CRIMINAL RESPONSIBILITY:
THE DURHAM RULE IN MAINE
On April 28, 1961, the Legislature of the State of Maine enacted
a new test for ascertaining mental responsibility for criminal conduct.'
The pertinent part of the statute provides:
An accused is not criminally responsible if his unlawful act was the product
of a mental disease or mental defect.
Thus, the State of Maine abandoned the "M'Naghten rule" 2 and
adopted the "Durham rule" 3 as the test for criminal responsibility.
An examination of the legislative record reveals no debate in the
legislature prior to the passage of the bill, nor any legislative study
other than a brief committee hearing. 4 There is no indication that the
bill was officially supported by the Maine Bar Association. The apparent ease with which this major change in the criminal law was accomplished is astounding when one considers the highly controversial
nature of the new rule. It has been rejected by every court that has
considered it since the original decision in 1954,5 no other state leg'ME. REv. STAT. ANN'. ch. 149, § 38-A (Supp. 1961). The second sentence
of § 38-A provides: "The terms 'mental disease' or 'mental defect' do not include
an abnormality manifested only by repeated criminal conduct or excessive use
of drugs or alcohol." For provisions governing the commitment of a "respondent" who is acquitted on the grounds of mental disease or defect excluding
responsibility see ME. REv. STAT. ANN. ch. 149, § 38-B (Supp. 1961). For a
treatment of the problem of commitment see Webber, The Durham Rule, 51
ME.S.B.A. REP. 39 (1962). There is at the present time a bill before the Maine
Legislature which would repeal § 38-B and substitute similar provisions regarding
commitment. This bill also calls for the relocation of § 38-A. Me. Leg. Doc. 1553
(S. P. 588, 101st Legislature 1963).
2 See M'Naghten's Case, 10 Cl. & Fin. 200, 210, 8 Eng. Rep. 718, 722 (1843).
.. . [To establish a defence on the ground of insanity, it must be clearly proved
that, at the time of the committing of the act, the party accused was labouring
under such a defect of reason, from disease of the mind, as not to know the
nature and quality of the act he was doing; or, if he did know it, that he did
not know he was doing what was wrong." The "right and wrong test" was
adopted in Maine in State v. Lawrence, 57 Me. 574 (1870). In that case the
following charge to the jury was sustained on appeal: "To excuse a man from
responsibility on the ground of insanity, it must appear, that at the time of
doing the act he had not capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he was doing. That
he had not knowledge, consciousness, or conscience enough to know, that the
act he is doing is a wrong act, and a criminal act, and one that he will be
subject or liable to punishment for doing." Id. at 576.
3See Durham v. United States, 214 F.2d 862, 874-75 (D.C. Cir. 1954):
"It is simply that an accused is not criminally responsible if his unlawful act
was the product of mental disease or mental defect."
4 1961 ME.LEG. REc. 1651, 1740 (100th Legislature)
5
Andersen v. United States, 237 F.2d 118 (9th Cir. 1956); Howard v. United
MAINE LAW REVIEW
islature has seen fit to adopt it, 6 and the literature teems with conflicting appraisals of its efficacy. 7 Not only did the Durham rule become
law without drawing debate, there is no indication that any consideration was given to the test proposed by the American Law Institute's
8
Model Penal Code.
Wise or unwise, Durham is now the law in Maine. The question is:
What will the Supreme Judicial Court do when faced with the problem
of interpreting this statute? The absence of legislative history will make
reliance on "legislative intent" difficult. Barred from that source of
guidance, the court might look to the "plain import" of the wordsJudge Bazelon once announced the rule as "simply this"- but in
view of the numerous conflicting decisions in the District of Columbia
States, 232 F.2d 274 (5th Cir. 1956); United States v. Smith, 5 U.S.C.M.A.
314 (1954); Chase v. State, ..........
