Forensic Science International, 15 (1980) 115 - 127 0 Elsevier Sequoia S.A., Lausanne - Printed in the Netherlands

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ISAAC RAY AND FORENSIC PSYCHIATRY IN THE UNITED STATES

HERBERT PAYNE and RAINER LUTHE Institut fiir Gerichtliche Psychologie und Psychiatric der Universitiit des Saarlandes, 6650 Homburg-Saar (F.R.G.)

(Received February 5, 1979; in revised form September 20, 1979; accepted December 10, 1979)

In 1838, Ray commented that while there had been much improvement in the treatment methods and living conditions for the insane in recent years, little had been done to protect and regulate their personal and social rights. Thus, while nations strived for superior institutions for the insane, and phy- sicians annually published an enormous number of reports on new cures, there remained a satisfaction with outmoded laws dealing with the insane.

According to Ray, the statutes and principles of law which regulated the “legal relations” of the insane appeared long before physicians had gained any accurate conceptions regarding their disorder. Consequently, there was a great deal of error and injustice, all in the name of law. Obviously, then, the laws dealing with the legal relations of the insane were in need of modifica- tion in accord with the progression of knowledge on the nature of insanity. “That much of the jurisprudence of insanity in times past should bear marks of the crude and imperfect notions that have been entertained of its patho- logical character is not to be wondered at; but it is a matter of surprise that it should be adhered to, as if consecrated by age, long after it has ceased to be supported by the results of more extensive and better conducted inqui- ries” (p. 12, 1962).

More specifically, Ray was concerned with the absurdities of the laws and procedures pertaining to the insane, and the subsequent disposition of their civil and criminal cases. Theoretically, insanity was regarded as a reason for invalidating civil acts, and for excusing one from the punishment of crime. “The only difficulty or diversity of opinion consists in determining who are really insane in the meaning of the law, which has been content with merely laying down some general principles and leaving their application to the discretion of the judicial authorities” (p. 12, 1962).

For instance, Ray reports that legislators and jurists designated only the obvious divisions of insanity, without attempting to classify the various forms systematically. As an example, English common law originally recog- nized only two kinds of insanity - idiocy and lunacy. Persons suffering from these disorders were designated non compos mentis, which was meant to in- clude all those who, from defect of reasoning, require the protection of the law.

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Originally, commissions were appointed to determine whether a partic- ular individual was either an idiot or a lunatic. Either diagnosis implied that the person was incapable of governing himself and managing his affairs. How- ever, the injustice of not protecting by law the larger class of insane (neither idiots nor lunatics) who were mentally deranged led to a change in writ. This involved the use of the phrase “unsound mind” which was to include all other persons deemed suitable subjects for a commission.

Ray’s observations of the various legal authorities indicated to him that the term “unsound mind” was not exactly meaningful. “Whatever it may signify, it has always been insisted on that the return of the commission must state the incapacity or inability of the party to manage his affairs to be evidence of its existence, in order that the party may have the protection of the law” (p. 16, 1962).

The position Ray took on this matter was that while the commission’s duty was to ascertain whether or not an individual was incapable of manag- ing his affairs, it was definitely irrelevant to connect this inability with any particular kind of insanity. In other words, it was not germane to have the juries decide if the mental impairment should be labeled “unsoundness of mind”.

Inequity in civil and criminal cases

Of major concern to Ray were laws which provided the courts with artificial and ambiguous differences between the criminal and civil matters of the insane. In 1838, he noted that of the cases which had been reported, the English criminal courts were conforming to the principles put forth by Lord Hale (1609 - 1676) in the 17th Century. These principles consisted of the idea that insanity could occur “totally” or “partially”, and thus affect civil and criminal responsibility differently.

Generally, partial insanity was not an excuse for committing a crime since most felons were thought to be under a degree of partial insanity when the offense occurred. However, the law would deprive the same individual of the management of his personal affairs, and invalidate his civil transactions.

