§704-400 - Physical or mental disease, disorder, or defect excluding penal responsibility.
§704-400 Physical or mental disease,
disorder, or defect excluding penal responsibility. (1) A person is not
responsible, under this Code, for conduct if at the time of the conduct as a
result of physical or mental disease, disorder, or defect the person lacks
substantial capacity either to appreciate the wrongfulness of the person's
conduct or to conform the person's conduct to the requirements of law.
(2) As used in this chapter, the terms
"physical or mental disease, disorder, or defect" do not include an
abnormality manifested only by repeated penal or otherwise anti-social conduct.
[L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §704-400
I. Physical and Mental Diseases, Disorders, and
Defects.
Perhaps the most vexing problem in the penal law is
determining when individuals shall not be held responsible for their conduct
because at the time of the conduct they suffered from a disease, disorder, or
defect which was related in some way to the conduct. The law has traditionally
dealt with this problem in two more or less distinct areas.
As Chapter 702 has pointed out, a voluntary act or a
voluntary omission is the sine qua non of penal liability. In dealing with
cases involving physical disease, disorder, or defect, the courts have traditionally
held that where such a condition precludes conduct from being voluntary, the
defendant will not be held penally liable.
In the classic case of Fain v. Commonwealth,[1] the court
recognized that a homicide committed during a state of somnambulism (sleepwalking)
or somnolentia (sleep drunkenness) would preclude criminal liability because
the defendant was unconscious and therefore the defendant's acts were
involuntary. After citing numerous medico-legal treatises, the court said:
These
authorities, corroborated as they are by common observation, are sufficient to
prove that it is possible for one, either in sleep or between sleeping and
waking, to commit homicide, either unconsciously or under influence of
hallucination or illusion resulting from an abnormal condition of the physical
system.[2]
Following Fain, courts have held that where the physical
condition of the defendant precludes or impairs consciousness the acts of the
defendant will be regarded as involuntary and, therefore, result in an acquittal.
Thus, in cases involving various forms of epilepsy,[3] traumatic injury to the
head,[4] sexual assault,[5] and somnambulism,[6] the courts have recognized an
absolute defense to penal liability predicated on the defendant's unconscious,
but highly animated, action.
On the other hand, if a person's disease, disorder or defect
is "mental" (as opposed to "physical"), the issue of the
person's "guilt" is said, in the language of the cases, to turn on
the person's "responsibility" for the person's conduct.
Historically, a defendant will be relieved of responsibility for the
defendant's conduct if, at the time of the conduct, the defendant was
"labouring under such a defect of reason, from a 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."[7] This standard,
known as the M'Naghten Rule or test, has been widely accepted in the United States. Persistent criticism of the rule has led to recent suggestions that it be
modified to reflect current insights and terminology of modern psychiatry.[8]
However, all recent suggestions have maintained the dichotomy between physical
and mental diseases, disorders, and defects.
In this country, it originally was not of any pragmatic legal
consequence whether the excusing condition was classified as
"physical" or "mental"; the acquittal was absolute. In
more recent years it has become common to qualify an acquittal based on the
defendant's "mental" irresponsibility and to provide for commitment
of the defendant thus acquitted to an appropriate medical institution.
However, a defendant whose "physical" condition precludes
voluntariness is still acquitted absolutely.
Medically, the classification of a defendant's (or a
patient's) condition as either physical or mental, does not, in many cases,
make sense. While it is true that there are many abnormalities of the mind or
mental processes for which no biological basis can be found, many diseases,
disorders, or defects which affect the behavior of a person have a multiple
aetiology.[9]
Broadly speaking, two groups of factors influence the
criminal actor in the latter cases: (1) the biological or organic factors,
"the individual physical endowment of the criminal actor," the
criminal actor's "bio-chemical, physiological, neurological, and
anatomical peculiarities"; and (2) the social and psychological factors
"emanating from relationships with individuals or groups in the external
environment."[10]
[O]ne must keep
in mind the basic principle of multiple aetiology. Organic factors are
operating synergistically with social and psychological stresses in a
particular constitution, all factors contributing in varying degrees to the
genesis of the breakdown and to the presenting clinical picture.[11]
The centrality of the brain as a bodily organ means that many
physical conditions "may be crucially involved in impaired or aberrant
conduct."[12] This is so whether the condition relates to the functioning
of the brain directly (e.g., epilepsy, cerebral tumor, head trauma,
encephalitis, or arteriosclerosis) or indirectly through a symbiotic
relationship of the brain with another organ or system (e.g., glandular
disorders, metabolic dysfunctions, and circulatory breakdowns).[13] Moreover,
"[t]he number of accused persons whose criminal conduct might be
biologically conditioned is probably quite large since the number of physical
disorders that are capable of producing criminal behavior is itself
extensive."[14]
This brief foray into "hornbook psychiatry"[15]
indicates that the propensity of the courts to label a single integrated
medical problem as either "physical" or "mental" can only
be justified if rational legal consequences turn on this categorizing process.
