Eugene C. Campbell v. United States

BURGER, Circuit Judge

(dissenting).

(D

Since the majority of the sitting division commands a new trial with a different instruction from that given by Judge HART, I propose to fill a vacuum, which has long existed, in the form of a proposed jury charge on criminal responsibility which will implement and explain the “product test” in the terms we have pointed out from time to time. This proposed charge is appended as an appendix to my opinion. 1 Every element in the proposed charge comes from opinions of this court. It is not suggested, of course, that this is the only correct form a charge could take. Nor does it embrace all the various forms of explanation which could properly be given under Carter v. United States, supra. A unanimous division of the court in Carter v. United States outlined some of the concepts which could properly be used by the District Judges in charging a jury under our existing rule. Since those suggestions have never been challenged by any member of this court, the opinion of a single judge drawing attention to those concepts, while not binding on anyone has, I submit, the same standing as the source of that material, i. e., Durham v. United States, supra; Carter v. United States, supra. See also Douglas v. United States, 99 U.S.App.D.C. 232 , 239 F.2d 52 (1956). The utterance of the court obviously controls over the interpretation given by any one judge.

(2)

The change in classification of Campbell’s disease by administrative fiat calls for more inquiry than has been given to it. Why the change was made has never been explained except we now know that a patient with the “disease” of “emotionally unstable personality” or a “psychopathic (sociopathic) personality disorder” receives the same treatment or therapy as before the change in classification. Thus there was no medical significance or consequence to this “administrative [name] change.” But there was an enormous legal consequence as I have pointed out for now the showing of one of these newly classified “diseases” *612 places on the government the burden of proving beyond a reasonable doubt that the act charged was not a “product” of this new “disease.”

By the action in “administratively” changing classification of various abnormal mental conditions and classifying them as “mental diseases” as in In re Rosenfield, D.C., 157 F.Supp. 18 (1957), and in this case, with no revealed purpose or consequence except a legal consequence, the St. Elizabeths’ psychiatrists who permit their medical opinions to be dictated by “administrative” fiat or by majority vote or by any other nonscientific process have opened themselves to the dual charges of abandoning medical concepts and usurping judicial functions in order to bring about acquittals which they or their superiors consider appropriate. It is not a legitimate function of psychiatry to change its “labels” for the purpose of bringing the maximum number of defendants under the protective umbrella of any particular legal test.

(3)

This process of changing non-disease conditions into diseases by some administrative or parliamentary process underscores what was indicated in the concurring opinion in Blocker v. United States, supra. A jury ought to be told plainly that they alone are to determine whether in fact a “mental disease” exists because that is an issue of fact and while they must decide this under the evidence they are not bound to accept the classification of a particular condition as a “disease” by an expert witness. Jurors are the sole and final judges of the credibility of all witnesses including experts. If they do not believe a witness they are free to reject his testimony; of course the jury should also be told that they cannot reject it arbitrarily and without reason.

(4)

It is axiomatic that the trial judge has broad judicial discretion as to how far an expert witness may go in expressing a technical opinion in terms similar to the question the jury must decide. When it is asked in terms the same or substantially the same as the ultimate issue which the jury must decide the trial judge is bound to scrutinize the testimony closely. See discussion, Blocker v. United States, concurring opinion, 110 U.S.App.D.C. at 50-52, 288 F.2d at 862-864. In that opinion three members of this court called attention pointedly to the explicit holding of the United States Supreme Court in United States v. Spauld-ing, 293 U.S. 498 , 55 S.Ct. 273 , 79 L.Ed. 617 (1935). There the Court held:

“Clearly the experts failed to give proper weight to his fitness for naval air service or to the work he performed, and misinterpreted ‘total permanent disability’ as used in the policy and statute authorizing the insurance. Moreover, that question is not to be resolved by opinion evidence. It was the ultimate issue to be decided by the jury upon all the evidence in obedience to the judge’s instructions as to the meaning of the crucial phrase, and other questions of law. The experts ought not to have been ashed or allowed to state their conclusions on the whole case. * * *” 293 U.S. at 506 , 55 S.Ct. at 277 . (Emphasis added.)