Ray’s adamant opposition to these principles is stated in the following:

“That a person whom the law prevents from managing his own proper- ty by reason of his mental impairment, should, in respect to criminal acts, be considered as possessing all the elements of responsibility and placed on the same footing with men of the soundest and strongest minds is a proposition so strange and startling, that few, uninfluenced by professional biases, can yield to its unhesitating assent or look upon it in any other light than as belonging to that class of doctrines which, while they may be the perfection of reason to the initiated, appear to be the height of absurdity to everyone else” (pp. 23 - 24,1962). “Even in the simplest transaction it is supposed that the insane partly

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may not be able to discern all the circumstances that may conduce to his advantage and may not act as if his mind were perfectly sound. But it remains to be proved, that in the commission of a criminal offense he has more clearly apprehended its abstract nature, its relations to the in- jured party, and its consequences to himself, than he would all the cir- cumstances attending a contract; if, therefore, he has not acted rational- ly, but under the influence of a disordered mind, he ought to be no more responsible for the former than for the latter” (p. 25, 1962).

Another distinction was made between civil and criminal cases with regard to the person’s mind. In civil cases, proof of insanity drawn from the nature of the act was most important and often conclusive. In criminal cases, however, to prove insanity from the nature of the act was merely begging the question. Therefore, when insanity was not so obvious, the courts would question an individual’s intention, free will and malice.

Regarding a person’s ability to distinguish right from wrong in criminal acts, Ray says: “The radical fault of this test of responsibility lies in the metaphysical error of always looking on right and wrong in the abstract - as things having a positive and independent existence, and not as they really are, mere terms expressing the relations that exist between actions and cer- tain faculties of our moral nature. That they express the same relations in nearly all men is because nearly all men possess the same faculties; but when these faculties are absent, as in idiots, or when their action is perverted by disease, as in the insane, the relations of right and wrong are widely dif- ferent” (p. 39, 1962).

Another error in the jurisprudence of insanity was the use of the con- trivance manifested in a criminal act as a criterion of guilt. Ray believed that the least bit of familiarity with the disorder would have prevented this mis- take. That is, those familiar with hospitalized patients were aware of the in- genuity and contrivance often displayed by the insane in institutions.

The inability to understand radical differences between the sane and in- sane mind led to yet another wrong conclusion: that an insane person will be deterred from a criminal act by learning a lesson from the punishment of other insane persons. “In the whole range of fallacies respecting the effect of insanity on legal responsibility, not one is so destitute of foundation as the idea that the punishment of the insane will have the slightest effect on the conduct of others who are insane” (pp. 206 - 207,1973).

Ray believed that it was immaterial to lawyers whether an individual was technically sane or insane. Their only concern was to determine if the person’s mind was deprived of the essential elements of crime - free will, intention and malice. He explains: “The thoroughly legal mind, while ad- mitting the impropriety of punishing a person for an act whose nature and quality he could not discern by reason of mental impairment, is quite un- willing to regard insanity as, per se, an unconditional excuse for crime” (p. 205,1973).

In disagreement with this legal point of view, Ray stated that, instead of emphasizing the essential elements of crime, the primary concern should

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be in determining whether the act was or was not the offspring of a disease of the mind.

Ray provided an all-embracing definition of insanity for the use of jurors in determining such cases. He said: “Insanity is a disease, and, as is the case with all other diseases, the fact of its existence is never established by a single diagnostic symptom, but by a whole body of symptoms, no particular one of which is present in every case. To distinguish the manifestations of health from those of disease requires the exercise of learning and judgement; . ..” (p. 44, 1962).

This definition alludes to the use of qualified experts to give profes- sional opinions in such trials, a concept advocated by Ray for many years to help insure justice. Additionally, he appealed for the enactment of laws, when feasible, to help maintain fairness in the courts. “It is not certain that insanity under every form or circumstance whatever ought to annul a per- son’s criminal or civil liabilities; and to allow the court or jury any latitude on this point would be equivalent to having no law at all on the subject... Thus a great object would be gained, for the more that is provided by statute and the less that is left to judicial discretion, the greater is the benefit af- forded by law” (p. 78, 1962).

Testimony of experts

As mentioned above, Ray promoted the idea of having qualified profes- sionals provide opinions in trials where insanity was pleaded. At that time (183Os), however, there were no laws to regulate who appeared on the wit- ness stand. Thus, juries often made unjust decisions based on the high-sound- ing proclamations of unqualified professionals. Due to this situation, Ray suggested that a group of “experts” be appointed by the government who would have special training in the character and conduct of the insane. He summarizes: “... the general conclusion is that in criminal cases, where in- sanity is pleaded in defense, the ends of justice will be best promoted by the appointment of a special commission consisting of men who possess a well- earned reputation in the knowledge and management of mental derangement, who shall proceed to the examination of the accused with the coolness and impartiality proper to scientific inquiries” (p. 54,1962).

