WARREN BURGER AND THE
INSANITY DEFENSE-JUDICIAL
PHILOSOPHY AND VOTING
BEHAVIOR ON A U.S. COURT OF
APPEALS
CHARLES M.
LAMB*
INTRODUCTION
Associated with the development of the theory of mens rea as a
basic element of almost every crime' has been the growth of the
concept of insanity as a defense to criminal prosecution. 2 In determining whether a person is capable of intent to violate the law and
can therefore be held criminally responsible for his actions, courts
and commentators have outlined at least four major tests of crimi*Research Scientist, The George Washington University Program of Policy Studies in Science and Technology. B.S., Middle Tennessee State University, 1967;
M.A., University of Alabama, 1970; Ph.D., University of Alabama, 1974. The author wishes to express his gratitude to Louis H. Mayo, Daniel W. Pound, Donald
S. Strong, and James D. Thomas for reviewing portions of the material in this
article. However, interpretations and conclusions are solely the author's responsibility.
1. "[Tlhere are two components of every crime. . . . [O]ne is the actus reus,
the other is mens rea." R. PERKINS, CRIMINAL LAW 743 (2d ed. 1969). For a detailed
analysis of the history and development of the concept of mens rea see Sayre, Mens
Rea, 45 HARv. L. REV. 974 (1932).
2. The insanity defense developed out of the realization that convicting and
punishing insane persons for their criminal acts would not further any of the possible objectives of the criminal law, such as rehabilitation, deterrence, and retribution. See generally A. GOLDSTEIN, THE INSANITY DEFENSE 11-15 (1967) [hereinafter
cited as A. GOLDSTEIN]; W. LAFAVE & A. SCOTT, JR., HANDBOOK ON CRIMINAL LAW
271-72 (1972); H. WEIHOFEN, MENTAL DISORDER AS A CRIMINAL DEFENSE (1954); F.
WHARTON & M. STILLE, MEDICAL JURISPRUDENCE 504 (5th ed. 1905); Gray, The
Insanity Defense: HistoricalDevelopment and Contemporary Relevance, 10 Am.
CRIM. L. REV. 559 (1972) [hereinafter cited as Gray]; Livermore & Meehl, The
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[Vol. 24:91
nal insanity.' Although the Supreme Court has approved of jury
instructions embodying the irresistible impulse test,' it has not yet
found any one of these four standards to be constitutionally required
or preferred over the others.' As a result, understanding these tests,
and choosing among them, has proved to be an arduous task providing a major source of judicial controversy.
During his thirteen-year tenure on the United States Court of
Appeals for the District of Columbia, Chief Justice Warren Burger
was deeply involved in that controversy.' Analysis of his opinions
and voting record as an appeals court judge may thus suggest how
Virtues of M'Naghten, 51 MINN.L. Rav. 789-95 (1967) [hereinafter cited as Livermore & Meehl].
3. For a general review of the four tests and their respective variations see Wade
v. United States, 426 F.2d 64 (9th Cir. 1970); J. BIGGS, JR., TiE GuLTv MIND:
PSYCHIATRY AND THE LAW OF HOMICIE (1955) [hereinafter cited as J. BIaGs]; A.
GOLDSTEIN, supranote 2; Goldstein & Katz, Abolish the "InsanityDefense"--Why
Not?, 72 YALE L.J. 853 (1963); Gray, supra note 2.
4. See Matheson v. United States, 227 U.S. 540 (1913); Hotema v. United States,
186 U.S. 413 (1902); Davis v. United States, 165 U.S. 373 (1897); Davis v. United
States, 160 U.S. 469 (1895). See also Fisher v. United States, 328 U.S. 463 (1946).
5. See, e.g., Leland v. Oregon, 343 U.S. 790 (1952). In Leland, the Court held
that an Oregon statute which precluded a defense of insanity based upon a "morbid
propensity" was constitutional:
[Cihoice of a test of legal sanity involves not only scientific knowledge but
questions of basic policy as to the extent to which that knowledge should
determine criminal responsibility. This whole problem has evoked wide disagreement among those who have studied it. In these circumstances it is clear
that adoption of the irresistible impulse test is not "implicit in the concept
of ordered liberty."
Id. at 800-01 (citations & footnotes omitted).
See also Wade v. United States, 426 F.2d 64, 67 (9th Cir. 1970); Blake v. United
States, 407 F.2d 908, 915 (5th Cir. 1969); United States v. Smith, 404 F.2d 720,
723-24 (6th Cir. 1968); United States v. Chandler, 393 F.2d 920 (4th Cir. 1968);
United States v. Shapiro, 383 F.2d 680, 683-84 (7th Cir. 1967); United States v.
Freeman, 357 F.2d 606, 613-14 (2d Cir. 1966); United States v. Currens, 290 F.2d
751, 767-72 (3d Cir. 1961).
6. Judge Burger participated on 52 panels that heard cases involving the insanity
defense. See note 116 infra. Further, he has written several articles that have
explored in depth what he considers to be the relationship between psychiatry and
the law. See Psychiatrists,Lawyers, and the Courts, 28 FED. PROB. 3 (June, 1964)
[hereinafter cited as Burger, Psychiatrists];Panel Discussion:Psychiatry and the
Law, 32 F.R.D. 547, 557-66 (1963); Paradoxesin the Administrationof Criminal
Justice, 58 J. CRnM. L.C. & P.S. 428 (1967).
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INSANITY DEFENSE
the Supreme Court will rule on the matter in future cases. The
theme of this article, then, is Burger's philosophy and voting behavior as a member of the court of appeals in cases involving the insanity defense.
In the first section, the major tests of insanity will be introduced
to provide the legal background for examination of Burger's philosophy. Two subsequent sections will explore his major opinions prior
to 1963, since it was in those that he contributed most to the law of
criminal responsibility through judicial constructions, criticisms,
and recommendations for change. Quantitative techniques will then
be applied to analyze Burger's voting in insanity panels in order to
measure his attitudes and interpersonal relations with his colleagues. This approach is adopted to give a well-rounded portrayal
of the Chief Justice's lower court experience with these questions.
As recently reiterated, analysis of both opinions and voting behavior
may provide a more reliable indication of judicial values than either
approach alone. 7
I. TESTS OF INSANITY
Although complete madness had become acceptable as a defense
to a criminal charge by the reign of Edward I (1272-1307),' early
writers did not treat insanity in a criminal context.' The first re7. W.
MURPHY & C. PRITCHETT, COURTS, JUDGES, AND POLITICS: AN INTRODUCTION
TO THE JUDICIAL PROCESS 696 (2d ed. 1974). Studies eclectic in nature, as is this one,
have demonstrated a potential for substantially expanding knowledge of adjudicatory policy-making. Prominent among these are D. DANELSKI, A SUPREME COURT
JUSTICE Is APPOINTED (1964); S. GOLDMAN & T. JAHNIGE, THE FEDERAL COURTS AS A
POLITICAL SYSTEM (1971); C. PmCHETr, THE ROOSEVELT COURT: A STUDY INJUDICAL
POLITICS AND VALUES, 1937-1947 (1948) [hereinafter cited as C. PTCHETr]; R.
RICHARDSON & K. VINES, THE PoLrncS OF FEDERAL COURTS: LOWER COURTS IN THE
UNITED STATES (1970); M. SCHICK, LEARNED HAND'S COURT (1970); G. SCHUBERT,
JUDICIAL POLICY MAKING (2d ed. 1974).
8. See J. BIGOS, supra note 3, at 51-56. There is some dispute, however, over
fixing the reign of Edward I as the historical period during which the insanity
defense came into common use. See, e.g., AM. BAR FOUNDATION, THE MENTALLY
DISABLED AND THE LAW 376 (S. Brakel & R. Rock eds. 1971); S. GLUECK, MENTAL
DISORDER AND THE CRIMINAL LAW
123-60 (1925).
9. For example, Bracton, Littleton, and Fitzherbert gave only limited treatment
to insanity as an excuse for civil liability. J. BIGGS, supra note 3, at 51-56. By the
late sixteenth and early seventeenth centuries, however, some writers had begun
to probe the use of the insanity defense in criminal proceedings. See Beverly's Case,
[1603] 2 Coke's Rep. 568, 581; W. LAMBARD, EIRENARCHA (1581).
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corded attempt to distinguish between degrees of insanity that
would excuse criminal culpability, yet not amount to total lunacy,
was made by Sir Matthew Hale in the seventeenth century.'" Hale
would have held those with a mental capacity as great as that of a
nine- or ten-year-old child criminally responsible for their actions."
The test was further refined a century later, with the introduction
by Hawkins of. the concept that insane persons must be incapable
"of distinguishing between good and evil" in an abstract sense."
Despite these early attempts at formulating a rule for the insanity
defense falling short of complete madness, with but one exception
the case law followed a generally strict line known as the "wild beast
test. "'s
In response to this "rapidly developing. . . procrustean theory of
criminal responsibility" 4 the Queen's Bench handed down its
famous ruling in the case of Daniel M'Naghten.' 5 The M'Naghten
rule became the first major modern test of criminal insanity. It
provides that a defendant is not responsible for criminal acts if a
mental disorder prevented the person from knowing what he was
doing, or, if he was aware of his act, he nonetheless did not know
that it was wrong."6 The common element and primary focus of this
disjunctive approach is the requirement of cognitive impairment,
10. 1 M. HALE, PLEAS OF THE CROWN 35 (1678).
11. Id.
12. 1 HAWKINS, PLEAS OF THE CROWN 1 (1824).
13. See, e.g., Regina v. Oxford, 173 Eng. Rep. 941 (N.P. 1840); Rex v. Offord,
172 Eng. Rep. 924 (N.P. 1831); Bellingham's Case, reported in 1 COLLINSON,
IDIOTS, LUNATICS 636 (1812); Earl Ferrer's Case, [1760] 19 How. St. Tr. 886; Arnold's Case, [1724] 16 How St. Tr. 695. But see Hadfield's Case, [1800] 27 How.
St. Tr. 1282.
14. J. BIGGS, supra note 3, at 95.
15. M'Naghten's Case, 8 Eng. Rep. 718 (H.L. 1843).
16. Id. at 722. The M'Naghten rule was the first standard for criminal insanity
used in the District of Columbia. See, e.g., United States v. Lee, 15 D.C. (4
Mackey) 489, 496 (1886); United States v. Guiteau, 12 D.C. (1 Mackey) 498, 550
(1882). It is still in use in many jurisdictions today. See generally Moore,
M'Naghten Is Dead-Or Is It?, 3 HOUSTON L. REv. 58 (1965) [hereinafter cited as
Moore].
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INSANITY DEFENSE
that is, that7 the defendant be unable to distinguish between right
and wrong.
Supporters of the M'Naghten test feel that it properly focuses on
the "blameworthiness of conduct engaged in by mentally abnormal
persons."'' 8 However, the rule has been criticized.' " Modern psychiatrists view the human mind as a dynamic whole, and do not consider
the thought process to be susceptible of classification into distinct
subclasses of cognition. By contrast, intellection and rationalization
are required by the M'Naghten test.2 Furthermore, the M'Naghten
standard demands total impairment of the defendant's ability to
know, but some modem psychiatrists argue that partial impairment
2
may, under certain circumstances, be equally debilitating. '
A second test, often applied in conjunction with the M'Naghten
rule, is the irresistible impulse test. 22 Essentially it provides that a
person is absolved of criminal responsibility, even though he knows
the quality of his actions and knows that they are wrong, if he has
a mental disease that causes him to lose control of himself and to
act on impulse. 23 This test adds to M'Naghten the element of volition-"the willpower to resist the insane impulse.
