Wade v. United States

• Decision Date: 30 March 1970
• Docket Number: No. 22657.,22657.
• Citation: Wade v. United States, 426 F.2d 64 (9th Cir. 1970)
• Parties: Don WADE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

426 F.2d 64 (1970)

Don WADE, Appellant, v.UNITED STATES of America, Appellee.

No. 22657.

United States Court of Appeals, Ninth Circuit.

March 30, 1970.

Jonathan E. Johnson(argued), of Roberts, Carmack, Brown, Johnson & Hunter, Los Angeles, Cal., for appellant.

Alan H. Friedman(argued), Asst. U. S. Atty., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, CARTER, HUFSTEDLER, WRIGHT, KILKENNY and TRASK, Circuit Judges.

ELY, Circuit Judge:

Once again we sit en banc to consider an appeal challenging the viability of the M'Naghten rules.As recently as 1968we sat en banc in the consolidated cases of Ramer v. United States and Church v. United States, 390 F.2d 564(9th Cir.1968), and decided that neither of the cases contained such an appropriate record as would allow us to reach the merits of the issue of whether more modern standards for the determination of criminal responsibility should be adopted.No other Circuit except the First continues to rely on the ancient M'Naghten rules, and that Circuit has not, insofar as we can find, had the opportunity for reconsideration in the last eight years.¹

Since the date of our Ramer decision, three more Circuits have rejected M'Naghten.Blake v. United States, 407 F.2d 908(5th Cir.1969)(unanimous en banc decision);United States v. Smith, 404 F.2d 720(6th Cir.1968);United States v. Chandler, 393 F.2d 920(4th Cir.1968)(unanimous en banc decision).

Here we have a case with a record different and far more complete than were those in Ramer and Church.Wade introduced evidence which disclosed a history of probable mental derangement.There was medical testimony which would have amply justified a determination that Wade was insane under the American Law Institute Penal Code formulation of criminal responsibility.²He requested the District Court to instruct the jury in terms of the A.L.I. test, but the court adhered, as it was obliged to do, to the M'Naghten rules.We have concluded that we should no longer stand virtually alone; therefore we hold that Wade was entitled to application of a test of criminal responsibility in terms of Model Penal Code § 4.01(1).

We need not discuss the M'Naghten rules in great detail, since they have been widely treated and criticized.Excellent summaries are contained in United States v. Chandler, 393 F.2d 920, 924-925(4th Cir.1968);United States v. Freeman, 357 F.2d 606, 615-622(2d Cir.1966);United States v. Currens, 290 F.2d 751, 763-767(3d Cir.1961);Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 864-874(1954);Graham v. Commonwealth, 420 S.W.2d 575(Ky.1967);Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556(1967);Second Circuit Annual Judicial Conference, Insanity as a Defense, 37 F.R.D. 365(1964).See also,State v. Schantz, 98 Ariz. 200, 403 P.2d 521(1965);State v. Dhaemers, 276 Minn. 332, 150 N.W.2d 61(1967).In Ramer four of the then nine judges of our court would have abolished the use of the M'Naghten rules.Ramer v. United States, supra,390 F.2d at 577(Hamley, dissenting, joined by Merrill and Browning) and at 583(Ely, dissenting).The majority in Ramer, in holding that the issue of insanity was not properly raised, expressed no opinion on the continued viability of the ancient test.³

The weakness and dangers of applying the traditional M'Naghten criteria as the determinant of insanity are openly apparent.The M'Naghten rules fruitlessly attempt to relieve from punishment only those mentally diseased persons who have no cognitive capacity — those who are unable to know the nature and quality of their acts or that the acts were wrong.This formulation does not comport with modern medical knowledge that an individual is a mentally complex being with varying degrees of awareness.⁴It also fails to attack the problem presented in a case wherein an accused may have understood his actions but was incapable of controlling his behavior.Such a person has been allowed to remain a danger to himself and to society whenever, under M'Naghten,he is imprisoned without being afforded such treatment as may produce rehabilitation and is later, potentially recidivistic, released.⁵