Alaska
_
369 P.2d 997 (1962); State v.
Crose, 88 Ariz. 389, 357 P.2d 136 (1960); Downs v. State, 231 Ark. 466, 330
S.W.2d 281 (1959); People v. Ryan, 140 Cal. App.2d 412, 295 P.2d 496
(1956); Castro v. People, 140 Colo. 508, 346 P.2d 1020 (1959); State v. Davies,
146 Conn. 137, 148 A.2d 251 (1959); People v. Carpenter, 11 1ll.2d 60, 142
N.E.2d 11 (1957); Flowers v. State, 236 Ind. 151, 139 N.E.2d 185 (1957);
State v. Andrews, 187 Kan. 458, 357 P.2d 739 (1960); Thomas v. State, 206
Md. 575, 112 A.2d 913 (1955); Commonwealth v. Chester, 337 Mass. 702,
150 N.E.2d 914 (1958); State v. Finn, 251 Minn. 138, 100 N.W.2d 508 (1960);
State v. Lucas, 30 N.J. 37, 152 A.2d 50 (1959); Sollars v. State, 73 Nev. 248,
316 P.2d 917 (1957); Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d
98 (1960); State v. Goyet, 120 Vt. 12, 132 A.2d 623 (1957); State v. Collins,
50 Wash.2d 740, 314 P.2d 660 (1957); Kwosek v. State, 8 Wis.2d 640, 100
N.W.2d 339 (1960).
6 The State of Vermont has explicitly rejected the M'Naghten rule and adopted
the provision from the Model Penal Code set forth infra note 8. VT. STAT. ANN.
tit. 13, §§ 4801, 4802 (1959).
7
Douglas, The Durham Rule: A Meeting Ground for Lawyers and Psychiatrists,
41 IowA L. REv. 485 (1956); Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 YALE L.J. 905 (1961),
Reid, Understanding the New Hampshire Doctrine of Criminal Insanity, 69
YALE L.J. 367 (1960); Sobeloff, Insanity and the Criminal Law: From McNaghten to Durham, and Beyond, 41 A.B.A.J. 793 (1955); Wechsler The Criteria
of Criminal Responsibility, 22 U. Cm. L. REv. 367 (1955); Wertham, Psychoauthoritarianismand the Law, 22 U. Ci. L. REv. 336 (1955); Zilboorg, A Step
Toward Enlightened Justice, 22 U. CH. L. REV. 331 (1955).
8 That test, set forth in Model Penal Code § 4.01 (Proposed Official Draft
1962), is as follows:
(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 of his conduct or to conform his conduct to the requirements of law.
(2) The terms "mental disease or defect" do not include an abnormality
manifested only by repeated criminal or otherwise antisocial conduct.
9 Durham v. United States, 214 F.2d 862, 874 (D.C. Cir. 1954).
108
DURHAM RULE
Court of Appeals, one would be justified in concluding that it has found
the test to be anything but simple.
Problems will unquestionably arise from the ambiguous nature of
the words used in the new statute. In order to apply the test, the Maine
court will first have to resolve two basic questions: (1) What is a
mental disease or defect? (2) What relationship must exist between
that disease or defect and the alleged offense in order to relieve the
defendant from liability?
The original Durham opinion distinguished between mental disease
and defect-a mental disease is a condition which is considered capable
of either improving or deteriorating, while a mental defect is a condition which is not considered capable of improving or deteriorating- 10
but it did not define either condition. The word "product" is also
fraught with ambiguity. The failure of the Durham court to define
this word occasioned one of the earliest criticisms of the rule:
If the word means that the jury must find that the accused would have
committed the act even if he had not suffered from the abnormality involved,
the test is too broad. If the test is... one of causation, then the court is
introducing into an area already burdened with serious problems a concept
which has plagued the law of torts since its inception."'