See also Simmons v. United States, 92 U.S.App.D.C. 122 , 206 F.2d 427 (1953). 2

*613 In a number of cases in this court appellants have protested the “trial by label” especially the practice of allowing a psychiatrist to tell the jury that the defendant’s act, for which he is on trial, is not the “product” of mental disease. The reason for this is obvious: when a qualified expert psychiatrist with the mantle of professional standing, and medical degrees in a high calling, tells a jury that the act charged is not the “product” of any “mental disease” he is stating a conclusion that the defendant ought to be found guilty. 3 As I view it, no witness, expert or otherwise, should ever be allowed to state that conclusion to a jury. It would appear the Supreme Court is of the same view.

It is interesting to note that in adopting the 1869 New Hampshire product test this court seems to have anticipated that a “conclusion” opinion on “product” would not be admissible. The Durham opinion states:

“The questions of fact under the test we now lay down are as capable of determination by the jury as, for example, the questions juries must determine upon a claim of total disability under a policy of insurance where the state of medical knowledge concerning the disease involved, and its effects, is obscure or in conflict. In such cases, the jury is not required to depend on arbitrarily selected “symptoms, phases or manifestations” of the disease as criteria for determining the ultimate questions of fact upon which the claim depends. Similarly, upon a claim of criminal irresponsibility, the jury will not be required to rely on such symptoms as criteria for determining the ultimate question of fact upon which such claim depends. Testimony as to such “symptoms, phases or manifestations,” along with other relevant evidence, will go to the jury upon the ultimate questions of fact which it alone can finally determine. * * * ” 94 U.S.App.D.C. at 242, 214 F.2d at 875-876 (Footnote omitted.) (Emphasis added.)

United States v. Spaulding, of course, involved the precise “ultimate issue” envisaged in the Durham opinion. If we are commanded by the Supreme Court to exclude that precise peremptory expert conclusion in a civil case it is more obviously objectionable in a criminal case. The negative answer is bound to be very damaging to an accused. I find it difficult to see why United States v. Spauld-ing is not binding on the District Court and this court and why it has not been enforced.

I suggest also that if contending counsel and the psychiatrists are forbidden to take the “easy way” by testifying on the causal connection in terms of “product” this very fact will compel compliance with our unanimous opinion in Carter where Judge Prettyman said:

“The chief value of an expert’s testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; in the explanation of the disease and its dynamics, that is, how it occurred, developed, and affected the mental and emotional processes of the defendant; it does not lie in his mere expression of conclusion. The ultimate inferences vel non of relationship, of cause and effect, are for the trier of the facts.

“Durham was intended to restrict to their proper medical function the part played by the medical experts. Many psychiatrists had come to understand there was a “legal insan *614 ity” different from any clinical mental illness. That of course was not true in a juridicial sense. The law has no separate concept of a legally acceptable ailment which per se excuses the sufferer from criminal liability. * * *” 102 U.S.App.D.C. at 236, 252 F.2d at 617.

The pernicious practice of allowing the conclusion opinions on “product” by experts, apart from its other vices, has operated to narrow and constrict the scope of psychiatric testimony when what we want is to broaden that scope. See Frigillana v. United States, 113 U.S.App.D.C.-, 307 F.2d 665 . The function of the psychiatrist is not to try to tell the jurors what verdict they should render but rather to portray, as fully and completely as possible, the mental and emotional make-up of the defendant, how his emotional and intellectual processes work and how they affected his capacity to control his conduct, both generally and in the specific situation surrounding the crime charged. They should try to portray the “inner man” as best they can without fanciful speculation. The opinions must be based on “reasonable medical certainty” which has always been the legal standard for expert medical opinions. The experts cannot be expected to know all these answers as to every defendant but these are the areas in which they should be examined and cross-examined extensively. Only by doing this can we avoid the sterile, atrophying process of letting these trials continue to be contests of labels in which the prosecution strains to get at least one expert to say “no disease” or “no product” and defense strains for the opposing labels. The natural tendency of advocates is to stop as soon as they have made a record which will assure that they will get to the jury — or get a directed verdict. The ultimate responsibility- — and power — to prevent witnesses from violating rules of evidence lies with judges.