Responding to the criticism of conflicting evidence by psychiatric ex- perts, Ray pointed out that the discrepant and contradictory testimony or opinions of experts is just as likely as witness evidence in trials. He added that, often, the contradictions are more apparent than real, in that the various experts are only presenting different aspects of the subject matter.

Ray also attributed contradictory opinions of experts to the procedure of cross-examination. “Here the spirit and practice of law are strikingly con- flicting. While the former accords to the parties the benefit of the ripest and richest attainments of science and art, the latter provides a way for over- whelming them with utter discredit. If there is anything that should be care-

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fully pondered, with every difficulty and objection anticipated, it is the testi- mony of an expert in court” (p. 428, 1973). In other words, the testimony of an honest and competent expert often appears foolish upon cross-exam- ination.

To avoid this problem, Ray suggested that the experts, after examining the person in question, present their testimony in writing so that it could be read to the jury and eliminate the need for oral questioning. “It would thus be deliberately prepared, its explanations well-considered, and its full force and bearings clearly discerned. It would go to the jury on its own merits, no advantage being gained by either party by the superior adroitness of counsel in embarrassing the witness, and pushing his statements to a false or ridicu- lous conclusion” (pp. 429 - 430, 1973).

Ray also commented that expert testimony would always be criticized as long as the courts themselves improperly assumed the role of the expert. Specifically, he was referring to judges who, without juries, took it upon themselves to ignore the testimony of experts and decide what was fact in addition to points of law.

Confinement and interdiction

Ray (1973) cited several cases that occurred during the mid-1800s which implied that, without legal process, insane persons could not be con- fined under the common law; the only exceptions were cases which proved to be dangerous to themselves and others. Danger, then, was the legalizing element for confinement, and Ray believed that it should be thoroughly un- derstood. He explained that the insane, responding to impulses and delusions, are dangerous, but the danger is not always imminent or always extreme. In other words, the element of danger is dependent on the circumstances sur- rounding the individual at a particular point in time.

In addition to viewing hospitals and asylums as custodial places for the dangerous, Ray hoped that the courts would also recognize the need for protection and hospital care of those who were neither curable nor danger- ous. He also supported those individuals who were called partially insane- a term which the law did not bother to distinguish from complete insanity.

Since the term partial insanity was used in the law, Ray felt it necessary to explain that the use of certain terms for convenience (rather than based on scientific fact) had promoted a prevalent error with regard to the nature of insanity. With the exception of a few mental disorders, he stated, the in- sane are capable of conducting some mental operations correctly. It was this ability to maintain and use connected thoughts and other operations that made them dangerous. Therefore, it was a serious error to consider partial in- sanity in the administration of the law.

One other reason given by the courts to prevent the commitment of so- called partially insane persons was the idea that insanity was contagious - that partially insane individuals would be made worse by those who were

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totally insane. The absurdity of this thinking was realized when one con- sidered that hundreds of “healthy” people were associated with the insane in institutions but did not contract the disease.

In addition to being somewhat ludicrous, Ray (1973) reported that the common law regarding confinement was also quite unreliable. For example, one court would decide that friends of an insane person could not have him confined, except for a short period of time in an emergency. Another court allowed an individual to be committed by friends for as long as he was dan- gerous. And again, in one court danger was regarded medically by experts, while in another the element of danger was handled by judges who some- times overruled the opinions of experts.

Obviously, additional legislation was needed in most states. Ray (1973) had the following suggestions for the courts: (1) The law should not hinder the prompt comfort and restoration of the patient: (2) the law should spare unnecessary exposure of private matters and conflicts with prejudices; and, (3) the law should protect the individual from wrongful imprisonment.

With regard to the third suggestion above, Ray noted that the Associa- tion of Medical Superintendents of North American Hospitals for the Insane (of which he was one of the thirteen founders in 1844) unanimously sanc- tioned in their “project of a law for regulating the legal relations of the in- sane” the following: “Insane persons may be placed in a hospital for the in- sane by their legal guardians, or by their relatives or friends in case they have no guardians, but never without the certificate of one or more reputable physicians, after a personal examination made within one week of the date thereof; and this certificate to be duly acknowledged before some magistrate or judicial officer who shall certify to the genuineness of the signature, and of the respectability of the signer” (pp. 200 - 201, 1973).

