State v. Shoffner

Wilkie, J.

(concurring). I agree with reversal and the remanding of the case. I support the important step forward of allowing a defendant, who claims insanity as a defense, the option of assuming the burden of proof on insanity with the accompanying use of the A. L. I. test. I would go further and hold that it was reversible error to use the Esser 1 test and would send the case back for a new trial (without the option) under the test prescribed in the Model Penal Code of the American Law Institute. 2 I would do this even though the burden of proof remained with the state.

1 realize that the whole subject of the proper definition of insanity in a criminal case was very carefully considered by this court in Esser in 1962. The discussions contained therein in the majority opinion by Mr. Justice Fairchild and in the dissents of Mr. Justice Currie (now Chief Justice), Mr. Justice Hallows, and Mr. Justice Dieterich (now deceased), thoroughly set forth the reasons for the respective views of the then members of this court. I set forth my views here not only because I am one of the three members of the present court who were not on the court at that time, but also because I consider the court’s decision in Esser wrong and I think it most important for Wisconsin to adopt the more *436 progressive A. L. I. test of insanity in criminal proceedings.

I disagree with the Esser test for two basic reasons, each dictating that we reject that test and approve the test prescribed in the Model Penal Code.

First. In the American system of jurisprudence persons charged with crimes requiring intent or mens rea are not held accountable if they are not responsible. From the beginning of our law insanity has been a defense in these cases and if the accused is found insane he is not held responsible for what would otherwise be a criminal act. It is no wonder that lawyers, jurists, legal scholars, psychiatrists and others skilled in the workings of the human mind and personality, criminologists and indeed all persons who have been concerned with the efforts of society to apprehend those who have committed criminal acts and to establish their accountability for these acts, have struggled from the beginning of the common law with the proper definition of insanity. Constant turmoil has surrounded efforts to work out a functioning system for determining who is insane and, therefore, not responsible for his acts-, and for dealing with such persons.

Any consideration of the proper test of insanity as a defense to a criminal charge must begin with the so-called M’Naghten rule adopted in England in 1843 when Daniel M’Naghten, attempting to assassinate Queen Victoria’s prime minister, mistakenly killed his secretary. M’Naghten was acquitted by a jury, and in the course of the review of that case in court, rules were adopted permitting acquittal only when it is proved that:

“. . . at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.” 3

*437 The evolution of Wisconsin law on the test of insanity was detailed by Mr. Justice Fairchild in Esser. 4 As stated in Esser, 5 and approved by the majority here, 6 this test limits a finding of insanity to those who, at the time of the commission of the act did not know right from wrong or who were incapable of understanding the nature and quality of the alleged wrongful act. Thus Wisconsin adheres to a test which recently has been abandoned by such outstanding courts as the United States court of appeals for the Second 7 and Tenth 8 circuits.

In an earlier opinion, United States v. Currens, 9 the United States court of appeals for the Third circuit labeled the M’Naghten rules as “unworkable.” 10 Most recently, federal Judge Irving R. Kaufman of the Second circuit, in Freeman, detailed some of the most important objections to these rules: (1). They focus “only on the cognitive aspect of the personality, i.e., the ability to know right from wrong,” 11 and the tests do not “permit the jury to identify those who can distinguish between good and evil but who cannot control their behavior.” 12 (2) They recognize no degrees of incapacity.

“Either the defendant knows right from wrong or he does not and that is the only choice the jury is given. But such a test is grossly unrealistic; our mental institutions, as any qualified psychiatrist will attest, are filled with people who to some extent can differentiate between right and wrong, but lack the capacity to control their acts to a substantial degree.” 13

*438 (8) They place “unrealistically tight shackles” 14 upon expert psychiatric testimony.

“When the law limits a testifying psychiatrist to stating his opinion whether the accused is capable of knowing right from wrong, the expert is thereby compelled to test guilt or innocence by a concept which bears little relationship to reality. ...”

“Prominent psychiatrists have expressed their frustration when confronted with such requirements. . . .”