In seeking an answer to these questions the Maine court will undoubtedly turn to the decisions of the Court of Appeals of the District
of Columbia, which first announced the Durham rule. However, the
court may also look to the decisions of the neighboring state of New
Hampshire, for in the Durham opinion, Judge Bazelon stated that the
rule adopted was not unlike that followed in New Hampshire since
1870.12 while the tendency has been to think of the tests in New Hampshire and the District of Columbia as identical, significant differences
exists in application.'"
10 Id. at 875. The draftsman of the Maine statute profited somewhat by the
experience of the court in the District of Columbia. The second sentence of
the Maine legislation provides: "The terms 'mental disease' or 'mental defect'
do not include an abnormality manifested only by repeated criminal conduct
or excessive use of drugs or alcohol." ME. REv. STAT. ANN. ch. 149, § 38-A.
The provision is an adaptation of § 4.01(2) of the Model Penal Code, quoted
supra note 8. Although it eliminates one of the problems and narrows the
definition of mental disease and mental defect, it certainly does not define
those terms.
11 Sauer v. United States, 241 F.2d 640, 647 (9th Cir. 1957).
12 Durham v. United States, 214 F.2d 862, 874 (D.C. Cir. 1954).
13 See Reid, Understanding the New Hampshire Doctrine of Criminal Insanity,
69 YALE L.J. 367 (1960); Reid, The Companion of the New Hampshire Doctrine of Criminal Insanity, 15 VAND. L. RV. 721 (1962).
MAINE LAW REVIEW
The New Hampshire Doctrine
The New Hampshire doctrine is the product of three judicial opin-
ions. 14 The wording of the formula usually cited is Judge Ladd's dictum:
At the trial where insanity is set up as defence, two questions are presented:First: Had the prisoner a mental disease? Second: If he had, was the disease of
such a character, or was it so far developed, or had it so far subjugated the
powers of the mind, as to take away the capacity to form or entertain a
criminal intent?15
It is misleading, however, to state that this is the New Hampshire test.
The theory behind the New Hampshire decisions is that a satisfactory
test can never be discovered, inasmuch as the entire question is one of
fact rather than law. 16 As long ago as 1871, the Supreme Court of New
Hampshire said:
Whether the defendant had a mental disease, as before remarked, seems to
be as much a question of fact as whether he had a bodily disease; and whether
the killing of his wife was the product of that disease, was also as clearly 1a7
matter of fact as whether thirst and quickened pulse are the product of fever.
Accordingly, "disease," "defect" and "product" are questions of fact
to be determined by the jury without the assistance of judicial definitions.
To guide the jury in their determination, all available evidence should be
given to them, including non-expert opinion.' The New Hampshire test
is complemented by a rule which places the burden of proving sanity on
the prosecution as soon as some evidence of mental disorder is introduced. 19
The Durham Rule In The District Of Columbia
In the District of Columbia, the classification of an abnormal condition as a mental disease or defect has been largely a medical decision
rather than a jury question. In several instances decisions have been
reached by a process which could be called "judgment by label." In
Blocker v. United States, 20 the defendant was convicted after a psychi-
atrist from St. Elizabeth's Hospital testified that although Blocker had a
psychopathic personality he was not suffering from a mental disease.
14 State v. Pike, 49 N.H. 399, 408 (1870) (concurring opinion); State v. Jones,
50 N.H. 369 (1871); see Boardman v. Woodman, 47 N.H. 120, 140 (1866)
(dissenting opinion). Although Boardman is not a criminal case, it contains a
discussion of insanity influencing the development of the New Hampshire test
for criminal responsibility.
15 State v. Jones, supra note 14, at 393.
16 Id. at 392-93.
17 State v. Jones, 50 N.H. 369, 398 (1871).
1
State v. Pike, 49 N.H. 399, 408 (1870) (concurring opinion).
19 State v. Bartlett, 43 N.H. 224 (1861).
20 274 F.2d 572 (D.C. Cir. 1959).
