United States Court of Appeals District of Columbia Circuit
214 F.2d 862 (1954)

 BAZELON, Circuit Judge.

 Monte Durham was convicted of housebreaking, by the District Court sitting without a jury.  The only defense asserted at the trial was that Durham was of unsound mind at the time of the offense.  We are now urged to reverse the conviction . . . because existing tests of criminal responsibility are obsolete and should be superseded.

* * *


 It has been ably argued by counsel for Durham that the existing tests in the District of Columbia for determining criminal responsibility, i.e., the so-called right-wrong test supplemented by the irresistible impulse test, are not satisfactory criteria for determining criminal responsibility.  We are urged to adopt a different test to be applied on the retrial of this case.  This contention has behind it nearly a century of agitation for reform.

 A. The right-wrong test, approved in this jurisdiction in 1882, was the exclusive test of criminal responsibility in the District of Columbia until 1929 when we approved the irresistible impulse test as a supplementary test in Smith v. United States. [n. 14]  The right-wrong test has its roots in England. There, by the first quarter of the eighteenth century, an accused escaped punishment if he could not distinguish 'good and evil,' i.e., if he 'doth not know what he is doing, no more than * * * a wild beast.' [n. 15]  Later in the same century, the 'wild beast' test was abandoned and 'right and wrong' was substituted for 'good and evil.' [n. 16]  And toward the middle of the nineteenth century, the House of Lords in the famous M'Naghten case [n. 17] restated what had become the accepted 'right-wrong' test [n. 18] in a form which has since been followed, not only in England but in most American jurisdictions as an exclusive test of criminal responsibility:

 ' * * * the jurors ought to be told in all cases that every man is to [p. 870] presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.' [n. 21]

 As early as 1838, Isaac Ray, one of the founders of the American Psychiatric Association, in his now classic Medical Jurisprudence of Insanity, called knowledge of right and wrong a 'fallacious' test of criminal responsibility.  This view has long since been substantiated by enormous developments in knowledge of mental life.   In 1928 Mr. Justice Cardozo said to the New York Academy of Medicine: 'Everyone concedes that the present (legal) definition of insanity has little relation to the truths of mental life.' [n. 24]

 Medico-legal writers in large number, The Report of the Royal Commission on Capital Punishment 1949-1953, and The Preliminary Report by the Committee on Forensic Psychiatry of the [p. 871] Group for the Advancement of Psychiatry present convincing evidence that the right- and-wrong test is 'based on an entirely obsolete and misleading conception of the nature of insanity.' [n. 28]  The science of psychiatry now recognizes that a man is an integrated personality and that reason, which is only one element in that personality, is not the sole determinant of his conduct.  The right- wrong test, which considers knowledge or reason alone, is therefore and inadequate guide to mental responsibility for criminal behavior.  As Professor Sheldon Glueck of the Harvard Law School points out in discussing the right- wrong tests, which he calls the knowledge tests:

 'It is evident that the knowledge tests unscientifically abstract out of the mental make-up but one phase or element of mental life, the cognitive, which, in this era of dynamic psychology, is beginning to be regarded as not the most important factor in conduct and its disorders.  In brief, these tests proceed upon the following questionable assumptions of an outworn era in psychiatry: (1) that lack of knowledge of the 'nature or quality' of an act (assuming the meaning of such terms to be clear), or incapacity to know right from wrong, is the sole or even the most important symptom of mental disorder; (2) that such knowledge is the sole instigator and guide of conduct, or at least the most important element therein, and consequently should be the sole criterion of responsibility when insanity is involved; and (3) that the capacity of knowing right from wrong can be completely intact and functioning perfectly even though a defendant is otherwise demonstrably of disordered mind.' [n. 29]

 Nine years ago we said:

 'The modern science of psychology * * * does not conceive that there is a separate little man in the top of one's head called reason whose function it is to guide another unruly little man called instinct, emotion, or impulse in the way he should go.' [n. 30]

 By its misleading emphasis on the cognitive, the right-wrong test requires court [p. 872] and jury to rely upon what is, scientifically speaking, inadequate, and most often, invalid and irrelevant testimony in determining criminal responsibility.