An examination of the cases will indicate that such rational consequences do
not, in fact, result from affixing these legalistic labels to defendants with
medical problems that constitute conditions which excuse penal liability (or
responsibility).
The rationale for providing for acquittal conditioned on
commitment (or "hospitalization") in cases involving
"mental" disease, disorder, or defect ("insanity") is that
commitment is necessary to protect other members of society (and the acquitted
defendant) from the consequences of repetition of the prohibited conduct. The
rationale is no less applicable or persuasive in cases of "physical"
conditions resulting in involuntary movements which threaten harm to others.
These people too "may present a public health or safety problem, calling
for therapy or even for custodial commitment. ..."[16] While it is true
that mandatory commitment bears harshly on a person whose physical condition
(or symptom thereof) may be nonrecurrent,[17] it bears no less harshly on the person
whose mental condition (or symptom thereof) may be nonrecurrent--although the
frequency of the latter instance may be less than that of the former.
The answer does not lie in the black-and-white distinction
posed by present law: an excusing mental condition means commitment; an
excusing physical condition means an unqualified acquittal. The answer lies,
as the Code suggests in later sections, in tailoring the disposition of a
defendant, acquitted on the basis of disease, disorder, or defect, to the
condition of the defendant and to the needs of society. Commitment need not be
mandatory because the defendant's disease, defect, or disorder is labelled
"mental," nor should it be precluded because the defendant's excusing
condition is labelled "physical."
The unsatisfactory posture of the law has led many courts to
dissimilar decisions in substantially similar cases. Thus, while epilepsy has
been held to be distinctly different from "insanity" (a mental
condition constituting an excuse from criminal responsibility) in some
cases,[18] in other cases it has not.[19] Cases of somnambulism, which are
usually said to constitute a physical condition precluding voluntariness,[20]
have also been classified as "a species of insanity."[21] Moreover,
within the same jurisdiction cases involving the same type of disease,
disorder, or defect have at one time labelled the condition "mental"
and at another time labeled it "physical."[22]
One real danger of the false dichotomy that the law presently
draws between mental and physical excusing conditions is that in those cases
where the condition of the defendant is not easily categorized as either
"mental" or "physical," the defendant might be convicted
because the net effect of the evidence is not sufficient to raise a reasonable
doubt in the minds of the jury on the issue of voluntariness or on the issue of
mental responsibility because of the inability of expert testimony to conform
to the "either-or" proposition demanded by the law. Conviction may result
in such cases notwithstanding substantial evidence that the defendant suffered
from a condition which impaired the defendant's consciousness.[23]
Conversely, the unqualified acquittal, which the law has
afforded defendants whose conduct resulted from physical conditions which
rendered the action "involuntary," has led some judges to write
strained opinions that can only be justified by the result sought to be
achieved.
A series of British cases illustrates the dilemma which the
state of the law forced upon the Courts. In Regina v. Charlson[24] the
defendant was charged with assault for striking his son with a hammer. The
defendant offered evidence that at the time of his acts he suffered from a
cerebral tumor which impaired his consciousness, causing him to act in a state
of automatism, and that he was not suffering from any mental illness. The
trial judge instructed the jury:
Therefore...
you have to ask yourselves whether the accused knowingly struck his son, or
whether he was acting as an automaton without any knowledge or control over his
acts.... [Y]ou may consider that he may not have known what he was doing at
all, although perhaps he remembered it in a vague sort of a way. If you think
it was purely automatic action for which he had no responsibility at all and
over which he had no control then the proper verdict would be "not
guilty."[25]
The defendant was acquitted.