' 24
The irresistible
impulse rule has been the subject of criticism in that it represents
17. Unlike most of the commentators, Burger feels that the M'Naghten rule
replaced the right-wrong test, which had ancient origins, and for the first time
grounded insanity on medical evidence. See Burger, Psychiatrists,supra note 6, at
4.
18. See Livermore & Meehl, supra note 2, at 856.
19. See generally A. GoLDsTEiN, supra note 2, at 46-47.
20. See S.
GLUECK, LAW AND PSYCHIATRY: COLD WAR oR ENTENTE CORDIALE?
47-48 (1962) [hereinafter cited as S. GLUECK]; W. OVERHOLSER, THE PSYCHIATRIST
AND THE LAW 22 (1953).
21. See, e.g., Carroll & Leopold, The Current Influence of Psychiatric Concepts
in Determining CriminalResponsibility in Pennsylvania, 31 Temp. L.Q. 254, 280
(1958); Waelder, Psychiatry and the Problem of Criminal Responsibility, 101 U.
PA. L. REv. 378, 380 (1952) [hereinafter cited as Waelder].
22. The irresistible impulse rule has been termed a "misnomer" because "it
includes acts resulting from a premeditation as well as from sudden impulse
.... " However, the crucial factor is that the compulsion to act is beyond the
control of the defendant. Carter v. United States, 325 F.2d 697, 705 (5th Cir. 1963),
cert. denied, 377 U.S. 946 (1964). See also Moore, supra note 16, at 71-74.
23. The Supreme Court, in one of its few rulings on the substantive insanity
issue, approved jury instructions embodying the irresistible impulse test in Davis
v. United States, 160 U.S. 469 (1895), aff'd on rehearing, 165 U.S. 373 (1897).
24. See 2 CRIMINAL DEFENSE TECHNIQUES § 31.01 [21[b], at 31-5 (R. Cipes ed.
1974) (footnote omitted).
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a broadening of the concept of insanity beyond its proper limits."z
On the other hand, some authorities feel that since a mental disease
may cause a gradual loss of will power and thereby make a madman's actions appear to have been "coldly and carefully prepared,"
the rule overemphasizes spontaneous loss of control."6
Another principal test of insanity is that formulated by the
American Law.Institute (ALI). It provides:
1) A person is not responsible for criminal conduct if at the time of
such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of
his conduct or to conform his conduct to the requirements of law.
2) As used in this Article, the terms "mental disease or defect" do
not include an abnormality manifested only by repeated criminal or
otherwise antisocial conduct.Y
The M'Naghten and irresistible impulse rules form the foundation of the ALI test, but there are some important modifications.
The M'Naghten requirement of a complete lack of cognition as well
as the total absence of volition required by the irresistible impulse
test have been ameliorated to some extent by use of the phrase
"substantial capacity." Although some writers claim that the wording of the ALI test is vague, 2 and others have criticized the exclu25. See, e.g., Sauer v. United States, 241 F.2d 640, 650 (9th Cir.), cert. denied,
354 U.S. 940 (1957); Waelder, supra note 21, at 383.
26. For a summary of this position see ROYAL COMMISSION ON CAPITAL
PUNISHMENT.1949-1953, REPORT 110 (Cmd. 8932) (1953).
27. MODEL PENAL CODE § 4.01 (Proposed Official Draft 1962). The test was derived from an article by Professor Herbert Wechsler, the reporter for the Model
Penal Code. Wechsler, The Criteriaof CriminalResponsibility, 22 U. Cm. L. REv.
367, 374 (1955). Seven federal circuits have adopted the ALI test in full. See United
States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972); Blake v. United States, 407 F.2d
908 (5th Cir. 1969); United States v. Smith, 404 F.2d 720 (6th Cir. 1968); United
States v. Chandler, 393 F.2d 920 (4th Cir. 1968); United States v. Shapiro, 383 F.2d
680 (7th Cir. 1967); United States v. Freeman, 357 F.2d 606 (2d Cir. 1966); Wion
v. United States, 325 F.2d 420 (10th Cir. 1963). In addition, the Third Circuit has
sanctioned the use of the ALI test in a slightly different fashion. See United States
v. Currens, 290 F.2d 751 (3d Cir. 1961) (deletes "to appreciate the criminality of
his conduct" as putting too much stress on cognition).
28. See, e.g., Cavanagh, Problems of a Psychiatrist in Operating Under the
M'Naghten, Durham, and Model Penal Code Rules, 45 MARQ. L. REv. 478 (1962);
Hall, Psychiatryand CriminalResponsibility, 65 YALE L.J. 761, 777 (1956); Kuh,
The Insanity Defense-An Effort to Combine Law and Reason, 110 U. PA. L. REv.
771, 796-99 (1962).
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INSANITY DEFENSE
sion of psychopathic personalities from the scope of the defense, 29 it
does strike a balance between the more restrictive M'Naghten and
irresistible impulse rules and the Durham test.3"
The fourth major test, and the one of most vital importance in
understanding Warren Burger's philosophy of the insanity defense,
was established by a three-judge panel of the United States Court
of Appeals for the District of Columbia Circuit in the 1954 landmark
case of Durham v. United States.31 Adopting a standard already
used in New Hampshire, 32 the court held "that an accused is not
criminally responsible if his unlawful act was the product of mental
disease or mental defect. ' 33 The Durham court attempted to provide
a framework for psychiatrists to explain a criminal defendant's
mental illness without fitting it into a rigid right-wrong or control
standard. Yet, difficulties in construing the rule seemed unavoidable, since its crucial concepts-"product," "mental disease," and
"mental defect"-were insufficiently defined. Disagreement soon
developed both within and without the District of Columbia over
the interpretation and use of the Durham test.3 4 Conflict among the
judges of the District of Columbia Circuit over the Durham rule's
vague concepts was particularly evident during Judge Burger's first
six years on the court and was not reconciled to any significant
29. See A. GOLDSTEIN, supra note 2, at 88; Diamond, From M'Naghten to Currens, and Beyond, 50 CALIF. L. Rsv. 189, 193-94 (1962); Weihofen, The Definition
of Mental Illness, 21 OHIo ST. L.J. 1, 6-7 (1960).
30. See Allen, The Rule of the American Law Institute's Model Penal Code, 45
MARQ. L. REv. 494 (1962).
31. 214 F.2d 862 (D.C. Cir. 1954). Durham was supplanted in the District of
Columbia Circuit by United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).
Therein, the court of appeals, sitting en banc, held that individuals are not responsible for their criminal conduct if, at the time of such conduct, as a result of mental
disease or defect, they lack the substantial capacity to appreciate the wrongfulness
of their conduct, or to conform their conduct to the requirements of the law.
32. Since 1870 the courts of New Hampshire have followed the "diseaseproduct" rule accepted in Durham. State v. Pike, 49 N.H. 399 (1870). The court
in Pike was in turn heavily influenced by the work of Dr. Isaac Ray, one of the
founders of the American Psychiatric Association. See I.
ENCE OF INSANITY (1st ed. 1838).
RAY, MEDICAL JURISPRUD-
33. 214 F.2d at 874-75 (footnote omitted).
34. For discussion of the controversy within the District of Columbia Circuit see
Halleck, The Insanity Defense in the District of Columbia-A Legal Lorelei, 49
GEO. L.J. 294 (1960); Krash, The Durham Rule and JudicialAdministrationof the
Insanity Defense in the District of Columbia, 70 YALE L.J. 905 (1961).
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degree until McDonald v. United States.5 Because Burger contributed greatly to the law of criminal responsibility through decisions
prior to McDonald, his major opinions during those years are next
examined.
II.
THE EARLY CONTROVERSY
During the late 1950's and early 1960's issues in the law of criminal insanity received extensive treatment by the District of Columbia Circuit. Thus, soon after his appointment to the court by President Dwight D. Eisenhower in the summer of 1955, Judge Burger
had the opportunity to air basic disagreements with his judicial
brethren. Writing jointly with Judge E. Barrett Prettyman in 1957,
he composed his first significant opinion on questions of the insanity
defense in Lyles v. United States," which established the so-called
Lyles instruction.
In February 1955, Archibald Lyles was found mentally incompetent to stand trial for robbery, unauthorized use of a motor vehicle,
and grand larceny. After a ten-month commitment to a mental
institution, he was judged competent to be tried. Pleading not guilty
by reason of insanity, the defendant was subsequently convicted in
the United States District Court for the District of Columbia on the
first two of the three counts. Lyles then took his case to the court of
appeals, whose members, though agreeing in some respects, split
five to four in upholding the lower court.
Three chief questions were raised on appeal, the first of which was
whether the court should have given an instruction to the jury on
the consequences of a verdict of not guilty by reason of insanity."
The court had instructed the jury that upon a verdict of not guilty
by reason of insanity the defendant would be committed to a hospital for the mentally ill until the superintendent of the hospital and
the court determined him to be sane and not a danger to the community. Apparently, the concern of the appellant was that the jury
35. 312 F.2d 847 (D.C. Cir. 1962).
36. 254 F.2d 725 (D.C. Cir. 1957). For discussions of Lyles see Opack, The Insanity Defense in the District of Columbia, 9 AM. U.L. REv. 45 (1960); 9 How. L.J.
177 (1963).
37. 254 F.2d at 727-28. The court's decision on this issue, which established the
consequences of acquittal by reason of insanity, was made pursuant to D.C. CODE
ANN. § 24-301 (1951).
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INSANITY DEFENSE
would be discouraged from a finding of not guilty by reason of insanity because of the implication that he might be set free without
punishment." Judges Burger and Prettyman acknowledged that
juries are not ordinarily to be concerned with legal repercussions
-such as sentences and probation-of contemplated verdicts. However, the general consequences of guilty and not guilty verdicts are
commonly known, while those of a verdict of not guilty by reason
of insanity are neither widely known nor understood. Thus Burger
and Prettyman, though not prescribing an exact instruction, would
have required trial judges in the District of Columbia to instruct
jurors on the meaning and consequences of a verdict of not guilty
by reason of insanity.39 Failure to give such an instruction would be
reversible error, unless the defendant had objected, in which case
the matter would be left to the discretion of the judge. On this basis,
Lyles' conviction was upheld even though the trial judge's instruction had been somewhat imprecise.
A second major issue in Lyles pertained to a trial judge's authority to summarize or comment on evidence that a defendant was not
38. On the other hand, this instruction might be desirable for the defendant in
the limited situation where he was sane at the time of the act, but insane (though
competent to stand trial) at the time of the trial. There, the instruction would
presumably relieve any fears the jury might have that the insane defendant would
be released unless they were to find him guilty.
39. 254 F.2d at 728. Compare this point with Burger's pronouncements in Tatum
v. United States, 249 F.2d 129 (D.C. Cir. 1957), and Catlin v. United States, 251
F.2d 368 (D.C. Cir. 1957) (per curiam). In Tatum the trial judge failed to instruct
jurors "that if appellant should be acquitted by reason of insanity he would be sent
to a mental institution for as long as his safety and that of the public require." 249
F.2d at 132. In addition, defense counsel did not request such an instruction.
Burger's majority opinion reasoned that failure to charge the jury in this respect
was not necessarily a reversible error, and that since no "manifest injustice" occurred because of the omission, the lower court should be affirmed. Id. at 133.