(5)

A diagnosis of the defendant’s condition, while involving conclusions of a kind, is admissible, even though a jury is not bound by a diagnosis or a particular diagnostic label on a mental disorder. The jury wants and needs help from the expert, but it does not help a jury of laymen to be told of a diagnosis limited to the esoteric and swiftly changing vocabulary of psychiatry. Every technical description ought to be “translated” in terms of “what I mean by this,” followed by a down-to-earth concrete explanation in terms which convey meaning to laymen. A psychiatrist who gives a jury a diagnosis, for example, of “psy-choneurotic reaction, obsessive compulsive type” and fails to explain fully what this means, would contribute more to society if he were permitted to stay at his hospital post taking care of patients.

A psychiatrist may also describe the connection, if he is able to do so, between the mental disease and the act charged without labelling it a “product” or not a “product.” This is the phase of inquiry which should be the subject of the most comprehensive examination and cross-examination. One or the other of these searching devices ought to be adequate to reveal the relevant basic material or the flaws and fallacies of the expert’s position. We have explicitly, but with dubious wisdom, preserved the McNaghten and Irresistible Impulse test in this jurisdiction. New things can be plainer than the fundamental similarity of the Irresistible Impulse test and the inquiry into whether the defendant possessed capacity to control his conduct, or in the words of the American Law Institute test “to conform his conduct to the requirements of the law.” See also excellent opinion of Chief Judge Biggs in United States v. Currens, 290 F.2d 751 (3d Cir. 1961). If direct examination does not deal with capacity for control of conduct that is no bar to exploring it by way of cross-examination for it is one of many permissible ways to test the opinion of the witness.

It is at this point where trial counsel's responsibility comes into play. It is for him to elicit, either by direct or cross-examination, “the material from which *615 [the psychiatric] opinion is fashioned and the steps by which the raw material of the tests, .observations and other data led to the diagnosis and opinion. The value of an expert opinion can rise no higher than the facts and premises on which it is based. But it is only a rare medical witness who is so skilled in the forensic art that he can present testimony adequately even where there is inept interrogation by counsel. If trial counsel fail in their role the trial judge would be well advised to urge them, out of the presence of the jury, to explore and develop the subject so that the witness can translate all of his medical observations to the jury. This is the area in which the deterioration if not breakdown of the trials of these “insanity” cases is to a large extent the fault of the trial counsel. If lawyers want the views of the experts to be accepted by lay jurors their first duty is to draw out expert testimony in terms which are intelligible and meaningful.

Lest these comments be taken as undue criticism of psychiatrists I emphasize again the obvious fact that in the courtroom the psychiatrist is largely at the mercy of trial counsel. Moreover, this court must share responsibility for what has been taking place since we have, for eight years, failed to insist on adherence to United States v. Spaulding, supra. It is ultimately our responsibility to prevent these trials from deteriorating into “trial by label” or “trial by psychiatrist,” and District Judges can take the first step by precluding conclusion opinions on the product aspect under the plain mandate of the Spaulding and Simmons cases, supra.

Of more than incidental interest and as a “footnote to history,” it is a curious thing that while our Durham opinion derided the McNaghten test as obsolete, both McNaghten and the 1869 New Hampshire “product” test, which we adopted verbatim, were inspired directly by the ideas and writings of Dr. Isaac Ray. 4 Our Durham opinion made the fairly common error of equating the Mc-Naghten test with the ancient “right-wrong test” which McNaghten superseded. See Durham v. United States, 94 U.S.App.D.C. at 235-236, 214 F.2d at 869-870. The very purpose of the Mc-Naghten hearing in the House of Lords was to inquire into the rejection of the old ecclesiastically oriented right-wrong test and adoption of the new and medically oriented test of whether the “accused was labouring under such a * * * disease of the mind as not to know the nature and quality of the act [charged], or, if he did * * * that he did not know [it] was wrong.” 10 Cl. and F. 200, 210, 8 Eng.Rep. 718, 722 (1843). The word “right” does not appear in the McNaghten test and the word “wrong” in context plainly means unlawful rather than morally reprehensible only.

Paradoxically, the rule we derided as “obsolete” and the “modern” rule we adopted verbatim from New Hampshire were both based upon mid-19th century concepts of psychiatry — chiefly those of Dr. Ray. The McNaghten test, without more, is indeed obsolete but in the same sense that the “product” test is obsolete. Each is deficient because each keeps from the jury the 20th century developments of the behavioral disciplines — the dynamics of human behavior, capacity for control and regulation of behavior, and the factors relating to that control.