In Regina v. Kemp[26] the defendant struck his wife with a
hammer. He pleaded that he had committed the act in a state of impaired
consciousness caused by arteriosclerosis. The medical testimony was in
conflict as to whether the condition should be labelled "physical" or
"mental." The court held that regardless of the medical testimony
concerning the explanation or labelling of the defendant's condition, the
description of the condition established that "the accused suffers from...
a disease of the mind within the true meaning of the McNaghten [sic]
Rules."[27]
The broad
submission that was made to me on behalf of the accused was that this is a
physical disease and not a mental disease; arteriosclerosis is a physical
condition primarily and not a mental condition. But that argument does not go
so far as to suggest that for the purpose of the law diseases that affect the
mind can be divided into those that are physical in origin and those that are
mental in origin. There is such a distinction medically. I think it is
recognized by medical men that there are mental diseases which have an organic
cause, there are disturbances of the mind which can be traced to some hardening
of the arteries, to some degeneration of the brain cells or to some physical
condition which accounts for mental derangement. It is also recognized that
there are diseases functional in origin where it is not possible to point to
any physical cause but simply to say that there has been a derangement of the
functioning of the mind, such as melancholia, schizophrenia and many other of
those diseases which are usually handled by psychiatrists. This medical distinction
is not pressed as part of the argument for the accused in this case, and I
think rightly. The distinction between the two categories is quite irrelevant
for the purposes of the law, which is not concerned with the origin of the
disease or the cause of it but simply with the mental condition which has
brought about the act. It does not matter, for the purposes of the law,
whether the defect of reason is due to a degeneration of the brain or to some
other form of mental derangement. That may be a matter of importance
medically, but it is of no importance to the law, which merely has to consider
the state of mind in which the accused is, not how he got there.
Hardening of
the arteries is a disease which is shown on the evidence to be capable of affecting
the mind in such a way as to cause a defect, temporarily or permanently, of its
reasoning, understanding and so on, and so is in my judgment a disease of the
mind which comes within the meaning of the [M'Naghten] Rules. I shall
therefore direct the jury that it matters not whether they accept the evidence
of certain testifying doctors, but that on the whole of the medical evidence
they ought to find that there is a disease of the mind within the meaning of
the [M'Naghten] Rule.[28]
Pursuant to the instructions of the court, the defendant was
found "guilty but insane." The full import of the decision is
recognized only when it is realized that the defendant pleaded automatism, not
insanity, and the court instructed a verdict of guilt based on insanity arising
out of an arteriosclerotic condition.
In 1961 the House of Lords decided Bratty v. Attorney-General
for Northern Ireland[29] which dealt with the relationship between the defenses
of impaired consciousness and "insanity." The defendant, in that case,
pleaded: (1) that at the time of the conduct he suffered from psychomotor
epilepsy, that as a result thereof he acted in a state of automatism, and that
his actions were therefore involuntary; (2) that his psychomotor epilepsy
rendered his mental condition confused and impaired, and that because of this
he could not form the requisite intent for murder; and (3) that he was
guilty-but-insane (at the time the English equivalent of the American verdict
of not guilty by reason of insanity) under the M'Naghten test. The trial judge
rejected the first two pleas and refused to instruct on them, but submitted the
issue of insanity to the jury. The jury rejected insanity and found the
defendant guilty. At that time in England, unlike the law in many American
jurisdictions, the defendant bore the burden of persuasion (by a preponderance
of the evidence) on the issue of the defendant's insanity. The House of Lords
upheld the trial judge, relying on the testimony given by doctors at the trial
"that psychomotor epilepsy is a defect of reason due to disease of the
mind."[30]
In Bratty the House of Lords assimilated the defense based on
automatism into the defense of insanity where automatism is based on a
"disease of the mind," i.e., where there is no evidentiary showing
that the excusing condition is "physical" in nature. The Lord
Chancellor said that
Where the
possibility of an unconscious act depends on, and only on, the existence of a
defect of reason from disease of the mind within the McNaghten [sic] Rules, a
rejection of the jury of this defense of insanity necessarily implies that they
reject the possibility.[31]
In short, under the posture of the testimony, "there would
need to be other evidence on which a jury could find non-insane
automatism."[32]
Lord Denning took a somewhat different approach. In an
opinion which rejects Charlson and accepts Kemp, he said:
The major
mental diseases, which doctors call psychoses, such as schizophrenia, are
clearly diseases of the mind. But in Charlson's case, Barry J. seems to have
assumed that other diseases such as epilepsy or cerebral tumor are not diseases
of the mind, even when they manifest themselves in violence. I do not agree
with this. It seems to me that any mental disorder which has manifested itself
in violence and is prone to recur is a disease of the mind. At any rate it is
the sort of disease for which a person should be detained in a hospital rather
than be given an unqualified acquittal.[33]
It is obvious that Lord Denning's concern is not with
language, but result. Lord Denning's primary concern is that a defendant whose
condition (1) has caused violence which (2) may recur should be detained. If
this requires that the defendant's condition be labelled as a "disease of
the mind" for legal purposes, the language of judges is sufficiently
flexible for the task. If it requires that the defendant be found guilty but
insane, so be it. The inability of a British defendant to meet a burden of
persuasion on the issue of insanity (which now includes additional disorders)
did not seem to bother the court--indeed, the Lord Chancellor was concerned
lest the burden be avoided by a change in nomenclature.