DURHAM
RULE
Less than a month later, a psychiatrist from the same hospital, testifying
in a different case, announced that for administrative purposes the hospital staff had agreed psychopaths were now to be labeled as suffering
from a mental disease. On the basis of this new label the court remanded
the Blocker case for a new trial. In Campbell v. United States,2 1 a defendant whom psychiatrists described as emotionally unstable was considered to have a mental disease because of a hospital administrative
decision that an emotionally unstable person was suffering from a mental
disease. This process of expanding the meaning of mental disease was
severely criticized by Judge Burger in his dissenting opinion in Campbell:
As in the prior instance when "psychopathic personality" was added to the
list of "insanities," we are left totally uninformed as to any scientific basis
for the change. It is not suggested that any medical discovery or recent
scientific revelation accepted generally by psychiatrists warrants this change
in the "administrative" policy which has such far reaching impact on the
administration of criminal law.22
One of the most recent cases seems to clarify the criteria for determining what is a mental disease or defect. McDonald v. United States- held
that what psychiatrists may consider a mental disease or defect for clinical purposes, may not be the same as mental disease or defect for the
jury's purpose in determining criminal responsibility. The court said the
jury should be told that mental disease or defect "includes any abnormal
condition of the mind which substantially affects mental or emotional
processes and substantially impairs behavior controls." 24 Apparently,
the question of what constitutes a mental disease is now for the jury, but
in making its determination it is to consider whether there is substantial
impairment of behavior controls, which is another way of saying capacity to exercise one's will.'
In determining whether the accused is suffering from a mental disease
the court allows lay testimony as well as expert. Lay witnesses may
testify upon the observed symptoms of mental disease, but if their testimony is to the effect that the accused did not exhibit any abnormalities,
this observation must be drawn from a prolonged and intimate relationship in order to have validity or credence.' The chief value in expert
21
Campbell v. United States, 307 F.2d 597 (D.C. Cir. 1962).
221d. at 608.
23312 F.2d 847 (D.C. Cir. 1962).
24
2
1d. at 851.
Campbell v. United States, 307 F.2d 597, 599 (D.C. Cir. 1962) this same
court reversed a decision on the basis of erroneous instructions, one reason
given being that the trial judge's charge placed undue emphasis on capacity as
an element of insanity.
26 Carter v. United States, 252 F.2d 608, 618, (D.C. Cir. 1957); Fielding v.
United States, 251 F.2d 878, 880 (D.C. Cir. 1957).
5In
MAINE LAW REVIEW
psychiatric testimony rests upon the material from which the opinion
is fashioned. The role of the psychiatrists is to explain the dynamics of
the disease; their opinions do not have to be mathematically demonstrable certainties, but on the other hand they must be more than mere
27
conjectures
The weight that has been given to expert testimony in the District of
Columbia is demonstrated by Fielding v. United States.28 The defense
offered testimony from three psychiatrists, who stated generally that the
defendant was suffering from schizophrenia, a mental disease. The
government sought to refute this showing by the testimony of the police
officers who arrested the defendant and the testimony of his wife and
brother, which tended to show that the defendant was rational and coherent. Since the lay testimony was not based on a prolonged and intimate
relationship, the court directed a judgment of acquittal by reason of
insanity notwithstanding the verdict on the basis of the psychiatrist's
testimony and the prosecution's lack of evidence. It is doubtful, however,
that this procedure would be acceptable since the more recent case of
McDonald v. United States, in which the court said in the course of its
opinion:
We emphasize that, since the question of whether the defendant has a disease
or defect is ultimately for the triers of fact, obviously its resolution cannot
be controlled by expert opinion. The jury must determine itself, from all the
testimony, lay and expert, whether the nature and degree of the disability
are sufficient29to establish a mental disease or defect, as we have now defined
those terms.
The manner in which the District of Columbia Court of Appeals has
dealt with the word "product" in its formula will provide little guidance
to the Maine court. There are two distinct aspects of the issue of causation presented in the District decisions. In some cases the court seems to
be dealing with the word "product" in a negative fashion while in other
instances the issue is framed in the form of affirmative criteria. The negative technique results from the government's burden of proof. In the
federal courts, the burden of proving sanity rests upon the government.