Judge Bazelon, who dissented, argued that Burger's opinion was inconsistent with
the implications of Lyles, and that by remaining silent the defense did not waive
the instruction. Id. at 133-34. Soon afterwards, in Catlin, supra, Judges Burger
and Fahy reversed the lower court conviction and remanded the case because the
trial judge did not instruct the jury on the consequences of the defendant's plea of
not guilty by reason of insanity, although defense counsel had requested such an
instruction. 251 F.2d at 369. Judge Miller dissented, and proceeded to construe the
"disease-product" test of Durham. Id. at 372. Miller's dissent spurred Burger to
,file a concurring opinion, in which he defended the Durham rule as a precedent
which judges should endeavor to make workable. Id. at 373.
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currently affected by mental abnormalities." At Lyles' trial the
judge observed, "'I think I should add that Dr. Cushard of St.
Elizabeths Hospital testified, as you will recall, that on a prior
occasion he found no mental disorder whatever in the defendant,
and that the defendant was a man of average intelligence.' , This
statement was made not in summarizing the evidence, but following
an explanation of the meaning of a verdict of not guilty by reason
of insanity. Lyles claimed the remark suggested that he would
shortly be released, thus adversely affecting his chances of obtaining
the desired verdict. Burger and Prettyman found that the observation was error, since evidence of sanity was only relevant to the
defendant's mental condition at the time of the act. However, they
refused to reverse the conviction, holding the error to be harmless:
It seems to us that, in view of the nature of the remark, the fact that
the judge did not emphasize it or impress it upon the jury unduly,
the fact that he dated the opinion of the doctor as of an indefinite
past time, the remark cannot be held to have affected substantial
42
rights of the accused.
Lastly, Burger and Prettyman determined whether it was reversible error "for the trial judge to permit the judicial finding of competency to stand trial to be read into the record as a counterbalance
40. It is apparent from Burger's writing that he considered "currently" to encompass not merely the trial itself, but the period immediately surrounding the trial
as well.
41. 254 F.2d at 729.
42. Id. at 730-31. At this point, Burger and Prettyman also addressed a more
specific question:
May the trial judge admit in evidence on the issue of insanity under the
Federal Shop Book Act a record of a psychiatric opinion that the accused was
suffering from a mental disease or defect at a date prior to commission of the
act?
Id. at 728.
The statute at issue allows admission of "any writing or record ...
of any act,
transaction,occurrence, or event ... if made in the regular course of any business
.... " 28 U.S.C. § 1732 (1952) (emphasis added). The lower court ruled that a
written psychiatric opinion was inadmissible since it was not an "act, transaction,
occurence, or event." 254 F.2d at 731. The opinion of Burger and Prettyman upheld
the lower court by construing precedent as dictating that
the admission of a written opinion of a psychiatrist only by the naked record
of his recorded conclusions, without his being present and with no opportun-
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INSANITY DEFENSE
to defense counsel's introduction of an earlier finding that the accused was not competent to stand trial.
43
They allowed that such
evidence would normally be inadmissible under the applicable
statute.4 However, because of the particular circumstances involved-the findings supported competence to stand trial but did
not negate the claim of insanity at the time of the crime-its admission was not prejudicial. Furthermore, counsel for the accused had
introduced an order of the court finding the defendant incompetent
to stand trial; in rebuttal the government introduced a subsequent
order finding him competent, and counsel for the accused did not
object. When the accused introduced the finding of incompetency,
and subsequently acquiesced in the government's introduction of a
later finding as to competency, the accused waived the right of
exclusion afforded by the statute.
Although the issues dealt with in Lyles were essentially procedural and did not directly concern the substantive test of insanity,
Burger's opinion nonetheless revealed some of his basic attitudes
toward the insanity defense. On questions of the judge's commentary and the admissibility of evidence, Burger showed what was to
become a characteristically pro-prosecution approach to insanity
proceedings. However, rather than pursuing a narrow conservative
line in Lyles, Burger acknowledged that the defendant had a right
to request a jury instruction on the consequences of an insanity
verdict.
Three years later the principal facets of Warren Burger's philosophy on the insanity defense were further revealed in Stewart v.
ity to cross-examine as to the foundation for the opinion, is plainly not
warranted by the language or history of the Federal Shop Book Act.
Id. at 731.
43. Id. at 728.
44. Admission of reports as to competency is proscribed by 18 U.S.C. § 4244
(1970). The statute provides in part:
No statement made by the accused in the course of any examination into his
sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted
in evidence against the accused on the issue of guilt in any criminal proceeding.
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United States.45 Willie Lee Stewart, pleading not guilty by reason
of insanity, was convicted in 1953 in the district court of robbery and
first degree murder, and was sentenced to death. The court of appeals unanimously reversed the lower court because of erroneous
and prejudicial jury instructions." In a new trial, the district court
reaffirmed Stewart's convictions. The defendant once more appealed to the circuit court, and the lower court decision was again
overruled because of an error by the prosecution relating to alleged
perjury in Stewart's insanity defense." Despite some dispute among
psychiatric experts over the defendant's competency to be tried yet
again, the district court ruled that he could be tried for a third time.
Stewart took the witness stand, but exhibited bizarre symptoms
and failed to testify meaningfully. Regardless of his behavior or the
reasons for it, he was again found guilty, and seven years after the
crime he challenged his conviction in the court of appeals once
more.
The District of Columbia Circuit judges, sitting en banc, were
sharply divided, but nonetheless upheld the third verdict by a five
to four vote. Judge Burger, who in an earlier appeal had supported
reversal, wrote for the majority. The court first held that separate
standards existed for determining insanity at the time of trial and
at the time of a crime.4" Therefore, assuming that Stewart was not
competent to stand trial, even though incompetency had not been
clearly established, such a conclusion fell short of proving him insane when the crime was committed.
Next, Stewart claimed that at the third trial certain testimony
which related to his mental health after, rather than at the time of
the crime, was improperly admitted and prejudicial. Burger conceded that such evidence was ordinarily inadmissible. Yet, since the
accused behaved abnormally at trial, the issue of competency to be
tried was injected into the proceedings. The prosecutor therefore
appropriately introduced evidence that the defendant was feigning
insanity on the witness stand."
45. 275 F.2d 617 (D.C. Cir. 1960). For discussion of the Stewart decision see 48
GEO. L.J. 787 (1960); 18 WASH. & LEz L. Rnv. 118 (1961).
46. Stewart v. United States, 214 F.2d 879 (D.C. Cir. 1954).
47. Stewart v. United States, 247 F.2d 42 (D.C. Cir. 1957).
48. Stewart v. United States, 275 F.2d 617, 619 (D.C. Cir. 1960).
49. Id. at 622. Stewart had also urged reversal on the ground that one of the
government psychiatrists, testifying about his mental condition three months after
19741
INSANITY DEFENSE
Furthermore, Judge Burger rejected the argument, accepted by
the dissenters" and later adopted by the Supreme Court," that
Stewart's third conviction should be reversed because the prosecutor asked the defendant if he had testified in the two prior trials.
Burger construed the issue as one previously answered in the negathe crime, had been improperly cross-examined; Burger, however, found no error
in the cross-examination. Id. at 623.
50. Judge Fahy argued in the dissenting opinion that Stewart's conviction warranted reversal because the prosecutor's question concerning whether the appellant
testified at two prior trials was prejudicial:
The failure of an accused to testify creates no presumption against him, and
in aid of preventing such presumption from arising the rule is that the prosecution may not comment upon the exercise by an accused of his right not to
testify.
Id. at 626.
Disagreeing with Burger's interpretation of Raffel v. United States, 271 U.S. 494
(1926), Fahy adopted the analysis of Grunewald v. United States, 353 U.S. 391
(1957). He then noted that the prosecution had not even attempted to show that
Stewart's conduct was within the standards of Raffel, and concluded that the
prosecution's question was irrelevant and was intended to prejudice the jury. 275
F.2d at 627 (Fahy, J., dissenting).
51. Stewart v. United States, 366 U.S. 1 (1961). Judicial disagreement over the
effect of the prosecutor's question was subsequently evident in the five-to-four split
of the Supreme Court.
Writing for the majority, Justice Black reasoned that neither Raffel nor
Grunewald required affirmation:
[Iln no case has this court intimated that there is such a basic inconsistency
between silence at one trial and taking the stand at a subsequent trial that
the fact of prior silence can be used to impeach any testimony which a
defendant elects to give at a later trial.
Id. at 5.
Essentially, then, Justice Black did not view Burger's construction of Raffel [see
text accompanying note 54 infra] as "strict." Indeed, Justice Black rejected Judge
Burger's argument by interpreting Stewart's "gibberish" on the witness stand as
not being impeachable testimony. Black wrote:
Any attempt to impeach this defendant as a witness could therefore have
related only to his demeanor on the stand, and, indeed, the majority below
expressly rested its conclusion upon the view that the prosecution had the
right under Raffel to test the genuineness of this sort of "demeanor-evidence"
by questions as to why it was not offered at previous trials. But if Raffel could
properly be read as standing for this proposition, such questions would be
permissible in every instance, for whenever a witness takes the stand, he
necessarily puts the genuineness of his demeanor into issue.
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tive by the Supreme Court in Raffel v. United States.12 "The logical
and permissible first step under Raffel . . . ," said Burger, "was to
have [Stewart] say whether he had previously testified in order to
lay the groundwork for developing an inconsistency inherent in the
difference in his 'demeanor-evidence' in the two trials."5 3 Thus,
Stewart's bizarre testimony could be tested for reliability through
cross-examination.
When appointed Chief Justice in 1969, Warren Burger was characterized by President Richard M. Nixon as a "strict constructionist, ' 54 and this trait seems to have surfaced in Burger's rebuttal to
one of the most significant of Stewart's claims. The appellant asserted that the lower court erroneously instructed the jury that low
intelligence-approaching a moronic level-should not influence
the verdict. 5 He argued that a low I.Q. should permit a verdict of
second rather than first degree murder. 6 Burger replied that such a
theory of "diminished responsibility" had never been adopted by a
federal court, and rejected the contention." He emphasized that
only legislative bodies, not courts, are qualified to make such a
decision:
The problem of classifying, assessing and analyzing the results of
the application of modern psychiatry to administration of criminal
law as it relates to gradations of punishment according to the relative
intelligence of the defendant is beyond the competence of the judiciary. Courts are neither trained nor equipped for this delicate and
important task. The basic framework for sentences of punishment
must be established by the legislative branch. Indeed, one can hardly
conceive of a process less suited to formulating general rules in this
Id. at 6.
By contrast, Justice Frankfurter's dissent noted that:
On the totality of this record,. .. I cannot but conclude that the prosecutor's
questions concerning Stewart's prior failure to testify are of that class of
errors "which do not effect the substantial rights of the parties"..
Id. at 18.
52. 271 U.S. 494 (1926).
53. Stewart v. United States, 275 F.2d 617, 625 (D.C. Cir. 1960).
54. Public Papers of the Presidents of the United States: Richard M. Nixon 392,
396 (1971). See also President Nixon's explanation of the term "strict construction"
as reported in the New York Times, Nov. 3, 1968, § 1, at 79, col. 3.
55. 275 F.2d at 623.