“Psychiatrists are not alone in their recognition of the unreality of M’Naghten. As long ago as 1930, Mr. Justice Cardozo observed that ‘everyone contends that the present definition of insanity has little relation to the truths of mental life.’ [Footnote omitted.] And Mr. Justice Frankfurter, as a witness before the Royal Commission on Capital Punishment, declared with his usual fervor: T do not see why the rules of law should be arrested at the state of psychological knowledge of the time when they were formulated. ... I think the M’Naghten Rules are in large measure shams. That is a very strong word, but I think the M’Naghten Rules are very difficult for conscientious people and not difficult enough for people who say, “We’ll just juggle them.” ’” 15

Judge Kaufman stated:

“At bottom, the determination whether a man is or is not held responsible for his conduct is not a medical but a legal, social or moral judgment. Ideally, psychiatrists — much like experts in other fields — should provide grist for the legal mill, should furnish the raw data upon which the legal judgment is based. It is the psychiatrist who informs as to the mental state of the accused — his characteristics, his potentialities, his capabilities. But once this information is disclosed, it is society as a whole, represented by judge or jury, which decides whether a man with the characteristics described should or should not be held accountable for his acts. In so deciding, it cannot be presumed that juries will check their common sense at the courtroom door.” 16

*439 Thus, he concluded:

“The true vice of M’Naghten is not, therefore, that psychiatrists will feel constricted in artificially structuring their testimony but rather that the ultimate deciders — the judge or the jury — will be deprived of information vital to their final judgment. For whatever the social climate of Victorian England, today’s complex and sophisticated society will not be satisfied with simplistic decisions, based solely upon a man’s ability to ‘know’ right from wrong. It is in this respect that the vast strides made in public awareness and acceptance of psychiatry and psychiatric methods may even be more significant than the scientific developments which gave rise to them. Few areas of modern American culture — from the personnel offices of our giant corporations to the pages of our mass-circulation magazines— have been untouched by the psychiatric revolution. In this setting, a test which depends vitally on notions already discredited when M’Naghten was adopted can no longer be blandly 'accepted as representing the ‘moral sense of the community.’ To continue to apply such medically discarded concepts would be to follow a negative approach which is the result of a hold-over of long outmoded attitudes rather than a policy decision grounded in reason or science.” 17

Thus, to adhere to Esser (reaffirming the Wisconsin version of M’Naghten) is to cling to an outdated concept of who should be held responsible for the commission of an alleged criminal act. A person who may know right from wrong and who may understand the nature and quality of his act, but who is nevertheless incapable of exercising any freedom of choice as to the commission of the wrongful act is nevertheless considered responsible. Thus, Wisconsin persists in its position that a jury speaking as the conscience of the community in rendering its judgment on the “insanity” of an individual must reject one leading school of medical thought that believes *440 diseased volition can exist apart from diseased cognition. 18

Second. The error of further adherence to the Wisconsin version of M’Naghten (as expressed in Esser) is further demonstrated by the rule of State v. Carlson. 19

“Even under the right-wrong test, no evidence should be excluded which reasonably tends to show the mental condition of the defendant at the time of the offense.” 20

If such evidence is to be received to the effect that the defendant was not in control of his acts at the time of the wrongful act due to mental illness or defect, it escapes me why the jury ought not to be able to consider such evidence in determining whether the defendant, at the time of the act, was responsible. Why should the jury be restricted in terms of one particular medical approach, i.e., the capacity to know right from wrong and the nature of his acts is all-inclusive and there can be no separate incapacity to control his acts ?

The judgment that a person is not considered responsible for his acts which would otherwise be criminal because of his mental condition at the time of the act, is a moral judgment and I have no quarrel with the proposition that the test should be couched in legal terminology rather than in terms of the discipline of psychiatry. The difficulty with M’Naghten or Esser is that the current Wisconsin test excludes one important index of whether an individual acted responsibly— namely that he may not have had the capacity to make a choice or conform his conduct to the requirements of law. This is an important omission. So important, as in my judgment to invalidate Esser.

If Wisconsin is to abandon M’Naghten and Esser, the test it should adopt is that set forth in the Model Penal Code authorized by the American Law Institute:

*441 “Article 4. Responsibility

“Section 4.01. Mental Disease or Defect Excluding Responsibility.