While the defendant is presumed to be sane, this presumption is dispelled by the production of some evidence of insanity; the prosecution
must then prove sanity beyond a reasonable doubt. 30 The significance of
the burden of proof is revealed in three cases where the Court of Appeals
directed the trial court to enter judgment of acquittal by reason of in27 Carter v. United States, supra note 26, at 617; Blunt v. United States, 244
F.2d. 355, 364 (D.C. Cir. 1957).
2 251 F.2d 878 (D.C. Cir. 1957).
29 312 F.2d 847, 851 (D.C. Cir. 1962), discussed in text accompanying note 23
supra.
3
0 Wright v. United States, 250 F.2d 4, 7 (D.C. Cir. 1957).
DURHAM RULE
sanity notwithstanding the verdict. 3' In these cases the issue of causation
seemed to be: Did the prosecution prove that the act was not the product
of the disease? rather than, Did the defense prove that the act was the
product of the disease? The court concluded that the jury, as reasonable
men, could not find the act was not the product of the disease because
the prosecution's evidence was insufficient to support such an inference.
Thus, the issue of causation was largely a matter of evaluating the negative inferences drawn from the government's lack of evidence. Judge
Miller has criticized this approach: "... I suggest that the jury should
not be told it may acquit if it negatively concludes-without evidencethat the defendant was insane simply because it thinks sanity was not
sufficiently shown." 32
The attempt to define "product" in terms of affirmative criteria has
proved difficult. One of the better opinions, states that there must be
such a relationship between the disease and the criminal act as to justify
a reasonable inference that the act would not have been committed if
the person had not been suffering from the disease. But this does not
mean that it must be the direct emission, or a proximate creation, or an
immediate issue of the disease. There must be a critical relationship such
as the words "but for" necessarily convey. To say the least, the distinction between a critical relationship and a proximate creation is questionable.3
The jury's range of inquiry in determining the critical relationship is
not limited to particular symptoms, but may include, under proper instructions, any manifestations of mental disorder.3 5 This may encompass a consideration of whether the accused understood the nature of
what he was doing and whether his actions were due to a failure, because of mental disease or defect, properly to control his conduct.36
The problem this creates is evidenced in Campbell v. United States,3
where the court reversed a conviction upon the ground that the trial
court had overemphasized the element of capacity to control behavior.
By implication, the court held that cognition and volition are not the
determinative elements in deciding whether the act was the product of
31 Satterwhite v. United States, 267 F.2d 675 (D.C. Cir. 1959); Fielding v.
United States, 251 F.2d 878 (D.C. Cir. 1957); Wright v. United States, 250 F.2d
4 (D.C.
Cir. 1957).
3
2 Wright v. United States, supra note 31, at 18.
'3 Carter v. United States, 252 F.2d 608, 616-17 (D.C. Cir. 1957).
34 The confusion resulting from the use of the terminology of causation was
predicted by Judge Barnes of the Court of Appeals for the 9th Circuit. Sauer v.
United States, 241 F.2d 640, 646 (9th Cir. 1957), quoted supra at note 11.
35 Misenheimer v. United States, 271 F.2d 486, 487 (D.C. Cir. 1959).
38
37
Douglas v. United States, 239 F.2d 52, 58 (D.C. Cir. 1956).