56. Id.
57. Id. at 624.
1974]
INSANITY DEFENSE
sensitive area, than an adversary proceeding. That must be done by
long range studies by competent public and quasi-public entities and
by legislative committees with trained staffs aided by objective technical and scientific witnesses who can deal with all aspects of the
problem, not confined as we are to the facts of an individual case. 8
Despite his opinions in Lyles and Stewart, Burger's views were
not comprehensively stated with regard to criminal insanity, particularly the "disease-product" test, until Blocker v. United States.59
In Blocker Judge Burger presented his first and most thorough critique of the Durham standards." Additionally, Blocker exposed the
sharp, deep disagreement on the court. As Sheldon Glueck has remarked, this decision demonstrated that "in the judicial bosom of
the United States [Court] of Appeals for the District of Columbia
., all [was] not harmonious with reference to Durham."'"
Comer Blocker and his common law wife were separated and
living in different cities when on April 5, 1957, he visited his wife
and killed her with a shotgun. Approximately six months later the
defendant was tried in the District Court for the District of Columbia and pleaded not guilty by reason of insanity. Two psychiatrists
testified that he had a sociopathic personality disturbance, a condition not then considered to be a mental disease or defect. The defendant was found guilty of first degree murder. He subsequently requested a new trial after another psychiatrist from the same hospital as the medical witnesses in his case testified in a similar case
that sociopathic personality disorders were mental diseases. When
the district court refused to grant another hearing the court of appeals, sitting en banc, ordered another trial."
At the second trial the prosecution requested two separate instructions concerning the government's burden of proof of Blocker's
sanity. The court, in substance, charged the jury accordingly, even
58. Id.
59. 288 F.2d 853 (D.C. Cir. 1961). For discussion of the Blocker decision see 1962
DUKE L.J. 277; 36 NoTm D E LAW. 581 (1961); 13 SmRcus. L. REV. 152 (1961).
60. This opinion was frequently cited in subsequent opinions. See, e.g., Gray v.
United States, 319 F.2d 725 (D.C. Cir. 1963). For a discussion of Gray see note 101
infra.
61. S. GLUECK, supra note 20, at 94.
62. Blocker v. United States, 274 F.2d 572 (D.C. Cir. 1959).
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though the instructions were contradictory. As before, the jurors
concluded that Blocker was criminally responsible at the time of the
crime and declared him guilty of murder in the first degree. Blocker
contested this conviction, alleging that the charges to the jury constituted reversible error and that the "disease-product" rule was a
defective standard for determining criminal responsibility. The circuit judges, again sitting en banc, reversed the lower court with
Judge Edgerton writing for the majority.13 Burger authored a
lengthy opinion concurring in the result, but not in the arguments
leading to it."
Judge Edgerton's opinion construed the jury charge as contradictory and as contravening precedent. "The net result of the proposed
instruction was confusion," he remarked, as it tended to place the
burden of proof both on the defendant and on the government. 5
Since one or more jurors might have made their decisions on the
basis of the erroneous instruction, there was "no reason to assume
the jury found that Blocker had no mental disease or defect, or
found that no such abnormality produced the act.""8
Burger supported reversal, not because of the jury charge, but
because the "disease-product" test was an inadequate standard for
determining criminal responsibility. Although he previously had
endeavored to work within the confines of Durham, Burger now
preferred to abandon the "disease-product" test. While he conceded
that it contained some positive qualities, such as allowing the use
of medical and psychiatric concepts to inform juries, he felt that it
also "tend[ed] to treat unsupported and dubious psychiatric
theory as scientific knowledge. It [was] an example of exercising
judicial power beyond judicial comprehension in an area where not
even relative certainties [were] established." 7
Judge Burger perceived two fundamental fallacies in the
"disease-product" test.68 First, although Durham distinguished
mental diseases from mental defects, the decision did not define
either concept. Further, since psychiatrists frequently disagreed as
63. Blocker v. United States, 288 F.2d 853 (D.C. Cir. 1961).
64. Id. at 857-73 (Burger, J., concurring).
65. Id. at 855.
66. Id. at 856.
67. Id. at 858 (Burger, J., concurring).
68. For similar criticisms of the rule see Burger's opinion in Frigillana v. United
States, 307 F.2d 665 (D.C. Cir. 1962). For a discussion of this case see text accompanying notes 90-96 infra.
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INSANITY DEFENSE
to what constituted a mental disease or defect, the concepts were
inadequate as legal standards. As Burger warned:
This is not to suggest we cannot rely on so uncertain an "infant
science" as psychiatry but rather to suggest that no rule of law can
possibly be sound or workable which is dependent upon the terms of
another discipline whose members are in profound disagreement
about what those terms mean."
He argued that reliance on such concepts only makes the role of
jurors more difficult while breeding instability and inconsistency in
the judicial process. Testimony by psychiatrists may be necessary
to simplify medical questions which jurors could not otherwise comprehend, but imprecise medical conclusions should not determine
legal trends. Juries, not psychiatrists, must determine if defendants
7
are criminally responsible under the law. 1
The second weakness in the Durham rule, according to Burger,
was the assumption that criminal behavior may be a "product" of
mental diseases or defects. From his point of view:
assuming arguendo that a criminal act can be the "product" of a
"mental disease" that fact should not per se excuse the defendant;
it should exculpate only if the condition described as a "mental disease" affected him so substantially that he could not appreciate the
nature of the illegal act or could not control his conduct. 71
Burger maintained that the time was appropriate for an alternative rule to determine criminal responsibility. He preferred a substitute which generally assumed that man exercises free will, "that
human beings make choices in the regulation of their conduct and
that they are influenced by society's standards .... -71 Hence, the
crucial question should be whether the accused possessed the mental capacity to exercise free will when committing a crime. The
69. 286 F.2d at 860 (Burger, J., concurring). See also Burger, Panel Discussion:
Psychiatry and the Law, 32 F.R.D. 547, 557-64 (1963).
70. 288 F.2d at 860-61 (Burger, J., concurring).
71. Id. at 862 (Burger, J., concurring).
72. Id. at 865 (Burger, J., concurring). More specifically, with respect to the jury
charge Burger stated:
No test for criminal responsibility can be adequate if it does not place
squarely before the jury the elements of cognition and capacity to control
behavior. It is not enough for judges to say .this is the basis or the "basic
postulate"; it literally must be the "yardstick" the jury is instructedto apply.
Our failure to put the issue to the jury in these "basic" terms has led critics
of our test to charge us with paying merely "lip service" to the "legal and
moral traditions of the western world." Until we put this "basic postulate"
108
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Durham rule was not based in practice on the same "free will"
assumption, although it paid lip service to the concept. Burger
therefore rejected "the 'determinist' thesis that man's conduct is
simply a manifestation of irresistible psychological forces in which
ethical and moral values and standards play small part, if any
part."
Thus far, the cases illustrate several fundamental characteristics
of Warren Burger's developing philosophy of criminal insanity.
Early in his lower court experience, Burger displayed basic disagreement with several of his colleagues over procedural aspects of the
insanity defense, including jury instructions and admissibility of
evidence. While not directly related to the substantive insanity test,
procedure is extremely important in its implementation, and
Burger's opinions demonstrated his pro-prosecution stance. Furthermore, Burger was clearly dissatisfied with the District of Columbia Circuit's "disease-product" rule, suggesting instead a free
will standard for establishing criminal responsibility."'
I.
FROM BLOCKER TO MCDONALD: TOWARD JUDICIAL CONSENSUS
Judge Burger grew increasingly dissatisfied with the court's interpretive trend in criminal responsibility. Pressure developed in
support of policy alteration-pressure that, after two years and a
into the jury instructions the criticism is valid; if we really accept what we
say is the "basic postulate" we cannot rationally justify withholding that idea
from the jury. Indeed until we put it into the jury instruction we are denying
it.
Id. at 867.
73. Id. at 867. Burger proceeded to present four alternatives to the Durham
"disease-product" standard; they were: the rule set forth in Parsons v. State, 81
Ala. 577, 2 So. 854 (1887); the ALI Model Penal Code proposal; the recommendation of the Committee on Criminal Responsibility of the District of Columbia Bar
Association; and the rule enunciated in Carter v. United States, 252 F.2d 608 (D.C.
Cir. 1957). Burger then went on to give his own suggested rule:
The defendant is not to be found guilty as charged unless it is established
beyond a reasonable doubt that when he committed the act, first, that he
understood and appreciated that the act was a violation of law, and second,
that he had the capacity to exercise his will and to choose not to do it. If,
because of some abnormal mental condition, either of these elements is lacking, he cannot be found guilty. To hold him guilty the jury must find, beyond
a reasonable doubt, both that he understood and appreciated the act charged
was a violation of law and that he possessed the capacity or competence to
choose to do it or refrain from doing it.
288 F.2d at 871 (Burger, J., concurring) (footnotes omitted).
74. Id. at 865 (Burger, J., concurring).
1974]
INSANITY DEFENSE
few noteworthy cases, culminated in the McDonald compromise.
One of the more important cases during this period was Campbell
v. United States,' 5 in which Burger again displayed dissatisfaction
with Durham and its application by certain circuit judges. In
Campbell Judge Burger urged the court to accept his Blocker proposal,"8 but as in Blocker the court refused.
Eugene Campbell, after being committed to a mental hospital for
several months, was determined competent to stand trial on two
counts of robbery. At trial in the District Court for the District of
Columbia, the defendant pleaded not guilty by reason of insanity.
Two psychiatrists testified that Campbell possessed an "emotionally unstable personality," said to be a "mental disease." 7 Another
psychiatrist testified for the prosecution that an emotionally unstable personality did not constitute a mental disease. Campbell
was convicted on both counts of robbery. He carried the case to the
court of appeals where two Truman appointees, Judges Bazelon and
Washington, voted to reverse the convictions. Burger dissented.
Writing for the court, Judge Washington agreed with the appellant that erroneous instructions were given to the jury by the lower
court judge. Reversal was appropriate because the trial judge did
not adequately stress that the jury should consider Campbell's difficulty in controlling his behavior as a possible product of mental
disease. The judge instead had emphasized, as Burger had suggested in Blocker, the "right-wrong" test and the capacity to exercise free will. In rejecting this construction of Durham, Washington
argued that these instructions "may well have led the jury to believe
that capacity to refrain from doing the act was the overriding determinant of criminal responsibility."78 Moreover, in Carterv. United
States9 the court of appeals had explained that for an act to be
produced by a mental disease, there had to exist a "critical causal
relationship" between the disease and the illegal behavior. However, in Campbell the district judge stated that if the defendant
"could have controlled [the impulse to rob] and refrained from
doing the act, then his will must have assented to the act, and it
was not caused by the [mental] disease, but by the concurrence of
75. 307 F.2d 597 (D.C. Cir. 1962). The ruling in Campbell was later modified by
McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962). Burger's opinion of these
modifications is expressed in Gray v. United States, 319 F.2d 725 (D.C. Cir. 1963).
76. 307 F.2d at 612 (Burger, J., dissenting).
77. Id. at 598.
78. Id. at 601.
79. 252 F.2d 608 (D.C. Cir. 1957).
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his will and he was therefore responsible for his act."8 Judge Washington thus felt that the lower court had improperly applied the
Carterprinciple in instructing the jury.
