Monte Durham was convicted of housebreaking,1 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 (1) because the trial court did not correctly apply existing rules governing the burden of proof on the defense of insanity, and (2) because existing tests of criminal responsibility are obsolete and should be superseded.2

Durham has a long history of imprisonment and hospitalization. In 1945, at the age of 17, he was discharged from the Navy after a psychiatric examination had shown that he suffered 'from a profound personality disorder which renders him unfit for Naval service.' In 1947 he pleaded guilty to violating the National Motor Theft Act3 and was placed on probation for one to three years. He attempted suicide, was taken to Gallinger Hospital for observation, and was transferred to St. Elizabeth's Hospital, from which he was discharged after two months. In January of 1948, as a result of a conviction in the District of Columbia Municipal Court for passing bad checks, the District Court revoked his probation and he commenced service of his Motor Theft sentence. His conduct within the first few days in jail led to a lunacy inquiry in the Municipal Court where a jury found him to be of unsound mind. Upon commitment to St. Elizabeths, he was diagnosed as suffering from 'psychosis with psychopathic personality.' After 15 months of treatment, he was discharged in July 1949 as 'recovered' and was returned to jail to serve the balance of his sentence. In June 1950 he was conditionally released. He violated the conditions by leaving the District. When he learned of a warrant for his arrest as a parole violator, he fled to the 'South and Midwest obtaining money by passing a number of bad checks.' After he was found and returned to the District, the Parole Board referred him to the District Court for a lunacy inquisition, wherein a jury again found him to be of unsound mind. He was readmitted to St. Elizabeths in February 1951. This time the diagnosis was 'without mental disorder, psychopathic personality.' He was discharged for the third time in May 1951. The housebreaking which is the subject of the present appeal took place two months later, on July 13, 1951.

According to his mother and the psychiatrist who examined him in September 1951, he suffered from hallucinations immediately after his May 1951 discharge from St. Elizabeths. Following the present indictment, in October 1951, he was adjudged of unsound mind in proceedings under Sec. 4244 of Title 18 U.S.C., upon the affidavits of two psychiatrists that he suffered from 'psychosis with psychopathic personality.' He was committed to St. Elizabeths for the fourth time and given subshock insulin therapy. This commitment lasted 6 month-- until February 1953-- he was released to the custody of the District Jail on the certificate of Dr. Silk, Acting Superintendent of St. Elizabeths, that he was 'mentally competent to stand trial and * * * able to consult with counsel to properly assist in his own defense.'

He was thereupon brought before the court on the charge involved here. The prosecutor told the court:

'So I take this attitude, in view of the fact that he has been over there (St. Elizabeths) a couple of times and these cases that were charged against him were dropped, I don't think I should take the responsibility of dropping these cases against him; then Saint Elizabeths would let him out on the street, and if that man committed a murder next week then it is my responsibility. So we decided to go to trial on one case, that is the case where we found him right in the house, and let him bring in the defense, if he wants to, of unsound mine at the time the crime was committed, and then Your Honor will find him on that, and in your decision send him back to Saint Elizabeths Hospital, and then if they let him out on the street it is their responsibility.'

Shortly thereafter, when the question arose whether Durham could be considered competent to stand trial merely on the basis of Dr. Silk's ex parte statement, the court said to defense counsel:

'Im am going to ask you this, Mr. Ahern: I have taken the position that if once a person has been found of unsound mind after a lunacy hearing, an ex parte certificate of the superintendent of Saint Elizabeths is not sufficient to set aside that finding and I have held another lunacy hearing. That has been my custom. However, if you want to waive that you may do it, if you admit that he is now of sound mind.'

The court accepted counsel's waiver on behalf of Durham, although it had been informed by the prosecutor that a letter from Durham claimed need of further hospitalization, and by defense counsel that ' * * * the defendant does say that even today he thinks he does need hospitalization; he told me this morning.'4 Upon being so informed, the court said, 'Of course, if I hold he is not mentally competent to stand trial I send him back to Saint Elizabeths Hospital and they will send him back again in two or three months.'5 In this atmosphere Durham's trial commenced.

His conviction followed the trial court's rejection of the defense of insanity in these words:

'I don't think it has been established that the defendant was of unsound mind as of July 13, 1951, in the sense that he didn't know the difference between right and wrong or that even if he did, he was subject to an irresistible impulse by reason of the derangement of mind.

