon We live a time when presumed good. change But all 441-69, Nos. 442-69. good. Here it contended Appeals, United States Court of if we rule A.L.I. some will be con- use Tenth Circuit. victed have not been convict- hitherto May 18, 1970. go And, ed and that others will free. Rehearing Denied in No. 442-69 exactly it is not contended that the same 22,1970. June people will be convicted will or that more possible convicted. con- sequence is that a lesser number will be go Probably only a

convicted. few will change

free because of now we make. few, always

But those almost associated crimes, put out on

with violent shall enough. streets, already This unsafe join history to in American

is no time logic. psychedelic parade robber, Wade, is to If the bank Mr. M’Naghten, I less than be tested Congress require it.

would let the Judge, KILKENNY, Circuit CARTER, Circuit

whom Judge, joins, dissenting: M. JAMES valid,

While I do not believe there is

logical worthwhile distinction between Rule, proposed by eloquently

the ALI so M’Naghten Rule, majority, minority, ably I

so can- defended

not subscribe to even limited retroactiv- ity majority. proposed We change rules after the

should not game require To new trials over.

Case Details

Case Name: Don Wade v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 30, 1970

Citation: 426 F.2d 64

Docket Number: 22657_1

Court Abbreviation: 9th Cir.