Warren Burger's extensive dissent and appendum focused on two
points. Initially, he maintained "that the majority, while purporting
to follow our prior holdings is in fact departing from them by refusing to allow the product test to be explained to the jury in the very
terms we explained it in Durham v. United States . . .and later
cases." ' Since the instructions emphasized the Carter and Blocker
interpretations of Durham, Judge Burger would have accepted
them. Criticizing the majority for relying on "hyperbole rather than
on reasoned analysis,"82 Burger viewed Durham as having two stipulations. The accused was criminally responsible for his behavior-even if he had a mental disease-if of his "own free will" he
intentionally violated the law. On the other hand, if a defendant's
crime was produced by a mental disease, his behavior was uncontrollable and he was not responsible. 3 Judge Burger did not consider
the Campbell charge to be a violation of the above standards and
insisted "that what the majority [was] really driving at [was] to
preclude any explanation
of the product test in terms of capacity
84
for control of conduct.
The second focus of Burger's dissent was the concern that psychiatrists had "administratively" reclassified emotionally unstable
personalities as mental diseases. He argued that although the medical profession's understanding and treatment of emotionally un80. 307 F.2d at 601 (emphasis added by the court).
81. Id. at 603 (Burger, J., dissenting).
82. Id. at 604 (Burger, J., dissenting).
83. As Burger explained:
Each of these propositions is obviously a different side of the same coin. The
first tells who is held, the second tells who is excused. To me the clear and
inescapable meaning of these two requirements, when considered together,
is that punishment is impoced only for a willful and knowing act which must
mean it is one intentionally done and which could have been restrained by
the accused. Punishment is not imposed for a disease-produced act because
if it is a "product" of disease then the disease has eliminated the faculties
which enable him to know what he is doing and which enable him to regulate
his behavior. A mental disease can be thought to "produce" a criminal act
only if it affects the defendant's understanding or his power to control his
acts. If disease does not prevent him from exercising these faculties, it cannot
reasonably be said to "produce" the act.
Id. at 604 (Burger, J., dissenting).
84. Id. at 606 (Burger, J., dissenting).
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INSANITY DEFENSE
stable personalities had remained constant, its reclassification of
terms was creating inconsistency in the legal system. Persons whose
personalities were emotionally unstable could now be found not
legally responsible for criminal behavior."5 Not only did reclassification allow the medical profession to alter the scope of criminal responsibility, but it also complicated decision-making by juries and
judges.86
Disturbed over the interpretations of Judges Washington and
Bazelon, and dismayed by the problems facing lower courts in instructing juries on criminal responsibility, Judge Burger proposed
a jury charge in questions of criminal insanity.87 In so doing he
emphasized that the function of the jury was to weigh evidence in
determining whether a defendant had a mental disease and whether
such a disease had caused criminal behavior. As stressed in Blocker,
jurors have an obligation to give serious weight to psychiatric testimony, but they "are not bound to accept the classification of a
particular condition as a 'disease' by an expert witness." 8 Furthermore, psychiatrists should not testify that a criminal act was a
"product" of a mental disease, since that, too, is the jury's decision.
Otherwise, judicial proceedings become "trials by psychiatrists" or
"trials by labels" where "the prosecution strains to get at least one
expert to say 'no disease'8'8 or 'no product' and [the] defense strains
for the opposing labels.
85. Id. at 603 (Burger, J., dissenting).
86. See id. at 609-10 (Burger, J., dissenting) for the various questions posed by
Burger. Particularly evident here were his critical views toward the prosecution's
heavy burden of proof:
While I am far from ready to accept the idea that all criminals are "insane,"
I can see some validity in the suggestion that a great many crimes are related
in some way to an emotional instability of the actor. How would a prosecutor
prove beyond a reasonable doubt that a crime of violence, such as a rape, is
unrelated to emotional instability? Does the majority seek a standard of
criminal responsibility under which the prosecution cannot meet its burden
in any case? Their holding is, I suggest, a long step in the direction of substituting the determinist philosophy for the belief expressed by Justice Cardozo
that all law in Western civilization is "guided by a robust common sense
which assumes the freedom of the will as a working hypothesis in the solution
of [legal] problems."
Id., citing Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937).
87. See id. at 616-18 (Burger, J., dissenting) for the suggested instructions.
88. Id. at 612 (Burger, J., dissenting).
89. Id. at 614 (Burger, J., dissenting). Earlier in his opinion Burger accused
Judges Washington and Bazelon of providing "an excellent example of the tyranny
of labels from which they would seek to deny any deviation." Id. at 607.
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Shortly before the District of Columbia Circuit redefined Durham
in McDonald, Warren Burger seized upon another opportunity to
assail court precedent and interpretation in Frigillana v. United
States." Helen Frigillana had been indicted in November of 1952 for
murder. Early in the following year she was found incompetent to
stand trial, and only after an eight-year commitment to a hospital
was she deemed competent. At trial, psychiatric evidence indicated
that at the time of the murder the defendant had a "serious mental
disease;" yet she was found guilty of murder in the second degree.
Mrs. Frigillana sought a reversal in the court of appeals which,
nearly ten years after the crime, overruled her conviction. Judge
Burger wrote for a unanimous panel that included Judges Miller
and Bastian, who were consistent critics of the Durham precedent"'
The crucial issue was whether under Durham and under the Supreme Court's decision in Davis v. United States,92 the prosecution
had proven beyond a reasonable doubt that the murder committed
by Mrs. Frigillana had not been "produced" by mental abnormalities. This presented a difficult question because prior to the trial
seven psychiatrists failed to reach a conclusion on the issue. In
addition, the prosecution "offered no evidence of any kind on the
issue of mental competence either during its case in chief or at the
close of the defense case, so that the government's case consisted
solely of evidence of the events of the shooting and crossexamination of the defense experts."13 In reversing the district court,
Burger held that the government had failed to prove that Mrs.
Frigillana had no mental disease. Nor was it established that such
a disease-if extant-did not cause the appellant to commit the
murder. The burden of proof required by Davis in combination with
the "product rule" of the Durham decision necessitated reversal.
After disposing of the issues presented in the case, Judge Burger
again voiced his reservations concerning the "product rule." He
90. 307 F.2d 665 (D.C. Cir. 1962).
91. See text & tables accompanying notes 108-19 infra.
92. 160 U.S. 469 (1895). In Davis, Justice John Marshall Harlan wrote that the
burden of proof in an insanity plea
is on the prosecution from the beginning to the end of the trial and applies
to every element necessary to constitute the crime. . . . [Tihe vital question from the time a plea of not guilty is entered until the return of the
verdict, is whether upon all the evidence, by whatever side adduced, guilt is
established beyond reasonable doubt.
Id. at 487-88.
93. 307 F.2d at 667.
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INSANITY DEFENSE
maintained that had the appellant's capacity to willfully break the
law been employed as the standard for determining criminal responsibility, the psychiatrists might have been able to reach a conclusion. Yet the experts had failed, understandably, to comprehend
and apply the meaning of "product" as ambiguously enunciated in
Durham."4 For this reason, as in Blocker and Campbell, the "product" test did not make the most effective use of psychiatric knowledge in questions of insanity.
Another negative effect of the Durham rule was to place a formidable burden on the prosecution of proving that a criminal act was
not "produced" by mental disease. As Judge Burger complained,
the burden of proof
is vastly compounded when the government must prove the negative
case in terms like "product of disease," which are so vague and ambiguous that once a disease is shown to exist it is extraordinarily
difficult for any psychiatrist to say or for the government to establish
beyond a reasonable doubt that the act and the disease are unrelated. "
Moreover, since most psychiatrists usually assume that abnormal
behavior is causally related to mental disorders, the prosecution's
burden of proof is indeed heavy. Burger therefore concluded, "[Iff
our objective is to excuse all mentally or emotionally disturbed persons from criminal responsibility we should frankly and honestly say
that and proceed accordingly, for that is precisely where our rule,
94. Burger declared:
This case vividly illustrates the tangled web we have spun for ourselves under
the ambiguous labels of Durham v. United States. Of seven expert witnesses
who had observed the defendant, some for as much as eight years, not one
could say that the mental disturbance "produced" the killing or that he could
see any connection between the disturbed mental condition of the defendant
and the act of killing. But neither could they say categorically that the
mental condition did not "produce" the act.
We submit that under a standard or test based upon the basic concepts of
criminal responsibility-that is cognition and volition or capacity to control
behavior-there might well have been some meaningful medical testimony
which would have clarified the issue somewhat. The experts, who had no
opinion on whether the killing was a "product" of the mental disturbance,
might well have said-had they been asked and permitted to say-that she
did or did not at the time meet a more rational test which embraced these
basic concepts of recognition of the nature of the act and ability to control
or conform conduct to legal standards.
Id. at 667.
95. Id. at 667-68.
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as applied, is taking us."96 However, if all persons with mental problems were not to be automatically excused for their criminal acts,
Durham would have to be modified to consider criminal intent.
McDonald v. United States," which followed Frigillanaand modified the effect of Durham, was a decision en banc with only Judge
Miller dissenting. McDonald was convicted of manslaughter for aiding and abetting his employer in shooting another individual during
an altercation. Two expert witnesses, a psychiatrist and a psychologist, testified that McDonald's I.Q. was well below average, that he
could not distinguish between. right and wrong in complex situations, that he acted impulsively under stress, that he could not
foresee possible consequences of his acts, and that he could be inordinately influenced by one upon whom he was dependent. Nevertheless, the trial court denied the defendant a jury instruction concerning the insanity defense and he appealed, contending that his
actions had been the result of a mental defect.
The court first endeavored to define more clearly the amount of
evidence needed by defendants to raise the issue of insanity.
Durham only required "some evidence," but the court in McDonald
required evidence to be "more than a scintilla, yet, of course, the
amount need not be so substantial as to require, if uncontroverted,
a directed verdict of acquittal."9 8 Second, the judges agreed that the
prosecution need not present affirmative evidence of responsibility
in order to avoid a directed verdict of not guilty. Rather, a directed
verdict is warranted only when there is sufficient evidence of insanity. In the court's words, "Whether uncontradicted evidence, including expert opinion evidence, which is sufficient to raise a jury
question on the mental issue is also sufficient to require a directed
verdict depends upon its weight and credibility." 9 Finally, the court
more precisely defined "mental disease," a change assertively encouraged by Burger. The court held "that a mental disease or defect
includes any abnormal condition of the mind which substantially
affects mental or emotional processes and substantially impairs
00
1
behavior controls."'
96. Id. at 668.
97. 312 F.2d 847 (D.C. Cir. 1962) (en banc).
98. Id. at 849 (footnotes omitted).
99. Id. at 850.
100. Id. at 851. For a more extensive analysis of how McDonald altered Durham,
and for the practical consequences of those modifications see Acheson, McDonald
v. United States: The Durham Rule Redefined, 51 GEO. L.J. 580 (1963). See also
12 AM. U.L. Rsv. 219 (1963); 9 How. L.J. 177 (1963); note 36 supra.
INSANITY DEFENSE
19741
As a result of McDonald, Warren Burger's insistence upon clarified standards for determining criminal responsibility became precedent rather than simply recommendations for change.' The extent to which Judge Burger influenced the final decision is not discernible from available information, but his satisfaction with the
general holding in McDonald is reflected in his subsequent opinions
2
and the decline of disagreement on the court.1
IV.
JUDGE BURGER'S VOTING BEHAVIOR, 1956-1969
Partly as a result of Warren Burger's distinctive philosophy on the
insanity defense, his lower court career has been characterized by
some commentators in terms of his "conservative" attitudes' 3 and
101. Some judges, particularly Judge Bazelon, disagreed with Judge Burger's
later construction of McDonald. This disagreement may be noted in their respective concurring opinions in Gray v. United States, 319 F.2d 725 (D.C. Cir. 1963).