'While, of course, the burden of proof on the issue of mental capacity to commit a crime is upon the Government, just as it is on every other issue, nevertheless, the Court finds that there is not sufficient to contradict the usual presumption of (sic) the usual inference of sanity.

'There is no testimony concerning the mental state of the defendant as of July 13, 1951, and therefore the usual presumption of sanity governs.

'While if there was some testimony as to his mental state as of that date, the burden of proof would be on the Government to overcome it. There has been no such testimony, and the usual presumption of sanity prevails.

za

'Mr. Ahern, I think you have done very well by your client and defended him very ably, but I think under the circumstances there is nothing that anybody could have done.' [ Emphasis supplied.]

We think this reflects error requiring reversal.

In Tatum v. United States we said, 'when lack of mental capacity is raised as a defense to a charge of crime, the law accepts the general experience of mankind and presumes that all people, including those accused of crime, are sane.'6 So long as this presumption prevails, the prosecution is not required to prove the defendant's sanity. But "as soon as 'some evidence of mental disorder is introduced, * * * sanity, like any other fact, must be proved as part of the prosecution's case beyond a reasonable doubt."'7 Here it appears that the trial judge recognized this rule but failed to find 'some evidence.' We hold that the court erred and that the requirement of 'some evidence' was satisfied.8

In Tatum we held that requirement satisfied by considerably less than is present here. Tatum claimed lack of memory concerning the critical events and three lay witnesses testified that he appeared to be in 'more or less of a trance,' or 'abnormal,' but two psychiatrists testified that he was of 'sound mind' both at the time of examination and at the time of the crime. Here, the psychiatric testimony was unequivocal that Durham was of unsound mind at the time of the crime. Dr. Gilbert, the only expert witness heard,9 so stated at least four times. This crucial testimony is set out in the margin.10 Intensive questioning by the court failed to produce any retraction of Dr. Gilbert's testimony that the 'period of insanity would have embraced the date July 13, 1951.' And though the prosecution sought unsuccessfully in its cross- and recross-examination of Dr. Gilbert to establish that Durham was a malingerer who feigned insanity whenever he was trapped for his misdeeds, it failed to present any expert testimony to support this theory. In addition to Dr. Gilbert's testimony, there was testimony by Durham's mother to the effect that in the interval between his discharge from St. Eliabeths in May 1951, and the crime 'he seemed afraid of people' and had urged her to put steel bars on his bedroom windows.

Apparently the trial judge regarded this psychiatric testimony as 'no testimony' on two grounds: (1) it did not adequately cover Durham's condition on July 13, 1951, the date of the offense; and (2) it was not directed to Durham's capacity to distinguish between right and wrong. We are unable to agree that for either of these reasons the psychiatric testimony could properly be considered 'no testimony.'

(1) Following Dr. Gilbert's testimony that the condition in which he found Durham on September 3, 1951 was progressive and did not 'arrive overnight,' Dr. Gilbert responded to a series of questions by the court:

Q. (Court). Then is it reasonable to assume that it is not possible to determine how far this state of unsound mind had progressed by July 13th? Isn't that so? A. (Dr. Gilbert). As to the seriousness of the symptoms as compared with them and the time I observed him, that's true, except that his travels were based, according to his statement to me, on certain of the symptoms and his leaving Washington, his giving up his job and work and leaving the work that he had tried to do.

'Q. But you can't tell, can you, how far those symptoms had progressed and become worse by the 13th of July? A. No, now how far they were, that is correct.' (Emphasis supplied.)

Thereafter, when the prosecutor on recross asked Dr. Gilbert whether he would change his opinion concerning Durham's mental condition on July 13, 1951, if he knew that Durham had been released from St. Elizabeth's just two months before as being of sound mind, the court interrupted to say: 'Just a minute. The Doctor testified in answer to my question that he doesn't know and he can't express a definite opinion as to his mental condition on the 13th of July:' This, we think, overlooks the witness' unequivocal testimony on direct and cross-examination,11 and misconceives what he had said in response to questioning by the court, namely, that certain symptoms of mental disorder antedated the crime, although it was impossible to say how far they had progressed.

Moreover, any conclusion that there was 'no testimony' regarding Durham's mental condition at the time of the crime disregards the testimony of his mother. Her account of his behavior after his discharge from St. Elizabeths in May 1951, was directly pertinent to the issue of his sanity at the time of the crime.