Another class of insane reported by Ray were those who were danger- ous to the community, but who had no friends or relatives. At the time of writing (1871), all the New England states and most of the others had stat- utes giving a magistrate the power to commit an insane person to confine- ment.

In discussing the release of those confined for insanity, Ray maintained that the family and friends should have the power to restore the person’s liberty. Likewise for a magistrate who institutionalized an individual because of his danger to society.

Regarding the release of those who claim unjust confinement, Ray of- fers, again from the “project of law”, this provision: “On a written state- ment being addressed by some respectable person to some high judicial officer, that a certain person then confined in a hospital for the insane is not insane, and is thus unjustly deprived of his liberty, the judge, at his discre- tion, shall appoint a commission of not less than three nor more than four persons, one of whom, at least, shall be a physician, and another a lawyer, who shall hear such evidence as may be offered touching the merits of the case, and, without summoning the party to meet them, shall have a personal interview with him, so managed as to prevent him, if possible, from suspect-

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ing its objects. They shall report their proceedings to the judge, and if, in their opinion, the party is not insane, the judge shall issue an order for his discharge” (p. 201,1973).

In discussing interdiction, Ray stated that if no indiscriminate or extravagant act had been carried out by an individual, and if he has main- tained the entire management of his property, then there should be no inter- diction on the basis of imbecility alone. A popular error at that time was that imbeciles had only inferior minds. Hence, the possibility that the fac- ulties of imbeciles might be unequally defective was ignored. Ray com- mented: “The very point to be decided is whether the person in question, who talks and discourses so rationally and sensibly, and does so many ra- tional acts, is, or is not, capable of managing his affairs; and, however much we may scrutinize the character of his intellect, the only just and accurate test of such capacity is the manner in which he has already managed his af- fairs. The tests of legal capacity so much sought after in imbecility cannot be obtained, from the nature of things, because the general strength of mind is but an uncertain index of its ability when exercised on particular subject” (p. 595, 1871).

Ray suggested that there be a careful appraisal of all the powers and faculties of the mind, especially with regard to the situation in question. He also recommended that legislators provide an impartial administration of justice in interdictions by procedures that would supply all of the relative and material facts, yet remain independent of possible confinement pro- ceedings.

Drunkenness

As reported by Ray, the moral and legal character of drunkenness was divided into three categories. These included:

(1) Dolus or criminal - in which drunkenness was produced deliberately for the purpose of committing a crime while under its influence. No exemp- tion from punishment was offered here.

(2) Culpability - in which drunkenness was knowingly produced, but without any criminal intention beforehand. Due to various degrees of culpa- bility, the punishment was determined by the circumstances of a particular case.

(3) Inculpability - in which drunkenness occurred beyond the fault of the individual, thus rendering him irresponsible for acts he committed while under its influence.

Ray explained that the common law recognized two ways in which in- culpability could be produced. One was at the fault of a physician, while the second was due to the contrivance of enemies. However, Ray felt that this was rather narrow in scope, and provided two additional means by which in- culpability could occur. Included were: (1) cases in which an individual ingests no more alcohol than he usually does without becoming intoxicated,

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but for some unknown reason it is much stronger than usual; and (2) cases where there has been no change in the quantity or quality of the alcohol, but nevertheless has potent effects on the brain, resulting in certain pathological conditions.

Ray generally felt that the English law regarding drunkenness was wrong for stating that, because drinking was voluntary, the person is respon- sible for acts committed while drunk. He said: “... the only object which the drunkard has in view is animal enjoyment; for the loss of his reason, though a certain result, is not the very insanity which is admitted in excuse for crime, may be, as in a very large proportion of cases it really is, the result of habits of drunkenness in which the party has voluntarily persisted. Where the moral guilt is very nearly, if not precisely, equal, it seems unjust that the legal consequences should differ so widely, as they do in regard to criminal acts according as they are committed under the influence of drunkenness, or of that insanity which may be one of its direct results” (p. 564,187l).

Specific contributions

Overholser (1962) writes that Ray’s work has had a strong influence in the courts of England and of the United States for many years, as his work has been cited in both civil and criminal cases. He also informs us that it is only within the last few decades that any comparable contributions to the literature on forensic psychiatry have been made; and we have yet to catch up with the reforms advocated by Ray.

