The principal issues raised on this appeal from a conviction for second degree murder and carrying a dangerous weapon relate to appellant's defense of insanity. After the case was argued to a division of the court, the court sua sponte ordered rehearing en banc. We identified our intention to reconsider the appropriate standard for the insanity defense, authorized counsel to file supplemental briefs, invited the Public Defenders' Service "to submit an additional brief on behalf of the appellant," and appointed William H. Dempsey, Jr., Esq., as amicus curiae, without instruction as to result or theory, "to research the authorities on the issue of criminal responsibility," to advise the court thereon and to present oral argument. We advised a number of organizations of our action, and invited briefs amicus curiae. Subsequently we directed the Clerk to notify all concerned of questions the court requested be discussed (Appendix A).

In the course of our reconsideration of the rule governing the insanity defense, we have studied the opinions of other courts, particularly but not exclusively the opinions of the other Federal circuits, and the views of the many scholars who have thoughtfully pondered the underlying issues. Our file includes presentations of counsel, both Government lawyers and counsel appointed to represent defendant, and submissions of those who have responded to the invitation to comment as amicus curiae on a considerable number of inter-related matters.

We have stretched our canvas wide; and the focal point of the landscape before us is the formulation of the American Law Institute. The ALI's primary provision is stated thus in its Model Penal Code, see Sec. 4.01(1).

Section 4.01 Mental Disease or Defect Excluding Responsibility.

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.

We have decided to adopt the ALI rule as the doctrine excluding responsibility for mental disease or defect, for application prospectively to trials begun after this date.

The interest of justice that has called us to this labor bids us set forth comments in which we review the matters we concluded were of primary consequence-though we cannot practicably retraverse all the ground covered in our reflection. These comments also contain features of the rule in which we, like other courts, have recorded our adjustments of the rule and understandings concerning its application that are stated as part of the adoption of the rule, to improve its capacity to further its underlying objectives. We highlight, as most notable of these, our decision to retain the definition of "mental illness or defect" that we evolved in our 1962 McDonald1 opinion en banc. Others are prompted by the submissions which raised, as points of objection to the ALI rule, matters that we think can be fairly taken into account by clarifying comments. For the assistance of the reader we insert at this point a Table of Contents identifying the topics discussed in this opinion.

TABLE OF CONTENTS
A.  The Trial Record ..................................................... 974
B.  Prior Developments of the Insanity Defense in this Jurisdiction ...... 975
C.  Insanity Rule in Other Circuits ...................................... 978
D.  Comments Concerning Reason for Adoption of ALI Rule and Scope of Rule
      as Adopted by This Court ........................................... 981
    1. Need to depart from "productivity" formulation and undue dominance
      by experts ......................................................... 981
    2. Retention of McDonald definition of "mental disease or defect" .... 983
    3. Interest of uniformity of judicial approach and vocabulary, with
      room for variations and adjustments ................................ 984
    4. Consideration and rejection of other suggestions .................. 985
    a. Proposal to abolish insanity defense .............................. 985
    b. Proposal for defense if mental disease impairs capacity to such an
      extent that defendant "cannot justly be held responsible." ......... 986
    5. ALI rule is contemplated as improving the process of adjudication,
      not as affecting number of insanity acquittals ..................... 989
    6. Elements of the ALI rule adopted by this court .................... 990
    a. Intermesh of components ........................................... 991
    b. The "result" of the mental disease ................................ 991
    c. At the time of the conduct ........................................ 991
    d. Capacity to appreciate wrongfulness of his conduct ................ 991
    e. Caveat paragraph .................................................. 992
    f. Broad presentation to the jury .................................... 994
E.  Inter-related Doctrines and Implementing Instructions ................ 995
    1. Suggested instruction ............................................. 995
    Burden of Proof ...................................................... 996
    2. The "Lyles" instructionas to effect of verdict of not guilty by
      reason of insanity ................................................. 996
    3. Mental condition, though insufficient to exonerate, may be
      relevant to specific mental element of certain crimes or degrees of
      crime .............................................................. 998
F.  Disposition of the Case .............................................. 1003
    1. Issue of Causality Testimony ...................................... 1003
    2. Prosecutor's conduct .............................................. 1003
    3. Remand ............................................................ 1004
G.  Supplement to Clarify Matters Discussed in Separate Opinion .......... 1005
    Appendix A ........................................................... 1007
    Appendix B ........................................................... 1008

Passing by various minor disagreements among the witnesses, the record permits us to reconstruct the events of September 8, 1967, as follows: After a morning and afternoon of wine-drinking, appellant Archie W. Brawner, Jr. and his uncle Aaron Ross, went to a party at the home of three acquaintances. During the evening, several fights broke out. In one of them, Brawner's jaw was injured when he was struck or pushed to the ground. The time of the fight was approximately 10:30 p.m. After the fight, Brawner left the party. He told Mr. Ross that some boys had jumped him. Mr. Ross testified that Brawner "looked like he was out of his mind". Other witnesses who saw him after the fight testified that Brawner's mouth was bleeding and that his speech was unclear (but the same witness added, "I heard every word he said"); that he was staggering and angry; and that he pounded on a mailbox with his fist. One witness testified that Brawner said, "[I'm] going to get my boys" and come back, and that "someone is going to die tonight."

Half an hour later, at about eleven p. m., Brawner was on his way back to the party with a gun. One witness testified that Brawner said he was going up there to kill his attackers or be killed.

Upon his arrival at the address, Brawner fired a shot into the ground and entered the building. He proceeded to the apartment where the party was in progress and fired five shots through the closed metal hallway door. Two of the shots struck Billy Ford, killing him. Brawner was arrested a few minutes later, several blocks away. The arresting officer testified that Brawner appeared normal, and did not appear to be drunk, that he spoke clearly, and had no odor of alcohol about him.

After the Government had presented the evidence of its non-expert witnesses, the trial judge ruled that there was insufficient evidence on "deliberation" to go to the jury: accordingly, a verdict of acquittal was directed on first degree murder.

The expert witnesses, called by both defense and prosecution, all agreed that Brawner was suffering from an abnormality of a psychiatric or neurological nature. The medical labels were variously given as "epileptic personality disorder," "psychologic brain syndrome associated with a convulsive disorder," "personality disorder associated with epilepsy," or, more simply, "an explosive personality." There was no disagreement that the epileptic condition would be exacerbated by alcohol, leading to more frequent episodes and episodes of greater intensity, and would also be exacerbated by a physical blow to the head. The experts agreed that epilepsy per se is not a mental disease or defect, but a neurological disease which is often associated with a mental disease or defect. They further agreed that Brawner had a mental, as well as a neurological, disease.

Where the experts disagreed was on the part which that mental disease or defect played in the murder of Billy Ford. The position of the witnesses called by the Government is that Brawner's behavior on the night of September 8 was not consistent with an epileptic seizure, and was not suggestive of an explosive reaction in the context of a psychiatric disorder. In the words of Dr. Platkin of St. Elizabeths Hospital, "He was just mad."

The experts called by the defense maintained the contrary conclusion. Thus, Dr. Eugene Stanmeyer, a psychologist at St. Elizabeths, was asked on direct by counsel for defense, whether, assuming accused did commit the act which occurred, there was a causal relationship between the assumed act and his mental abnormality. Dr. Stanmeyer replied in the affirmative, that there was a cause and effect relationship.

Later, the prosecutor asked the Government's first expert witness Dr. Weickhardt: "Did you . . . come to any opinion concerning whether or not the crimes in this case were causally related to the mental illness which you diagnosed?" An objection to the form of the question was overruled. The witness then set forth that in his opinion there was no causal relationship between the mental disorder and the alleged offenses. Brawner claims that the trial court erred when it permitted a prosecution expert to testify in this manner. He relies on our opinion in Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967).

B. Prior Developments of the Insanity Defense in this

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 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 wrong2 and irresistible impulse.3 Durham adopted the "product rule," pioneered in State v. Pike, 49 N. H. 399, 402 (1869-70), and exculpated from criminal responsibility those whose forbidden acts were the product of a mental disease or defect.

Few cases have evoked as much comment as Durham. It has sparked widespread interest in the legal-judicial community and focused attention on the profound problems involved in defining legal responsibility in case of mental illness. It has been hailed as a guide to the difficult and problem-laden intersection of law and psychiatry, ethics and science. It has been scored as an unwarranted loophole through which the cunning criminal might escape from the penalty of the law. We view it more modestly, as the court's effort, designed in the immemorial manner of the case method that has built the common law, to alleviate two serious problems with the previous rule.

The first of these was a problem of language which raised an important symbolic issue in the law. We felt that the language of the old right-wrong/irresistible impulse rule for insanity was antiquated, no longer reflecting the community's judgment as to who ought to be held criminally liable for socially destructive acts. We considered the rule as restated to have more fruitful, accurate and considered reflection of the sensibilities of the community as revised and expanded in the light of continued study of abnormal human behavior.

The second vexing problem that Durham was designed to reach related to the concern of the psychiatrists called as expert witnesses for their special knowledge of the problem of insanity, who often and typically felt that they were obliged to reach outside of their professional expertise when they were asked, under the traditional insanity rule established in 1843 by M'Naghten's Case,4 whether the defendant knew right from wrong. They further felt that the narrowness of the traditional test, which framed the issue of responsibility solely in terms of cognitive impairment, made it impossible to convey to the judge and jury the full range of information material to an assessment of defendant's responsibility.

2. Discerning scholarship now available asserts that the experts' fears and concerns reflected a misapprehension as to the impact of the traditional standard in terms of excluding relevant evidence.

Wigmore states the rule to be that when insanity is in issue, "any and all conduct of the person is admissible in evidence." And the cases support Wigmore's view. The almost unvarying policy of the courts has been to admit any evidence of abberational behavior so long as it is probative of the defendant's mental condition, without regard to the supposed restrictions of the test used to define insanity for the jury.5

Moreover if the term "know" in the traditional test of "know right from wrong" is taken as denoting affective knowledge, rather than merely cognitive knowledge, it yields a rule of greater flexibility than was widely supposed to exist. Livermore and Meehl, The Virtues of M'Naghten, 51 Minn.L.Rev. 789, 800-08 (1967).

We need not occupy ourselves here and now with the question whether, and to what extent, the M'Naghten rule, ameliorated by the irresistible impulse doctrine, is susceptible of application to include medical insights and information as justice requires. In any event, the experts felt hemmed in by the traditional test; they felt that they could not give the jury and judge the necessary information in response to the questions which the traditional test posed, see 37 F.R.D. 365, 387 (1964).

The rule as reformulated in Durham permitted medical experts to testify on medical matters properly put before the jury for its consideration, and to do so without the confusion that many, perhaps most, experts experienced from testimony structured under the M'Naghten rule. That was a positive contribution to jurisprudence-and one that was retained when the American Law Institute undertook to analyze the problem and proposed a different formulation.

3. A difficulty arose under the Durham rule in application. The rule was devised to facilitate the giving of testimony by medical experts in the context of a legal rule, with the jury called upon to reach a composite conclusion that had medical, legal and moral components.6 However the pristine statement of the Durham rule opened the door to "trial by label." Durham did distinguish between "disease," as used "in the sense of a condition which is considered capable of either improving or deteriorating," and "defect," as referring to a condition not capable of such change "and which may be either congenital or the result of injury, or the residual effect of a physical or mental disease." 94 U.S.App.D.C. at 241, 214 F.2d at 875. But the court failed to explicate what abnormality of mind was an essential ingredient of these concepts. In the absence of a definition of "mental disease or defect," medical experts attached to them the meanings which would naturally occur to them-medical meanings-and gave testimony accordingly. The problem was dramatically highlighted by the weekend flip flop case, In re Rosenfield, 157 F. Supp. 18 (D.D.C.1957). The petitioner was described as a sociopath. A St. Elizabeths psychiatrist testified that a person with a sociopathic personality was not suffering from a mental disease. That was Friday afternoon. On Monday morning, through a policy change at St. Elizabeths Hospital, it was determined as an administrative matter that the state of a psychopathic or sociopathic personality did constitute a mental disease.7

The concern that medical terminology not control legal outcomes culminated in McDonald v. United States, 114 U.S.App. D.C. 120, 312 F.2d 847, 851 (en banc, 1962), where this court recognized that the term, mental disease or defect, has various meanings, depending upon how and why it is used, and by whom. Mental disease means one thing to a physician bent on treatment, but something different, if somewhat overlapping, to a court of law. We provided a legal definition of mental disease or defect, and held that it included "any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls." (312 F.2d at 851). "Thus the jury would consider testimony concerning the development, adaptation and functioning of these processes and controls." Id.

While the McDonald standard of mental disease was not without an attribute of circularity, it was useful in the administration of justice because it made plain that clinical and legal definitions of mental disease were distinct, and it helped the jury to sort out its complex task and to focus on the matters given it to decide.

4. The Durham rule also required explication along other lines, notably the resolution of the ambiguity inherent in the formulation concerning actions that were the "product" of mental illness. It was supplemented in Carter v. United States, 102 U.S.App.D.C. 227 at 234, 235, 252 F.2d 608 at 615-616 (1957):

The simple fact that a person has a mental disease or defect is not enough to relieve him of responsibility for a crime. There must be a relationship between the disease and the criminal act; and the relationship must be such as to justify a reasonable inference that the act would not have been committed if the person had not been suffering from the disease.

Thus Carter clarified that the mental illness must not merely have entered into the production of the act, but must have played a necessary role. Carter identified the "product" element of the rule with the "but for" variety of causation.

The pivotal "product" term continued to present problems, principally that it put expert testimony on a faulty footing. Assuming that a mental disease, in the legal sense, had been established, the fate of the defendant came to be determined by what came to be referred to by the legal jargon of "productivity." On the other hand, it was obviously sensible if not imperative that the experts having pertinent knowledge should speak to the crucial question whether the mental abnormality involved is one associated with aberrant behavior. But since "productivity" was so decisive a factor in the decisional equation, a ruling permitting experts to testify expressly in language of "product" raised in a different context the concern lest the ultimate issue be in fact turned over to the experts rather than retained for the jurors representing the community.

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

The hazards in allowing experts to testify in precisely or even substantially the terms of the ultimate issue are apparent. This is a course which, once allowed, risks the danger that lay jurors, baffled by the intricacies of expert discourse and unintelligible technical jargon may be tempted to abdicate independent analysis of the facts on which the opinion rests.

As early as Carter, we had warned that the function of an expert was to explain the origin, development and manifestations of mental disorders, in terms that would be coherent and meaningful to the jury. "Unexplained medical labels . . . are not enough." (102 U.S.App.D.C. at 236, 252 F.2d at 617). Even after McDonald, however, we continued to see cases where the testimony of the experts was limited to the use of conclusory labels, without the explication of the underlying analysis. We do not say this was deliberated by the experts. It seems in large measure to have reflected tactical decisions of counsel, and perhaps problems of communications between the disciplines.

It was in this context that the court came to the decision in Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967), which forbade experts from testifying as to productivity altogether. Chief Judge Bazelon's opinion illuminates the basis of the ruling, as one intended "to help the psychiatrists understand their role in court, and thus eliminate a fundamental cause of unsatisfactory expert testimony," namely, the tendency of the expert to use "concepts [which] can become slogans, hiding facts and representing nothing more than the witness's own conclusion about the defendant's criminal responsibility." (at 41, 390 F.2d at 456).

The American Law Institute's Model Penal Code expressed a rule which has become the dominant force in the law pertaining to the defense of insanity. The ALI rule is eclectic in spirit, partaking of the moral focus of M'Naghten, the practical accommodation of the "control rules" (a term more exact and less susceptible of misunderstanding than "irresistible impulse" terminology), and responsive, at the same time, to a relatively modern, forward-looking view of what is encompassed in "knowledge."

For convenience, we quote again the basic rule propounded by the ALI's Model Penal Code:

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.

A subsidiary rule in paragraph (2), stating what has come to be known as the "caveat" paragraph, has had a mixed reception in the courts and discussion of that problem will be deferred.

The core rule of the ALI has been adopted, with variations, by all save one of the Federal circuit courts of appeals, and by all that have come to reconsider the doctrine providing exculpation for mental illness. Their opinions have been exceptionally thoughtful and thorough in their expositions of the interests and values protected. United States v. Freeman, 357 F.2d 606 (2d Cir. 1966); United States v. Currens, 290 F.2d 751 (3d Cir. 1961); United States v. Chandler, 393 F.2d 920 (4th Cir. 1968); Blake v. United States, 407 F.2d 908 (5th Cir. 1969); United States v. Smith, 404 F.2d 720 (6th Cir. 1968); United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967); Pope v. United States, 372 F.2d 710 (8th Cir. 1967); Wade v. United States, 426 F.2d 64 (9th Cir. 1970); Wion v. United States, 325 F.2d 420 (10th Cir. 1963).

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

The first was Currens, where Chief Judge Biggs of the Third Circuit defined the test:

The jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated. (290 F.2d at 774) (footnote omitted).

This formula is explicitly derived from the ALI rule. (Id. at 774 footnote 32.) It takes an additional step, however, in that it treats cognitive impairments as "surplusage" to a test of criminal responsibility. Ibid. The premise is that an abnormality in the cognitive function is neither sufficient nor necessary. If it does not result in a substantial incapacity of the volitional function, it is not sufficient in law; and a substantial incapacity of the volitional function results in exculpation even though it does not involve the cognitive faculties.

Thus Currens capped the history of the insanity defense-which began with impairment of knowledge and proceeded to impairment of control-by dropping the knowledge feature as merely one aspect of the ultimate control element. Though not without considerable force and logic Currens has not been followed by the other Federal courts, which adhere more closely to the ALI model.

We refer to the other Federal circuits in numerical order. The First Circuit has not spoken. The Second Circuit adopted the ALI rule in Freeman in terms, believing it to be "sufficiently precise . . . to provide the jury with a workable standard," while "eschew[ing] rigid classification." 357 F.2d at 623.