The British experience has led to some anomalous results but
at the same time provides some insights into a problem which can be resolved by
appropriate legislation. It seems anomalous that conditions such as cerebral
tumor or arteriosclerosis should be labelled "mental" or
"diseases of the mind" and that defendants suffering from these
conditions should be adjudged "insane" in order to achieve the
custodial commitment deemed necessary. At the same time, the House of Lords
seems eminently wise in attempting to point out the factors which properly call
for commitment. (Whether the labelling process is necessary or logical is
another matter.)
The Code seeks to avoid the arbitrary, meaningless and
strained distinctions which have been made between excusing conditions which
have been labelled "mental" and those which have been labelled
"physical." Chapter 704 provides for a unified treatment of
diseases, disorders, and defects which constitute an excusing condition. The
same standards are provided for determining whether the condition of the
accused will relieve the accused of responsibility for the accused's acts--it
matters not that the condition is labelled "mental" or
"physical" or both. At the same time, the Code, in subsequent
sections of this chapter, provides for a flexible disposition of defendants
acquitted on the basis of a disease, disorder, or defect which excludes
responsibility and, therefore, liability. The disposition is tailored to the
condition of the accused; if the condition demands custodial commitment, the
same will be ordered notwithstanding the fact that the condition is primarily
"physical" rather than "mental"; if the condition does not
demand commitment and conditional release or discharge are appropriate, the
same will be ordered notwithstanding the fact that the condition has been
labelled "mental disease or disorder."
II. The Standards of Penal Responsibility.
Preliminarily it must be pointed out that the penal law is
not concerned with the physical or mental condition of a defendant at the time
of the alleged penal conduct unless the defendant's condition impairs the
defendant's capacity not to engage in the prohibited conduct. The
interrelationship between choice and guilt has been succinctly stated by the
Third Circuit in a case involving the defendant's mental condition.
The concept
of mens rea, guilty mind, is based on the assumption that a person has a
capacity to control his behavior and to choose between alternative courses of
conduct. This assumption, though not unquestioned by theologians, philosophers
and scientists, is necessary to the maintenance and administration of social
controls. It is only through this assumption that society has found it
possible to impose duties and create liabilities designed to safeguard persons
and property....
... [T]he
fact that a defendant was mentally diseased is not determinative of criminal
responsibility in and of itself but is significant only insofar as it indicates
the extent to which the particular defendant lacked normal powers of control
and choice at the time he committed the criminal conduct with which he is
charged....[34]
As pointed out, the M'Naghten Rule, which is the traditional
approach, provides that if a defendant did not know what the defendant was
doing or did not know that what the defendant was doing was wrong, the
defendant will not be held responsible for the defendant's acts.[35] A
defendant who does not possess this minimum degree of rationality is said to be
"legally insane." Without this minimum degree of cognitive capacity,
choice, and therefore control, is clearly absent. Condemnation and punishment
of such an individual would be unjust because the individual could not, by
hypothesis, have employed reason to restrain the act: the individual did not
and the individual could not know the facts essential to bring reason into
play.[36] They are also futile because a "madman who believes that he is
squeezing lemons when he chokes his wife or thinks that homicide is the command
of God is plainly beyond reach of the restraining influence of law; he needs
restraint but condemnation is entirely meaningless and ineffective."[37]
The M'Naghten Rule singles out only one factor as a test of
responsibility: cognition--the ability of the defendant "to know"
what the defendant was doing or "to know" the wrongfulness of the
conduct. Fourteen states and the federal jurisdiction have recognized this as
a defect in the M'Naghten formulation.[38] Many mental diseases, disorders, or
defects may produce an incapacity for self-control without impairing
cognition. Thus, these jurisdictions have supplemented the M'Naghten
formulation with the "irresistible impulse" test.