Quen (1973) notes that Ray’s book, A Treatise on the Medical Juris- prudence of Insanity (1838), was the main body of defense used by Sir Cockburn in the trial of McNaughton in 1843. In that case, McNaughton was tried for murder, but was acquitted by reason of insanity. Due to the discontent of the community, the House of Lords presented to the judges several queries relative to English laws regarding insanity as a defense. Their purpose was to obtain an authoritative explanation of the law to avoid in- justice in the courts.

The first query was essentially concerned with the law regarding an alleged commission of crime by a person who, knowing he was violating the law, was avenging some presumed grievance or injury while influenced by insane delusions. The judges answered that, assuming the question “to be confined to those persons who labor under such partial delusions only, and are not in other aspects insane, they are of the opinion that, nothwithstand- ing the party accused did the act complained of, with a view, under the in- fluence of insane delusion, of redressing or avenging some supposed griev- ance or injury, or of producing some public benefit, he is nevertheless pun- ishable, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression they understand their Lordships to mean, the law of the land” (p. 46, 1871).

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Ray criticized that the mental impairment of the insane is indicated by their feelings of freedom from the obligation of the law, not by their failure to recognize the illegality of the act. “An act which they know to be forbid- den, they may feel constrained to commit by reasons that transcend all law. They move in a sphere beyond the reach of the ordinary motives of human conduct, and are a law unto themselves” (p. 47, 1871). Thus, Ray felt that it was absurd to expect the insane to act “reasonably” while under delu- sions.

The second and third queries dealt with the proper questions to be asked of the jury in cases where insanity is pleaded, and the terms in which the question regarding the person’s state of mind when the act was commit- ted should be presented. The judges answered these questions together, stat- ing that “to establish a defense on the ground of insanity, it must be clearly proved, that at the time of committing the act, the party accused was labor- ing under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong” (pp. 47 - 48,187l).

Ray commented that the matter of responsibility as stated here was in obvious conflict with the answer to the first query. Additionally, it offered no defense to the larger class of insane who have no special or particular de- lusion.

The final query was concerned with the culpability of a person whose delusions about his life situation lead him to commit a crime. The judges re- sponded that, on the assumption “that he labors under partial delusion only, and is not in other respects insane, he must be considered in the same situa- tion as to responsibility, as if the facts with respect to which the delusion exists, were real. For example, if under the influence of delusion, he sup- poses another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defense, he would be exempt from punishment. If his delusion was, that the deceased had inflicted a serious in- jury to his character and fortune, and he killed him in revenge for such sup- posed injury, he would be liable in punishment” (p. 48, 1871).

In response to this, Ray remarked that only an extreme ignorance of the thinking processes of the insane could have led to such a conclusion. In effect, the reply of the judges says: “You are allowed to be insane; the dis- ease is a visitation of Providence, and you cannot help it; but have a care how you manifest your insanity; there must be method in your madness. Having once adopted your delusion, all the subsequent steps connected with it must be conformed to the strictest requirements of reason and propriety... In short, having become fairly enveloped in the clouds of mental disorder, the law expects you will move as discreetly and circumspectly as if the un- dimmed light of reason were shining upon your path” (p. 49,187l).

It was obvious to Ray that the judges did not accomplish what they had intended to. In addition to setting forth conflicting laws, the outcomes of subsequent trials were often erratic and by accident. Regarding this latter ob- servation, Ray quoted another author of the times, who wrote: “Either some

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individuals are most improperly acquitted on the plea of insanity, or others are most unjustly executed” (Taylor, Medical Jurisprudence, 3rd American Edition, p. 642; in Ray, p. 53,187l).

The answers that the judges gave to the four questions came to be known as the McNaughton Rule, or the “right and wrong test”, and it is still the prevailing rule in most American jurisdictions. Overholser (1962) notes that, even today, many physicians and lawyers are in agreement with Ray’s position that the rulings were psychologically unsound.

Another of Ray’s specific contributions was his collaboration with Judge Charles Doe, which led to the fifth edition of his book, A Treatise on the Medical Jurisprudence of Insanity (1871), and culminated in the New Hampshire doctrine of 1869 - 1871 (Quen, 1973).