The position of the Fourth Circuit was announced by Chief Judge Haynsworth in Chandler:

The American Law Institute's formulation has achieved wide acceptance. Some Courts of Appeals have adopted it exclusively, another approvingly but not rigidly, still others with prescribed variations which subordinate the cognitive portion of the problem or satisfy semantic preferences. . . . [I]t is, in our opinion, the preferred formulation. With appropriate balance between cognition and volition, it demands an unrestricted inquiry into the whole personality of a defendant who surmounts the threshold question of doubt of his responsibility. Its verbiage is understandable by psychiatrists; it imposes no limitation upon their testimony, and yet, to a substantial extent, it avoids a diagnostic approach and leaves the jury free to make its findings in terms of a standard which society prescribes and juries may apply. (393 F.2d at 926, footnotes omitted.)

The court, however, "abjure[d] any formalistic approach which might foreclose variation." (at 927). Thus the court declined to require any exact form of words by way of instructions.

In Blake the Fifth Circuit stressed the value of uniformity. While affirming the utility of variation as a form of social experiment, and noting that variation among the circuits was not inconsiderable, it stated that, at least as within the circuit, uniformity was a preferable value. "We think [the ALI formula] lends itself as a uniform standard." 407 F.2d at 915.

The Sixth Circuit has been content to leave the precise wording of the jury instructions to the discretion of the trial court, preferring to frame its approach in terms of getting the answers to three irreducible questions: First, was defendant "suffering from a mental illness at the time of the commission of the crime?" Second, "Was that illness such as to prevent his knowing the wrongfulness of his act?" Third, "Was the mental illness such as to render him substantially incapable of conforming his conduct to the requirements of the law he is charged with violating?" This formulation in Smith, 404 F.2d at 727, is essentially a restatement of the core of the ALI test.

In Shapiro, the Seventh Circuit stated, 383 F.2d at 685, that it preferred the ALI rule to other possible formulae on the ground that it resulted in a charge shorter, simpler, and more congruent to the expert testimony than the charge based on Davis v. United States, 165 U.S. 373, 17 S. Ct. 360, 41 L. Ed. 750 (1897), which was a traditional test and itself based on M'Naghten; it found the ALI test more comprehensible than Durham and more helpful to the jury.

The position of the Eighth Circuit was staked out in Pope by then Circuit Judge Blackmun:

We hold again, and we stress by repetition, that if the trial court freely admits all evidence which appears to be relevant and if the charge appropriately embraces and requires positive conclusions by the jury as to the defendant's cognition, his volition, and his capacity to control his behavior, and if these three elements of knowledge, will and choice are emphasized in the charge as essential and critical constituents of legal sanity, we shall usually regard the charge as legally sufficient. 372 F.2d at 736 (Italics in original.)

The court said (p. 735) that it would look with approval upon any form of instruction so long as it resulted in presenting the issue to the jury with as much information as possible on cognition, volition, and the capacity to choose.

In Wade, the latest of the Federal opinions, the Ninth Circuit approved the basic ALI rule, though rejecting the "caveat" second paragraph. The court noted that the traditional M'Naghten rule asked the jury to determine the existence of a "perverted and deranged condition of the mental and moral faculties," while the ALI's "mental disease or defect" language was preferable, focusing on disabling impairments in terms closer to the kind of expert testimony which the jury will hear.

The position of the Tenth Circuit, very near to that of the Eighth, was stated in Wion where Judge Murrah presented, as a "simple test of criminal responsibility," language that restated the essence of the ALI rule. Noting that the test permitted behavioral scientists latitude to put their professional findings and conclusions before the court he concluded: "This should go far toward bridging the gulf between psychiatry and the law, if indeed, there is one, and it will also give the trial judge a definition which he can articulate to the lay jury." 325 F.2d at 430.

D. Comments Concerning Reason for Adoption of ALI Rule and

In the foreglimpse stating that we had determined to adopt the ALI rule we undertook to set forth comments stating our reasons, and also the adjustments and understandings defining the ALI rule as adopted by this Court. Having paused to study the rulings in the other circuits, we turn to our comments, and to our reflections following the extensive, and intensive, exposure of this court to insanity defense issues.9

1. Need to depart from "product" formulation and undue

dominance by experts.

A principal reason for our decision to depart from the Durham rule is the undesirable characteristic, surviving even the McDonald modification, of undue dominance by the experts giving testimony. The underlying problem was identified, with stress on different facets, in the Carter, Blocker (concurring), and Washington opinions. The difficulty is rooted in the circumstance that there is no generally accepted understanding, either in the jury or the community it represents, of the concept requiring that the crime be the "product" of the mental disease.

When the court used the term "product" in Durham it likely assumed that this was a serviceable, and indeed a natural, term for a rule defining criminal responsibility-a legal reciprocal, as it were, for the familiar term "proximate cause," used to define civil responsibility. But if concepts like "product" are, upon refinement, reasonably understood, or at least appreciated, by judges and lawyers, and perhaps philosophers, difficulties developed when it emerged that the "product" concept did not signify a reasonably identifiable common ground that was also shared by the nonlegal experts,10 and the laymen serving on the jury as the representatives of the community.

The doctrine of criminal responsibility is such that there can be no doubt "of the complicated nature of the decision to be made-intertwining moral, legal, and medical judgments," see King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967) and Durham and other cases cited supra, note 6. Hence, as King and other opinions have noted, jury decisions have been accorded unusual deference even when they have found responsibility in the face of a powerful record, with medical evidence uncontradicted, pointing toward exculpation.11 The "moral" elements of the decision are not defined exclusively by religious considerations but by the totality of underlying conceptions of ethics and justice shared by the community, as expressed by its jury surrogate. The essential feature of a jury "lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence." Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1906, 26 L. Ed. 2d 446 (1970).

The expert witnesses-psychiatrists and psychologists-are called to adduce relevant information concerning what may for convenience be referred to as the "medical" component of the responsibility issue. But the difficulty-as emphasized in Washington-is that the medical expert comes, by testimony given in terms of a non-medical construct ("product"), to express conclusions that 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, that the McDonald definition be engrafted on to the ALI rule.12

In our further discussion of ALI and McDonald, we shall sometimes refer to "mental disease" as the core concept, without specifically referring to the possibility of exculpation by reason of a non-altering "mental defect."

The McDonald rule has helped accomplish the objective of securing expert testimony needed on the subject of mental illness, while guarding against the undue dominance of expert testimony or specialized labels. It has thus permitted the kind of communication without encroachment, as between experts and juries, that has prompted us to adopt the ALI rule, and hence will help us realize our objective. This advantage overrides the surface disadvantage of any clumsiness in the blending of the McDonald component, defining mental disease, with the rest of the ALI rule, a matter we discuss further below.

3. Interest of uniformity of judicial approach and

vocabulary, with room for variations and

adjustments

Adoption of the ALI rule furthers uniformity of judicial approach-a feature eminently desirable, not as a mere glow of "togetherness," but as an appreciation of the need and value of judicial communication. In all likelihood, this court's approach under Durham, at least since McDonald, has differed from that of other courts in vocabulary more than substance. Uniformity of vocabulary has an important value, however, as is evidenced from the familiar experience of meanings that "get lost in translation." No one court can amass all the experience pertinent to the judicial administration of the insanity defense. It is helpful for courts to be able to learn from each other without any blockage due to jargon. It is an impressive virtue of the common law, that its distinctive reliance on judicial decisions to establish the corpus of the law furthers a multiparty conversation between men who have studied a problem in various places at various times.

The value of uniformity of central approach is not shattered by the circumstance that in various particulars the different circuits have inserted variations in the ALI rule. Homogeneity does not mean rigidity, and room for local variation is likely a strength, providing a basis for comparison,13 not a weakness. Nor is the strength of essential uniformity undercut by the caution of our appointed amicus that the formulation of the ALI rule provides extremely broad flexibility.14 Flexibility and ductility are inherent in the insanity defense, as in any judicial rule with an extensive range-say, negligence, or proximate cause-and the ALI rule permits appropriate guidance of juries.

In prescribing a departure from Durham we are not unmindful of the concern that a change may generate uncertainties as to corollaries of the change.15 While the courts adopting the ALI rule have stated variations, as we have noted, these were all, broadly, in furtherance of one or more of the inter-related goals of the insanity defense:

(a) a broad input of pretinent facts and opinions

(b) enhancing the information and judgment

(c) of a jury necessarily given latitude in light of its functioning as the representative of the entire community.

We are likewise and for the same objectives defining the ALI rule as adopted by the court, with its contours and corollaries given express statement at the outset so as to minimize uncertainty. We postpone this statement to a subsequent phase of the opinion (see p. 990 et seq.) in order that we may first consider other alternatives, for in some measure our adaptation may obviate or at least blunt objections voiced to the ALI rule.

4. Consideration and rejection of other suggestions

a. Proposal to abolish insanity defense

A number of proposals in the journals recommend that the insanity defense be abolished altogether.16 This is advocated in the amicus brief of the National District Attorneys Association as both desirable and lawful.17 The amicus brief of American Psychiatric Association concludes it would be desirable, with appropriate safeguards, but would require a constitutional amendment. That a constitutional amendment would be required is also the conclusion of others, generally in opposition to the proposal.18

This proposal has been put forward by responsible judges for consideration, with the objective of reserving psychiatric overview for the phase of the criminal process concerned with disposition of the person determined to have been the actor.19 However, we are convinced that the proposal cannot properly be imposed by judicial fiat.

The courts have emphasized over the centuries that "free will" is the postulate of responsibility under our jurisprudence. 4 Blackstone's Commentaries 27. The concept of "belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil" is a core concept that is "universal and persistent in mature systems of law." Morissette v. United States, 342 U.S. 246, 250, 72 S. Ct. 240, 243, 96 L. Ed. 288 (1952). Criminal responsibility is assessed when through "free will" a man elects to do evil. And while, as noted in Morissette, the legislature has dispensed with mental element in some statutory offenses, in furtherance of a paramount need of the community, these instances mark the exception and not the rule, and only in the most limited instances has the mental element been omitted by the legislature as a requisite for an offense that was a crime at common law.

The concept of lack of "free will" is both the root of origin of the insanity defense and the line of its growth.20 This cherished principle is not undercut by difficulties, or differences of view, as to how best to express the free will concept in the light of the expansion of medical knowledge. We do not concur in the view of the National District Attorneys Association that the insanity defense should be abandoned judicially, either because it is at too great a variance with popular conceptions of guilt21 or fails "to show proper respect for the personality of the criminal [who] is liable to resent pathology more than punishment."22

These concepts may be measured along with other ingredients in a legislative re-examination of settled doctrines of criminal responsibility, root, stock and branch. Such a reassessment, one that seeks to probe and appraise the society's processes and values, is for the legislative branch, assuming no constitutional bar. The judicial role is limited, in Justice Holmes's figure, to action that is molecular, with the restraint inherent in taking relatively small steps, leaving to the other branches of government whatever progress must be made with 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,23 adapted and proposed in 1955 by Professor Wechsler, the distinguished Reporter for the ALI's Model Penal Code, and sustained by some, albeit a minority, of the members of the ALI's Council.24 In the ALI, the contrary view prevailed because of a concern over presenting to the jury questions put primarily in the form of "justice."

The proposal is not to be condemned out of hand as a suggestion that the jury be informed of an absolute prerogative that it can only exercise by flatly disregarding the applicable rule of law. It is rather a suggestion that the jury be informed of the matters the law contemplates it will take into account in arriving at the community judgment concerning a composite of factors.25

However, there is a substantial concern that an instruction overtly cast in terms of "justice" cannot feasibly be restricted to the ambit of what may properly be taken into account but will splash with unconfinable and malign consequences. The Government cautions that "explicit appeals to 'justice' will result in litigation of extraneous issues and will encourage improper arguments to the jury phrased solely in terms of 'sympathy' and 'prejudice."'

Nor is this solely a prosecutor's concern.

Mr. Flynn, counsel appointed to represent defendant, puts it that even though the jury is applying community concepts of blameworthiness "the jury should not be left at large, or asked to find out for itself what those concepts are."

The amicus submission of the Public Defender Service argues that it would be beneficial to focus the jury's attention on the moral and legal questions intertwined in the insanity defense. It expresses concern, however, over a blameworthiness instruction without more, saying (Br. 19) "it may well be that the 'average' American condemns the mentally ill."26 It would apparently accept an approach not unlike that proposed by the ALI Reporter, under which the justice standard is coupled with a direction to consider the individual's capacity to control his behavior. Mr. Dempsey's recommendation is of like import, with some simplification.27 But the problem remains, whether, assuming justice calls for the exculpation and treatment of the mentally ill, that is more likely to be gained from a jury, with "average" notions of mental illness, which is explicitly set at large to convict or acquit persons with impaired mental capacity according to its concept of justice.

The brief of the D.C. Bar Association as amicus submits that with a "justly responsible" formulation the test of insanity "would be largely swallowed up by this consideration." And it observes that the function of giving to the jury the law to be applied to the facts is not only the duty of the court, see Sparf v. United States, 156 U.S. 51, 102, 15 S. Ct. 273, 39 L. Ed. 343 (1895), but is also "a bedrock right of every citizen"-and, possibly, his "only protection," citing Justice Story in United States v. Battiste, 2 Sumn. 240, 244, Fed.Cas. No. 14,545 (C.C.D.Mass. 1835).

We are impressed by the observation of Professor Abraham S. Goldstein, one of the most careful students of the problem:

[The] overly general standard may place too great a burden upon the jury. If the law provides no standard, members of the jury are placed in the difficult position of having to find a man responsible for no other reason than their personal feeling about him. Whether the psyches of individual jurors are strong enough to make that decision, or whether the "law" should put that obligation on them, is open to serious question. It is far easier for them to perform the role assigned to them by legislature and courts if they know-or are able to rationalize-that their verdicts are "required" by law.28

Professor Goldstein was referring to the broad "justice" standard recommended by the Royal Commission. But the problems remain acute even with the modifications in the proposal of the ALI Reporter, for that still leads to "justly responsible" as the ultimate and critical term.

There may be a tug of appeal in the suggestion that law is a means to justice and the jury is an appropriate tribunal to ascertain justice. This is a simplistic syllogism that harbors the logical fallacy of equivocation, and fails to take account of the different facets and dimensions of the concept of justice. We must not be beguiled by a play on words. The thrust of a rule that in essence invites the jury to ponder the evidence on impairment of defendant's capacity and appreciation, and then do what to them seems just, is to focus on what seems "just" as to the particular individual. Under the centuries-long pull of the Judeo-Christian ethic, this is likely to suggest a call for understanding and forgiveness of those who have committed crimes against society, but plead the influence of passionate and perhaps justified grievances against that society, perhaps grievances not wholly lacking in merit. In the domain of morality and religion, the gears may be governed by the particular instance of the individual seeking salvation. The judgment of a court of law must further justice to the community, and safeguard it against undercutting and evasion from overconcern for the individual. What this reflects is not the rigidity of retributive justice-an eye for an eye-but awareness how justice in the broad may be undermined by an excess of compassion as well as passion. Justice to the community includes penalties needed to cope with disobedience by those capable of control, undergirding a social environment that broadly inhibits behavior destructive of the common good. An open society requires mutual respect and regard, and mutually reinforcing relationships among its citizens, and its ideals of justice must safeguard the vast majority who responsibly shoulder the burdens implicit in its ordered liberty. Still another aspect of justice is the requirement for rules of conduct that establish reasonable generality, neutrality and constancy. Cf. L. Fuller, The Morality of Laws 33-94 (1964). This concept is neither static nor absolute, but it would be sapped by a rule that invites an ad hoc redefinition of the "just" with each new case.

It is the sense of justice propounded by those charged with making and declaring the law-legislatures and courts-that lays down the rule that persons without substantial capacity to know or control the act shall be excused. The jury is concerned with applying the community understanding of this broad rule to particular lay and medical facts. Where the matter is unclear it naturally will call on its own sense of justice to help it determine the matter. There is wisdom in the view that a jury generally understands well enough that an instruction composed in flexible terms gives it sufficient latitude so that, without disregarding the instruction, it can provide that application of the instruction which harmonizes with its sense of justice.29 The ALI rule generally communicates that meaning. Wade v. United States, supra, 426 F.2d at 70-71. This is recognized even by those who might prefer a more explicit statement of the matter.30 It is one thing, however, to tolerate and even welcome the jury's sense of equity as a force that affects its application of instructions which state the legal rules that crystallize the requirements of justice as determined by the lawmakers of the community. It is quite another to set the jury at large, without such crystallization, to evolve its own legal rules and standards of justice. It would likely be counter-productive and contrary to the larger interest of justice to become so explicit-in an effort to hammer the point home to the very occasional jury that would otherwise be too rigid-that one puts serious strains on the normal operation of the system of criminal justice.

Taking all these considerations into account we conclude that the ALI rule as announced is not productive of injustice, and we decline to proclaim the broad "justly responsible" standard.

5. ALI rule is contemplated as improving the process of

adjudication, not as affecting number of insanity

acquittals

Amicus Dempsey is concerned that a change by this court from Durham-McDonald to ALI will be taken as an indication that this court intends that the number and percentage of insanity acquittals be modified. That is not the intendment of the rule adopted today, nor do we have any basis for forecasting that effect.

a. Statistical data concerning the use of insanity in criminal trials in this jurisdiction were presented in the December 15, 1966, Report of the President's Commission on Crime in the District of Columbia.31 These data have been up-dated in Mr. Dempsey's brief, with the aid of data helpfully supplied by the United States Attorney's office. At least since Durham was modified by McDonald, insanity acquittals have run at about 2% of all cases terminated. In the seven years subsequent to McDonald jury verdicts of not guilty by reason of insanity averaged only 3 per annum.32 In trials by the court, there has been an annual average of about 38 verdicts of not guilty by reason of insanity; these typically are cases where the Government psychiatrists agreed that the crime was the product of mental illness.33 We perceive no basis in these data for any conclusion that the number of percentage of insanity acquittals has been either excessive or inadequate.

We have no way of forecasting what will be the effect on verdicts, of juries or judges, from the reduction in influence of expert testimony on "productivity" that reflects judgments outside the domain of expertise.34 Whatever its effect, we are confident that the rule adopted today provides a sounder relationship in terms of the giving, comprehension and application of expert testimony. Our objective is not to steer the jury's verdict but to enhance its deliberation.35

b. Some judges have viewed the ALI test as going beyond Durham in enlarging the category of persons who may win acquittals.36 The 1966 report of the President's Crime Commission (supra note 15) apparently concludes that the debate over Durham was stilled by McDonald, and that Durham-McDonald is not significantly different in content from the ALI test. In contrast, Mr. Dempsey is concerned that a person's ability to control his behavior could be "substantially impaired" by mental condition, thus qualifying the defense under McDonald, while still leaving him with "substantial capacity," rendering the defense unavailable under the ALI rule. We have no way of knowing whether psychiatrists giving testimony would draw such a distinction, and moreover there would be no difference in result unless one also indulges the assumption, which is dubious, that the jury would reason that the crime may have been the "product" of the mental condition of a man even though he retained substantial capacity.