Following the suggestion of these states and the Model Penal
Code, this Code accepts the view that a defendant whose volitional capacity is
impaired as a result of a disease, disorder, or defect should be relieved of
penal liability just the same as a defendant whose cognitive capacity is so
impaired.
The draft of
the M.P.C. accepts the view that any effort to exclude the non-deterrables from
strictly penal sanctions, must take account of impairment of volitional
capacity no less than impairment of cognition; and this result should be
achieved directly in the formulation of the test, rather than left to
mitigation in the application of M'Naghten. It also accepts the criticism of
the "irresistible impulse" formulation as inept in so far as it may
be impliedly restricted to sudden, spontaneous acts as distinguished from
insane propulsions that are accompanied by brooding or reflection.[39]
The formulation for the test of volitional capacity is put in
terms of whether the defendant lacked substantial capacity to conform the
defendant's conduct to the requirements of the law.
Lack of capacity is, of course, distinguishable from a
disposition not to conform to the requirements of the law. "The
application of the principle will call, of course, for a distinction between
incapacity, upon the one hand, and mere indisposition on the other. Such a
distinction is inevitable in the application of a standard addressed to
impairment of volition."[40]
The defendant's lack of volitional capacity is the same
rationale which has precluded penal liability in cases involving physical
diseases, disorders, or defects. As pointed out in Part I of this commentary,
the defendant's inability to exercise volition while in a state of
somnambulism, automatism, or epilepsy is the reason why the courts have found
no basis for penal liability in such cases. Although it is true that the
defendant's condition also probably precludes cognition, the courts have not
dealt fully with this aspect of the question. Acquittals on the basis of
involuntary action on the part of the defendant are unqualified (unless the
disease, disorder, or defect is assimilated into "insanity"). Since,
as pointed out, the reason for providing for a conditional or qualified
acquittal in cases involving a mental disease, disorder, or defect is equally
applicable to cases involving a physical condition impairing the defendant's
volitional capacity (and possibly the defendant's cognitive capacity), there is
no reason to provide different standards or different consequences for excusing
conditions of the mind or the body or both. The Code provides for unified
treatment of physical and mental conditions which impair cognition or volition
or both.
A more subtle criticism of the M'Naghten test and the
"irresistible impulse" test must be recognized and accepted.
M'Naghten requires that the defendant must be completely without cognitive
capacity--the defendant must not know the nature and quality of the defendant's
act or that what the defendant is doing is wrong. The irresistible impulse
test requires a complete lack of capacity for self-control. The legal
requirement of total incapacity does not conform to the clinical experience of
psychiatrists.[41] Many persons with a mental disease, disorder, or defect may
have an extremely limited capacity for self-control or cognition, but their
lack of capacity is rarely total.
The
schizophrenic, for example, 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 of 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.[42]
The Code does not demand total incapacity; it requires
substantial incapacity. The word "substantial" is, of course,
imprecise, but seeking precision in designating the degree of impairment that
will preclude responsibility is as foolish as requiring total impairment. As
the commentary to the Model Penal Code states: "To identify the degree of
impairment with precision, is, of course, impossible both verbally and
logically. The recommended formulation is content to rest upon the term
'substantial' to support the weight of judgment; if capacity is greatly
impaired, that presumably should be sufficient."[43] An expert witness,
called upon to assess a defendant's capacity at a prior time (which, of course,
the witness probably did not observe), can hardly be asked for a more
definitive statement even in the case of extreme conditions.
The Code has rejected the approach taken in Durham v. United States[44] which puts the test as follows: "an accused is not criminally
responsible if his unlawful act was the product of a mental disease or mental
defect." The problem with the Durham test is twofold: (1) It leaves the
ultimate decision of criminal responsibility to the expert medical witness
without any limitation or guide as to which kinds of cases the law seeks to
exempt from condemnation and punishment. Once the expert witness has satisfied
himself on the issue of causation and that the defendant's condition comes
within the categories of "mental disease or mental defect," the
defendant must be acquitted. (2) The question of causation or
"product" is fraught with difficulties. "[T]he concept of the
singleness of personality and unity of mental processes that psychiatry regards
as fundamental"[45] makes it almost impossible to divorce the question of
whether the defendant would have engaged in the prohibited conduct if the
defendant had not been ill from the question of whether the defendant was, at the
time of the conduct, in fact ill.