The serious shortcomings of the M'Naghten rules are not overcome by the addition of the so-called "irresistible impulse" test which has been applied in numerous jurisdictions, including ours.The use of such a combined test was held by the Supreme Court not to be prejudicial error in Davis v. United States, 160 U.S. 469, 476-477, 16 S.Ct. 353, 40 L.Ed. 499(1895).The irresistible impulse test, however, is subject to at least two major objections.Not only is there a debate among psychiatrists whether such impulses actually exist, but also, the test is too narrow in scope.The test's language impliedly refers to sudden, explosive, fit-like actions, but more often the allegedly criminal acts of one who is unable to control his conduct follow excessive brooding and melancholy.United States v. Freeman, supra,357 F.2d at 620-621, citingWechsler, The Criteria of Criminal Responsibility, 22 U.Chi.L.Rev. 367, 393(1955).SeeMaxwell v. United States, 368 F.2d 735, 741(9th Cir.1966).The foregoing considerations are only a few among the many that have led, in recent years, to almost universal abandonment of the M'Naghten-irresistible impulse test by the Courts of Appeals.Moreover, they are among the considerations which have lately induced widespread criticism of the test by prestigious bar and medical groups, medicolegal scholars, and state courts, including, among the latter, states wherein legislative power in the particular field has been thought to be exclusive.See e. g.,State v. Moeller, 50 Haw. 110, 433 P.2d 136(1967);State v. Dhaemers, 276 Minn. 332, 150 N.W.2d 61, 66(1967).See alsoState v. Schantz, 98 Ariz. 200, 403 P.2d 521, 528(1965).CompareState v. Malumphy, 105 Ariz. 200, 461 P.2d 677(Dec. 3, 1969).

At one time, it was suggested that our reexamination of the M'Naghten rules was foreclosed by decisions of the Supreme Court.After observing, in Sauer v. United States, 241 F.2d 640(9th Cir.), cert. denied, 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539(1957), that "it is very doubtful that the question is an open one,"we ventured a belief that the issue was foreclosed by the Supreme Court since, at the time of Sauer, the only Court of Appeals to escape the hegemony of the M'Naghten rules had been the District of Columbia Circuit in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862(1954).Nevertheless, after our Sauer decision, one Circuit after another has rejected the M'Naghten rules and has persuasively demonstrated that the Supreme Court has never set a fixed standard of criminal responsibility.See generallyRamer v. United States, 390 F.2d 564, 582(9th Cir.1968)(Hamley, dissenting).The M'Naghten rules have to date been rejected as an exclusive test by, in addition to the District of Columbia Circuit, the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits.⁶Thus the doubts raised by Sauer stand alone against the subsequent avalanche of authoritative opinions.Now, agreeing with the reasoning set forth in these opinions, and in light of the acknowledged shortcomings of the M'Naghten and irresistible impulse or uncontrollable act rules, we proceed to a brief review of alternative tests of criminal responsibility.

The District of Columbia Circuit, in Durham v. United States, supra, adopted a test not unlike that of State v. Pike, 49 N.H. 399(1870), in which there had been the first judicial departure from the M'Naghten rules.Under the Durham test, a defendant could be found not guilty by reason of insanity if his act were the product of a mental disease or defect.214 F.2d at 875.When we adhered to the M'Naghten rules in Sauer, the only alternative rule urged by Sauer was Durham.We rejected the Durham test because we had grave concern over the possibility of entangling causation problems and fundamental policy perplexities in defining the words "product of,""mental disease," and "defect."Sauer v. United States, supra,241 F.2d at 646-647.The phrase "product of" was subsequently explained in Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608(1957), to require that a relationship exist between the defect or disease and the act such that there is a reasonable inference that the act would not have been committed but for the disease or defect.The problem here is one of assumed compartmentalization of the mind, namely, that the disease or defect supposedly produces some acts but not others.If the issue of insanity is raised by a defendant and the prosecution has not then negated the existence of a mental disease or defect beyond a reasonable doubt, it would seem practically impossible for the prosecution to gain conviction by a sufficient showing that the act was not the product of the disease or defect.In this sense, the product portion of the test seems superfluous.

Another serious problem with the Durham rule is that there is no standard by which the jury can determine whether the defendant ought to be held responsible if medical experts have testified that the defendant's act was produced by a mental disease or defect.The problem was exposed by Judge Burger, concurring, in Blocker v. United States, 110 U.S.App.D.C. 41, 288 F.2d 853, 857(1961).The District of Columbia Circuit reduced the vagueness and the scope of the Durham rule in McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847, 851(1962)(en banc), wherein the terms "mental disease or defect," for purposes of determining criminal responsibility, were defined to mean "any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls."⁷Since a successful insanity defense under the new Durham-McDonald test...