That the product test is based upon psychiatric concepts of 100 years ago is of no real importance except as it relates to the claim of some that it is the only test compatible with modern psychiatry. More important is the fact that when we adopted the 1869 product test, without a word in the jury charge as to any connection between the product test and the matter of intent or mens rea, we broke with all legal and moral tradition. From the beginning of the Christian Era and from the Talmud of the ancient Hebrews the idea of intent in rela *616 tion to act, or mens rea, has been the controlling doctrine of Western Civilization and the basic postulate of its law. Without this there can be little but chaos and confusion in the law. Plainly the idea of mens rea is not in conflict with psychiatry, as advocates of the product concept seem to think, for like psychiatry the law of mens rea is centered not on the act but upon the actor and upon his capacity to regulate his behavior or control his conduct. The behavioral disciplines, I repeat, are constructed on the same basic factors as the ancient rule of mens rea — the “why” and the “how” of human behavior and elements relating to its control and regulation.

The legal system as it is now constituted cannot function under a rule like the “product” test unexplained which tends to excuse the unlawful acts if the actor is mentally disturbed or emotionally unstable. Under our present system Society can excuse the unlawful act only if mental disease is of such kind and degree and has such impact that the actor is substantially disabled from exercising control over his acts. Explained in these terms, as we urged in Blocker v. United States, supra, it may work and overcome the shortcomings of the McNaghten test.

APPENDIX

(Suggested form of instruction)

The defendant makes the claim in this case that he is not guilty by reason of insanity. The law governing your deliberations is that a person who, of his own free will and with evil or vicious intent, commits an act which violates the law, is criminally responsible for that act. The law also provides that where the act charged stems from and is the product of mental disease or defect, moral blame shall not attach and hence there is no criminal responsibility. In other words, the defendant is not criminally responsible if his unlawful act was the product of mental disease or mental defect. Durham v. United States, 94 U.S.App.D.C. 228 , 242, 214 F.2d 862, 876 (1954).

Under the law every man is presumed sane, that is to say he is presumed to have no mental disease or defect, and is responsible for his acts. But that presumption no longer prevails when some evidence develops that he may not be sane or that he may have a mental disease or defect. The defendant is not required to prove he is “insane” or that he has a mental disease or defect. To raise the issue of mental competence to form criminal intent he need only indicate by some evidence that his sanity or mental capacity is in doubt. Davis v. United States, 160 U.S. 469, 486 , 16 S.Ct. 353 , 40 L.Ed. 499 (1895).

When he has put that issue in question, as he has here, the mental condition of the defendant then becomes a critical element in the case and the government must then prove beyond a reasonable doubt that the defendant had no mental disease or defect, or if he did, that the act was not the product of the disease or defect. To put it in another way the government must then prove, beyond a reasonable doubt, that the defendant committed the act charged of his own free will and with evil or vicious intent. Durham v. United States, 94 U.S.App.D.C. at 241-242, 214 F.2d at 875-876 . If by reason of mental disease or defect he was substantially disabled from controlling his conduct then the act can be said to be the product of his abnormal mental condition. But if he had substantial capacity to control his conduct and refrain from doing the act charged then you are free to find the act was not the product of disease.

The terms mental disease and mental defect as the law uses them are broad terms by which we intend to describe any abnormal mental condition which substantially impairs mental or emotional processes of the defendant to the point where it substantially or seriously disturbs the conduct or behavior of the defendant or his ability to control his conduct or behavior. It will be your responsibility to decide whether the testimony in this ease, as a whole, discloses the ab *617 sence of a mental disease or defect under this broad definition. You may not reject or disbelieve testimony arbitrarily or capriciously but only for some reason such as you would act upon in the important affairs of your own daily life. In reaching your decision on the question of mental disease or mental defect you are to give such weight and credit as you consider appropriate to the testimony of the witnesses who testify on the subject, including both laymen and experts, bearing in mind as to the experts their special education, training and experience, which qualify them to make expert diagnoses, evaluations and express expert opinions. You are not required to accept any witness’ classification of any particular condition as a mental disease or mental defect. You, as the triers of the facts, must decide whether the government has established beyond a reasonable doubt, as that term has been defined to you, that the defendant has no mental disease or mental defect.