307 F.2d 597 (D.C. Cir. 1962).
MAINE LAW REVIEW
a mental disease, but failed to indicate clearly what the determinative
criteria might be. Judge Burger, in a vigorous dissenting opinion, said
the majority had lost sight of the basic postulates of the defense of insanity and were attempting to preclude any explanation of the product
test in terms of capacity for control of conduct. He wrote:
As a general statement of objective no one can have a serious quarrel with
the proposition that if an unlawful act is the product of mental disease
punishment should not attach. But to give this combination of labels to a
jury of laymen as a standard to measure criminal responsibility with no
guiding explanation that they are to decide whether the disease destroyed
the defendant's capacity to understand what he was doing or his capacity to
control his conduct, reduces the whole business to verbal formalism. 88
Such terms as "but for" and "critical relationship" are by themselves
insufficient to define the causal connection between mental disease and
unlawful act. Such definitions of "product" do not assist the jury in deciding when, "but for" the disease, the criminal act would not have been
committed. Unless the jury is to be left to an untutored reliance upon
expert opinion concerning the ultimate issue, some indication must be
provided of what element, or elements, of human behavior must be
affected before it can be said that the criminal act was the product of
the mental disease. In other words the concept of "product" must be
linked with the behavior of the accused.
There has been growing dissatisfaction with the Durham rule within
the court that first announced it. One of the more realistic statements
concerning it is found in a dissenting opinion of Judge Miller,3 9 asserting
that the Durham rule is only a different way of saying that insanity does
not relieve a defendant from criminal responsibility unless it caused the
unlawful act. It does not provide any new criteria for determining causation. The "right and wrong test" and the "irresistible impulse" concept
remain the only criteria for establishing the causal link that is necessary
in order to relieve the defendant from liability.
The Application of The Durham Rule in Maine
It is doubtful that the Maine court will adhere to the formula adopted
in New Hampshire. This rule has been in operation for over ninety
years and the Maine court has not shown any interest in it during that
period. Further, the doctrine is totally devoid of any criteria for assessing
criminal responsibility, allowing the jury to acquit or convict on factors
that may have no legal or medical relation to mental responsibility.
It may be hopefully anticipated that Maine will adopt the most recent3
81d.at 607.
39
Blocker v. United States, 274 F.2d 572, 582 (D.C. Cir. 1959)
opinion).
114
(dissenting
DURHAM RULE
ly formulated definition of mental disease and defect: any condition
which substantially affects mental or emotional processes and substantially impairs behavior controls. 40 This would leave the question ultimately
in the hands of the jury and maintain a distinction between medical and
legal questions. From a medical point of view, every personality disorder
requires treatment and correction even though it may have no substantial
effect upon behavior. Insanity is a legal issue. In order to relieve an
accused from responsibility the primary consideration should be whether
his act was the result of a choice freely made. The mental disease or
defect must to some degree affect free will; if not, the presence of the
disease or defect should have no bearing upon criminal responsibility.
Medical definitions, made for clinical purposes, should not be binding
upon jurors.
Since the Maine rule on the burden of proof of insanity is quite different from that found in the District of Columbia, the applicability of
decisions from that jurisdiction may be limited. In 1870 the Maine
court announced that the law presumes every man to be sane and that
this presumption must stand until removed by at least a preponderance
of the evidence. 41 Therefore, under the new rule in Maine the burden
is upon the defendant to prove by a preponderance of the evidence that
he had a mental disease or defect and that the criminal act was the
product of such disease or defect. This difference in the burden of proof
will have far-reaching effects, particularly in dealing with the concept
of causation. As indicated previously, one of the more important factors in resolving the causation issue had been the negative inference
drawn from the prosecution's lack of evidence. This type of reasoning
will not be available in Maine because the defendant has the burden of
proof, which should practically eliminate the possibility that an appellate court will set aside a jury verdict rejecting the insanity defense.
The primary value of an examination of the decisions from the District
of Columbia may prove to be as a guide in locating and avoiding areas
of difficulty rather than as a steppingstone to enlightened justice. The
most recent decisions have placed increasing emphasis upon substantial
impairment of behavior controls. 42 These decisions, by implying that
man is a free agent, seem to resolve the conflict between the concepts of
free will and determinism. Much of the difficulty created in the District
40
41
McDonald v. United States, 312 F.2d 847, 851 (D.C. Cir. 1962).