 The fundamental objection to the right-wrong test, however, is not that criminal irresponsibility is made to rest upon an inadequate, invalid or indeterminable symptom or manifestation, but that it is made to rest upon any particular symptom.  In attempting to define insanity in terms of a symptom, the courts have assumed an impossible role, not merely one for which they have no special competence.  As the Royal Commission emphasizes, it is dangerous 'to abstract particular mental faculties, and to lay it down that unless these particular faculties are destroyed or gravely impaired, an accused person, whatever the nature of his mental disease, must be held to be criminally responsible * * * .' [n. 36] In this field of law as in others, the fact finder should be free to consider all information advanced by relevant scientific disciplines.

 Despite demands in the name of scientific advances, this court refused to alter the right-wrong test at the turn of the century.  But in 1929, we reconsidered in response to 'the cry of scientific experts' and added the irresistible impulse [p. 873] test as a supplementary test for mining criminal responsibility.  Without 'hesitation' we declared, in Smith v. United States, 'it to be the law of this District that, in cases where insanity is interposed as a defense, and the facts are sufficient to call for the application of the rule of irresistible impulse, the jury should be so charged.' [n. 39]  We said:

 ' * * * The modern doctrine is that the degree of insanity which will relieve the accused of the consequences of a criminal act must be such as to create in his mind an uncontrollable impulse to commit the offense charged.  This impulse must be such as to override the reason and judgment and obliterate the sense of right and wrong to the extent that the accused is deprived of the power to choose between right and wrong.  The mere ability to distinguish right from wrong is no longer the correct test either in civil or criminal cases, where the defense of insanity is interposed.  The accepted rule in this day and age, with the great advancement in medical science as an enlightening influence on this subject, is that the accused must be capable, not only of distinguishing between right and wrong, but that he was not impelled to do the act by an irresistible impulse, which means before it will justify a verdict of acquittal that his reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane impulse to perpetrate the deed, though knowing it to be wrong.' [n. 40]

 As we have already indicated, this has since been the test in the District.

 Although the Smith case did not abandon the right-wrong test, it did liberate the fact finder from exclusive reliance upon that discredited criterion by allowing the jury to inquire also whether the accused suffered from an undefined 'diseased mental condition (which) deprive(d) him of the will power to resist the insane impulse * * * .' [n. 41]  The term 'irresistible impulse,' however, carries the misleading implication that 'diseased mental condition(s)' produce only sudden, momentary or spontaneous inclinations to commit unlawful acts.

 As the Royal Commission found:

 ' * * * In many cases * * * this not true at all.  The sufferer from  (melancholia, for example) experiences a change of mood which alters the whole of his existence.  He may believe, for instance, that a future of such degradation and misery awaits both him and his family that death for all is a less dreadful alternative.  Even the thought that the acts he contemplates are murder and suicide pales into insignificance in contrast with what he otherwise expects.  The criminal act, in such circumstances, may be the reverse of impulsive.  It may be cooly and carefully prepared; yet it is still the act of a madman.  This is merely an illustration; similar states of mind are likely to lie behind the criminal act when murders are committed by persons suffering from schizophrenia or paranoid psychoses [p. 874] due to disease of the brain.' [n. 43]

 We find that as an exclusive criterion the right-wrong test is inadequate in that (a) it does not take sufficient amount of physic realities and scientific knowledge, and (b) it is based upon one symptom and so cannot validly be applied in all circumstances.  We find that the 'irresistible impulse' test is also inadequate in that it gives no recognition to mental illness characterized by brooding and reflection and so relegates acts caused by such illness to the application of the inadequate right-wrong test. We conclude that a broader test should be adopted.