Bazelon took the opportunity to question Burger's construction of McDonald:
I am constrained to point out. . . that much of our brother Burger's present
commentary upon McDonald appears to be based upon the language and
reasoning of his concurring opinion in Blocker v. United States . . . ,which
a majority of this court both there and in later cases have consistently refused
to follow.
Id. at 726 (citation omitted).
Judge Burger's concurrence in Gray outlined his interpretation of the holding in
McDonald and responded to Bazelon's comments:
It is quite true, as Judge Bazelon points out, that the views here expressed
are based upon what has been written from time to time in sharp disagreement with Durham . . . , as applied prior to McDonald. This court indeed
"consistently refused to follow" the minority views as Judge Bazelon points
out-until McDonald v. United States. But the most cursory reading of the
McDonald opinion reveals that its departures from our prior holdings are
drawn directly from the dissenting views of a minority of the court expressed
on various occasions over a number of years. Moreover, the minority views
rejected in Campbell have now been adopted in substantial part by the entire
court, demonstrating what is axiomatic as to the utility and value of dissent.
Id. at 728-29.
102. See text accompanying note 119 infra.
103. See, e.g., J. SIMON, IN His OWN IMAGE: THE SUPREME COURT IN RICHARD
NixON's AMERICA 79-92 (1973) [hereinafter cited as J. SIMON]; Editorial, The
New Chief Justice, 208 THE NATION 682 (June 2, 1969) [hereinafter cited as
Editorial]; Lippman, Legacy of Burger: A History of Dissents, Wash. Post, May
22, 1969, § A, at 18, col. 1; Zion, Nixon's Nominee for the Post of Chief Justice,
N.Y. Times, May 22, 1969, at 36, col. 2 [hereinafter cited as Zion]. But see
MacKenzie, Burger's Style Indicates He Won't Change Court Overnight, Wash.
Post, June 2, 1969, § A, at 2, col. 1; Reston, President Nixon, Judge Burger and
the Republican Symbols, N.Y. Times, May 23, 1969, at 46, col. 5.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 24:91
conflictual interpersonal relations with his colleagues.'°4 The following pages will evaluate these alleged traits in Judge Burger's lower
court background through application of quantitative techniques to
his voting record in insanity appeals decided between 1956 and
1969. To measure his attitudes, two techniques will be employed:
cumulative scaling'05 and decision scores,' 0 ' Bloc analysis will then
104. See, e.g., MacKenzie, Warren E. Burger, in 4 TA JUSTICES OF THE UNITED
1789-1969: THEm LivES AND MAJOR OPINIONS 3128 (L.
Friedman & F. Israel eds. 1969); J. SIMON, supra note 103, at 79-80; Editorial,
supra note 103; Graham, Burger's Down-to-Earth QualitiesMay Spur Confirmation as Chief Justice, N.Y. Times, May 25, 1969, § 1, at 55, col. 1; Zion, supra note
STATES SUPREME COURT
103.
105. For general explanations of cumulative scaling see S. KRISLOV, JUDICIAL
PROCESS AND CONSTITUTIONAL LAW: A LABORATORY MANUAL 104-22 (1972)
[hereinafter cited as S. KRISLOV]; W. MURPHY & J. TANENHAUS, THE STUDY OF
PUBLC LAW 126-40 (1972) [hereinafter cited as W. MURPHY & J. TANENHAUS]; G.
SCHUBERT, QUANTITATIVE ANALYSIS OF JUDICIAL BEHAVIOR 269-376 (1959)
[hereinafter cited as G. SCHUBERT]; W. TORGERSON, THEORY AND METHODS OF
SCALING (1958).
As these authors indicate, scaling can be a useful tool for ranking judges according to their attitudes on a particular issue. For instance, by ranking votes in a
similar line of cases, a judge may be classified as liberal or conservative in relation
to his colleagues. Through the use of a matrix, arranged to conform with accepted
procedures, a line of demarcation may be drawn from which judges are ordinally
ranked according to their attitudes. However useful this technique may be, it has
its limitations. For a discussion of these limiting factors see Tanenhaus, The Cu-
mulative Scaling of JudicialDecisions, 79 HARv. L. REv. 1583 (1966).
For applications of cumulative scaling to voting behavior of judges on the federal
appellate courts see Atkins, Decision-Making Rules and Judicial Strategy on the
United States Courts of Appeals, 25 WEST. POL. Q. 626, 636 (1972) [hereinafter
cited as Atkins]; Goldman, Conflict on the U.S. Courts of Appeals 1966-1971: A
QuantitativeAnalysis, 42 U. CNN. L. REv. 635, 652-56 (1973) [hereinafter cited
as Goldman, QuantitativeAnalysis].
106. The use of decision scores-or statistical equivalents-for measuring conservatism and liberalism is not new to the study of judicial voting behavior. Over
two decades ago, Pritchett calculated voting percentages for Supreme Court Justices from 1937 through 1947 on several issues. C. PRITCHETr, supra note 7, at 141.
Schubert performed similar computations, extending the findings of Pritchett. G.
SCHUBERT, supra note 105, at 86-88. Then, in the early 1960's Stuart S. Nagel
coined the phrase "decision scores" in a series of articles: PoliticalPartyAffiliation
and Judges'Decisions,55 AM. POL. Sci. REv. 843, 844 (1961); JudicialBackgrounds
and CriminalCases, 53 J. C iw. L.C. &P.S. 333 (1962) [hereinafter cited as Nagel,
Judicial Backgrounds]; Testing Relations Between Judicial Characteristicsand
Judicial Decision-Making, 15 WEST. POL. Q. 425 (1962). See also S. NAGEL, THE
LEGAL PROCESS FROM A BEHAVIORAL PERSPECTIVE 181 (1969). The equivalent of
decision scores has also been used in analysis of circuit court judges' voting behav-
19741
INSANITY DEFENSE
be utilized to detect conflict between Burger's voting-and that of his
colleagues. 07
Table 1 is a cumulative scale of fourteen divided en banc decisions dealing with issues of the insanity defense in which Judge
Burger participated while on the court of appeals.'"8 The question
to be resolved is whether Burger's voting shows him to have been a
"conservative"-one who votes against rather than for an appellant-on those issues. The answer is a qualified no. His attitudes
appear comparatively moderate-his scale score is seven, he occupies an essentially central position on the abscissa, and 50 percent
of his votes were cast in favor of criminal appellants. It should be
ior. See Goldman, Voting Behavior on the United States Courts of Appeals,
1961-1964, 60 AM. POL. Sci. REv. 374, 376 (1966).
107. Bloc analysis is a technique employed to group judges according'to their
voting agreement on a particular issue. Thus, interpersonal conflict or consensus
may be inferred from voting patterns. For examples of the use of bloc analysis in
studying voting behavior see S. KRISLOV, supra note 105, at 123-45; W. MURPHY
& J. TANENHAUS, supranote 105, at 159-76; C. PRITCHEr, supra note 7, at 32-45,
239-52; G. SCHUBERT, supra note 105, at 77-172; J. SPRAGUE, VOTING PATrERNS
OF THE UNITED STATES SUPRME COURT: CASES IN FEDERALISM 1889-1959, 31-40
(1968); Grossman, DissentingBlocs on the Warren Court:A Study of JudicialRole
Behavior,30 J. OF POL. 1068, 1075 (1968). For applications of bloc analysis to voting
on the United States Courts of Appeals see Atkins, supra note 105, at 632-35;
Atkins, JudicialBehavior and Tendencies Towards Conformity in a Three Member
Small Group: A Case Study of Dissent Behavior on the U.S. Court of Appeals, 54
Soc. ScI. Q. 41, 49 (1973); Goldman, Conflict and Consensuson the United States
Courts of Appeals, 1968 Wis. L. Rav. 461, 464-74 [hereinafter cited as Goldman,
Conflict and Consensus]; Goldman, Quantitative Analysis, supra note 105, at
645-52; Loeb, JudicialBlocs andJudicial Values in CivilLiberties Cases Decided
by the Supreme Court and the United States Court of Appeals for the District of
Columbia Circuit, 14 Ai. U.L. Rnv. 146, 150-56 (1965); Richardson & Vines,
Review, Dissentand the Appellate Process:A PoliticalInterpretation,29 J. OF POL.
597, 608-13 (1967).
108. The fourteen decisions are: Green v. United States, 389 F.2d 949 (D.C. Cir.
1967); Rouse v. Cameron, 387 F.2d 241 (D.C. Cir. 1967); Green v. United States,
351 F.2d 198 (D.C. Cir. 1965); Whalem v. United States, 346 F.2d 812 (D.C. Cir.
1965); McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962); Jenkins v. United
States, 307 F.2d 637 (D.C. Cir. 1962); Blocker v. United States, 288 F.2d 853 (D.C.
Cir. 1961); Overholser v. Lynch, 288 F.2d 388 (D.C. Cir. 1961); Stewart v. United
States, 275 F.2d 617 (D.C. Cir. 1960); Blocker v. United States, 274 F.2d 572 (D.C.
Cir. 1959); Smith v. United States, 270 F.2d 921 (D.C. Cir. 1959); Lyles v. United
States, 254 F.2d 725 (D.C. Cir. 1957); Wright v. United States, 250 F.2d 4 (D.C.
Cir. 1957); Stewart v. United States, 247 F.2d 42 (D.C. Cir. 1957).
Methodologists have recommended the exclusion of unanimous en banc decisions because they yield no data which are useful in distinguishing the attitudes
of judges. See, e.g., W. MURPHY & J. TANENHAuS, supra note 105, at 137.
[Vol. 24:91
THE AMERICAN UNIVERSITY LAW REVIEW
118
TABLE 1
CUMULATIVE SCALE OF NON-UNANIMOUS EN BANC
CRIMINAL INSANITY DECISIONS
(1956-1969)
ca
M
+
.
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
Wright
Stewart I
Rouse
Green I
Lyles
Stewart 1
Whalem
+
+
+
+
Lynch
Green II
+
+
+
P
14
0
5
0
14
14
Scale
Position
+
+
+
*
**
+
+
+
0c
+
+
+
+
+
+
+
-+
--
-
+
-
8-1
8-1
7-2
7.2
7-2
-
6.3
-
5-4
5-3
-
-
2.4
-
+
+
+
+
+
.
.
----
+
+
+
-
-
--
-
4-5
4-5
3-5
-
3-6
2.7
71
50
+
-
10
0
11
0
9
1
1
1
1
1
1
3
7
7
5
4
5
9
2
11
0
2
0
11
13
13
11
8
8
8
7
6
5
2
0
0
CR** = 1 - 0/103 = 1.000
Legend:
.
+
+
+
+
+
Blocker I
McDonald
Smith
Blocker I
Jenkins
+
-
0a
d'
S** =1 - 0/22 = 1.000
+ = vote for appellant
- = vote against appellant
Blank = judge did not participate in decision or was not a member
of the court
See note 108 for citations to the listed cases.
The coefficient of reproducibility (CR) and the coefficient of scalability (S)
are measures of the acceptability of a cumulative scale. The CR is found by sub-
tracting from 1 the value found by dividing the total number of inconsistent
votes by the total number of votes cast, excluding those cast in 8-1 decisions.