In this case, Judge Doe maintained that mental disease should be a question of fact for the jury, not a question of law for the court. Doe also supported the use of experts’ testimony, and pointed out that it was only on conditions of mental disease, and not matters of law, that they could testify. He stated that tests of responsibility had been derived from medical author- ities, and that their opinions could conflict and grow obsolete. (Doe thus gave support to the convictions of Ray, as discussed above.) He concluded: “They change with the progress of knowledge. Tests and definitions of in- sanity, once supposed to be correct and comprehensive, have given place to those regarded as better representing the known facts of science. Whether they are correct or incorrect, current or obsolete, is a question not for the court, but for the expert, to answer” (p. 65, 1871).

Probably the most recent application of Ray’s work was in Durham us United States, 1954. The case involved a young man, Monte Durham, whose history included criminal activity and periods of mental hospitalization in St. Elizabeth’s Hospital, Washington, D.C. Durham was convicted by a trial court for breaking into a house with two friends and then appealed his case to the Court of Appeals for the District of Columbia (Kerper, 1972). Judge David Bazelon referred to Isaac Ray and the 5th Edition of his book, A Trea- tise on the Medical Jurisprudence of Insanity, and upon sending the case back for a retrial, instructed the court to apply what was to be known as the “Durham Rule” in determining Durham’s responsibility. The rule states that “the accused is not criminally responsible if his unlawful act was the product of mental disease and defect” (Kerper, p. 74, 1972). The Durham Rule was used in the District of Columbia, in Maine in New Hampshire and in Puerto Rico (Kerper, 1972).

In summary, Ray’s overall conviction was that juries should acquit a person if they felt that his criminal act was an offspring of mental disease. He explained: “And this way of putting the question obviates the objection suggested by the principle, that insanity, of whatever form or degree, does not absolve from the usual consequence of crime; because, it will be ob- served, the prisoner is acquitted, not for the reason that he is insane, but that the criminal act is the offspring of disease” (pp. 65 - 66,187l).

The need to depart from “product” formulation and undue dominance by experts connected with Durham Rule was the reason for adoption of AL1

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Rule stated in 8 4.01 (1) of the Model Penal Code of the American Law In- stitute by the U.S. Court of Appeals District of Columbia circuit in its Brawner decision in 1972. Subsequently AL1 Rule has been adopted in es- sence by the other Federal circuit Courts of Appeal. The Durham Rule will no longer be in effect; its McDonald modification defining and tightening the criterion of “mental disease or defect” is retained. “A mental disease or defect includes any abnormal condition of the mind which substantially af- fects mental or emotional processes and substantially affects behavior con- trols.” The court concluded, that its “search for a new set of words to define the elusive concept of responsibility has a distinctly archaic quality.”

While we are still without a completely satisfactory rule with which to determine the criminal culpability of a person suffering from a mental dis- order, it is quite apparent that no-one has contributed more towards this goal than Isaac Ray. The major legal rulings on this subject-the McNaughton Rule and the Durham Rule as well as the Model Penal Code formulation - were influenced by Ray’s work, and remain in testimony to him.

References

1 H. B. Kerper, Introduction to the Criminal Justice System, West Publishing Co., St. Paul, Minn., 1972.

2 I. Ray, A Treatise on the Medical Jurisprudence of Insanity, 1838. In W. Overholser (ed.), the Belknap Press of Harvard University Press, Cambridge, Mass., 1962.

3 I. Ray, A Treatise on the Medical Jurisprudence of Insanity, Little, Brown & Co., Boston, 5th edn., 1871.

4 I. Ray, Contributions to Mental Pathology, Little, Brown & Co., Boston, 1873. (Delmar, N.Y., A fascimile reproduction, Scholar’s facsimiles and reprints, 1973.)

Addendum

Most states follow the old McNaughton Rule, with some modification, when the issue of insanity is raised by a defendant in a criminal proceeding. In order for such a defense to be raised successfully, it must be shown that the defendant had “a defect of reason from disease of the mind”, which re- sulted in any of the following:

(1) He did not know what he was doing. Example: The defendant fired a gun and did not know he was firing a gun.

(2) He did not know what he was doing was morally wrong. Example: Even if the defendant knew he was firing a gun, he would be able to successfully raise the insanity defense if he could show that he did not know it was morally wrong to fire guns at people or to kill (right/wrong test).

(3) He was operating under an insane delusion. Example: If the defendant had a delusion (a false belief or something that would not be credible to people similarly situated), he will be treated as if

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things were the same as he perceived them. For example, if the defendant believed that he is on a rifle range and the person is a target. Under such cir- cumstances, the insanity defense would be successful.