If you find beyond a reasonable doubt that at the time of the act charged the defendant was not suffering from a mental disease or defect your deliberations as to the defendant’s criminal responsibility is concluded. In that case he would be legally responsible for whatever act you find he has committed.

But your task will not be completed upon finding, if you do, that the defendant had a mental disease or defect or if you find that the government has failed to prove absence of mental disease or defect when the act charged was committed. The existence of a mental disease or defect, standing alone, does not excuse the defendant from criminal responsibility for his act. The defendant would still be responsible for his unlawful act if there was no causal connection between his abnormal mental condition and the act charged. Durham v. United States, 94 U.S.App.D.C. at 241, 214 F.2d at 875 .

If you are satisfied beyond a reasonable doubt that the defendant committed the act charged of his own free will and with evil or vicious intent, rather than as a product of mental disease or defect, then you may find he is criminally responsible. Durham v. United States, 94 U.S.App.D.C. at 242, 214 F.2d at 876 .

In reaching a determination as to whether the government has established beyond a reasonable doubt that the crime charged was not the product of a mental disease or defect you may consider and take into account the following considerations :

(a) Did the defendant understand the nature of what he was doing and were his actions due to a failure, because of mental disease or defect, properly to control his conduct? Douglas v. United States, 99 U.S.App.D.C. 232 , 238, 239 F.2d 52, 58 (1956).

(b) Was the defendant a free agent, that is was he acting freely and by choice, and, confronted with a choice between doing what he knew was right and what he knew was wrong, did he choose freely to do the wrong? Carter v. United States, 102 U.S.App.D.C. 227 , 235, 252 F.2d 608, 616 (1957).

(c) Was there a causal connection between the act charged and any mental disease or defect in the sense that but for this disease the act would not have been committed? Carter v. United States, 102 U.S.App.D.C. at 236, 252 F.2d at 617 .

(d) Did mental disease or defect substantially disable the defendant from being able to control his conduct so as to refrain from doing the act charged ? Carter v. United States, 102 U.S.App.D.C. at 235, 252 F.2d at 616 .

None of these considerations is controlling but rather they are suggested as factors which you may use to guide you in reaching your determination of the ultimate issue in the case, that is whether the defendant committed the act charged of his own free will with evil or vicious intent or whether on the other hand the act was a product of mental disease or defect. Durham v. United States, 94 U.S.App.D.C. at 242, 214 F.2d at 876 . In determining this question of *618 the relationship between the act charged and the disease the credibility and weight to be given to the testimony of any witness is for you to decide subject to the limitations I have already mentioned.

Bear in mind, at all times, that the burden is on the government to prove beyond a reasonable doubt every element of the case against the defendant.

. Were it possible to do so, my individual choice would be to make a fresh start and adopt the standard developed by the American Law Institute in its Model Penal Code. However, if explained in the terms outlined in the Appendix, our standard would not differ greatly from the American Law Institute test in actual operation.

. The Simmons case is of particular interest. There, although the appellant had not preserved the point by objection, we held it was “plain error” to allow a police detective of the gambling detail to testify in “conclusion terms” that the conduct of the defendants “fitted right into my knowledge of how numbers men operated.” Judge Bazclon, writing for a unanimous division (Bazelon, Fahy and Washington) held : “Such opinion evidence trenched upon the jury’s duty to determine the ultimate question raised by count one, i. e., whether appellant was operating a numbers game * * *. It was for the fury not for the witnesses, to measxire evidence on appellant’s conduct * * 92 U.S.App.D.C. at 124 , 206 F.2d at 430 . (Emphasis added.)

. It is a mystery to me that psychiatrists, who object bitterly to answering whether a defendant knew his actions were wrong, are quite willing, indeed eager, to testify in terms of “product” or “no product” which in context means, if it means any-tliing, the expert’s opinion on whether the defendant should be found not guilty by reason of insanity or found guilty. Psychiatrists should not be permitted to testify in terms of “right,” “wrong” or “product.”

. See Reid, Understanding the New Hampshire Doctrine of Criminal Responsibility, 69 Yale L.J. 367 (1960).