In the last analysis, however, if there is a case where there would be a difference in result-and it would seem rare -we think the underlying freedom of will conception renders it just to assign responsibility to a person, even though his controls have been impaired, if his residual controls give him "substantial capacity" both to appreciate the 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 analysis37 but on the application reflecting the underlying sense of responsibility of the jury, as the community's surrogate.38

6. Elements of the ALI rule adopted by this court

Though it provides a general uniformity, the ALI rule leaves room for variations. Thus, we have added an adjustment in the McDonald definition of mental disease, which we think fully compatible with both the spirit and text of the ALI rule. In the interest of good administration, we now undertake to set forth, with such precision as the subject will permit, other elements of the ALI rule as adopted by this court.

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

a. Intermesh of components

The first component of our rule, derived from McDonald, defines mental disease or defect as an abnormal condition of the mind, and a condition which substantially (a) affects mental or emotional processes and (b) impairs behavioral controls. The second component, derived from the Model Penal Code, tells which defendant with a mental disease lacks criminal responsibility for particular conduct: it is the defendant who, as a result of this mental condition, at the time of such conduct, either (i) lacks substantial capacity to appreciate that his conduct is wrongful, or (ii) lacks substantial capacity to conform his conduct to the law.

The first component establishes eligibility for an instruction concerning the defense for a defendant who presents evidence that his abnormal condition of the mind has substantially impaired behavioral controls. The second component completes the instruction and defines the ultimate issue, of exculpation, in terms of whether his behavioral controls were not only substantially impaired but impaired to such an extent that he lacked substantial capacity to conform his conduct to the law.39

b. The "result" of the mental disease

The rule contains a requirement of causality, as is clear from the term "result." Exculpation is established not by mental disease alone but only if "as a result" defendant lacks the substantial capacity required for responsibility. Presumably the mental disease of a kleptomaniac does not entail as a "result" a lack of capacity to conform to the law prohibiting rape.

c. At the time of the conduct

Under the ALI rule the issue is not whether defendant is so disoriented or void of controls that he is never able to conform to external demands, but whether he had that capacity at the time of the conduct. The question is not properly put in terms of whether he would have capacity to conform in some untypical restraining situation-as with an attendant or policeman at his elbow. The issue is whether he was able to conform in the unstructured condition of life in an open society, and whether the result of his abnormal mental condition was a lack of substantial internal controls. These matters are brought out in the ALI's comments to Sec. 4.01 of the Model Penal Code Tentative Draft #4, p. 158:

The schizophrenic . . . is disoriented from reality; the disorientation is extreme; but it is rarely total. Most psychotics will respond to a command of someone in authority within the mental hospital; they thus have some capacity to conform to a norm. But this is very different from the question whether they have the capacity to conform to requirements that are not thus immediately symbolized by an attendant or policeman at the elbow. Nothing makes the inquiry into responsibility more unreal for the psychiatrist than limitation of the issue to some ultimate extreme of total incapacity, when clinical experience reveals only a graded scale with marks along the way.

d. Capacity to appreciate wrongfulness of his conduct

As to the option of terminology noted in the ALI code, we adopt the formulation that exculpates a defendant whose mental condition is such that he lacks substantial capacity to appreciate the wrongfulness of his conduct. We prefer this on pragmatic grounds to "appreciate the criminality of his conduct" since the resulting jury instruction is more like that conventionally given to and applied by the jury. While such an instruction is of course subject to the objection that it lacks complete precision, it serves the objective of calling on the jury to provide a community judgment on a combination of factors. And since the possibility of analytical differences between the two formulations is insubstantial in fact in view of the control capacity test, we are usefully guided by the pragmatic considerations pertinent to jury instructions.40

In adopting the ALI formulation, this court does not follow the Currens opinion of the Third Circuit, which puts it that the sole issue in every case is defendant's capacity to control his behavior, and that as a matter of analysis a person who lacks substantial capacity to appreciate the wrongfulness [criminality] of his conduct necessarily lacks substantial capacity to control his behavior. Like the other circuits, we resist the Currens lure of logic in order to make certain that the jury will give heed to the substantiality of a defense of lack of substantial capacity to appreciate wrongfulness, a point that may elude a jury instructed solely in terms of control capacity. In a particular case, however, defendant may have reason to request omission of the phrase pertaining to lack of capacity to appreciate wrongfulness, if that particular matter is not involved on the facts, and defendant fears that a jury that does not attend rigorously to the details of the instruction may erroneously suppose that the defense is lost if defendant appreciates wrongfulness. Here again, it is not enough to rely solely on logic, when a simple change will aid jury understanding. In such a case, if defendant requests, the judge should limit the instruction to the issue involved in that case, and charge that the jury shall bring in a verdict of not guilty if as a result of mental illness defendant lacked substantial capacity to conform his conduct to the requirements of the law.

e. Caveat paragraph

Section 4.01 of the Model Penal Code as promulgated by ALI contains in subsection (2) what has come to be known as the "caveat paragraph":

(2) The terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

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

There has been a split in the Federal circuits concerning this provision. Some of the courts adopting the ALI rule refer to both subsections but without separate discussion of the caveat paragraph-as in the Chandler and Blake opinions. As to the decisions considering the point, those of the Second and Third Circuits conclude the paragraph should be retained (in Freeman and Currens), while the Smith and Wade decisions, of the Sixth and Ninth Circuits, conclude it should be omitted. The Sixth Circuit's position is (404 F.2d at 727, fn. 8) that there is "great dispute over the psychiatric soundness" of the caveat paragraph. The Wade opinion considers the matter at great length and puts forward three grounds for rejecting the caveat paragraph: (1) As a practical matter, it would be ineffectual in keeping sociopaths out of the definition of insanity; it is always possible to introduce some evidence, other than past criminal behavior, to support a plea of insanity. (2) The criminal sanction ought not be sought for criminal psychopaths-constant recidivists-because such people should be taken off the streets indefinitely, and not merely for a set term of years. (3) Its third ground is stated thus (426 F.2d at 73):

It is unclear whether [the caveat paragraph] would require that a defendant be considered legally sane if, although the only overt acts manifesting his disease or defect were "criminal or otherwise anti-social," there arises from his acts a reasonable inference of mental derangement either because of the nature of the acts or because of credible medical or other evidence.

Our own approach is influenced by the fact that our rule already includes a definition of mental disease (from McDonald). Under that definition, as we have pointed out, the mere existence of "a long criminal record does not excuse crime." Williams v. United States, 114 U.S.App.D.C. 135, 137, 312 F.2d 862, 864 (1962). We do not require the caveat paragraph as an insurance against exculpation of the deliberate and persistent offender.42 Our McDonald rule guards against the danger of misunderstanding and injustice that might arise, say, from an expert's classification that reflects only a conception43 defining all criminality as reflective of mental illness. There must be testimony to show both that the defendant was suffering from an abnormal condition of the mind and that it substantially affected mental or emotional processes and substantially impaired behavioral controls.

In this context, our pragmatic approach is to adopt the caveat paragraph as a rule for application by the judge, to avoid miscarriage of justice, but not for inclusion in instructions to the jury.

The judge will be aware that the criminal and antisocial conduct of a person-on the street, in the home, in the ward-is necessarily material information for assessment by the psychiatrist. On the other hand, rarely if ever would a psychiatrist base a conclusion of mental disease solely on criminal and anti-social acts. Our pragmatic solution provides for reshaping the rule, for application by the court, as follows: The introduction or proffer of past criminal and anti-social actions is not admissible as evidence of mental disease unless accompanied by expert testimony, supported by a showing of the concordance of a responsible segment of professional opinion, that the particular characteristics of these actions constitute convincing evidence of an underlying mental disease that substantially impairs behavioral controls.

This formulation retains the paragraph as a "caveat" rather than an inexorable rule of law. It should serve to obviate distortions of the present state of knowledge that would constitute miscarriages of justice. Yet it leaves the door open-on shouldering the "convincing evidence" burden-to accommodate our general rule to developments that may lie ahead. It is the kind of imperfect, but not unfeasible, accommodation of the abstract and pragmatic that is often found to serve the administration of justice.

We do not think it desirable to use the caveat paragraph as a basis for instructions to the jury. It would be difficult for a juryman-or anyone else-to reconcile the caveat paragraph and the basic (McDonald) definition of mental disease if a psychiatrist testified that he discerned from particular past criminal behavior a pattern that established defendant as suffering from an abnormal condition of the mind that substantially impaired behavioral controls. If there is no such testimony, then there would be no evidence that mere misconduct betokens mental illness, it would be impermissible for defense counsel to present such a hypothesis to the jury, and there would be very little likelihood that a jury would arrive at such a proposition on its own. On the other hand, an instruction along the lines of the caveat paragraph runs the risk of appearing to call for the rejection of testimony that is based materially, but only partially, on the history of criminal conduct.

f. Broad presentation to the jury

Our adoption of the ALI rule does not depart from the doctrines this court has built up over the past twenty years to assure a broad presentation to the jury concerning the condition of defendant's mind and its consequences. Thus we adhere to our rulings admitting expert testimony of psychologists,44 as well as psychiatrists, and to our many decisions contemplating that expert testimony on this subject will be accompanied by presentation of the facts and premises underlying the opinions and conclusions of the experts,45 and that the Government and defense may present, in Judge Blackmun's words, "all possibly relevant evidence" bearing on cognition, volition and capacity.46 We agree with the amicus submission of the National District Attorneys Association that the law cannot "distinguish between physiological, emotional, social and cultural sources of the impairment"-assuming, of course, requisite testimony establishing exculpation under the pertinent standard-and all such causes may be both referred to by the expert and considered by the trier of fact.47

Breadth of input under the insanity defense is not to be confused with breadth of the doctrines establishing the defense. As the National District Attorneys Association brief points out, the latitude for salient evidence of e. g., social and cultural factors pertinent to an abnormal condition of the mind significantly affecting capacity and controls, does not mean that such factors may be taken as establishing a separate defense for persons whose mental condition is such that blame can be imposed. We have rejected a broad "injustice" approach that would have opened the door to expositions of e. g., cultural deprivation, unrelated to any abnormal condition of the mind.

We have recognized that "Many criminologists point out that even normal human behavior is influenced by such factors as training, environment, poverty and the like, which may limit the understanding and options of the individual." King v. United States, supra, 125 U.S.App.D.C. at 323, 372 F.2d at 388. Determinists may contend that every man's fate is ultimately sealed by his genes and environment, over which he has no control. Our jurisprudence, however, while not oblivious to deterministic components, ultimately rests on a premise of freedom of will. This is not to be viewed as an exercise in philosophic discourse, but as a governmental fusion of ethics and necessity, which takes into account that a system of rewards and punishments is itself part of the environment that influences and shapes human conduct. Our recognition of an insanity defense for those who lack the essential, threshold free will possessed by those in the normal range is not to be twisted, directly or indirectly, into a device for exculpation of those without an abnormal condition of the mind.

Finally, we have not accepted suggestions to adopt a rule that disentangles the insanity defense from a medical model, and announces a standard exculpating anyone whose capacity for control is insubstantial, for whatever cause or reason. There may be logic in these submissions, but we are not sufficiently certain of the nature, range and implications of the conduct involved to attempt an all-embracing unified field theory. The applicable rule can be discerned as the cases arise in regard to other conditions-somnambulism or other automatisms; blackouts due, e. g. to overdose of insulin; drug addiction. Whether these somatic conditions should be governed by a rule comparable to that herein set forth for mental disease would require, at a minimum, a judicial determination, which takes medical opinion into account, finding convincing evidence of an ascertainable condition characterized by "a broad consensus that free will does not exist." Salzman v. United States, 131 U.S.App.D.C. 393, 400, 405 F.2d 358, 365 (1968) (concurring opinion of Judge Wright).

E. Inter-related Doctrines and Implementing Instructions

For sake of clarity, and to obviate misunderstanding and unnecessary litigation, we undertake by today's ruling to accompany our definition of the underlying doctrine on insanity as a defense negativing criminal responsibility, with comments on implementing instructions and certain inter-related doctrines as they will stand hereafter.

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

Appendix B contains alternate wordings on burden of proof. One wording conforms to the doctrine of Davis v. United States, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499 (1895), that the Government has the burden of proving beyond a reasonable doubt that the defendant was not entitled to exculpation as a result of his mental disease or defect. The other version is cast in the wording of the last sentence of 24 D.C.Code Sec. 301 (j), as added to the law in 1970:48 "No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his insanity, regardless of who raises the issue, is affirmatively established by a preponderance of the evidence."

Questions have been raised as to the constitutionality of this 1970 provision,49 its applicability to offenses committed prior to the 1970 enactment, and its applicability to offenses committed in the District of Columbia which are not violations of the D.C.Code but are violations of the United States Code.50 We do not think it appropriate to decide such questions at this time, and accordingly have provided alternate versions in the instruction suggested in Appendix B.

2. The "Lyles" instruction-as to effect of verdict of not

guilty by reason of insanity

By a statute of August 9, 1955, passed in the wake of Durham, Congress added to 24 D.C.Code Sec. 301, provisions on mandatory commitment of persons acquitted by reason of insanity, set forth in subsection (d), and provisions governing the release of persons so committed, set forth in subsection (e).

In Lyles v. United States, 103 U.S.App. D.C. 22, 254 F.2d 725 (en banc, 1957), the majority of the court concurred in Part I of the opinion filed by Judges Prettyman and Burger that the jury, which knows the meaning of a verdict of guilty and not guilty "has a right to know the meaning of [the insanity] verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts." The court said, 103 U.S.App.D.C. at 25, 254 F.2d at 728:

We think that when the instruction is given the jury should simply be informed that a verdict of not guilty by reason of insanity means that the accused will be confined in a hospital for the mentally ill until the superintendent has certified, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others, in which event and at which time the court shall order his release either unconditionally or under such conditions as the court may see fit.

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

Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968) read Sec. 301(d) as permitting mandatory commitment for the purpose of a mental examination, but as containing a requirement of a judicial hearing, on the question of whether the defendant involved ought to be retained in custody on the basis of his current mental condition, with procedures substantially similar to those in proceedings, under 21 D.C.Code Sec. 545(b), for civil commitment of the dangerous mentally ill. The court also construed Sec. 301(e) to entitle the patient to periodic examinations by the hospital staff, to an examination by an outside psychiatrist, and to a court hearing if any one of the examining physicians believes he should no longer be hospitalized.

Finally, the court construed Sec. 301(g), reserving the right of a confined person to establish eligibility for release under this section by habeas corpus, to require the person confined to prove by a preponderance of the evidence that his detention is illegal. "Thus, the court must find, by the preponderance of the evidence, that the patient's commitment is no longer valid-i. e., that he is no longer 'likely to injure himself or other persons' due to 'mental illness."' (130 U.S.App. D.C. at 12, 395 F.2d at 653.) The Court referred to its ruling as similar to that in the concurring opinion of Judge Fahy in Ragsdale v. Overholser, 108 U.S.App. D.C. 308, 315, 281 F.2d 943, 950 (1960).

As to the Lyles instruction, the Bolton opinion (at note 50) held that it should be changed to comport with the procedures then construed to be required under the law. The D.C. Court Reform and Criminal Procedure Act of 1970, P.L. 91-358, retained what was formerly Sec. 301(d) as Sec. 301(d)(1) of 24 D.C. Code, and retained Sec. 301(e) unchanged. Accordingly, the 1970 law retains the Bolton v. Harris construction of what is now Sec. 301(d)(1), as providing mandatory commitment for the purpose of examination, and its construction of Sec. 301 (e), as to provisions for release. However, the 1970 law adds a new provision, see 24 D.C.Code Sec. 301(d)(2):

(2) A person confined pursuant to paragraph (1) shall have a hearing, unless waived, within 50 days of his confinement to determine whether he is entitled to release from custody. At the conclusion of the criminal action referred to in paragraph (1) of this subsection, the court shall provide such person with representation by counsel-

(A) in the case of a person who is eligible to have counsel appointed by the court, by continuing any appointment of counsel made to represent such person in the prior criminal action or by appointing new counsel; or

(B) in the case of a person who is not eligible to have counsel appointed by the court, by assuring representation by retained counsel.

If the hearing is not waived, the court shall cause notice of the hearing to be served upon the person, his counsel, and the prosecuting attorney and hold the hearing. Within ten days from the date the hearing was begun, the court shall determine the issues and make findings of fact and conclusions of law with respect thereto. The person confined shall have the burden of proof. If the court finds by a preponderance of the evidence that the person confined is entitled to his release from custody, either conditional or unconditional, the court shall enter such order as may appear appropriate.

Section 301(d)(2), as added in 1970, gives specific implementation to the construction of Bolton v. Harris, which requires a judicial hearing, following the initial examination, prior to an order of mandatory commitment under 301(d). It differs to the extent that Bolton v. Harris contemplated a burden of proof on the Government in 301(d) commitment proceedings, like that in civil commitment proceedings. Section 301(d)(2) now provides that the person confined "shall have the burden of proof"-to establish eligibility for release under the standards of Sec. 301(e). Accordingly the Lyles instruction must be recast as to persons governed by the 1970 law. This is a suggested form:

If the defendant is found not guilty by reason of insanity, it becomes the duty of the court to commit him to St. Elizabeths Hospital. There will be a hearing within 50 days to determine whether defendant is entitled to release. In that hearing the defendant has the burden of proof. The defendant will remain in custody, and will be entitled to release from custody only if the court finds by preponderance of the evidence that he is not likely to injure himself or other persons due to mental illness.

As to the possibility of an attack on the constitutionality of Sec. 301(d)(2), that question has not been briefed or argued, and it is not now being decided.51

3. Mental condition, though insufficient to exonerate, may

be relevant to specific mental element of certain

crimes or degrees of crime.