 B.  In the District of Columbia, the formulation of tests of criminal responsibility is entrusted to the courts and, in adopting a new test, we invoke our inherent power to make the change prospectively.

 The rule we now hold must be applied on the retrial of this case and in future cases is not unlike that followed by the New Hampshire court since 1870. It is simply that an accused is not criminally responsible if [p. 875] his unlawful act was the product of mental disease or mental defect.

 We use 'disease' in the sense of a condition which is considered capable of either improving or deteriorating.  We use 'defect' in the sense of a condition which is not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease.

 Whenever there is 'some evidence' that the accused suffered from a diseased or defective mental condition at the time the unlawful act was committed, the trial court must provide the jury with guides for determining whether the accused can be held criminally responsible.  We do not, and indeed could not, formulate an instruction which would be either appropriate or binding in all cases.  But under the rule now announced, any instruction should in some way convey to the jury the sense and substance of the following: If you the jury believe beyond a reasonable doubt that the accused was not suffering from a diseased or defective mental condition at the time he committed the criminal act charged, you may find him guilty.  If you believe he was suffering from a diseased or defective mental condition when he committed the act, but believe beyond a reasonable doubt that the act was not the product of such mental abnormality, you may find him guilty.  Unless you believe beyond a reasonable doubt either that he was not suffering from a diseased or defective mental condition, or that the act was not the product of such abnormality, you must find the accused not guilty by reason of insanity.  Thus your task would not be completed upon finding, if you did find, that the accused suffered from a mental disease or defect.  He would still be responsible for his unlawful act if there was no causal connection between such mental abnormality and the act.  These questions must be determined by you from the facts which you find to be fairly deducible from the testimony and the evidence in this case.

 The questions of fact under the test we now lay down are as capable of determination by the jury as, for example, the questions juries must determine upon a claim of total disability under a policy of insurance where the state of medical knowledge concerning the disease involved, and its effects, is obscure or in conflict.  In such cases, the jury is not required to depend on arbitrarily selected 'symptoms, phases or manifestations' [n. 51] of the disease as criteria for determining the ultimate questions of fact upon which the claim depends.  Similarly, upon a claim of criminal irresponsibility, the jury will not be required to rely on such symptoms as criteria for determining the ultimate question of fact upon which such claim depends. Testimony as to such 'symptoms, phases or manifestations,' along [p. 876] with other relevant evidence, will go to the jury upon the ultimate questions of fact which it alone can finally determine. Whatever the state of psychiatry, the psychiatrist will be permitted to carry out his principal court function which, as we noted in Holloway v. U.S., 'is to inform the jury of the character of (the accused's) mental disease (or defect).' [n. 52]  The jury's range of inquiry will not be limited to, but may include, for example, whether an accused, who suffered from a mental disease or defect did not know the difference between right and wrong, acted under the compulsion of an irresistible impulse, or had 'been deprived of or lost the power of his will * * * .' [n. 53]

 Finally, in leaving the determination of the ultimate question of fact to the jury, we permit it to perform its traditional function which, as we said in Holloway, is to apply 'our inherited ideas of moral responsibility to individuals prosecuted for crime * * * .' [n. 54]  Juries will continue to make moral judgments, still operating under the fundamental precept that 'Our collective conscience does not allow punishment where it cannot impose blame.' [n. 55]  But in making such judgments, they will be guided by wider horizons of knowledge concerning mental life.  The question will be simply whether the accused acted because of a mental disorder, and not whether he displayed particular symptoms which medical science has long recognized do not necessarily, or even typically, accompany even the most serious mental disorder.

 The legal and moral traditions of the western world require that those who, of their own free will and with evil intent (sometimes called mens rea), commit acts which violate the law, shall be criminally responsible for those acts.  Our traditions also require that where such acts stem from and are the product of a mental disease or defect as those terms are used herein, moral blame shall not attach, and hence there will not be criminal responsibility.  The rule we state in this opinion is designed to meet these requirements.

 Reversed and remanded for a new trial.