An inconsistent vote is either a "minus" vote above the break line in the table,
where all votes in a perfect table would be plus, or a "plus" vote beneath the
break line, where all votes in a perfect table would be minus. There are, however, no inconsistencies present in this table. The S is found by subtracting from
1 the value found by dividing the total number of inconsistencies by the total
number of potential inconsistencies. Potential inconsistencies are votes which
are contrary to a judge's usual pattern of voting. A cumulative scale is considered
acceptable if the CR is greater than .90 and the S exceeds .60. For a more detailed
explanation of these terms see W. MURPHY & J. TANENHAUS,
PUBLIC LAW 135 (1972).
TiE STUDY OF
19741
INSANITY DEFENSE
noted, however, that Burger's attitudes apparently shifted over
time. Between 1956 and 1962 he supported appellants' claims in
seven of ten cases, but in the four cases thereafter he did not support
appellants once. *Overtime, Burger was more liberal in his decisions
as measured here than four of the eight judges with whom he served
the longest-Prettyman, Danaher, Bastian, and Miller. Burger may
have approximated the liberalism of Judges Leventhal, Robinson,
and McGowan in insanity issues,' 9 but data on the latter three are
insufficient to give any degree of certainty. Judges Bazelon, Wright,
Edgerton, Fahy, and Washington appear on the liberal side of the
scale, indicating attitudes more sympathetic toward appellants
than Burger.
Some general aspects of Judge Burger's attitudes are revealed by
Table 1. However, Burger's voting record in all insanity appeals in
which he participated (as opposed to those decided en banc alone)
are not revealed because cumulative scaling is applicable only to
decisions handed down by the court sitting as a whole. Thus, decision scores are employed to supplement the findings of the cumulative scaling technique. Decision scores as used here measure conservative and liberal attitudes in non-unanimous criminal insanity
cases, whether decided by three-judge or en banc panels."0
The decision scores in Table 2 suggest another interesting point
with respect to Burger's views in insanity appeals, namely that he
voted more conservatively in three-judge than in en banc sittings."'
109. The difference in the ranking of Burger and that of Judges Leventhal,
Robinson, and McGowan is based only on their votes in Rouse v. Cameron, 387
F.2d 241 (D.C. Cir. 1967).
110. For a similar approach see Peck, A Scalogram Analysis of the Supreme
Court of Canada, 1958-1967, in COMPARATIVE JUDICIAL BEHAVIOR: CROSS-CULTURAL
STUDIES OF POLITICAL DECISION-MAKING IN THE EAST AND WEST 293, 295 (G. Schubert
& D. Danelski eds. 1969).
111. Calculations in Table 2 include the en banc cases listed in Table 1, plus
the following decisions by three-judge panels: Kent v. United States, 401 F.2d 408
(D.C. Cir. 1968); Pouncey v. United States, 349 F.2d 699 (D.C. Cir. 1965); Heard
v. United States, 348 F.2d 43 (D.C. Cir. 1964); Campbell v. United States, 307 F.2d
597 (D.C. Cir. 1962); Overholser v. O'Beirne, 302 F.2d 852 (D.C. Cir. 1961); Bostic
v. United States, 298 F.2d 678 (D.C. Cir. 1961); Dukes v. United States, 278 F.2d
262 (D.C. Cir. 1960); Catlin v. United States, 251 F.2d 368 (D.C. Cir. 1957); Bradley v. United States, 249 F.2d 922 (D.C. Cir. 1957); Tatum v. United States, 249
F.2d 129 (D.C. Cir. 1957). The table does not include unanimous decisions because
they do not affect the result, i.e., who is above or below the court median score.
See text accompanying Table 2; Nagel, JudicialBackgrounds, supra note 106, at
334.
120
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 24:91
TABLE 2
DECISION AND MEDIAN DECISION SCORES AGAINST
CRIMINAL APPELLANTS IN NON-UNANIMOUS CRIMINAL
INSANITY APPEALS (1956 - 1969)
Judge*
Bazelon
Edgerton
Fahy
Washington
Prettyman
Burger
Danaher
Bastian
Miller
Court Median**
Decision Score Against
Criminal Appellants
.000
.000
.000
.083
.455
.667
.722
.846
1.000
(0/19)
(0/13)
(0/13)
(1/12)
(5/11)
(16/24)
(13/18)
(11/13)
(12/12)
.455
* Judges are ranked from most liberal to most conservative in order to be
consistent with their scale positions in Table 1. Excluded from the table because
of insufficient data are Leventhal (1/2 = .500), McGowan (3/5 = .600),
Robinson (1/2 = .500), Tamm (2/2 = 1.000), and Wright (0/6 = .000).
** When judges with the least participations (Leventhal, McGowan, Robinson, Tamm, and Wright) are excluded from the table the court median is
.455. When all participating judges are considered the median is .500.
19741
INSANITY DEFENSE
Burger's score of .667 is moderately conservative, as is his rank of
sixth out of nine judges1 2 in deciding against criminal appellants.
His decision score is substantially greater than the court median
(.455), and all of his pro-appellant votes were cast prior to 1963.
Table 2 also suggests that Judge Prettyman voted more liberally in
three-judge panels than did Burger, contrary to what one might
extrapolate from Table 1. Nevertheless, Table 2 substantiates the
conclusion drawn from Table 1 that Burger may be ranked as less
conservative than Judges Danaher, Bastian, and Miller in questions
of the insanity defense, but more conservative than Judges Wash3
ington, Fahy, Edgerton, and Bazelon.1
It is noteworthy too that while Judge Burger was a member of the
court majority in all but one of the fourteen en banc panels,"' he
11 5
voted with the majority in only six of the three-judge panels.
However, Burger's voting on three-judge panels does not necessarily
mean that he was out of step with the overall court majority because
in each of the four cases in which he dissented he sat with liberal
colleagues-three times with Bazelon, twice with Edgerton and
Washington, and once with McGowan.
Finally, some general aspects of Warren Burger's interpersonal
relations with his colleagues are reflected through his voting in insanity cases. During Burger's tenure on the court of appeals, he
served on some fifty-two panels which heard allegations that appellants should not be held criminally responsible for their actions
A methodological warning is important with regard to the interpretation of Table
2. The data include criminal insanity panels on which Burger was a participant.
This means that Burger's decision scores may be compared to the decision scores
of each other judge who presided on those panels. However, the decision scores of
other judges may not be validly compared to each other, since these judges did not
sit together in all cases included in the data base. Moreover, even if all the judges
had presided together in these cases, the decision scores of judges other than Burger
could be slightly inaccurate because the data do not include all litigation in which
other District of Columbia Circuit judges participated.
112. When the decision scores of Judges Leventhal, McGowan, Robinson,
Tamm, and Wright are considered, Burger ranks tenth out of fourteen.
113. Compare these attitudinal descriptions to those in Mueller, Of Liberalism
and Conservatism in American CriminalLaw, 3 DuQ. L. RPv. 137, 140-47 (1965).
114. The exception was Rouse v. Cameron, 387 F.2d 241 (D.C. Cir. 1967).
115. Burger dissented in Kent v. United States, 401 F.2d 408 (D.C. Cir. 1968);
122
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 24:91
because of insanity." 6 After reading the first portion of this article
one could plausibly conclude that members of the court were in
strong disagreement on these issues. Of the fifty-two criminal insanity decisions, twenty-four had at least one dissenting member."7
Nonetheless, the dissent rate of 46.2 percent, while quite high, is
mildly surprising in view of the fact that differences in judicial
opinion over Durham have been so greatly emphasized by some
commentators."' That court members disagreed in less than half
these cases may be attributed to the policy change expressed in
McDonald, which resolved several sources of conflict stemming
Pouncey v. United States, 349 F.2d 699 (D.C. Cir. 1965); Campbell v. United
States, 307 F.2d 597 (D.C. Cir. 1962); Bostic v. United States, 298 F.2d 678 (D.C.
Cir. 1961).
116. See the cases listed in notes 108 & 111 supra. See also Blunt v. United
States, 404 F.2d 1283 (D.C. Cir. 1968); Higgins v. United States, 401 F.2d 396 (D.C.
Cir. 1968); Stewart v. United States, 394 F.2d 778 (D.C. Cir. 1968); Roberts v.
United States, 391 F.2d 991 (D.C. Cir. 1968); Green v. United States, 383 F.2d 199
(D.C. Cir. 1967); Castle v. United States, 347 F.2d 492 (D.C. Cir. 1964); Keys v.
United States, 346 F.2d 824 (D.C. Cir. 1965); Fisher v. United States, 334 F.2d 555
(D.C. Cir. 1964); Rivers v. United States, 330 F.2d 841 (D.C. Cir. 1964); Jones v.
United States, 327 F.2d 867 (D.C. Cir. 1963) (en banc); Barkley v. United States,
323 F.2d 804 (D.C. Cir. 1963); Gray v. United States, 319 F.2d 725 (D.C. Cir. 1963);
Alexander v. United States, 318 F.2d 274 (D.C. Cir. 1963); Horton v. United States,
317 F.2d 595 (D.C. Cir. 1963); Strickland v. United States, 316 F.2d 656 (D.C. Cir.
1963); Greene v. United States, 314 F.2d 271 (D.C. Cir. 1963); Williams v. United
States, 312 F.2d 862 (D.C. Cir. 1962); Frigillana v. United States, 307 F.2d 665
(D.C. Cir. 1962); Turberville v. United States, 303 F.2d 411 (D.C. Cir. 1962),
decided with Williams v. United States and Simpson v. United States; Isaac v.
United States, 284 F.2d 168 (D.C. Cir. 1960); Ragsdale v. Overholser, 281 F.2d 943
(D.C. Cir. 1960); Satterwhite v. United States, 267 F.2d 675 (D.C. Cir. 1959);
Seidner v. United States, 260 F.2d 732 (D.C. Cir. 1958); Carter v. United States,
252 F.2d 608 (D.C. Cir. 1956); Fooks v. United States, 246 F.2d 629 (D.C. Cir.
1956); Wells v. United States, 239 F.2d 931 (D.C. Cir. 1956) (en banc).
117. Frequent use of en banc panels for deciding criminal insanity questions,
particularly prior to McDonald, further demonstrates conflict on the court. Instead
of resolving disagreement, hearings by the entire membership simply underscored
the judges' varying policy preferences. Only two en banc panels dealing with criminal insanity reached unanimous conclusions. See Jones v. United States, 327 F.2d
867 (D.C. Cir. 1963); Wells v. United States, 239 F.2d 931 (D.C. Cir. 1956). Voting
splits in half of the fourteen divided panels involved at least three dissenters. See
Table 1 & accompanying text.
118. See note 34 supra.
19741
INSANITY DEFENSE
from interpretation and application of the Durham rule."' Prior to
McDonald, at least one judge dissented in 59.3 percent of criminal
insanity appeals; after McDonald disagreement plunged to 28.0
percent, less than half the earlier rate.
Bloc analysis provides a meaningful way of depicting interpersonal voting relations between Judge Burger and his colleagues in
non-unanimous decisions. " ' Surprisingly, Table 3 indicates that
Burger experienced his most intense conflict not with Judge BazeIon, but with Judges Wright and Miller. Of six divided insanity
cases, Burger and Judge Wright agreed only in McDonald. This rate
of dissidence is especially noticeable because by 1962, when Wright
became circuit judge, the court had resolved much of its conflict
over criminal insanity. More significantly, Burger and Judge Miller
were aligned in only four of twelve divided insanity decisions. " '
Probably few observers would suspect that slightly more cleavage
existed between Burger and Miller (a conservative) than between
Burger and Bazelon (a liberal) on insanity issues. Yet, of nineteen
non-unanimous cases, Bazelon and Burger voted together in seven.