Our decision accompanies the redefinition of when a mental condition exonerates a defendant from criminal responsibility with the doctrine that expert testimony as to a defendant's abnormal mental condition may be received and considered, as tending to show, in a responsible way, that defendant did not have the specific mental state required for a particular crime or degree of crime -even though he was aware that his act was wrongful and was able to control it, and hence was not entitled to complete exoneration.

Some of the cases following this doctrine use the term "diminished responsibility," but we prefer the example of the cases that avoid this term (e. g., note 57, infra), for its convenience is outweighed by its confusion: Our doctrine has nothing to do with "diminishing" responsibility of a defendant because of his impaired mental condition,52 but rather with determining whether the defendant had the mental state that must be proved as to all defendants.

Procedurally, the issue of abnormal mental condition negativing a person's intent may arise in different ways: For example, the defendant may offer evidence of mental condition not qualifying as mental disease under McDonald. Or he may tender evidence that qualifies under McDonald, yet the jury may conclude from all the evidence that defendant has knowledge and control capacity sufficient for responsibility under the ALI rule.

The issue often arises with respect to mental condition tendered as negativing the element of premeditation in a charge of first degree premeditated murder. As we noted in Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967), when the legislature modified the common law crime of murder so as to establish degrees, murder in the first degree was reserved for intentional homicide done deliberately and with premeditation, and homicide that is intentional but "impulsive," not done after "reflection and meditation," was made murder only in the second degree. (127 U.S.App.D.C. at 187, 382 F.2d at 135).

An offense like deliberated and premeditated murder requires a specific intent that cannot be satisfied merely by showing that defendant failed to conform to an objective standard.53 This is plainly established by the defense of voluntary intoxication. In Hopt v. Utah, 104 U.S. 631, 634, 26 L. Ed. 873 (1881), the Court, after stating the familiar rule that voluntary intoxication is no excuse for crime, said:

[W]hen a statute establishing different degrees of murder requires deliberate premeditation in order to constitute murder in the first degree, the question of whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material subject of consideration by the jury.

In Bishop v. United States, 71 App. D.C. 132, 136, 107 F.2d 297, 301 (1939), Justice Vinson noted that while voluntary intoxication per se is no defense to guilt, "the stated condition of a defendant's mind at the time of the killing . . . is now a proper subject for consideration, inquiry, and determination by the jury." Thus "voluntary intoxication will not excuse murder, but it may negative the ability of the defendant" as to premeditation, and hence effect "a reduction to second degree murder."

Enlarging on Hopt and Bishop, Judge Burger's opinion in Heideman v. United States, 104 U.S.App.D.C. 128, 131, 259 F.2d 943, 946 (1958), points out:

Drunkenness is not per se an excuse for crime, but nevertheless it may in many instances be relevant to the issue of intent. One class of cases where drunkenness may be relevant on the issue of intent is the category of crimes where specific intent is required. Robbery falls into this category, and a defendant accused of robbery is entitled to an instruction on drunkenness as bearing on intent if the evidentiary groundwork has been adequately laid.

As Judge Burger points out there must be a showing of drunkenness that does more than remove inhibitions, and is such an "incapacitating state" as to negate intent. But he also notes, citing Hopt, and Bishop, that a lesser state of drunkenness, insufficient to negate the specific intent required for robbery, may suffice to negate the premeditation required for first degree murder.

Neither logic nor justice can tolerate a jurisprudence that defines the elements of an offense as requiring a mental state such that one defendant can properly argue that his voluntary drunkenness removed his capacity to form the specific intent but another defendant is inhibited from a submission of his contention that an abnormal mental condition, for which he was in no way responsible, negated his capacity to form a particular specific intent, even though the condition did not exonerate him from all criminal responsibility.

In Fisher v. United States, 80 U.S. App.D.C. 96, 149 F.2d 28 (1946), the court upheld the trial court's refusal to instruct the jury that on issues of premeditation and deliberation "it should consider the entire personality of the defendant, his mental, nervous, emotional and physical characteristics as developed by the evidence in the case." Justice Arnold's abbreviated opinion was evidently premised on two factors: (1) that the instruction confused the issue of insanity with the issue of deliberation; (2) that "To give an instruction like the above is to tell the jury they are at liberty to acquit one who commits a brutal crime because he has the abnormal tendencies of persons capable of such crimes." His opinion made no effort to come to terms with the Hopt opinion, stressed by Fisher's counsel.

Fisher went to the Supreme Court and there was affirmed, but on the limited ground of disinclination to "force" this court in a choice of legal doctrine for the District of Columbia, 328 U.S. 463, 66 S. Ct. 1318, 90 L. Ed. 1382 (1946). The Court said (at 476, 66 S. Ct. at 1325) that such a change was "more properly a subject for the exercise of legislative power or at least for the discretion of the courts of the District."

In Stewart I, Stewart v. United States, 94 U.S.App.D.C. 293, 214 F.2d 879 (1954) which issued only two weeks after Durham was announced, we said that "reconsideration of our decision in Fisher should wait until we can appraise the results [of Durham]." In Stewart v. United States, 107 U.S.App.D.C. 159, 275 F.2d 617 (1960), the court en banc again stated that more experience with Durham was required to evaluate Fisher, and the matter was appropriate for legislative consideration. That was Stewart II.54

Today we are again en banc, and we have the benefit of many years of experience with Durham-McDonald. We are changing the insanity rule, on a prospective basis, to take into account intervening scholarship and court opinions. As a corollary, we deem it appropriate to change the rule of Fisher on a prospective basis, and to accept the approach which the Supreme Court declined to "force" upon us in 1946, but which has been adopted by the overwhelming majority of courts that have recently faced the question. We are convinced by the analysis set forth in the recent opinions of the highest courts of California,55 Colorado,56 New Jersey,57 Iowa,58 Ohio,59 Idaho,60 Connecticut,61 Nebraska,62 New Mexico63 and Nevada.64 They have joined the states that spoke out before Fisher-New York, Rhode Island, Utah, Wisconsin and Wyoming.65

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

The question to be determined is not whether defendant was insane, but whether the homicidal act was committed with deliberation and premeditation. The evidence offered as to insanity may or may not be relevant to that issue. * * * "A claim of insanity cannot be used for the purpose of reducing a crime of murder in the first degree to murder in the second degree or from murder to manslaughter. If the perpetrator is responsible at all in this respect, he is responsible in the same degree as a sane man; and if he is not responsible at all, he is entitled to an acquittal in both degrees. However, . . . evidence of the condition of the mind of the accused at the time of the crime, together with the surrounding circumstances, may be introduced, not for the purpose of establishing insanity, but to prove that the situation was such that a specific intent was not entertained-that is, to show absence of any deliberate or premeditated design." (Emphasis in original.)

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

Intervening developments within our own jurisdiction underscore the soundness of a doctrine for consideration of abnormal mental condition on the issue of specific intent. In the Fisher opinion of 1946, the court was concerned lest such a doctrine "tell the jury that they are at liberty to acquit one who commits a brutal crime because he has the abnormal tendencies of persons capable of such crimes." That a man's abnormal mental condition short of legal insanity may be material as negativing premeditation and deliberation does not set him "at liberty" but reduces the degree of the criminal homicide. Our 1967 opinion in Austin, supra, clarifies that even "a particularly frightful and horrible murder" may not be murder in the first degree, that "many murders most brutish and bestial are committed in a consuming frenzy or heat of passion, and that these are in law only murder in the second degree."68 Indeed the action of the trial judge in acquitting defendant of first degree murder indicates how the refinement of Austin has undercut the Fisher approach. Though the defendant went back to get his gun,69 the judge concluded that the evidence as a whole-including defendant's broken jaw, the blood streaming down his face, and his irrational pounding on the mailbox-did not establish a reasonable foundation for inferring a calculated, deliberate mind at the time of shooting. We are not called upon to consider whether that action was proper in this case; what we do take note of is the inevitable implication of Austin.

There has also been a material legislative development since both Fisher and Stewart II. In 1964, after extensive hearings, Congress enacted the Hospitalization of the Mentally Ill Act, which provides civil commitment for the "mentally ill" who are dangerous to themselves or others.70 Both the terminology and the underlying conception of this statute reflected a deliberate change from the 1939 law and its use of the term "insanity," which prior to Durham tended to be equated to psychosis and to disorientations like delusions. The enlarged conception underlying the 1964 law has been accorded a "liberal construction"71 for the protection of the community, going so far as to include commitment of a disturbed mental defective with behavioral reactions resulting in danger-productive behavior.72 The law is broad enough to include not only mental illness requiring confinement in St. Elizabeths, but also conditions of mental illness calling for placement in nursing homes,73 or, where appropriate, halfway houses or requirement of outpatient care.74 These statutory provisions provide a shield against danger from persons with abnormal mental condition-a danger which in all likelihood bolstered, or even impelled, the draconic Fisher doctrine.

Further, to the extent that the 1970 law (supra, note 48) leads to a conviction of first degree murder when the evidence is in equipoise on the issue of insanity, there would be an additional miscarriage of justice if the evidence were not available for consideration as raising a reasonable doubt on the issue of premeditation and deliberation.

In providing for the admission and consideration of expert testimony on abnormal mental condition insufficient for complete exoneration, we insert some observations prompted by State v. Sikora, 44 N.J. 453, 210 A.2d 193 (1965), supra, note 57. The doctrine does not permit the receipt of psychiatric testimony based on the conception that mental disorder is only a relative concept and that the behavior of every individual is dictated by forces-ultimately, his genes and lifelong environment-that are unconscious and beyond his control. As we have already made clear, we are not embarked on enquiry that must yield to tenets of the philosophy of determinism. The law accepts free will and blame-worthiness as a general premise. Expert psychiatric testimony negativing blame-worthiness for a crime-whether on ground of general exoneration or lack of requisite specific intent-must rest on the premise of an exception due to abnormal mental condition.

Our rule permits the introduction of expert testimony as to abnormal condition if it is relevant to negative, or establish, the specific mental condition that is an element of the crime. The receipt of this expert testimony to negative the mental condition of specific intent requires careful administration by the trial judge. Where the proof is not offered in the first instance as evidence of exonerating mental disease or defect within the ALI rule the judge may, and ordinarily would, require counsel first to make a proffer of the proof to be adduced outside the presence of the jury. The judge will then determine whether the testimony is grounded in sufficient scientific support to warrant use in the courtroom, and whether it would aid the jury in reaching a decision on the ultimate issues.75F. Disposition of the Case

We are urged to reverse appellant's conviction on the ground that the trial court erred in allowing Government experts to testify in terms of "causality."

The rule of Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967) that experts must not frame their testimony in terms of "product," was aimed at relieving a stubborn and recurring problem-that of experts using their facility with the esoteric and imprecise language of mental disease to exert an undue dominion over the jury's deliberations. The Washington opinion did not refer to the prior opinion in Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281 (1967), wherein the court stated that narrowly drawn, concrete questions addressed to the experts on the causal connection between the forbidden act and the alleged mental disease were permissible.

Since both Washington and Harried are superseded-on this point-by our change today of the ultimate rule, it would be bootless to consider to what extent Washington superseded Harried. It suffices for disposition of this case to say only: (1) Under the rule of Harried the questioning of Government experts on the question of the causal connection between appellant's crime and his mental disease or defect was proper. (2) Assuming, arguendo, that these questions were not consonant with Washington we are unable, on this record, to discern prejudice. We think the expert testimony in this case adequately and lucidly ventilated the issues, there was no use of the term "product," and we see no sign of overreaching.76

Our conclusion is also impelled by the fact that it was defendant himself who first sought expert testimony on the question of causal connection. The doctrine of curative admissibility rests upon "the necessity of removing prejudice in the interest of fairness," United States v. Winston, 145 U.S.App.D.C. 67, 447 F.2d 1236, 1240 (1971), quoting Crawford v. United States, 91 U.S.App.D.C. 234, 237, 198 F.2d 976, 979 (1952). In this case, the interests of fairness were served by permitting additional inquiry on the subject of the relationship between the murder and the appellant's mental status. Defense questioning established that, in the opinion of defense experts, there was a causal connection between the act and the defendant's mental disorder. It would be unfair, and against the interest of justice, for us to hold that the jury had to retire to consider the case believing that this question was beyond medical dispute.

It is also urged upon us that reversal of appellant's conviction is required because the prosecutor went beyond the limits of the permissible in his summation, by attempting to discredit the projective tests the St. Elizabeths psychologist had given to the defendant. Excerpts from this summation are set out in a footnote.77

*****

* * *It is unfortunate that the prosecutor's summation incorporated, as an approach to the projective tests: "After all, they are just blots of ink." The prosecutor, who speaks in court in behalf of the public interest, has a responsibility to refrain from know-nothing appeals to ignorance. The prosecutor is not free to offer his own opinions and attitudes on matters of expert knowledge, even in camouflaged form. The prosecutor was free to adduce appropriate expert testimony, on direct or crossexamination, to attack the validity of such tests, or perhaps to adduce limitations on their value and significance. However, in this trial the prosecutor's cross-examination was not oriented in that manner, but sought rather to probe the basis for the expert's conclusion, and his use of the tests. That was an entirely permissible course, particularly since the witness agreed that interpretation of the tests involves a subjective evaluation, over and above the underlying training and expertise of the expert. But there was neither testimony adduced on crossexamination, nor testimony of a prosecutor's witness, to support a disparagement of the very concept of projective tests, as based on mere ink blots.

While the prosecutor's summation contains an approach we do not expect to recur, it was neither as aggravated nor as prolonged as that in King.78 And the record context includes clarifying questions by the trial judge that brought out for the jury both the long and widespread use of projective tests, and their use as a basis for this expert's conclusions. We do not find reversible error.

Our action today in stating a new rule for insanity, and for receipt and consideration of expert testimony on abnormal mental condition that does not establish an insanity defense but is material to a substantive element of the offense, is effective prospectively for all trials beginning after this date.79 However, under established doctrines of the judicial function we conclude that the benefit of the rule cannot wholly be withheld from the defendant in whose case it was established.80 We do not, however, think it appropriate for us to determine at this juncture whether a jury which convicted under our old insanity standard might have acquitted under the new standard. While we hesitate to burden the trial judge further, we are remanding to the trial judge to determine whether a new trial is appropriate in the interest of justice, rather than considering that question at the appellate level in the first instance, because the trial judge has a superior vantage point for assessing whether there is a substantial possibility that the jury, if instructed under our new rule, would have found that appellant should be acquitted by reason of insanity. If a new trial is denied, the trial judge will re-enter a judgment on the verdict of guilty.81

G. Supplement To Clarify Matters Discussed in Separate

A number of matters are discussed in the separate opinion of Chief Judge Bazelon. For the most part, where that opinion takes issue with the approach of the majority opinion the issue is reasonably clearly joined and refinement or elaboration would be in the service of rhetoric rather than clarity. Certain passages of the separate opinion, however, set forth a view of the majority opinion which is not congruent with its intent or thrust as understood by the judges subscribing to that opinion. The matters most requiring comment, in order to avoid a misinference that supposes that failure to speak means acquiescence, are as follows:

1. The court's failure to discuss various procedural aspects of the insanity defense and its presentation reflects neither unawareness nor indifference. As the questions communicated through the Clerk (Appendix A) make clear, however, this review en banc was intended to focus on the ultimate standard, and not to expatiate broadly on the administration of the insanity defense. There is no intent to override various decisions of this court, evolved during the past twenty years, on matters of procedure and administration that are important, to be sure, but do not turn on the ultimate standard. And of course we always contemplate improvements ahead, in all aspects of the administration of justice. It is our belief that they can be both accommodated within and enhanced by a context that defines the governing standard as avoiding the conviction as criminals of those who as a result of mental disease or defect lack substantial capacity to control the criminal behavior in question (or to appreciate its wrongfulness).

2. The goal of avoiding undue dominance of the jury by expert testimony does not require ostrich disregard of the key issue of causality. That issue, however, is focused more meaningfully, for both expert and jury, by asking whether the mental disease or defect resulted in lack of substantial capacity to control the behavior in question (or appreciate its wrongfulness). The question is differently put under Durham and the difference has proved to be both confusing and significant. The issue today is not whether this confusion could or should have been foreseen, but whether it shall be corrected. The rule contemplating expert testimony as to the existence and consequence of a mental disease or defect is not to be construed as permission to testify solely in terms of expert conclusions. Our jurisprudence to the contrary is not undone, it is rather underscored. It is the responsibility of all concerned-expert, counsel and judge-to see to it that the jury in an insanity case is informed of the expert's underlying reasons and approach, and is not confronted with ultimate opinions on a take-it-or-leave-it basis. The Appendix to Washington is useful in this regard-assuming appropriate modification of the third paragraph, which uses the "product" term.82 It clarifies the respective roles of the legal and medical professions, and perhaps helps achieve the goal envisaged by Sir James Fitz-James Stephen: "In dealing with matters so obscure and difficult the two great professions ought rather to feel for each other's difficulties than to speak harshly of each other's shortcomings."83

The Appendix to Washington still stands in effect, although we do not retain Washington insofar as it reflects the product rule, and we permit testimony by the expert, and cross-examination, on the causal relationship between the mental disease and the existence of substantial capacity for control (and knowledge) at the time of the act. The jury will consider this testimony under the instruction on need to acquit if as a result of mental disease or defect there is a lack of substantial capacity to control the behavior in question (or appreciate its wrongfulness). We think this sufficiently communicates to the jury the kind of hard question it is called upon to decide, and the instructions will make clear that the jury is not foreclosed by opinions of experts. The experts add to perspective, without governing decision. The law looks to the experts for input, and to the jury for outcome.

***

* * *

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

So ordered.

Letter of February 5, 1971, from the Clerk to organizations invited to make a submission amicus curiae.

The Court has directed me to request you to discuss in your briefs the following questions:

1. In this case all four expert witnesses testified on the issue of "productivity." See Transcript pp. 335-36, 464-65, 506-07, 539. But see bench colloquy at 314-15. Assuming arguendo that this testimony violated the rule of Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967), is the Washington rule a viable device for limiting the role of the expert and preserving the ultimate question of criminal responsibility for the jury? Would it be more effective simply to eliminate the separate inquiry into productivity from our test of responsibility? See United States v. Eichberg, 142 U.S.App.D.C. 110 at 117, 118, 439 F.2d 620 at 627, 628 (Decided Jan. 21, 1971) (concurring opinion).

