Archie W. BRAWNER, Appellant
United States Court of Appeals,
District of Columbia Circuit
471 F.2d 969 (1972) (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 . . . .

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 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.

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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 [p. 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 [n. 2] and irresistible impulse. [n. 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, [n. 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 [p. 977] defendant's mental condition, without regard to the supposed restrictions of the test used to define insanity for the jury.

 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. 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 [p. 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.

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

 The problem was identified by then Circuit Judge Burger in his concurring opinion in Blocker: [n. 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."

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 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. . . .

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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.

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

 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.". . .

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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. [n. 16] This is advocated in the amicus brief of the National District Attorneys Association as both desirable and lawful. [n. 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.

 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.  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.

 [p. 986] The concept of lack of "free will" is both the root of origin of the insanity defense and the line of its growth.  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 [n. 21] or fails "to show proper respect for the personality of the criminal [who] is liable to resent pathology more than punishment." [n. 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 sevenleague 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, [n. 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. [n. 24] In the ALI, the contrary view prevailed because of a concern over presenting to [p. 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.

 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." [n. 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. [n. 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).

 [p. 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. [n. 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 [p. 989] harmonizes with its sense of justice. [n. 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.  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.  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. [n. 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. 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" [p. 990] that reflects judgments outside the domain of expertise.  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. [n. 35]  b. Some judges have viewed the ALI test as going beyond Durham in enlarging the category of persons who may win acquittals.  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 wrong-fulness 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 but on the application reflecting the underlying sense of responsibility of the jury, as the community's surrogate.

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

 So ordered.

 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.

 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 [p. 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. [n. 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 [n. 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 [p. 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.

* * *


 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.