The formulation for the test of criminal responsibility set
forth in subsection (1) is derived from the Model Penal Code. That formulation
was adopted substantially by the Third[46] and Tenth[47] Circuits and in haec
verba by the Second Circuit.[48] The Code has adopted substantially the Model
Penal Code formulation. However, the words "physical" and
"disorder" have been added. The addition of the word
"physical" is explained in Part I of this commentary. The word
"disorder" has been added in an attempt to insure that, regardless of
any technical distinctions that may be made according to medical usage, all
conditions which impair capacity according to the standard set forth in the
formulation will be covered.
III. An Abnormality Manifested Only by Repeated Penal
or Otherwise Anti-Social Conduct.
Subsection (2) is designed to exclude from the category of
"physical or mental disease, disorder, or defect" an abnormality
manifested only by repeated penal or otherwise anti-social conduct. It is not
intended that this clause be used to exclude any disease, disorder, or defect
which is manifested by symptoms which include repeated penal or otherwise
anti-social conduct.
There is considerable disagreement within the medical
profession as to the proper definition of the words "psychopathy" and
"sociopathy." At times they have been used to identify abnormalities
which are manifested only by repeated penal conduct,[49] and at other times
they have been used to identify serious mental disorders which are manifested
by additional symptoms.[50] The Code cannot hope to resolve the issue of the
proper definition of these words; because of this, it is not the intent of
subsection (2) to stigmatize the use of the term per se. Rather, the Code
points to the factors to be considered, not the label to be used.
We yield to the urge, thus far suppressed, to quote at length
from the opinion of Judge Biggs in United States v. Currens:
It is readily
apparent that... [the] objection to the inclusion of psychopaths among those
entitled to raise the defense of insanity assumes a particular definition of
psychopathy; viz., that the term psychopathy comprehends a person who is a
habitual criminal but whose mind is functioning normally. Perhaps some laymen
and, indeed some psychiatrists, do define the term that broadly; and insofar as
the term psychopathy does merely indicate a pattern of recurrent criminal
behavior we would certainly agree that it does not describe a disorder which
can be considered insanity for purposes of a defense to a criminal action.
But, we are aware of the fact that psychopathy, or sociopathy, is a term which
means different things to experts in the fields of psychiatry and psychology.
Indeed, a confusing welter of literature has grown up about the term causing
some authorities to give up its use in dismay, labelling it a "waste
basket category." See, e.g., Partridge, C.E., Current Conceptions of
Psychopathic Personality, 10 American Journal of Psychiatry, pp. 53-59 (1930).
We have
examined much of this literature and have certainly found it no less dismaying
than those authorities to which we have just referred. Our study has, however,
revealed two very persuasive reasons why this court should not hold that
evidence of psychopathy is insufficient, as a matter of law, to put sanity or
mental illness in issue. First, it is clear that as the majority of experts
use the term, a psychopath is very distinguishable from one who merely
demonstrates recurrent criminal behavior.... Moreover, the American Psychiatric
Association in 1952 when it published its Diagnostic and Statistical Manual,
Mental Disorders (Mental Hospital Service), altered its nomenclature, p. 38,
removing sociopathic personality disturbance and psychopathic personality
disturbance from a non-disease category and placing them in the category of
"Mental Disorders."
Thus, it can
be seen that in many cases the adjective "psychopathic" will be
applied by experts to persons who are very ill indeed. It would not be proper
for this court in this case to deprive a large heterogeneous group of offenders
of the defense of insanity by holding blindly and indiscriminately that a
person described as psychopathic is always criminally responsible.
Our second
reason for not holding that psychopaths are "sane" as a matter of law
is based on the vagaries of the term itself. In each individual case all the
pertinent symptoms of the accused should be put before the court and jury and
the accused's criminal responsibility should be developed from the totality of
his symptoms. A court of law is not an appropriate forum for a debate as to
the meaning of abstract psychiatric classifications. The criminal law is not
concerned with such classifications but with the fundamental issue of criminal
responsibility. Testimony and argument should relate primarily to the subject
of the criminal responsibility of the accused and specialized terminology
should be used only where it is helpful in determining whether a particular
defendant should be held to the standards of the criminal law.[51]
Subsection (2) accepts the language of the Model Penal
Code,[52] but does not accept the construction or intent placed on the language
by the Model Penal Code commentary. That commentary accepted the Royal
Commission's view that psychopathy is an abnormality manifested only by
repeated deviant conduct and stated that the language "is designed to
exclude from the concept of 'mental disease or defect' the case of so-called
'psychopathic personality.'"[53] The language, but not the commentary, is
fully consistent with the discussion by Judge Biggs set out above.[54]
Previous Hawaii law has not examined directly the question of
physical disease, disorder or defect excluding penal responsibility and liability;
however, a recent case suggests that an "unforseeable sudden loss of
consciousness" will deprive the defendant's conduct of voluntariness and
result in an unqualified acquittal for the defendant.[55] To the extent that
this may be said to be the law of this State, the Code would modify this by
providing for a qualified acquittal.