2. What are the theoretical and practical differences between the Durham-McDonald test of criminal responsibility, the ALI test, and the various other tests that have been proposed in recent years by courts and commentators?

3. Should the Durham-McDonald formulation be retained as it is?

4. Should the ALI formulation be adopted?

5. If so, should the McDonald definition of "mental disease or defect" be applied to the ALI formulation?

6. If a defendant's behavior controls are impaired, should a test of criminal responsibility distinguish between physiological, emotional, social, and cultural sources of the impairment? See Transcript pp. 409-11, 477-79. Is it appropriate to tie a test of criminal responsibility to the medical model of mental illness? See United States v. Eichberg, supra, 142 U.S.App.D.C. at 116, 117, 439 F.2d at 626, 627.

7. Should the results of psychological tests such as the Rorschach test be admissible in evidence? If so, what kind of testimony is necessary or appropriate in order to put the test results in proper perspective? See Transcript pp. 318-329, 342-350, 413-452.

8. Have we departed in practice, if not in theory, from the rule that the government has the burden of proving criminal responsibility beyond a reasonable doubt? See United States v. Eichberg, supra, 142 U.S.App.D.C. at 113-116, 439 F.2d at 623-626.

9. Would it be sound as a matter of policy to abolish the insanity defense? Possible as a matter of law? If so, what are the possible alternatives? Should the issues presently treated under that heading be subsumed under the inquiry into mens rea? Should we reconsider the possibility of "diminished" or "partial" responsibility?

Should you wish a copy of the transcript, I should be pleased to furnish it to you if you intend to submit and file a brief.

Sincerely yours,

SUGGESTION FOR INSTRUCTION ON INSANITY*

The defendant in this case asserts the defense of insanity.

You are not to consider this defense unless you have first found that the Government has proved beyond a reasonable doubt each essential element of the offense. One of these elements is the requirement [of premeditation and deliberation for first degree murder] [or of specific intent for ___], on which you have already been instructed. In determining whether that requirement has been proved beyond a reasonable doubt you may consider the testimony as to the defendant's abnormal mental condition.

If you find that the Government has failed to prove beyond a reasonable doubt any one or more of the essential elements of the offense, you must find the defendant not guilty, and you should not consider any possible verdict relating to insanity.

If you find that the Government has proved each essential element of the offense beyond a reasonable doubt, then you must consider whether to bring in a verdict of not guilty by reason of insanity.

The law provides that a jury shall bring in a verdict of not guilty by reason of insanity if, at the time of the criminal conduct, the defendant, as a result of mental disease or defect, either lacked substantial capacity to conform his conduct to the requirements of the law, or lacked substantial capacity to appreciate the wrongfulness of his conduct.

Every man is presumed to be sane, that is, to be without mental disease or defect, and to be responsible for his acts. But that presumption no longer controls when evidence is introduced that he may have a mental disease or defect.

The term insanity does not require a showing that the defendant was disoriented as to time or place.

Mental disease [or defect] includes any abnormal condition of the mind, regardless of its medical label, which substantially affects mental or emotional processes and substantially impairs behavior controls. The term "behavior controls" refers to the processes and capacity of a person to regulate and control his conduct and his actions.

In considering whether the defendant had a mental disease [or defect] at the time of the unlawful act with which he is charged, you may consider testimony in this case concerning the development, adaptation and functioning of these mental and emotional processes and behavior controls.

[The term "mental disease" differs from "mental defect" in that the former is a condition which is either capable of improving or deteriorating and the latter is a condition not capable of improving or deteriorating.]

[Burden of proof-alternate versions:

(a) The burden of proof is on the defendant to establish by a preponderance of the evidence that, as a result of mental disease or defect, he either lacked substantial capacity to conform his conduct to the requirements of the law or lacked substantial capacity to appreciate the wrongfulness of his conduct. If defendant has met that burden you shall bring in a verdict of not guilty by reason of insanity. If he has not met that burden you shall bring in a verdict of guilty of the offenses you found proved beyond a reasonable doubt.

(b) The burden is on the Government to prove beyond a reasonable doubt either that the defendant was not suffering from a mental disease or defect, or else that he nevertheless had substantial capacity both to conform his conduct to the requirements of the law and to appreciate the wrongfulness of his conduct. If the Government has not established this beyond a reasonable doubt, you shall bring in a verdict of not guilty by reason of insanity.]

In considering the issue of insanity, you may consider the evidence that has been admitted as to the defendant's mental condition before and after the offense charged, as well as the evidence as to defendant's mental condition on that date. The evidence as to the defendant's mental condition before and after that date was admitted solely for the purpose of assisting you to determine the defendant's condition on the date of the alleged offense.

You have heard the evidence of psychiatrists [and psychologists] who testified as expert witnesses. An expert in a particular field is permitted to give his opinion in evidence. In this connection, you are instructed that you are not bound by medical labels, definitions, or conclusions as to what is or is not a mental disease [or defect]. What psychiatrists [and psychologists] may or may not consider a mental disease [or defect] for clinical purposes, where their concern is treatment, may or may not be the same as mental disease [or defect] for the purpose of determining criminal responsibility. Whether the defendant had a mental disease [or defect] must be determined by you under the explanation of those terms as it has been given to you by the Court.

There was also testimony of lay witnesses, with respect to their observations of defendant's appearance, behavior, speech, and actions. Such persons are permitted to testify as to their own observations and other facts known to them and may express an opinion based upon those observations and facts known to them. In weighing the testimony of such lay witnesses, you may consider the circumstances of each witness, his opportunity to observe the defendant and to know the facts to which he has testified, his willingness and capacity to expound freely as to his observations and knowledge, the basis for his opinion and conclusions, and the nearness or remoteness of his observations of the defendant in point of time to the commission of the offense charged.

You may also consider whether the witness observed extraordinary or bizarre acts performed by the defendant, or whether the witness observed the defendant's conduct to be free of such extraordinary or bizarre acts. In evaluating such testimony, you should take into account the extent of the witness's observation of the defendant and the nature and length of time of the witness's contact with the defendant. You should bear in mind that an untrained person may not be readily able to detect mental disease [or defect] and that the failure of a lay witness to observe abnormal acts by the defendant may be significant only if the witness had prolonged and intimate contact with the defendant.

You are not bound by the opinions of either expert or lay witnesses. You should not arbitrarily or capriciously reject the testimony of any witness, but you should consider the testimony of each witness in connection with the other evidence in the case and give it such weight as you believe it is fairly entitled to receive.

You may also consider that every man is presumed to be sane, that is, to be without mental disease [or defect], and to be responsible for his acts. You should consider this principle in the light of all the evidence in the case and give it such weight as you believe it is fairly entitled to receive.

Effect of verdict of not guilty by reason of insanity

If the defendant is found not guilty by reason of insanity, it becomes the duty of the court to commit him to St. Elizabeths Hospital. There will be a hearing within 50 days to determine whether defendant is entitled to release. In that hearing the defendant has the burden of proof. The defendant will remain in custody, and will be entitled to release from custody only if the court finds by preponderance of the evidence that he is not likely to injure himself or other persons due to mental illness.

Note: If the defendant so requests, this instruction need not be given.

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

We are unanimous in our decision today to abandon the formulation of criminal responsibility adopted eighteen years ago in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). We held there that a person is not responsible for a criminal act if the act was the product of mental disease or mental defect. In place of the Durham jury instruction, juries will now be instructed in terms of the American Law Institute test that a person is not responsible for a criminal act if as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. But the adoption of this new test is largely an anticlimax, for even though Durham's language survived until today's decision, the significant differences between our approach and the approach of the ALI test vanished many years ago. As described in Judge Leventhal's scholarly opinion, the ALI test may make possible an improvement in the adjudication of the responsibility issue. But on the whole I fear that the change made by the Court today is primarily one of form rather than of substance.1

Durham was designed to throw open the windows of the defense and ventilate a musty doctrine with all of the information acquired during a century's study of the intricacies of human behavior. It fueled a long and instructive debate which uncovered a vast range of perplexing and previously hidden questions. And the decision helped to move the question of responsibility from the realm of esoterica into the forefront of the critical issues of the criminal law.

While Durham never suffered a shortage of critics, virtually all of them missed what I consider the crucial failure which emerged in its operation. The critics assumed that our ruling would generate far-reaching changes, and they questioned or condemned the changes they foresaw. In fact, for all our efforts to push the defense onto a new and more meaningful track, Durham actually produced very little change at all. The first few years' experience dispelled any illusion that the decision would alter fundamentally the operation of the defense.

By its adoption of the American Law Institute test of criminal responsibility, this Court today repudiates none of the objectives of Durham, see pages 1030-1031, infra, but embraces a new test in the hope that it will succeed where Durham failed. The principal question before us, therefore, is whether the adoption of the ALI test is responsive to the lessons we learned from our efforts to implement Durham, and whether it offers any promise of resolving the difficulties that have always troubled us. The analysis must begin with a clear understanding of the reasons why Durham failed to achieve its objectives.

Plainly, we did not fail for want of trying. Durham reformulated the responsibility test in the hope that new and more useful information would be presented to the jury. We acted largely in response to the plea of behavioral scientists that they did not want to decide ultimate questions of law and morality, but wanted only an opportunity to report their findings as scientific investigators without the need to force those findings through the prism of M'Naghten.2 See pages 1015-1016, infra. By removing the obstacles to the presentation of those findings, Durham challenged the experts to provide the information they had long promised. We expected, perhaps naively, that the presentation of this new information would permit-indeed, require-the jury to undertake a much broader inquiry and to rely less on the ultimate conclusions of the experts. But it quickly became apparent that while our decision produced some expansion of the inquiry, it did not do nearly enough to eliminate the experts' stranglehold on the process. Even after Durham counsel for both sides often sought to present the issue to the jury in "simplified" form by eliciting from the experts little more than conclusory yes-or-no answers to the questions, "Was the accused suffering from a mental disease or defect?" "Was his act the product of that disease or defect?" And so the experts continued, on the whole, to speak in conclusory terms which inevitably included but concealed their underlying value judgments, and their own views as to the appropriate legal outcome. The use of conclusory psychiatric labels often provided an aura of certainty which made it difficult to discern the inadequacies of the examination on which the expert testimony was based, and the limitations of psychiatric knowledge generally. See pages 1017-1018 and n. 21, infra. The experts were able to retain their influence in part because of the manner in which Durham was construed. The term "mental disease or mental defect" was saddled with an unintended and astringent medical meaning. And the "productivity" requirement was perversely viewed as a locked door which could only be opened by an expert's key. But most important, the Court failed to deal with crucial practical obstacles that operate under any formulation of the test to impede the flow of information to the jury.

The first of these difficulties was the subject of our 1962 decision in McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc), where we attempted to rescue the term "mental disease or defect" from the grip of the expert witnesses. The definition of mental disease adopted in McDonald3 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 jury. But it should be clear that the ALI test comprises its own variant of the productivity requirement. And, as I will point out below, the Court's discussion of that aspect of the ALI test carries the strong implication that the albatross is with us still. In my view, we can prevent encroachments on the jury's function only by adopting an instruction that candidly describes the jury's power and responsibility. Since we have no simple, scientific formula that will provide a clear-cut answer to every case, we have no choice, in my opinion, but to tell the truth: that the jury, not the experts, must judge the defendant's blameworthiness; that a calibrated, easily-applied standard is not yet available to guide that decision; and that the jury must resolve the question with reference to its own understanding of community concepts of blameworthiness. See pages 1030-1034, infra.

The third source of difficulty-and to my mind the paramount cause of Durham's failure-is the cluster of practical obstacles that stand in the way of the full disclosure of information that Durham hoped to secure. See pages 1034-1039, infra. Here too the Court's decision sheds no new light. For no matter how felicitous its phrasing, a responsibility test cannot, singlehanded, overcome these practical obstacles. Neither Durham nor Brawner lets slip our well-guarded secret that the great majority of responsibility cases concern indigents, not affluent defendants with easy access to legal and psychiatric assistance. In a long line of cases we have been asked to confront difficult questions concerning the right to an adequate psychiatric examination, the right to psychiatric assistance in the preparation of the defense, the right to counsel at various stages of the process, the role and responsibility of a government expert who testifies on behalf of an indigent defendant, the burden of proof, the right to treatment during postacquittal hospitalization, and many more. If the promise of Durham has not been fulfilled, the primary explanation lies in our answers, or lack of answers, to those questions. I fear that it can fairly be said of Brawner, just as it should be said of Durham, that while the generals are designing an inspiring new insignia for the standard, the battle is being lost in the trenches. In fact, our obligation to confront the practical problems now is greater than it was in 1954, if only because our efforts to implement Durham have brought many of these problems to first light.

If Brawner is not responsive to the problems uncovered by Durham and makes no fundamental change in the operation of the defense,4 why has the Court bothered to do anything at all? Perhaps the decision rests on an unstated assumption that change is futile because we lack enough information about human behavior to make possible a meaningful use of the defense, or because we are unwilling or unable to act upon the information that is already at hand.5 Adoption of the uncontroversial ALI test might then be explained as an attempt to discourage the fruitless expenditure of time and energy on an effort doomed to failure. If that is indeed the Court's intention, then this decision will undoubtedly prove a great disappointment. The adoption of this test, or any other new test, is sure to touch off a flurry of litigation in which counsel will call upon us not only to face the underlying moral questions, but also to pour some concrete meaning into the ambiguous language of the ALI test. True, the adoption of this new test does not foreclose the possibility of further change and development that will respond directly to the central problems of the defense. But the decision does seem to me an important signal of the Court's current attitude. It is an attitude sharply at odds with the spirit of experimentation, inquiry, and confrontation that have characterized so much of our work in this field. Brawner offered us an opportunity to explore the most difficult questions-to what end do we maintain the defense? and how can we facilitate a meaningful use of the defense by all defendants, including indigents who must rely on the government for expert assistance? If the Court's decision today rests on the belief that nothing is wrong which cannot be cured by fixing a new label to our test, then eighteen years' experience has surely been wastd.

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

The facts underlying this appeal are simple. After spending an afternoon drinking wine, appellant went to a party at the apartment of three friends. During the evening several fights broke out. Appellant was hit in the jaw and knocked down; he left the apartment immediately. During the next hour he was seen by several friends, who described him as dizzy, unclear of speech and bleeding from the mouth. He refused to go to a hospital for medical attention, and told his friends he had been jumped. Pounding on a mailbox with a fist, he said that someone-perhaps himself-was going to die. Returning to the building in which the party had been held, appellant fired five shots through the closed door of the apartment. Two of the shots struck and killed one of the occupants. Appellant was arrested nearby shortly afterward.

On his own motion appellant was committed to St. Elizabeths Hospital for observation. The standard commitment order asked the Hospital to report on both his competence to stand trial and his responsibility at the time of the act charged.6 With respect to responsibility, the Hospital was asked "whether the defendant, at the time of the alleged criminal offense, committed on or about September 8, 1967, was suffering from a mental disease, or defect which substantially affected his mental or emotional processes and substantially impaired his behavior controls, and if so, whether his criminal act was the product of his mental condition . . . ."7 The Hospital's summary report stated that appellant was competent for trial; that he was mentally ill at the time of the act; and that the act was not causally related to his illness.

At trial, four expert witnesses from the staff of the Hospital testified on the issue of responsibility. All four agreed that appellant was mentally ill at the time of his unlawful act. They used various labels,8 but in general they agreed that he had an organic brain pathology and an associated explosive personality disorder. The organic damage was indicated by a history of epileptic seizures, an abnormal electroencephalogram test, and a pattern of responses to psychological tests characteristic of persons with organic impairment. The explosive personality disorder was indicated by psychological testing and by psychiatric interviews and observations.

All four experts went into commendable detail in describing the nature of appellant's disorder and its effect on his behavior. Each expert in turn stated that appellant's disorder was manifested in an inability to deal with provocation.9 Appellant was said to have severe feelings of inadequacy,10 and to be easily threatened. He would respond to a felt threat without control; his behavior would be explosive, and out of proportion to the situation.

The only conflict in the expert testimony arose in the course of the prohibited inquiry into productivity. Dr. Stammeyer and Dr. Hamman testified that in their view appellant's unlawful act was the product of his explosive epileptoid personality disorder. Dr. Weickhardt and Dr. Platkin, on the other hand, testified that appellant's act in shooting through the closed door of an apartment was not the product of his illness but rather the product of a normal desire to retaliate for a broken jaw. That is, even if appellant had not been ill, he would have retaliated in this way. Dr. Platkin's notes in the Hospital records describe the act as "a more or less legitimate response to a situation in which he had been severely injured in a fight and was very vindictive." Dr. Platkin testified that "I think I would, too, under the same circumstances want to get even with somebody who broke my jaw."

II. THE ORIGINS AND DEVELOPMENT OF THE DURHAM RULE OF

Eighteen years ago this Court formulated a new test of criminal responsibility for the District of Columbia. In Durham v. United States we held that "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect."11 The Durham test was formulated in response to the widespread complaints of psychiatrists that under traditional tests of responsibility the law asked them to go beyond their professional competence; the traditional tests seemed to saddle them with the job of deciding which defendants were guilty and which ones should be excused for lack of criminal responsibility. The M'Naghten Rule and the various "irresistible impulse" tests attempted to define the types of illness that the law would regard as exculpatory, and asked the psychiatrist whether the particular defendant suffered from such an illness at the time of his unlawful act. Thus under M'Naghten the psychiatrist was asked whether the defendant could tell right from wrong, and under the irresistible impulse test he was asked whether the defendant had the capacity to refrain from doing the unlawful act.12 The psychiatrist's answer was the whole answer to the question of responsibility. The only function of the jury was to choose which expert to believe in case of a conflict.