State v. Lawrence, 57 Me. 574, 584 (1870), followed in State v. Turner,
126 Me. 376, 138 Ad. 562 (1927).
McDonald v. United States, 312 F.2d 847, 851 (D.C. Cir. 1962); Haw4See
kins v. United States, 310 F.2d 849, 851 (D.C. Cir. 1962).
MAINE LAW REVIEW
of Columbia has arisen from the court's failure to choose clearly between
43
these alternative philosophic doctrines.
The Maine court has to decide whether to limit the word "product" to
certain specified criteria or present the jury with a collection of ambiguous labels. The problem with the latter course is that it requires the jury
to make a complicated determination without the benefit of any guides
or definitions, thereby reducing the matter to mere verbal formalism. If
the court should decide that the legislature, in enacting the Durham rule,
intended to repudiate any use of the "right and wrong test" as a criterion
for criminal responsibility, it would be forced to the conclusion that the
word "product" provides its own criteria for evaluating human behavior.
Judging from the costly legal experience in the District of Columbia,
such a decision would leave the jury with repetitious and ambiguous
definitions as its only guides.
In order to make the new test workable, the jury should be allowed to
consider the "right and wrong test" and the defendant's capacity to control his behavior as objective criteria in determining whether the mental
disease or defect caused the criminal act. The ultimate question would
remain, was the act the product of the disease or defect? but in making
this determination the jury would consider the defendant's capacity to
understand and control his behavior.
If one reads the decisions from the District of Columbia in chronological order, there is an apparent trend toward placing more emphasis
upon the elements of cognition and volition in defining mental disease
and defect. 44 There is no reason why these same elements should not be
determinative of the causation issue. 45 If the accused's mental disease or
defect interfered neither with his ability to understand and appreciate the
ramifications of his act, nor with his capacity to conform his conduct to
the requirements of the law, then that mental disease or defect should
have no bearing upon his responsibility for criminal conduct. In the eyes
of the law he should be46 treated as having the capacity to form and entertain a criminal intent.
43 Judge Burger alludes to this confusion in his dissenting opinion in Campbell
v. United States, 307 F.2d 597, 607 (D.C. Cir. 1962): "If these 'basic postulates'
are agreed on, as I thought they were in the three principal cases discussed,
how can it be said that the jury should not be told that if Campbell could have
controlled his urge to rob but failed to do so then the act was not caused by
the disease and he was responsible?"
44 McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962); Hawkins v.
United States, 310 F.2d 849, 851 (D.C. Cir. 1962).
45 Although this conclusion may seem logical, the majority in the Court of
Appeals for the District of Columbia has refused to go so far. See Hawkins v.
United States, 310 F.2d 849, 851 (D.C. Cir. 1962).
46 This approach is advocated by Chief Judge Miller, dissenting in McDonald
v. United States, 312 F.2d 847, 859 (D.C. Cir. 1962).
DURHAM RULE
Such an approach, if taken by the Maine court, would make the
Durham rule less difficult to apply while still maintaining its primary
advantage in removing the legal straitjacket from psychiatric testimony
and providing the jury with the latest medical knowledge. Since the
"right and wrong test" and the test of capacity to control behavior
would no longer be the ultimate questions but only guides for the jury,
their application would in no way limit the latitude of expert testimony.
Perhaps a legislative reexamination of the entire problem is in order,
with serious consideration being given to the standard formulated by
47
the American Law Institute.
DANIEL E. WATHEN, '65
47 There is at the present time a bill before the Maine Legislature to review
the Maine criminal statutes and the Model Penal Code. ME. La. Doc. 787
(S.P. 273, 101st Legislature 1963). Quaere: Will this include a review of the
Model Penal Code provisions on mental disease or defect (§§ 4.01-4.09)?
For a fundamental analysis of the defense of insanity see Goldstein and Katz,
Abolish The "Insanity Defense"-Why Not?, 72 YALE LJ. 853 (1963).