Table 3 further demonstrates a relatively stable Burger1 22
Prettyman-Danaher bloc in divided criminal insanity decisions.
Burger agreed with Judge Prettyman in all nine cases in which they
jointly participated, and with Danaher in sixteen of eighteen cases.
What appears unusual is the degree of accord between Judge Burger
and liberal Judges Edgerton, Fahy, and Washington. In seven of
thirteen cases, Burger sided with Edgerton, in eight of thirteen with
Fahy, and in eight of twelve with Washington. By contrast, Burger's
agreement in eight of thirteen cases with Judge Bastian was somewhat unexpected, suggesting that his consensus with two of the
court's most conservative members-Bastian and Miller-was comparatively low on insanity questions.
V.
CONCLUSION
"The most important fact in the current polemics regarding psychiatry and criminal responsibility" Jerome Hall observed in 1965,
119. See text accompanying notes 95-100 supra.
120. See note 107 supra.
121. See Whalem v. United States, 346 F.2d 812 (D.C. Cir. 1965); Overholser v.
Lynch, 288 F.2d 388 (D.C. Cir. 1961); Stewart v. United States, 275 F.2d 617 (D.C.
Cir. 1960); Lyles v. United States, 254 F.2d 725 (D.C. Cir. 1957).
122. Of nine divided en banc panels prior to Judge Prettyman's retirement, these
[Vol. 24:91
THE AMERICAN UNIVERSITY LAW REVIEW
TABLE 3
BLOC ANALYSIS
PERCENTAGE* OF INTERAGREEMENT IN NON-uNAIMOuS
CRIMINAL INSANITY DECISIONS (1956-1969)
0
Fahy
Bazelon
Edgerton
C3
a
100
100
-
w
-
-
0
42
91
37
50
33
15
0
91
54
56
46
20
0
100**
17
*** 17
25**
0**
1-
75 167
30
10
100"*
-
Washington
0
56
90
Wright
18
62
100**
100 100**
-
C3
60
Burger
62
33
Prettyman
56
44
Danaher
771
54
Bastian
4
Bloc
1.
2.
3.
4.
5.
*
**
***
-
3
Miller
82
_J
Percentage of Interagreement
Fahy-Bazelon-Edgerton-Wright-Washington
Burger-Prettyman-Danaher
Bastian-Miller
Danaher-Bastian
Washington-Burger
Percentages are rounded.
One to five joint participations.
No joint participations.
=
=
=
=
=
97
93
82
77
75
19741
INSANITY DEFENSE
"is the clash of elementary philosophical perspectives.' ' 23 One philosophical perspective argues the scientific-psychiatric point of view;
the other adheres to the legal-ethical approach for determining
criminal responsibility. These fundamental dissimilarities are
clearly reflected in the insanity defense decisions discussed herein.
As Warren Burger flatly stated in Campbell v. United States:
[Tihe difference between the majority view [in this case Judges
Washington and Bazelon] and mine is more than a matter of semantics; the difference is one as to the fundamentals which guide us in
deciding what kinds of unlawful acts ought to be excused." 4
Several conclusions with respect to Judge Burger's philosophy on
the insanity defense seem warranted from this examination. First,
Burger's tendency was to espouse a traditionally legalistic approach
to criminal responsibility based on a belief in "free will" and "free
choice." To him, the individual, in choosing to deviate from society's guidelines, should be held responsible for his choice, and
expect punishment for his criminal actions. Conversely, Burger
largely rejected the scientific-psychiatric approach of the "diseaseproduct" test formulated in Durham. As applied, the doctrine often
resulted in the impossibility of determining responsibility because
of medical disagreement whether certain psychiatric conditions
were "diseases" or "defects," and whether they were the cause of
criminal acts. Under Durham, according to Burger, jury instructions were so vague as to make a distinction between those who
should be punished and those who deserved psychiatric treatment
virtually impossible.
Second, Burger's views on criminal insanity questions in some
cases-especially Stewart and Blocker-seem to fall within President Nixon's meaning of a "strict constructionist."'2 5 In those decisions, Judge Burger showed a preference for a narrow judicial policymaking role. He believed that legislators are better equipped to
shape policy on such matters because they can normally conduct
comprehensive investigations into complicated subjects with the aid
thre6 judges agreed in seven, and they voted together in all decisions after Wright
v. United States, 250 F.2d 4 (D.C. Cir. 1957). See Table 1.
123. J. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 455 (2d ed. 1965).
124. Campbell v. United States, 307 F.2d 597, 606 (D.C. Cir. 1962) (Burger, J.,
dissenting).
125. See note 54 supra.
126
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of professional staffs and numerous witnesses. Judges, on the other
hand, are less likely to possess adequate information upon which to
base policy. The old distinction between advocates of judicial restraint and judicial activism thus appeared on the court of appeals,
with Burger apt to assume the role of "interpreter," not "maker,"
of the law. Whether labelled "strict construction" or "judicial restraint," this position is manifest in Burger's opinions and is reminiscent of his legal philosophy in other areas.' 28
A third conclusion, however, is that regardless of this "strict constructionist" trait, after 1961 Judge Burger forcefully supported the
position that the District of Columbia Court of Appeals should
change its guidelines for criminal responsibility from those established under Durham. This philosophical tendency is clearly evident in Blocker, Campbell, and Frigillana.Yet, although in later
years Burger espoused the abandonment of the "disease-product"
rule, throughout his early years on the appeals court he followed the
conventional policy of endeavoring to apply court precedent. In 1957
he even expressed disapproval of a fellow judge for criticizing
Durham rather than trying to make the rule workable.ln But after
almost six years of unrewarding efforts to explain, clarify, and apply
the "disease-product" test, Burger wrote:
[l]t is plain that this court made a sincere and maximum effort to
render the new test workable. That it is not workable and ought to
be changed is ... a consequence of its being medically rather than
legally oriented and being cast in language which is vague and confusing in some respects and restrictive in others.12n
126. See, e.g., Frazier v. United States, 419 F.2d 1161, 1171 (D.C. Cir. 1969)
(Burger, J., concurring in part & dissenting in part) (privilege against selfincrimination); Kent v. United States, 401 F.2d 408, 412 (D.C. Cir. 1968) (Burger,
J., dissenting) (propriety of Juvenile Court's waiving jurisdiction over juvenile
afflicted with serious mental illness); Powell v. McCormack, 395 F.2d 577 (D.C.
Cir. 1968) (judicial review of decision by House of Representatives refusing to seat
a Congressman-elect); Frady v. United States, 348 F.2d 84, 111 (D.C. Cir. 1965)
(Burger, J., concurring in part & dissenting in part) (replacement of death sentence
by life imprisonment); Killough v. United States, 315 F.2d 241, 253 (D.C. Cir. 1962)
(Burger, J., dissenting) (admissibility of oral confession made subsequent to preliminary hearing by defendant not represented by counsel); Young v. United
States, 267 F.2d 692, 693 (D.C. Cir. 1959) (Burger, J., concurring only in the result)
(narcotics violation); Cash v. United States, 261 F.2d 731, 738 (D.C. Cir. 1958)
(Burger, J., concurring) (petition to proceed in forma pauperis).
127. See Burger's response to Judge Miller's dissent in Catlin v. United States,
251 F.2d 368, 373 (D.C. Cir. 1957).
128. Blocker v. United States, 288 F.2d 853, 865 (D.C. Cir. 1961).
19741
INSANITY DEFENSE
Also, broadly speaking, Burger's opinions demonstrate a proprosecution viewpoint and an underlying philosophy of pragmatism.
The law governing criminal responsibility in the District of Columbia-particularly Durham-was liberal and sympathetic toward the
individual, but Burger was prone to interpret these standards
against appellants' allegations and in favor of the government. 2'9
This pro-prosecution attitude surfaced in the Frigillana and
Campbell decisions, for instance, where Judge Burger sympathetically observed that the prosecution's burden of proof was exceedingly heavy, since it required establishing beyond a reasonable
doubt that a mental disease did not "produce" a crime. In Stewart,
he construed precedent as indicating that it was not reversible error
for the prosecutor to ask a testifying defendant whether he had been
a witness in his own behalf in two prior trials, a position later reversed by the liberal wing of the Supreme Court. On jury instructions 'and evidence in Lyles, Burger ruled that no reversible error
had occurred in the lower court, though the trial judge stated that
the defendant was not currently affected by a mental disease, and
also admitted evidence on competency to stand trial, despite the
fact that the legal question focused on insanity at the time of the
crime. 3 '
Burger's pragmatism led to the fundamental premise expressed
by his opinions in Blocker and Campbell that a workable criminal
responsibility rule was lacking in the District of Columbia, making
the duties of judges and jurors extremely difficult. Courts cannot
function effectively where psychiatrists can so substantially affect
legal standards by "administratively reclassifying" certain personality disorders as mental diseases. A more practical alternative was,
of course, to rely less on the scientific-psychiatric approach and
more on the well tested principle of the "free will" assumption.
A few additional facets of Burger's lower court career were clarified through an analysis of his voting behavior in insanity issues.
Attitudinally, he was relatively moderate or moderately conservative over time when his voting was measured through cumulative
scaling and decision scores. When contrasted to his colleagues,
Burger was more liberal than Judges Prettyman, Danaher, Bastian,
129. Burger's pro-prosecution, conservative attitudes are generally verified by
the calculations in Tables 1 & 2.
130. Contrast these views to Judge Bazelon's pro-appellant views, as expressed
in Lyles v. United States, 254 F.2d 725, 734-43 (D.C. Cir. 1957).
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and Miller, but more conservative than Judges Washington, Fahy,
Edgerton, Wright, and Bazelon.' 31 It is significant, however, that
Warren Burger's attitudes shifted through the years. Between 1956
and 1962 he was quite moderate as reflected in his voting, but he
grew staunchly conservative from 1963 through 1969. Noteworthy,
too, is the fact that Judge Burger's votes were comparatively more
conservative in three-judge than in en banc panels. Further, he was
less likely to agree with the court majority in the former. This seems
chiefly due to panel assignments, for in three-judge panels he often
served with two liberal members of the court.
In terms of Warren Burger's interpersonal relations with his
colleagues, it appears from the voting data that there existed a
strong Burger-Prettyman-Danaher voting bloc in insanity appeals.
Burger's voting consensus was also substantial with Judges Washington, Fahy, and Bastian. By contrast, one can understand why
commentators have emphasized Burger's conflictual relationships
with some of his colleagues, since he was prone to disagree sharply
in these cases with Judges Wright, Miller, and Bazelon. This finding
was particularly unexpected with regard to Burger and Miller, for
both tended toward conservatism on insanity questions. Hence,
there were considerable voting differences between Judge Burger
and three of his colleagues over aspects of the insanity defense, but
he was customarily in consensus-not conflict-with a majority of
his lower court brethren on these matters. Or, as Sheldon Goldman
has commented, on the United States Courts of Appeals "outright
conflict was the exception and not the rule." 3 '
131. The only exception to this generalization is that Prettyman received a more
liberal rank than Burger when decision scores were used. See Table 2.
132. Goldman, Conflict and Consensus, supra note 107, at 481.