Psychiatrists vociferously criticized that approach to the problem of criminal responsibility on the ground that it did not correspond to the state of psychiatric knowledge. In their view few if any persons could be said to be totally lacking in the capacity to distinguish right from wrong or to control their actions. At the same time psychiatrists believed that they could provide extensive insights into other aspects of behavior that were highly relevant to the problem of responsibility.13 Since the traditional tests were deemed too narrow to allow consideration of such insights, many psychiatrists sought to include them under the cover of psychiatric labels and legal conclusions. The expert treated a neutral scientific question about the defendant's mental condition as one addressed to the legal significance of that condition.14 He was often allowed to do so because the factfinder was happy to be relieved of a difficulty and troubling task, namely, deciding whether the defendant's illness was severe enough to excuse him. The psychiatrist performed this task simply by fitting, or refusing to fit, the defendant into one of the categories of exculpatory mental illness. But even if psychiatric diagnosis is sufficiently flexible to permit this kind of manipulation,15 it does not provide a satisfactory solution from a legal standpoint. The difficulty of deciding the issue of responsibility may not be avoided by turning it over entirely to the experts.

One solution might have been to formulate a new and broader definition of "exculpatory mental illness," in order to retain M'Naghten's goal of offering the psychiatrist a limited role, i.e., ascertaining whether the defendant suffered from such an illness. But we found it impossible to formulate a general definition which would eliminate the need to evaluate blameworthiness in each individual case. Our problem, therefore, was to make it clear that evaluation was to be made not by the experts but by the jury. On the basis of past experience we feared that any concrete definitions we might offer the jury for guidance would promptly find their way into the standard repertoire of psychiatric testimony, capable again of yes-or-no answers, thereby returning the ultimate issues to the keeping of the psychiatrists.

For inspiration we turned to a model long familiar to the law, the method of assessing fault in negligence cases. We articulated no precise definition of responsibility, as the law articulates no precise definition of negligence. Instead in each case we allow the jury to hear all relevant information and ask it to decide whether by prevailing community standards the defendant was at fault. Thus the jury not only makes the factual determination that the defendant behaved in a certain manner, or that his mental condition was of a certain character, but also fixes the legal norm against which the mental condition and its relationship to the behavior must be measured. The role of the expert is to tell the jury anything he can about the relationship between the defendant's behavior and his state of mind. The jury decides in the light of that information whether the defendant can justly be held responsible for the harmful consequences of his act, or whether, on the contrary, the harm should be attributed to chance, for example, or to mental disorder.

The principle of Durham was to impose responsibility only if an act was the product of a free choice on the part of the defendant, and not of a mental disease or defect. In adopting the term "product" we borrowed again from the law of torts. In negligence cases the law is concerned with the relationship between the defendant's conduct and the resultant injury. Even when it is possible to establish some sort of causation, the requirement of "proximate cause" permits the jury to decide that the negligence was too slight or the causal connection too remote to have legal significance. Durham uses the term product not to limit liability but to limit its avoidance. Nevertheless, the function of productivity is similar to the function of proximate cause. In criminal cases the law is concerned with the relationship between the defendant's mental condition and his unlawful conduct. Even though it is usually possible to establish some sort of causal relationship between almost any mental illness and the unlawful conduct, the requirement of productivity permits the jury to decide that the illness was too slight or the causal connection too remote to have legal significance.

Critics of Durham said the product requirement was illusory, because no psychiatrist would be able to deny the possibility of a causal connection between the illness and the act.16 Consequently, it was argued, responsibility would turn solely on the question of mental disease, a question clearly within the scope of psychiatric expertise. Thus Durham would increase the power of the expert to decide legal and moral questions, rather than cut it down. We intended, however, that the inquiry into productivity would define the moral determination inherent in any determination of responsibility and commit it to the judgment of the jury rather than that of the experts. We expected that if a mental illness was present, and the experts could not exclude causation entirely, the issue would ordinarily go to the jury as a question of degree.

III. THE NEED TO ABANDON THE DURHAM-McDONALD TEST

Ever since this court announced its new test of responsibility in 1954, we have been struggling with the problem of distinguishing between the uniquely psychiatric elements of the determination of responsibility, and the legal and moral elements of that determination. We have repeatedly urged psychiatrists to avoid using the conclusory labels of either psychiatry or law.17 Testimony in terms of the legal conclusion that an act was or was not the product of mental disease invites the jury to abdicate its function and acquiesce in the conclusion of the experts. Testimony in terms of psychiatric labels obscures the fact that a defendant's responsibility does not turn on whether or not the experts have given his condition a name and the status of disease.18

Since Durham we have been engaged in a continuing process of refining and explicating the rule of that case. Carter v. United States defined the term "product" in broad terms designed to restrict conclusory expert testimony and expand the basic factual information available to the jury.19 Later McDonald v. United States sought to do the same for the term "mental disease or defect"20 by discouraging the use of psychiatric labels which often served to hide the fact that the experts were providing virtually no information about the defendant's underlying condition.21 The point in both cases was to invite all the information that modern knowledge could provide, to guide the jury's consideration of the moral, legal, and medical elements in the issue of responsibility. But most psychiatrists declined the invitation and continued to decide themselves when an illness should relieve a defendant of responsibility. Therefore in Washington v. United States we reluctantly took the step of prohibiting all psychiatric testimony in terms of the issue of productivity, on the ground that such testimony was particularly likely to usurp the jury's function of resolving the ultimate question of guilt.22 We said that the existence of disease was a medical question which psychiatrists could properly answer, but the question of productivity was the ultimate question for the jury, involving a mixture of medical information and moral judgment.

The reason for the Washington rule was to reserve exclusively for the jury one part of the determination of criminal responsibility. By prohibiting testimony in terms of the ultimate question of productivity we sought to focus on the need for testimony in depth concerning the nature, extent, and manifestations of the defendant's disability. The purpose was to give the jury an adequate basis for deciding whether the disability was such that it would be unjust to condemn the defendant for his conduct.

In practice, however, under Durham and its progeny psychiatrists have continued to make moral and legal judgments beyond the proper scope of their professional expertise.23 Even after Washington, the District Court continues to commit defendants to the public mental hospital for examination under a standard order that asks for a conclusion on productivity.24 And the doctors who perform most of the examinations have shown little reluctance to answer that an illness was present but the act was not its product. The testimony takes a form that indicates that the psychiatrists are in fact making a moral judgment, that they are finding an illness which in their view is not sufficiently serious or sufficiently related to the act to warrant acquittal. And that, of course, is precisely the judgment that we have entrusted not to the experts but to the jury.

Moreover, the productivity requirement tends to focus the attention of expert witnesses and the jury on extraneous and inappropriate issues, and to divert them from the core of the question of responsibility. Durham suggested that the government could establish criminal responsibility either by proving freedom from illness or by proving that the illness did not cause the act. And one way to prove that the illness did not cause the act is to prove that the defendant would have done it anyway. Carter even more explicitly than Durham invited the government to establish responsibility by proving that the defendant would have committed the act even if he had not been ill. Carter stated that productivity amounted to causation of the "but for" variety: an act is the product of mental disease if "the accused would not have committed the act he did commit if he had not been diseased as he was."25 This approach invited experts and juries to speculate about the defendant's character, and convict him on the ground that he would have been "bad" if he had not been sick.26

The abuses of the productivity inquiry are strikingly illustrated by the record in this case. Since the expert witnesses agreed that appellant suffered from a substantial disorder, his conviction would seem to depend on the jury's resolution of the question of productivity. The government's two expert witnesses both found mental illness without productivity. The testimony of these two witnesses is open to at least two interpretations. It may be that they regarded appellant's illness as highly specific in its operation: that its only effect on appellant's behavior was to produce an occasional reflex-like explosive reaction following instantly on the heels of the triggering event rather than an hour or two later; that the illness could have no relation to behavior of the type that resulted in appellant's prosecution. Putting aside the conclusory parts of their testimony, the balance of their testimony so understood could support a jury finding of criminal responsibility.

But it is not clear whether the conflict among the experts related to the scope of the illness or to its legal significance. In other testimony the government witnesses seem to reject such a tightly compartmentalized view of appellant's mental and emotional processes.27 There is reason to suspect that their conclusion was based not on a professional judgment about the scope of the illness but rather on the view that the illness was irrelevant because appellant would have committed the crime in any event. Their testimony suggests that they regarded appellant's act as a normal response for someone in his circumstances.28

Clearly, firing a shotgun through a closed door is not a normal response for everyone who is hurt in a fight, though it may well be for some people. The criminal law assumes that there is a spectrum of "normality," and that some "normal" people commit crimes while others do not. We cannot allow either the experts or the jury to speculate about where on that spectrum the defendant would belong if he were not mentally ill. That sort of speculation is especially pernicious because it is likely to discriminate systematically against inner-city slum residents like appellant, since violent unlawful behavior is more common in the slums than in middle class neighborhoods. To regard behavior as the product of illness in the suburbs but "normal" in the slums is to establish an odious double standard of morality and responsibility.

The insanity defense is based on the premise that it is unjust to convict a man for behavior he could not control. There is a high incidence of mental illness in inner-city slum areas,29 and we are bound to give it the same significance in dealing with their residents as we do in dealing with other people.30 If appellant's behavior controls were substantially impaired by mental illness, he should not be held responsible on the ground that it is "normal" for those in his environment to behave that way,31 or even because the examining psychiatrist believed that "under the same circumstances I would want to get even with somebody who broke my jaw."32

IV. THE COURT'S ARTICULATED REASONS FOR REPLACING

In my view, the ALI test of criminal responsibility, with or without the McDonald side bar, cannot remedy the problems in the administration of the defense which have come to light as a result of our efforts to implement the Durham-McDonald rule. While I assume my brethren do not share my pessimistic appraisal of the new test, they make no real effort to justify this change. Pages 981-985 of the Court's opinion are devoted to the articulation of two reasons for adopting the ALI test: (A) the "interest of uniformity of judicial approach and vocabulary, with room for variations and adjustments," majority opinion at 984-985; and (B) the "need to depart from [the] 'product' formulation and undue dominance by experts," majority opinion at 981-983.

At issue here is no garden variety "uniformity." Whatever the benefit of having the Circuits in substantial alignment on important questions of law, that is clearly not the benefit which the Court is seeking here. The other Circuits that have adopted the ALI test have taken a variety of substantially different approaches to the interpretation of its language.33 And today this Court adopts a variation on the ALI theme which differs, in design at least, from the approach of every other court. But the Court makes clear that uniformity in substance is not our goal, but only uniformity in vocabulary. If all of us speak the same language, the Court reasons, judicial communication will be enhanced.

Even accepting the argument at face value, it contributes very little to the resolution of the issue. For the argument does not even purport to demonstrate that the ALI test is inherently preferable to Durham-McDonald or any other test. I do not mean to disparage the value of judicial communication, but it is surely a concern of markedly less importance than the substantive merits of the test.

In any case, it is far from clear that our adoption of the new test will, in fact, enhance communication. The Court assumes that the lessons we have learned from Durham-McDonald have been "lost in translation" to the other Circuits, and that their lessons have been similarly lost to us. The problem apparently arises because of "blockage due to jargon." Majority opinion at 984. It is not clear to me how one would prove or disprove that assertion. But as a matter of logic-and surely as a reason for adopting the ALI test-the assertion is entirely unpersuasive. In fact, if I were to devise a paradigm scheme for blocking communication, I would arrange for courts to hide major differences behind uniform language, so that the differences would be overlooked by all but the most astute observers. That is precisely the result we have achieved by adopting the all-things-to-all-people language of the ALI test. By contrast, the singular phrasing of our prior rule encouraged its analysis by courts and commentators, and forced us to compare our approach with the approach of other courts. I do not see how we can reasonably expect our adoption of the ALI test to enhance our communication with other courts.

B. THE NEED TO DEPART FROM THE PRODUCT FORMULATION

The questions initially raised on this appeal pertained to our decision in Washington v. United States, 129 U.S.App.D. C. 29, 390 F.2d 444 (1967), barring conclusory expert testimony on the issue of productivity. Appellant insisted at the outset that Washington's prohibition had been disregarded at trial, and he asked us to demonstrate our opposition to expert domination of the process by enforcing the Washington rule. This Court, sua sponte, altered the focus of the inquiry by calling into question our test of responsibility, and by asking the parties and amici curiae to canvass the arguments for and against a change in the Durham-McDonald rule.

In examining the ALI test now adopted by this Court, it is important to keep in mind the origins of this case and the problem which the adoption of a new test is designed to solve. The great bulk of the Court's opinion is devoted to an explication of the ALI test as adopted in this jurisdiction. Since the clarification of ambiguous language now may minimize litigation later, that is, of course, an important undertaking. But the critical question before us is whether or not the adoption of the ALI test is likely to make any significant inroad on the problem of expert domination. The answer to that question depends in large part upon an understanding of the reasons why Durham's productivity requirement became a convenient handle for expert domination.

Durham did not invent the question of causality. Every responsibility test demands (or assumes) some link between the defendant's act and his impairment; Durham merely gave explicit recognition to the issue. Thus, the critical question is not whether the act must be related to the impairment ("mental disease," "defect of reason," or whatever), but rather how directly, if at all, the jury's attention should be focused on the question.

It is still not clear precisely what the concept of causality means in this context, or whether it is an intelligible concept at all. Yet Durham forced the concept out from its hiding place behind the murky language of other responsibility tests and made the productivity question the ultimate issue for the jury. In our effort to clarify the question we held that an act was to be considered the "product" of a mental disease only if it would not have been committed but for the disease-the disease must have "made the effective or decisive difference between doing and not doing the act." Carter v. United States, 102 U.S.App. D.C. 227, 236, 252 F.2d 608, 617 (1957). That definition gave the false impression that we understood the concept of causality fully and could draw meaningful and distinct lines between sufficient and insufficient cause-between acts that were caused by mental illness and acts that were not.

Notwithstanding the expectations to the contrary of the courts and commentators who examined the Durham rule,34 the productivity requirement became a formidable obstacle to the presentation of a successful responsibility defense. Even as recently as 1970 one federal court suggested that the "product portion of the test seems superfluous," reasoning that once a disability had been established, it would ordinarily be impossible to prove that it had no relationship to the unlawful act. Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970). Nevertheless, psychiatrists in this jurisdiction have often concluded-and convinced juries-that a mentally ill defendant should be convicted because his act was not the product of his illness. See United States v. Eichberg, 142 U.S.App.D.C. 110, 113, 439 F.2d 620, 628 (1971) (Bazelon, C. J., concurring).

This development may have allayed the fears of some who expected Durham to produce a vast increase in the number of insanity acquittals. After all, it was only the productivity requirement that stood between the liberalized concept of mental illness and acquittal; insistence on a rigid, and often impossible, showing of causal connection was an obvious means of reining in the defense. But the primary drawback of the productivity requirement was not that it reduced the number of insanity acquittals, for it is extremely unlikely, in my opinion, that juries would have acquitted many more defendants if the product formulation had never been devised. The real difficulty was that the superficial simplicity of the productivity question made it seem susceptible of an unambiguous medical or scientific answer. As a consequence, jurors too often relied on the conclusions of the experts, failing to see that the "gravity of an impairment and its relevance to the acts charged are both questions of degree, which can only be resolved with reference to the community's sense of when it is just to hold a man responsible for his act." United States v. Eichberg, 142 U.S.App. D.C. 110, 113, 439 F.2d 620, 623 (1971) (concurring opinion).

As I understand the Court's opinion, the rationale for the switch from Durham-McDonald to ALI-McDonald can be summarized as follows: The primary flaw of our prior test was its emphasis on productivity, which permitted "undue dominance" by the expert witnesses who testified on the issue of responsibility. Majority opinion at 981. The remedy is not to depart from the product requirement (which would hardly be possible in any case since the requirement is an integral part of every responsibility test), but to depart from the product formulation. The ALI test retains the "core requirement" of productivity, in the sense that there must be a "meaningful relationship between the mental illness and the incident charged." Id. at 983. But the question of causality does not occupy a position of prominence under ALI comparable to the position that the product requirement occupied under Durham. By eliminating the term "product" we can eliminate the vocabulary which was "conducive to a testimonial mystique permitting expert dominance and encroachment on the jury's function." Id. The foregoing reasoning of my brethren represents the primary articulated justification for adoption of the ALI test, and the validity of the analysis must, therefore, be considered with great care.

1. The Court's reasoning suggests that our primary goal is to deemphasize the question of productivity or causality. Yet there is strong reason to suspect that adopting the ALI test will not bring us closer to that goal. The difficulty of applying the ALI productivity requirement -and hence the amount of attention which the requirement will attract-is likely to vary with the nature of the defendant's impairment. If the defendant cannot "distinguish 'good and evil,' i. e., if he 'doth not know what he is doing, no more than * * * a wild beast,' "35 he may well lack the capacity to appreciate the wrongfulness of any act or to conform any act to the requirements of law. In that case, a jury is likely to conclude that the defendant's impairment "caused" his act, irrespective of the act he allegedly committed. If the defendant's impairment is not so severe as to render him a "wild beast," the question of productivity is still unlikely to present great difficulty so long as the impairment is deep enough and pervasive enough to compel the conclusion that most of his acts are substantially affected by the impairment. A finding of non-productivity will not often be made where the defendant is suffering from a psychosis or other severe disorder, because the defendant's act will, in all probability, bear a strong and obvious relationship to the impairment.36 And even where the question is close, juries may often resolve their doubts in favor of a finding of causality in order to insure that the defendant is committed to a hospital rather than a penitentiary.

The real difficulty with the causality requirement arises when the defendant's impairment is a neurotic condition or personality disorder. It appears that these conditions are often encapsulated, in the sense that they may have a significant impact on some aspects of the defendant's behavior, while leaving his personality substantially intact.37 In these cases disputes will often arise concerning the relationship of the act to the impairment. And snce the impairment may be much less severe than a psychosis, the defense will often not be aided by a presumption that hospitalization is the appropriate disposition. In fact, the jury may be convinced that the non-psychotic defendant deserves criminal punishment even though the experts consider him mentally ill. And they may use the productivity requirement as a handle for the rejection of the responsibility defense.