(2) On re-direct examination, Dr. Gilbert was asked whether he would say that Durham 'knew the difference between right and wrong on July 13, 1951; that is, his ability to distinguish between what was right and what was wrong.' He replied: 'As I have stated before, if the question of the right and wrong were propounded to him he could give you the right answer.' Then the court interrupted to ask:

'The Court. No, I don't think that is the question, Doctor-- not whether he could give a right answer to a question, but whether he, himself, knew the difference between right and wrong in connection with governing his own actions. * * * If you are unable to answer, why, you can say so; I mean, if you are unable to form an opinion.

'The Witness. I can only answer this way: That I can't tell how much the abnormal thinking and the abnormal experiences in the form of hallucinations and delusions-- delusions of persecution-- had to do with his anti-social behavior.

'I don't know how anyone can answer that question categorically, except as one's experience leads him to know that most mental cases can give you a categorical answer of right and wrong, but what influence these symptoms have on abnormal behavior or anti-social behavior--

'The Court. Well, your answer is that you are unable to form an opinion, is that it?

'The Witness. I would say that that is essentially true, for the reasons that I have given.'

Later, when defense counsel sought elaboration from Dr. Gilbert on his answers relating to the 'right and wrong' test, the court cut off the questioning with the admonition that 'you have answered the question, Doctor.'

The inability of the expert to give categorical assurance that Durham was unable to distinguish between right and wrong did not destroy the effect of his previous testimony that the period of Durham's 'insanity' embraced July 13, 1951. It is plain from our decision in Tatum that this previous testimony was adequate to prevent the presumption of sanity from becoming conclusive and to place the burden of proving sanity upon the Government. None of the testimony before the court in Tatum was couched in terms of 'right and wrong.'

Finally, even assuming arguendo that the court, contrary to the plain meaning of its words, recognized that the prosecution had the burden of proving Durham's sanity, there would still be a fatal error. For once the issue of insanity is raised by the introduction of 'some evidence.' so that the presumption of sanity is no longer absolute, it is incumbent upon the trier of fact to weigh and consider 'the whole evidence, including that supplied by the presumption of sanity * * * ' on the issue of 'the capacity in law of the accused to commit' the crime.12 Here, manifestly, the court as the trier of fact did not and could not weigh 'the whole evidence,' for it found there was 'no testimony concerning the mental state' of Durham.

For the foregoing reasons, the judgment is reversed and the case is remanded for a new trial.

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 argued 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 1882,13 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.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.'15 Later in the same century, the 'wild beast' test was abandoned and 'right and wrong' was substituted for 'good and evil.'16 And toward the middle of the nineteenth century, the House of Lords in the famous M'Naghten case17 restated what had become the accepted 'right-wrong' test18 in a form which has since been followed, not only in England19 but in most American jurisdictions20 as an exclusive test of criminal responsibility:

' * * * the jurors ought to be told in all cases that every man is to 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.'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.22 This view has long since been substantiated by enormous developments in knowledge of mental life.23 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.'24

Medico-legal writers in large number,25 The Report of the Royal Commission on Capital Punishment 1949-1953,26 and The Preliminary Report by the Committee on Forensic Psychiatry of the Group for the Advancement of Psychiatry27 present convincing evidence that the right-and-wrong test is 'based on an entirely obsolete and misleading conception of the nature of insanity.'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.'29

'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.'30

By its misleading emphasis on the cognitive, the right-wrong test requires court and jury to rely upon what is, scientifically speaking, inadequate, and most often, invalid31 and irrelevant testimony in determining criminal responsibility.32

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.33 In attempting to define insanity in terms of a symptom, the courts have assumed an impossible role,34 not merely one for which they have no special competence.35 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 * * * .'36 In this field of law as in others, the fact finder should be free to consider all information advanced by relevant scientific disciplines.37

Despite demands in the name of scientific advances, this court refused to alter the right-wrong test at the turn of the century.38 But in 1929, we reconsidered in response to 'the cry of scientific experts' and added the irresistible impulse 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.'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.'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 * * * .'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.42

' * * * 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 due to disease of the brain.'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.44

B. In the District of Columbia, the formulation of tests of criminal responsibility is entrusted to the courts45 and, in adopting a new test, we invoke our inherent power to make the change prospectively.46

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 1870.47 It is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.48

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.49 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.50

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'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 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).'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 * * * .'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 * * * .'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.'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.56

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.57 The rule we state in this opinion is designed to meet these requirements.

Reversed and remanded for a new trial.