Previous Hawaii statutory law on lack of penal responsibility
based on the defendant's mental condition was: "Any person acting under
mental derangement, rendering him incompetent to discern the nature and
criminality of an act done by him, shall not be subject to punishment
therefor...."[56] This has been interpreted as the equivalent of the
M'Naghten Rule in an opinion in which the court went out of its way to condemn
the Rule.[57]
The most recent pronouncement of the court impliedly modifies
earlier cases which restricted the statutory formulation to mental conditions
resulting from biological or organic factors.[58] These prior restrictive
decisions are at least as archaic as M'Naghten which the court now claims
"should have been discarded with the horse and buggy."[59]
Law Journals and Reviews
Comments and Questions About Mental Health Law in Hawaii. 13 HBJ No. 4 Winter 1978, pg. 13.
Extreme Emotion. 12 UH L. Rev. 39.
Extreme Mental or Emotional Disturbance (EMED). 23 UH L.
Rev. 431.
Case Notes
Effect of voluntary intoxication on impairment of capacity.
62 H. 17, 608 P.2d 408.
"Substantial capacity"; instruction thereon
approved. 62 H. 531, 606 P.2d 920.
Court did not err in referring to this section's legal
definition of a "mental illness" for purposes of determining an
insanity acquittee's eligibility for release. 84 H. 269, 933 P.2d 606.
Defendant's drug-induced mental illness was not a defense to
second degree murder under §707-701.5(1) as adoption of such a rule would be
contrary to the statutory scheme and legislative intent of §702-230 and this
section. 93 H. 224, 999 P.2d 230.
There was substantial evidence to support trial court's
conclusion that defendant was penally responsible for defendant's conduct at
the time defendant shot victim where doctors conducted a through examination of
defendant, investigated defendant's mental status during the time before the
shooting, and opined that defendant's delusional beliefs were not connected to
the shooting and that defendant was not substantially impaired at the time of
the shooting. 107 H. 469, 115 P.3d 648.
Standard of review for motions for judgment of acquittal in
insanity cases. 1 H. App. 1, 612 P.2d 117.
__________
§704-400 Commentary:
1. 78 Ky. 183 (1897).
2. Id. at 188.
3. People v. Freeman, 61 Cal. App. 2d 110, 142 P.2d 435
(1943); People v. Magnus, 98 Misc. 80, 155 N.Y. Supp. 1013 (1915).
4. People v. Cox, 67 Cal. App. 2d 166, 152 P.2d 362 (1944).
5. People v. Hardy, 33 Cal. 2d 52, 198 P.2d 865 (1948).
6. In addition to Fain v. Commonwealth, supra note 1, see
People v. Methever, 132 Cal. 326, 64 Pac. 481 (1901)(dictum).
7. M'Naghten's Case, 10 Clark & Finnelly 200, 210, 8 Eng. Rep. 718, 722 (1843).
8. See, e.g., Durham v. United States, 214 F.2d 862, 874-875
(1954), and M.P.C. §4.01.
9. Fox, Physical Disorder, Consciousness, and Criminal
Liability, 63 Colum. L. Rev. 645 (1963).
10. Id.
11. Dewan & Spaulding, The Organic Psychoses: A Guide to
Diagnosis 8 (1958).
12. Fox, op. cit.
13. Id.
14. Id. at 647.
15. Id. at 648.
16. M.P.C., Tentative Draft No. 4, comments at 119 (1955).
17. Id. at 121.
18. People v. Freeman, supra note 3; People v. Magnus, supra
note 3.
19. People v. Furlong, 187 N.Y. 198, 79 N.E. 978 (1907); People
v. Egnor, 175 N.Y. 419, 67 N.E. 906 (1903).
20. Fain v. Commonwealth, supra note 1; People v. Methever,
supra note 6 (dictum).
21. Bradly v. State, 277 S.W. 147 (Tex. Cr. App. 1925).
22. Compare People v. Furlong, supra note 19, and People v.
Egnor, supra note 19, with People v. Magnus, supra note 3.