In short, the most efficient means of eliminating the productivity problem (but not the productivity question) is to limit the definition of exculpatory mental illness to those conditions which are so severe that in most cases a finding of productivity can readily be made. It can reasonably be argued that the intent of the ALI draftsmen was to make the responsibility defense available only to defendants suffering from psychoses or other severe disabilities.38 Under that interpretation, which is apparently accepted by at least some other federal jurisdictions,39 the productivity issue should rarely present great difficulty. But that interpretation is plainly not the one adopted by the Court in today's opinion. As I read the Court's opinion, the retention of the McDonald definition of mental illness reaffirms our longstanding view that, in the words of Mr. Dempsey's amicus brief, "the defense is not restricted to persons suffering from the gravest types of mental disorders. While the jury must find that the defendant's 'mental or emotional processes' have been 'substantially affected' and his 'behavior controls' 'substantially impaired,' the jury is not bound by whether those consequences flow from what the psychiatrists label a 'psychosis,' 'pyschoneurosis,' a 'sociopathic personality,' an 'emotionally unstable personality,' or whatever."40 If we are indeed to retain the expansive definition of mental illness implicit in Durham and formalized in McDonald, then the productivity question will remain a source of controversy and debate.

Unlike Durham, which focused on the relationship between the defendant's mental illness (impairment) and his act, the ALI test focuses on the relationship between the defendant's mental illness and his impairment. In the words of the test, the impairment must exist "as a result" of mental illness. But productivity in the Durham sense-the relationship between the impairment and the act-is not abolished; it is concealed in two questions which are implicit in the test: Could the defendant appreciate the wrongfulness of the particular act he committed? Could he have conformed that particular act to the requirements of law? So long as the defendant's impairment is a psychosis or other severe disability and is roughly consonant with his act, the answers to those questions should be sufficiently obvious that the questions will not even seem to arise. But where the defense is predicated on a less severe form of impairment-as it apparently can still be in this jurisdiction-those questions will assume the burden that has been carried up to now by Durham's explicit requirement of productivity.

The operation of the causality requirement implicit in the ALI test can be illustrated by considering how Brawner would have been tried under the new test. The expert witnesses would presumably characterize his condition as an explosive personality disorder, manifested in an inability to deal with provocation. The act which Brawner committed-shooting through a closed door in retaliation for a blow to his jaw a short while before-is surely consistent with his condition. It could thus be said that in at least some situations Brawner apparently lacked substantial capacity to conform this kind of behavior to the requirements of law. But I have little doubt that the government would seek to introduce expert testimony, as it did under Durham, that Brawner committed this act not because of his personality disorder, but rather because he wanted "to get even with somebody who broke [his] jaw." See page 1014 supra. The issue raised by this line of testimony need not be called a productivity or causality question. But whatever it is called, it is functionally identical to the productivity question that routinely arose under Durham.

The Court undoubtedly recognizes that retention of McDonald's open-ended definition of mental illness will require an inquiry into causality in a large number of cases. In marked contrast to the opinions of the other federal courts that have adopted the ALI test,41 the Court's opinion places great emphasis on the causality question. Superficially, the Court's references are directed only at the first stage of the causality question under the ALI test-the relationship between the illness and the impairment rather than the relationship between the impairment and the act. But the question raised by that first stage is so trivial and the Court's references to causality are so numerous that it is hard to avoid the implication that the references are primarily aimed at the second stage of the productivity question. Those references carry an implicit assurance that acquittal under the ALI test will be no less difficult for a defendant without a pervasive disability than it has always been under Durham.

The critical question, therefore, is how the productivity issue will be presented to the jury. As I pointed out above, the Durham formulation gave the false impression that the question required a medical or scientific answer. The ALI language could fare better, since it does not invite the expert witnesses to offer a flat and seemingly scientific answer that the impairment did or did not "cause" the act. But while there is some promise in the language of the ALI test, I fear that the Court's construction of that language may dissipate much of that promise. The ALI test provides that "a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity * * *" (Emphasis supplied.) The Court maintains that the causality requirement lurks in the term "as a result," suggesting that the "mental disease of a kleptomaniac does not entail as a 'result' a lack of capacity to conform to the law prohibiting rape." Majority opinion at 991. The term "as a result" does, of course, contain a requirement of causality. But it refers only to the first stage of the requirement under the ALI test, indicating that the impairment must be caused by the mental disease. But the crucial question of causality-the link between the impairment and the act-is not reflected in the term "as a result." It inheres in the concepts of "appreciating wrongfulness" and "conforming conduct." Thus, if kleptomania is an abnormal condition of the mind, then for purposes of the ALI test a kleptomaniac "lacks substantial capacity as a result of mental disease" regardless of the act he allegedly committed. But if he is charged with rape, his responsibility defense would presumably fail because, even though he may lack capacity to appreciate the wrongfulness of theft or to conform his conduct to the requirements of the law prohibiting theft, he may in fact have substantial capacity to appreciate the wrongfulness of rape and to conform his conduct to the requirements of the law prohibiting rape.

My concern with the source of the ALI productivity requirement is not intended as an exercise in the splitting of hairs. By making the term "as a result" carry not only the unimportant first stage of the causality question, but also the critical second stage, the Court repeats precisely the mistake it correctly identifies in Durham: the articulation of a catchphrase that facilitates conclusory expert testimony and that obscures the moral and legal overtones of the productivity question. Where a psychiatrist would formerly have testified that the act was not the "product" of the disease, he can now assert that the disease of the defendant does not entail as a "result" the kind of impairment that could have produced the act in question. Under my view of the ALI language, a psychiatrist attempting to present a conclusory no-productivity argument would have to lead the jury through the murky waters of "appreciating wrongfulness" and "conforming conduct," and in all likelihood the jury would be lost almost from the outset. If the causality requirement cannot readily be expressed as an uncomplicated yes-no question, there is a good chance that juries would begin to recognize that the requirement subsumes the moral and legal questions which lie at the heart of the responsibility defense.

2. Our opinion in Washington recognized that the productivity requirement can lead to domination by the expert witnesses not so much because they testify about the issue, but because they testify about the issue in conclusory terms. For that reason, we barred conclusory testimony on this issue, and urged the experts to disclose the factual data from which the jury could draw reasonable inferences about the defendant's condition. Inexplicably, the Court now concludes that Washington is "superseded-on this point-by our change today of the ultimate rule," majority opinion at 1003. Yet, as the Court repeatedly makes clear, the change of the ultimate rule leaves standing the causality requirement. The net effect of today's decision is, therefore, to require the experts to drop the term "product" in favor of the term "result," and to permit them once again to tell the jury in conclusory terms that the act was not caused by the defendant's impairment.42 To be sure, a mystique has developed around the term "product," and the elimination of that term should undercut the mystique. But I see no reason to assume that the term "result" is immune to the identical development, especially in view of the Court's unexplained determination that experts should once again be permitted to testify in conclusory terms on the issue of causality.

3. If our primary goal is, in fact, to achieve a reduction in expert domination of the process, the gratuitous overruling of one aspect of Washington v. United States43 is not the only-and perhaps not the most important-step backward. The Court identifies the productivity requirement as the chief villain that permits the experts to encroach on the jury's function. But there is another aspect of the test which is at least as susceptible to expert domination. Like Durham, the ALI test demands a "mental disease" as a condition of non-responsibility. And the Court today holds that the definition of "mental disease" announced in McDonald will be applicable to the ALI test. Nevertheless, Brawner's discussion of the term suggests at least a partial erosion of the McDonald view that "mental disease" is a legal concept, and that "neither the court nor the jury is bound by ad hoc definitions or conclusions as to what experts state is a disease or defect." 114 U.S.App.D.C. 120, 124, 312 F.2d 847, 851 (1962).

The Court today asserts that it has rejected "suggestions to adopt a rule that disentangles the insanity defense from a medical model," and adds that a successful responsibility defense must be predicated on the existence of an "ascertainable condition characterized by 'a broad consensus that free will does not exist.' " Majority opinion at 995. I fear that counsel, the experts, and the trial courts will view that requirement as a delegation of sweeping new authority to the medical experts.

Of course, the Court does point out that a defendant can make a broad presentation to the jury, offering all of the evidence, even if not strictly medical, which is pertinent to an abnormal condition of the mind. But that broad presentation is already guaranteed by the traditional rules of evidence. The real impact of the Court's decision is to establish a barrier which will prevent some defendants from taking any evidence at all to the jury on the issue of responsibility. The power to open and close that barrier is effectively delegated to the psychiatric experts.

We can only speculate on the impact of this requirement, but it seems likely to produce very substantial distortions of the process. First, it focuses attention on an entirely irrelevant issue. If a defendant is prepared to present evidence that his mental or emotional processes and behavior controls were in fact impaired, it is not clear why anything should turn on the experts' view of his condition in the abstract.

Second, the requirement obliges the defendant to make a vastly greater showing to have the issue of reponsibility submitted to the jury than to have any other issue submitted. We held many years ago that "sanity is an 'essential' issue which, if actually litigated-that is, if 'some proof is adduced' tending to support the defense-must be submitted to the jury under the guidance of instructions." Tatum v. United States, 88 U.S. App.D.C. 386, 389, 190 F.2d 612, 615 (1951). Conceding "that any attempt to formulate a quantitative measure of the amount of evidence necessary to raise an issue can produce no more than an illusory definiteness," we pointed out that "so long as there was some evidence relevant to the issue * * * the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court." 88 U.S.App.D.C. at 390, 190 F.2d at 616, quoting from Kinard v. United States, 68 App.D.C. 250, 253-254, 96 F.2d 522, 525-526 (1938). As I read the Court's opinion, a defendant who can introduce "some evidence" that his capacity to control his behavior was in fact impaired cannot take the responsibility issue to the jury unless he can also offer, should the question be put in issue, "convincing evidence" that he is suffering from a medically-recognized condition characterized by a broad consensus that free will does not exist.44

Still, the greatest difficulty is not that the requirement shifts attention onto an extraneous issue or that it imposes an unwarranted obstacle to the presentation of an affirmative defense. Those difficulties could be tolerated if the requirement of a "broad consensus that free will does not exist" reflected the Court's effort to achieve some important purpose of the responsibility defense. At no point in its opinion does the Court explain why the boundary of a legal concept-criminal responsibility-should be marked by medical concepts, especially when the validity of the "medical model" is seriously questioned by some eminent psychiatrists.45 Nor does the Court explain what it means by "convincing evidence" of the existence of a "broad concensus." If five psychiatrists are prepared to assert that a particular condition does tend to impair free will, how many psychiatrists must be willing to testify that it does not have such an effect before we can preclude a responsibility defense on the ground that there is no "broad consensus" that the defendant's condition tends to impair free will? How many psychiatrists must be convinced that a particular condition is "medical" in nature before a defendant will be permitted, within the confines of the "medical model," to predicate a responsibility defense on such a condition?

The Court similarly fails to explain how medical experts can be expected to provide information about the impairment of free will, when free will would seem to be a philosophical and not a medical concept. If psychiatrists will be required to frame their testimony in terms of this non-medical concept, then the Court will have resurrected M'Naghten with one ironic twist. Under M'Naghten, medical experts effectively answered moral and legal questions, and cloaked the answers in medical terminology. The Court now seems to ask experts to make moral and legal determinations about the nature of an exculpatory condition, and invites them to state their conclusions in non-medical terms.

It is possible, however, that the Court's reference to free will is not intended to carry moral or philosophical implications, but is nothing more than a short-hand for the component of the ALI test which refers to substantial capacity to conform conduct to the requirements of law.46 If so, it is unclear why the Court omits reference to the second component of the ALI test: namely, the capacity to appreciate the wrongfulness of conduct. Is that omission premised on a determination that the cognitive element is irrelevant to responsibility? Or does it mean, perhaps, that the element of cognition is subsumed within the concept of behavior control? See United States v. Currens, 290 F.2d 751, 774 (3d Cir. 1961). These questions, and others which are no less extraneous to the question genuinely in issue, will have to be answered in the course of applying this new requirement.

Of course, the fact that the requirement is illogical, unwieldy, and an invitation to expert domination does not necessarily mean that it should not be adopted. I suggested in a recent opinion that adoption of an explicit medical model may be the only available means of fending off a number of difficult questions concerning our handling of a dangerous defendant who has been found not guilty for lack of responsibility, but who cannot be committed to a medical institution for medical care. In that same opinion I outlined several alternative approaches and attempted to point out the advantages and disadvantages of each. See United States v. Alexander & Murdock, 152 U.S. App.D.C. ____ at ____ - ____, 471 F.2d 923 at 960-965 (April 21, 1972). But the Court does not disclose the reasoning that underlies its adoption of the medical model. Nor does it provide any indication of the purpose of this limitation on the legal concept of responsibility. The disadvantages of clinging to a medical model are shouldered without acknowledgment or explanation. What does emerge clearly from the Court's opinion is that we have now turned over to the experts a substantial part of the inquiry, without making clear why expert domination in this context-as opposed to the context of productivity-is unobjectionable.

V. THE ADVANTAGES OF A RULE THAT INSTRUCTS THE JURY TO

ACQUIT THE DEFENDANT IF HE CANNOT JUSTLY BE HELD RESPONSIBLE

The effort to preserve the jury's function from encroachments by the experts must begin with a clear understanding of what that function is. In determining the responsibility issue, a jury has two important tasks:

In the first place it measures the extent to which the defendant's mental and emotional processes and behavior controls were impaired at the time of the unlawful act. The answer to that question is elusive, but no more so than many other facts that a jury must find beyond a reasonable doubt in a criminal trial. * * * The second function is to evaluate that impairment in light of community standards of blameworthiness, to determine whether the defendant's impairment makes it unjust to hold him responsible. The jury's unique qualification for making that determination justifies our unusual deference to the jury's resolution of the issue of responsibility.47

Nothing in the Court's opinion today suggests a departure from our long-standing view that the second of these two functions-the evaluation of the defendant's impairment in light of community standards of blameworthiness-is the very essence of the jury's role. The Court points out, for example, that

[i]t is the sense of justice propounded by those charged with making and declaring the law-legislatures and courts-that lays down the rule that persons without substantial capacity to know or control the act shall be excused. The jury is concerned with applying the community understanding of this broad rule to particular lay and medical facts. Where the matter is unclear it naturally will call on its own sense of justice to help it determine the matter. [Emphasis added.]

Majority opinion at 988. And again,

The doctrine of criminal responsibility is such that there can be no doubt "of the complicated nature of the decision to be made-intertwining moral, legal, and medical judgments," * * * * [J]ury decisions have been accorded unusual deference even when they have found responsibility in the face of a powerful record, with medical evidence uncontradicted, pointing toward exculpation. The "moral" elements of the decision are not defined exclusively by religious considerations but by the totality of underlying conceptions of ethics and justice shared by the community, as expressed by its jury surrogate. [Emphasis added; citations omitted.]

Majority opinion at 982.48 See also majority opinion at 990.

Against this background it is clear that Durham focused the jury's attention on the wrong question-on the relationship between the act and the impairment rather than on the blameworthiness of the defendant's action measured by prevailing community standards. If the ALI test is indeed an improvement, it is not because it focuses attention on the right question, but only because it makes the wrong question so obscure that jurors may abandon the effort to answer it literally.

Instead of asking the jury whether the act was caused by the impairment, our new test asks the jury to wrestle with such unfamiliar, if not incomprehensible, concepts as the capacity to appreciate the wrongfulness of one's action, and the capacity to conform one's conduct to the requirements of law. The best hope for our new test is that jurors will regularly conclude that no one-including the experts-can provide a meaningful answer to the questions posed by the ALI test. And in their search for some semblance of an intelligible standard, they may be forced to consider whether it would be just to hold the defendant responsible for his action. By that indirect approach our new test may lead juries to disregard (or at least depreciate) the conclusory testimony of the experts, and to make the "intertwining moral, legal, and medical judgments" on which the resolution of the responsibility question properly depends. The Court's own opinion hints at this approach, maintaining that "[t]here is wisdom in the view that a jury generally understands well enough that an instruction composed in flexible terms gives it sufficient latitude so that, without disregarding the instruction, it can provide that application of the instruction which harmonizes with its sense of justice. The ALI rule generally communicates that meaning." Majority opinion at 988-989.

The Court's approach may very well succeed and encourage jurors to look behind the testimony and recommendations of the experts. But, as I have tried to demonstrate above, there is also a significant possibility that our new test will leave the power of the experts intact-or even make possible an enlargement of their influence. In my opinion, an instruction that tells the jurors candidly what their function is, is the instruction most likely to encourage the jurors to resist encroachments on that function. In itself, that might not be sufficient justification for adopting such a test if it were clear that its adoption would entail substantial costs as a necessary by-product. But I am unaware of any costs that compel us to adopt instead the ALI test, which offers so much less promise of dealing with the problems that initially brought this case to our attention.

Our instruction to the jury should provide that a defendant is not responsible if at the time of his unlawful conduct his mental or emotional processes or behavior controls were impaired to such an extent that he cannot justly be held responsible for his act. This test would ask the psychiatrist a single question: what is the nature of the impairment of the defendant's mental and emotional processes and behavior controls? It would leave for the jury the question whether that impairment is sufficient to relieve the defendant of responsibility for the particular act charged.49

The purpose of this proposed instruction is to focus the jury's attention on the legal and moral aspects of criminal responsibility, and to make clear why the determination of responsibility is entrusted to the jury and not the expert witnesses. That, plainly, is not to say that the jury should be cast adrift to acquit or convict the defendant according to caprice. The jury would not be instructed to find a defendant responsible if that seems just, and to find him not responsible if that seems just. On the contrary, the instruction would incorporate the very requirements-impairment of mental or emotional processes and behavior controls-that McDonald established as prerequisites of the responsibility defense.

The proposed instruction has the additional advantage of avoiding any explicit reference to "mental disease" or "abnormal condition of the mind." As used in our prior tests, these terms were never intended to exclude disabilities that originate in diseases of the body,50 but simply reflect the fact that the defense of non-responsibility has traditionally been associated with mental illness, or in the language of an earlier day, "insanity." Washington v. United States, 129 U.S.App.D.C. at 37 n. 23, 390 F.2d at 452 n. 23. Moreover,

our experience has made it clear that the terms we use-"mental disease or defect" and "abnormal condition of the mind"-carry a distinct flavor of pathology. And they deflect attention from the crucial functional question -did the defendant lack the ability to make any meaningful choice of action -to an artificial and misleading excursion into the thicket of psychiatric diagnosis and nomenclature.