(4) Irresistible impulse (not a part of the original McNaughton Rule). Most states provide that if the defendant was acting under an irresistible im- pulse caused by a diseased mind, the insanity defense may be successfully raised even though the defendant knew that what he was doing was morally wrong.

The Durham Test had been adopted in some jurisdictions. Under this test, a person is not criminally responsible for his acts if the act was a product of a mental disease or defect. This test provides virtually no limitations on the scope of psychiatric testimony and leaves the decision of insanity wholly to the jury. The major criticism of this test is that it provides virtually no guid- ance for a jury. This test does not inform the jury with regard to the degree of “causation” or “connection” between the mental defect and the partic- ular act necessary to establish that insanity exists.

The Model Penal Code with its 5 4.01 (1) attempts to be a compromise between the rigid McNaughton Rule and the vague Durham Rule. Psychia- trists often criticize the McNaughton Rule as restrictive. They perceive it as restrictive because normally they cannot answer the “right-wrong” question. The code provides that a person is not criminally responsible for his 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 the law. This test is more comprehensive than the McNaughton Test in that chronic volitional defects, lack of affective or emotional understanding fall within its ambit. Repeated criminal behavior (psychopathic or sociopathic) is not sufficient to prove insanity.

There is a presumption of sanity in all states if the issue of insanity is not raised during or prior to the trial. The significance of this is that the prosecu- tion ordinarily does not have to prove the sanity of the defendant as part of his case. It is the defendant who has the burden of introducing evidence of his insanity. Most states require the defendant to raise a reasonable doubt as to his sanity. However, some jurisdictions (Indiana, Nebraska, Illinois) re- quire a defendant to produce only “some” evidence, while other jurisdictions (District of Columbia) require only a “scintilla” of evidence.

After the issue of sanity has been raised by the defendant, the prosecution must prove sanity beyond a reasonable doubt. In a minority of states, the defendant has the burden of convincing the jury of his insanity by a prepon- derance of the evidence (not beyond a reasonable doubt).

A psychiatrist must be brought in when the defendant’s sanity has been put in issue; that is, when there is an attempt by the defendant to exculpate himself on the grounds that he was insane and therefore not responsible. When psychiatric opinion is proferred as to the person’s sanity, using what- ever aforementioned criteria are applicable in the jurisdiction, it becomes evidence for the jury to consider in its deliberations. Often, there is conflict-

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ing psychiatric testimony as to whether a person is sane or insane, and the judge informs the jury of the criteria the jury must use in evaluating the psy- chiatric testimony that has been proferred.

Five years before the House of Lords formulated the McNaughton Rule, Isaac Ray wrote:

“The acts of homicidal insanity are generally, perhaps always, preceded by some striking peculiarities in the conduct or character of the individ- ual, strongly contrasting with his natural manifestations; while those of the criminal are in correspondence with the tenor of his past history or character. In homicidal insanity, a man murders his wife, children or others to whom he is tenderly attached; this the criminal never does, unless to gratify some evil passion, or gain some selfish end, too obvious to be overlooked in the slightest investigation. A stronger contrast than is presented in every respect, between the homicidal act of the real criminal and that of the monomaniac, can hardly be imagined; and yet we are obliged to acknowledge that men of learning and intelligence have often refused to acknowledge it...” (A Treatise on the Medical Jurisprudence of Insanity).

In lieu of the preceding discussion, it can be seen that skilful attorneys, with the help of unscrupulous psychiatrists, often mislead innocent juries into acquittal. The defense by insanity fulfills an important social function by protecting sick people from punishment and perhaps further aggravation of their condition. Its use to excuse criminal conduct seems to have first ap- peared at the end of the reign of Henry III. The King would pardon those he judged to be insane. The Courts later adopted insanity as a valid defense and by the 16th Century it was well-established in the criminal law.

In conclusion, what has been shown is the simple fact that the concept of insanity is a legal fiction without much relationship to the realities of the functioning and malfunctioning of the human mind. Homicide is not only a physical act, but a psychological event. Therefore, the psychiatrist is an im- portant resource to the legal process in determining the condition of the perpetrator. Psychiatrists import a humanizing influence upon the area of criminal law. Isaac Ray was influential in the House of Lords formulating rules regarding insanity and this influence has had an impact on contempo- rary society.