23. See People v. Egnor, supra note 19, and Bratty v. Attorney-
General for Northern Ireland, (1961) 3 Weekly L.R. 965 (H.L.). In the former
case there was conflicting testimony by medical experts, and defendant's
evidence of epilepsy, which was offered to disprove responsibility under a
M'Naghten test for insanity, did not prevail. In the latter case, where
medical testimony had labelled psychomotor epilepsy as a "defect of reason
due to a disease of the mind," the House of Lords approved of the
foreclosure by the trial judge of the issue of automatism based on the
epilepsy, and, because the defendant could not carry the burden of proof on the
issue of "insanity" (which English law then placed on defendants who
raised that issue), the resulting unqualified conviction of the defendant.
24. [1955] 1 Weekly L.R. 317 (Chester Assizes).
25. Id. at 321-322.
26. 1957 1 Q.B. 399 (1956).
27. Id. at 406.
28. Id. at 408.
29. 1961 3 Weekly L.R. 965 (H.L.).
30. Id. at 983.
31. Id. at 973.
32. Id. at 975.
33. Id. at 981.
34. United States v. Currens, 290 F.2d 751, 733 (3d Cir. 1961).
35. See text accompanying note 7.
36. M.P.C., Tentative Draft No. 4, comments at 156 (1955).
37. Id.
38. Id. at 161.
39. Id. at 157.
40. Id. at 157-158.
41. See Guttmacher, Principal Difficulties with the Present
Criteria of Responsibility and Possible Alternatives, in M.P.C., Tentative
Draft No. 4, appendix to comments at 170 (1955).
42. M.P.C., Tentative Draft No. 4, comments at 158
(1955)(emphasis added).
43. Id. at 159.
44. 214 F.2d 862 (1954).
45. M.P.C., Tentative Draft No. 4, comments at 159 (1955).
46. United States v. Currens, supra note 34. In Currens the
test is stated thus: "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." Id. at 774. It seems
clear that this formulation adequately accounts for impaired cognition. A
defendant who lacks substantial capacity to appreciate the wrongfulness of the
defendant's conduct also lacks, because of the defendant's impaired cognition,
substantial capacity to conform the defendant's conduct to the requirements of
the law. Were it not for the fact that at a hearing on this chapter many local
psychiatrists indicated that, in their opinion, the Currens formulation did not
account for impaired cognition, the Reporter would have been extremely tempted
to recommend the Currens formulation as achieving greater clarity in expression
and simplicity in application.
47. Wion v. United States, 325 F.2d 420 (10th Cir. 1963), cert.
denied, 377 U.S. 946 (1964).
48. United States v. Freeman, 357 F.2d 606 (1966).
49. See Royal Commission on Capital Punishment, Report (1953).
50. Cleckley, The Mask of Sanity (1941) and White, The Abnormal
Personality (1948).
51. 290 F.2d at 761-763.
52. M.P.C., §4.01(2).
53. M.P.C., Tentative Draft No. 4, comments at 160 (1955).
54. It is clear that Judge Biggs either had not read or was not
referring to the Model Penal Code commentary when, in a footnote, after quoting
from the complete language of M.P.C. §4.01, he said: "As we have
indicated earlier in this opinion we agree fully with part '(2)' of the
American Law Institute proposal set out above." 290 F.2d at 774n.
55. See State v. Matsuda, 50 Haw. 128, 432 P.2d 888 (1967).
56. H.R.S. §703-4.
57. State v. Moeller, 50 Haw. 110, 433 P.2d 136 (1967). The
court however claimed that it was powerless to reinterpret the statutory
language in the light of modern psychiatric knowledge, stating that "it is
part of our statutory law and only the legislature can amend or repeal
it."
58. Compare State v. Moeller supra note 57, with State v.
Foster, 44 Haw. 403, 425, 354 P.2d 960, 972 (1960) ("In Hawaii emotional
insanity, unassociated with a disease of the brain... is not an excuse for a
crime."), and Territory v. Alcosiba, 36 Haw. 231, 238 (1942)("...
Insanity or mental derangement is rather the result or manifestation in the
mind of a disease of the brain, and by disease is meant any underdevelopment,
pathological condition, lesion or malfunctioning of the brain or any morbid
change or deterioration in the organic functions thereof.").
59. State v. Moeller, supra note 57, quoting from State v.
Dhaemers, 150 N.W.2d 61, 66 (Minn. 1967).