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

I would adopt an instruction based on the language of McDonald, which seems to me more comprehensible than the language of the ALI test. The capacity to appreciate the wrongfulness of conduct and the capacity to conform conduct to the requirements of the law are, I fear, concepts with little meaning to experts or to jurors. But for the present purpose, the critical aspect of the proposed jury instruction is not the use of the McDonald terminology or the omission of any reference to an "abnormal condition of the mind." If the Court is convinced that the terminology of the ALI test would illuminate the jury's inquiry, or that the terms "mental disease" or "abnormal condition of the mind" should, for whatever reason, be retained, it is still possible to draft an instruction that clearly describes the jury's role in deciding when the defendant's incapacity is sufficient to warrant exculpation. In fact, a minority of the ALI draftsmen (along with Professor Wechsler, the reporter of the Model Penal Code) proposed a test providing that a person

is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect his capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law is so substantially impaired that he cannot justly be held responsible.

By contrast, the majority ALI test, now adopted by this Court, provides that a person

is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

The difference between the two approaches does not pertain to the type of showing a defendant must make. Both require the defendant to demonstrate a particular form of incapacity. The approaches diverge in establishing a standard to determine when the incapacity is sufficient to exculpate the defendant. Under the ALI majority view, the jury must acquit if the defendant's capacity is substantially impaired. The ALI minority would require acquittal where the defendant's capacity is so substantially impaired that he cannot justly be held responsible.

The ALI ultimately rejected the minority approach because "[s]ome members of the Council deemed it unwise to present questions of justice to the jury, preferring a submission that in form, at least, confines the inquiry to fact."51 The Court apparently shares this view, and rejects an instruction "overtly cast in terms of 'justice' " on the grounds that such an instruction "cannot feasibly be restricted to the ambit of what may properly be taken into account but will splash with unconfinable and malign consequences." Majority opinion at 987. That argument seems to present two separate justifications for pretending that the inquiry is confined to fact.

First, the argument apparently reflects a concern that adoption of the "justice" approach would permit the introduction at trial of extraneous information. But under the approach urged by a minority of the ALI Council, a defendant must still demonstrate that proffered evidence is relevant to an impairment of capacity. The test does not provide him with a license to introduce evidence merely for the purpose of engendering sympathy for him in the jury. Adoption of the "justice" approach would still leave standing all of the traditional obstacles to the introduction of irrelevant evidence.

The Court's second ground of objection is apparently that an instruction cast in terms of justice would permit the jury to convict or acquit without regard to legal standard. The Court points out, for example, that

[i]t is one thing * * * to tolerate and even welcome the jury's sense of equity as a force that affects its application of instructions which state the legal rules that crystallize the requirements of justice as determined by the lawmakers of the community. It is quite another to set the jury at large, without such crystallization, to evolve its own legal rules and standards of justice.

Majority opinion at 989. I take it that in the Court's view the majority version of the ALI test offers the jury "legal rules that crystallize the requirements of justice as determined by the lawmakers of the community," and that the minority version sets the jury adrift without such crystallized rules. What, then, are these crystallized rules? I pointed out above that while the minority version asks the jury to measure the impairment in terms of its own sense of justice, the majority version requires acquittal if the incapacity is substantial, and requires conviction if the incapacity is insubstantial. Can we seriously maintain that the majority ALI instruction is preferable because its determination that the impairment must be "substantial" reflects a crystallization of the requirements of justice by the lawmakers of the community? Naturally, we would all prefer a rule that could, as a matter of law, draw a bright line between responsible and non-responsible defendants. But the ALI test adopted by this Court is plainly not such a rule. It offers the jury no real help in making the "intertwining moral, legal, and medical judgments" that all of us expect. In fact, because it describes the question as one of fact it may lull the jury into the mistaken assumption that the question of responsibility can best be resolved by experts, leaving the jury at the mercy of the witness who asserts most persuasively that, in his expert judgment, the defendant's capacity was or was not substantially impaired.

It is not at all clear that the approach I have suggested-whether based on the terminology of the ALI test or McDonald-would finally bar encroachments on the jury's function. Nevertheless, this approach-unlike the majority ALI test adopted by the Court-comes directly to grips with the problem of expert domination in a manner that is at least responsive to our experience under Durham. The majority ALI test merely reshuffles and obfuscates the Durham components; it does nothing to sort out for the jury the difference between its function and the function of the expert witnesses. Our instruction should make clear that in order to convict a defendant the jury must first determine, on the basis of expert opinion and the factual background disclosed by the experts, the extent to which the defendant's mental and emotional processes and behavior controls were impaired, and then find, on the basis of community moral standards, that the degree of impairment was sufficiently slight that the defendant can fairly be blamed and held responsible for his act like any other person.52

To expand the scope of the inquiry in this way would not invite a significant increase in the number of acquittals. It would, however, encourage greater commitment to the effort to understand how each criminal defendant came to act as he did. Even if juries were consistently to set the standard of responsibility so low that virtually every defendant would meet it, they would still have to confront the causes of criminal conduct in a way that might teach us all something about human behavior. And they would be giving defendants the kind of careful, individual study that should precede any decision as consequential as the imposition of moral condemnation on another human being.

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

In a distressing number of recent cases this Court has been asked to consider questions unrelated to the substantive test of responsibility, but which have, as a practical matter, far greater impact on the operation of the defense than the language of the rule. The Court's decision to abandon Durham-McDonald in favor of ALI-McDonald does nothing to obsolete these questions or the Court's responses to them. If our paramount goal is an improvement of the process of adjudication of the responsibility issue, our attention should be focused on these questions rather than on the ultimate definition of the test. Obviously, these questions cannot all be resolved by one opinion. But the Court's approach to the disposition of this case offers some indication of the manner in which these questions will be handled in the future.

1. The one consistent note in the Court's analysis of our experience under Durham is the objection to domination by the experts accomplished through the productivity requirement. We attempted to deal with that problem in Washington v. United States by barring conclusory, expert testimony on the issue of productivity. Virtually all of the expert witnesses at Brawner's trial agreed that he was suffering from an abnormal condition of the mind. The issue in dispute was productivity-the ultimate issue for the jury. And the transcript is riddled with conclusory, expert testimony on that issue. It is hard to imagine a case which could make a stronger appeal for enforcement of the Washington rule.

After hearing one of his expert witnesses state that Brawner had a "personality disorder connected with epilepsy," the prosecutor asked the witness:

Did you also come to any opinion concerning whether or not the crimes in this case were causally related to the mental illness which you diagnosed?

After defense counsel's objection to the question was overruled, the prosecutor asked again:

What was your conclusion as to whether or not there was a causal relationship between the two matters?

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

Transcript at 464. To be sure, this testimony was not phrased in terms of "product," but the jury could hardly avoid the message that causality was the cutting edge of the responsibility test and that at least some of the experts were convinced that causality did not exist in this case. Nevertheless, the Court refuses to overturn the conviction despite this patent violation of the letter and the spirit of the Washington rule.

I suggested above that the abandonment of the term "product" may have some beneficial effect in reducing the mystique that surrounds the causality question in this jurisdiction. But I also noted that the Court has made available a new handle for conclusory testimony on the issue of causality-"result"-and at the same time it has lifted the ban on conclusory testimony on this issue. The transcript of Brawner's trial offers a glimpse of what we can expect from responsibility trials under the ALI test. The Court's unwillingness to reverse Brawner's conviction on this ground makes clear that this Court and the trial courts no longer have any weapons to combat the problem of conclusory testimony and the resulting domination by experts.53

2. Since 1895 the federal courts have taken the position that if the defendant introduces "some evidence" of insanity, the issue will be submitted to the jury and the government will bear the burden of proving responsibility beyond a reasonable doubt. Davis v. United States, 160 U.S. 469, 484, 16 S. Ct. 353, 40 L. Ed. 499 (1895). Yet as the responsibility defense has developed under our case law, it has become increasingly clear that the defendant carries an overwhelming practical burden which is not acknowledged in the traditional rule. As a practical matter, the defendant often has very great difficulty obtaining adequate expert assistance to gather the information necessary for the presentation of a significant defense. If he can obtain such information, his defense will often prove vulnerable to attack unrelated to the real merit of his responsibility claim. And even if the attack is very weak the defendant will rarely be entitled to a directed verdict. See United States v. Eichberg, 142 U.S.App.D.C. 110, 112-113, 439 F.2d 620, 622-623 (1971).

With limited access to expert psychiatric assistance, indigent defendants normally rely on the government to provide an adequate psychiatric examination at the hospital to which the defendant is committed for observation. In a large number of cases the government's experts are called to testify on behalf of the defense, and their testimony has often proved inadequate. In one recent case, for example, the trial court concluded that the testimony of a government expert testifying for the defense was completely unacceptable under the principles of Washington v. United States, and he struck the testimony as inadmissible. Yet the trial court refused to grant the defendant's motion for a mistrial or a new mental examination by experts capable of explaining their findings to a court. And this Court affirmed that ruling. United States v. Alexander & Murdock, 152 U.S.App.D.C. ____ at ____ - ____, 471 F.2d 923 at 952-957 (April 21, 1972) (Bazelon, C. J., dissenting). See also United States v. Leazer, 148 U.S.App.D.C. 356 at 362, 460 F.2d 864 at 870 (Jan. 19, 1972) (Bazelon, C. J., concurring). If an indigent defendant relies on the government for assistance in preparing his case and if there is no remedy when the government's assistance is legally inadequate, it will be little consolation to the defendant that the government still carries the burden of persuasion on that issue.

The practical burden on the defendant is greatly enhanced by the ease with which defense testimony can often be torn to pieces on cross-examination. Where a psychiatrist testifying for the government asserts that the defendant did not suffer from any abnormal condition which could impair his mental processes or behavior controls, defense counsel must have considerable expertise in psychiatry to pick out the weak points in the analysis. Yet "very few attorneys, if any, possess the requisite expertise, and we have no automatic procedure for enabling them to consult with psychiatric experts in the preparation and conduct of the defense." United States v. Leazer, 148 U.S.App.D.C. 356 at 363, 460 F.2d 864 at 871 (Jan. 19, 1972), (Bazelon, C. J., concurring). Even where the defendant has obvious symptoms of mental disorder, defense counsel is frequently helpless to rebut the suggestion by government psychiatrists that the defendant is malingering. If he produces testimony from a private psychiatrist that the defendant is not a malingerer, he is almost sure to find that the government and its expert witnesses will disparage that testimony on the grounds that it was based on an insufficient period of observation. See, e. g., United States v. Bennett, 148 U.S. App.D.C. 364 at 366-367, n. 4, 460 F.2d 872 at 874-875, n. 4 (Jan. 19, 1972), United States v. Schappel, 144 U.S.App. D.C. 240, 445 F.2d 716 (1971); Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269 (1964).54

There are other grounds on which the testimony of defense psychiatrists is extremely vulnerable. A psychiatrist or psychologist who testifies that the defendant suffered from some mental illness exposes himself to what the Court appropriately terms "know-nothing appeals to ignorance." Majority opinion at 1004. For example, "by requiring the witness to describe in isolation the most minute 'symptoms' on which the diagnosis rests-the defendant's answer to a particular question or his reaction to a particular ink-blot-the prosecution may succeed in making these symptoms seem trivial or commonplace." United States v. Leazer, 148 U.S.App.D.C. 356 at 363, 460 F.2d 864 at 871 (Jan. 19, 1972), (Bazelon, C. J., concurring). At Brawner's trial, the prosecutor ridiculed the testimony of a defense psychologist in his summation to the jury:

Ladies and gentlemen, then we came to that ink blot, and the doctor said, well, the usual thing about that was those anatomical things, and how many of them were there. Well, let's see, and he counts, and there are four. How many responses? Fourteen of them. Fourteen responses and four of them turn out to be anatomical things-hearts or whatever it happened to be. Is there something unusual about that? Is a man crazy when he sees a heart or something else four times, four different anatomical things or maybe the same things in those little drawings, these little ink blots? After all, they are just blots of ink. Is a man crazy when he sees them?

Transcript of closing arguments at 36-37. We have seen almost identical efforts to ridicule defense experts in other cases. See United States v. Alexander & Murdock, 152 U.S.App.D.C. ____ at ____ - ____, 471 F.2d 923 at 955 (April 1972), (Bazelon, C. J., dissenting); United States v. Leazer, 148 U.S.App.D.C. 356 at 363-364, 460 F.2d 864 at 871-872 (Jan. 19, 1972) (Bazelon, C. J., concurring); United States v. McNeil, 140 U.S.App.D.C. 228, 231-235, 434 F.2d 502, 505-509 (1970) (Bazelon, C. J., concurring). The difficulty of presenting credible expert testimony is a major part of the burden on the defendant.

The defendant might be able to cope with these obstacles to the successful use of the defense if we were willing to set aside jury verdicts unsupported by the evidence. In fact, we have been extremely reluctant to overturn a jury verdict even in the face of substantial evidence that the defendant's act was the product of a condition which impaired his mental or emotional processes and behavior controls. See, e. g., United States v. Eichberg, 142 U.S.App.D.C. 110, 439 F.2d 620 (1971). If the burden of proof does rest on the government, then acquittal should be required not only when non-responsibility is proved, but also when there is a reasonable doubt about responsibility.

At Brawner's trial, both the prosecution and the defense offered evidence that the defendant was suffering from an abnormal condition of the mind which could impair behavior controls. While the testimony on productivity was expressed largely in conclusory terms, the record does contain a substantial amount of evidence which could support the view that the act was very closely tied to the impairment. In my view, there are two theories which can explain our failure to reverse the conviction on the grounds that a reasonable man must have had a reasonable doubt about the defendant's criminal responsibility. First, our deference to the jury's resolution of this issue may be attributable to its special role in evaluating the defendant's impairment in light of community concepts of blameworthiness, to determine whether that impairment makes it unjust to hold him responsible. See United States v. Eichberg, 142 U.S.App.D.C. 110, 114-115, 439 F.2d 620, 624-625 (1971) (Bazelon, C. J., concurring). But it becomes increasingly difficult to rely on that explanation in the face of this Court's refusal to make the special function of the jury explicit in the jury instruction. And reliance on the jury's special function seems dangerously misplaced in a case, such as this one, where the testimony on the only issue in dispute was phrased in such conclusory terms that expert domination is almost inevitable. If we will not take meaningful action to curtail domination by the experts, then we should not rely, in upholding the jury's verdict, on the jury's supposed ability to make a kind of judgment that it almost surely did not make.

A second possible explanation for our refusal to set aside the verdict is that we have relaxed the standard of proof in responsibility cases. In fact, Congress enacted a statute in 1970 which purports to shift onto the defendant the burden of establishing insanity by a preponderance of the evidence. 24 D.C.Code Sec. 301 (j). Under that standard one could reasonably conclude that the verdict should not be set aside. But the constitutional validity of the statute is open to very serious question. United States v. Trantham, 145 U.S.App.D.C. 113, 120, 448 F.2d 1036, 1043 (1971) (statement in support of rehearing en banc); United States v. Eichberg, 142 U.S.App.D.C. 110, 114, 439 F.2d 620, 624 (1971) (concurring opinion). See In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

The Court declines to consider the constitutionality of the statute and instead provides the district court with alternative instructions on the burden of proof. In my opinion, we should resolve at this time the question of the statute's constitutionality. If the statutory change is invalid and the government must prove beyond a reasonable doubt that the defendant was responsible for his conduct, we can no longer pretend not to notice that defendants are being overwhelmed by an invisible burden of proof. And if the statute's attempt to shift the burden of persuasion onto the defendant is constitutional, then we must still take steps to facilitate the production at trial of meaningful information by both the government and the defense.

3. I applaud the Court's decision to overturn Fisher v. United States, 80 U. S.App.D.C. 96, 149 F.2d 28 (1945), aff'd, 328 U.S. 463, 66 S. Ct. 1318, 90 L. Ed. 1382 (1946) and Stewart v. United States, 107 U.S.App.D.C. 159, 275 F.2d 617 (1960), rev'd on other grounds, 366 U.S. 1, 81 S. Ct. 941, 6 L. Ed. 2d 84 (1961), and to make clear that a defendant can introduce psychiatric and other expert testimony to negative specific intent. I suggested in two recent cases that Fisher and Stewart did not preclude our adoption of this doctrine, inaptly termed "diminished responsibility," and that it was therefore unnecessary to overrule those cases. See United States v. Bryant, 153 U.S.App.D.C. -, 471 F.2d 1040 (April 21, 1972) (dissenting opinion); United States v. Alexander & Murdock, 152 U.S.App.D.C. -, 471 F.2d 923 (April 21, 1972) (dissenting opinion). Two panels of this Court rejected my view and concluded that the doctrine could not be accepted without an en banc decision of the Court. The Court now sits en banc and concludes that expert testimony is relevant to the determination of specific intent where the defendant is charged with murder in the first degree.

The Court points out, however, that it does not decide whether the doctrine is applicable to cases of second-degree murder, where the prosecution must prove that the defendant acted with a state of mind called "malice." In Murdock, where the defendant was charged with second-degree murder, I discussed the argument against applying the doctrine so as to reduce the offense of seconddegree murder to manslaughter. The argument rests on the premise

that malice refers not to a state of mind, but to an objective set of circumstances; it can be negated by evidence of circumstances that would provoke a reasonable man to act in the heat of passion, but not by evidence of actual subjective provocation and passion. * * * In a recent series of cases, however, we reviewed with some care the concept of malice, and concluded, inter alia, that it is not entirely an objective matter, but has subjective elements as well.

152 U.S.App.D.C. at -, 471 F.2d at 950 (footnotes omitted). But even though the Court apparently concedes that in some cases malice is established on a subjective standard, it concludes that the "matter * * * requires further analysis and reflection," and "[t]he problem is [therefore] remitted to future consideration." Majority opinion at 1002 n. 75.

While I am convinced that the question can be resolved without delay, I would have no objection to the Court's cautious approach if the question had no application to the case before us. But it should be clear that the question is directly relevant to the disposition of this case. Although originally charged with first-degree murder, Brawner was acquitted on that count by the trial court before the case was submitted to the jury. He was convicted of murder in the second-degree. The Court thus resolves the question of diminished responsibility up to the point where it becomes relevant to this case, and it remits to future consideration the only aspect of the issue which could have any bearing on the outcome of the case before us. That bizarre result is justified with the comment that "future consideration * * * will be aided by the availability of a specific factual context." Majority opinion at 1002, n. 75. The Court's refusal to consider the question in the case before us, where a "specific factual context" plainly exists, seems to me entirely inconsistent with the fair and efficient administration of justice.

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.