“(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.” 21

This test best meets the basic requireménts of a proper test of insanity as outlined by a leading legal scholar in this field, Sheldon Glueck of the Harvard Law School, in Law and Psychiatry:

“(1) The test must be couched, as far as possible, in such familiar terms as to be an understandable and helpful guide to the average lay jury. (2) It must be just, not subjecting to the stigma of criminal conviction and the punishment of execution or of long imprisonment a defendant whose mental aberration was somehow probably involved in the commission of the prohibited act. *442 (3) The test must be fairly in harmony with authoritative conceptions of contemporary psychiatry, and flexible and general enough to take account of new and reasonably well established discoveries in that discipline. (4) It must permit the psychiatric expert witness to state his diagnosis of the accused’s probable condition, not in terms of fragmentary, separated symptoms, but as an organic whole arrived at upon consideration of clinically observable symptoms, the patient’s past history, and the application of such contemporary scientific investigatory devices as are used in the psychiatric examination of noncriminal patients for purposes of diagnosis and prognosis. (5) The test must not demand of the expert that he state his diagnosis either piecemeal or in dogmatic ‘Yes’ or ‘No’ terms. (6) The test should not require him to commit himself to a conclusion regarding the responsibility of the accused for the crime, but leave that legal (and moral) issue to the judgment of the jury where it belongs. (7) Finally, the test of irresponsibility must be protective of society, not leading to the discharge into the open community of actually or potentially dangerous persons.” 22

The virtue of the American Law Institute test lies in the fact that it (1) disapproves of the concept that divides the mind into separate compartments — “the intellect, the emotions and the will”; 23 (2) views “the mind as a unified entity and recognizes that mental disease or defect may impair its functioning in numerous ways”; 24 and (3) allows “an inquiry based on meaningful psychological concepts” 25 to be pursued.

In rejecting the Esser test and in endorsing the A. L. I. test, I have one further comment to make concerning the majority opinion. That opinion states:

“In the four years which have elapsed since Esser, no case has come before us in which the record indicated to us that a mentally ill person had been found guilty in violation of good conscience.”

*443 This statement begs the question. Actually since Esser there have been only three cases in which the issue of insanity was raised in a criminal appeal here. 26 The Esser rule was used in the trial of these cases and none of the records in these cases contained any effort to modify the rule. Accordingly, there would have been nothing in any record which in any way could present the fairness of the Esser rule as against any other. This is the first such case since Esser and as indicated in the majority opinion itself, there was testimony here which would have supported (though not required) a jury finding °of “not guilty due to insanity” on the basis- of the A. L. I. test if that test had actually been used in instructing the jury. Thus, this becomes the first test since Esser that has come to our court in which the Esser v. A. L. I. test for insanity was crucial.

In talking about the definition of insanity it should be completely understood that in terms of end results in Wisconsin we are largely concerning ourselves with the difference in the institutional treatment of the defendant. As stated in United States v. Freeman: 27

“. . . [W]e believe the true choice to be between different forms of institutionalization — between the prison and the mental hospital. Underlying today’s decision is our belief that treatment of the truly incompetent in mental institutions would better serve the interests of society as well as the defendant’s.”

*444 In the final analysis, in urging the use of the A. L. I. test I do so because I am satisfied that there are certain defendants now found sane who would be found insane and they would be sent for medical treatment rather than being convicted and confined to a penal institution in punishment. The end result would be institutionalization and the procedures under the Wisconsin system of continuing the confinement or allowing the release of persons committed to our mental institutions as criminally insane are rigid enough so that the release of any individual that is dangerous would be amply guarded against.

In fact, in Wisconsin individuals found to be criminally insane are sent to Central State Hospital for the criminally insane at Waupun. Some of the defendants who are convicted (with or without a claim of insanity as a defense) are subsequently transferred from prison where found by the prison staff to be mentally ill. As far as we know there are no public statistics available on the extent of such transfers, although in Esser, Mr. Justice Fairchild said:

“We are informed that of the total number of patients on March 31, 1961, (346), 39 percent were committed due to inability to stand trial, 2.6 percent by reason of acquittal on a plea of insanity, 17.9 percent by transfer from prison, and 9.9 percent by commitment after expiration of sentence. We do not know how many of the 27.8 percent who reached the hospital via conviction and subsequent transfer from the prison were convicted after a plea of insanity, nor how many of them might have been found not guilty because insane if a different definition of insanity had prevailed. Whatever the fact in that respect, the figures do show that a substantial number of prisoners are hospitalized for mental illness. A study of these cases would reveal whether there was a real question in any substantial number of cases whether it was just to hold the individuals responsible for their offenses, and might be quite persuasive in deciding whether a broader definition of the defense of insanity ought to be adopted.” 28

*445 I submit that it is likely that a significant number of these defendants might have been found insane under the A. L. I. test with the result that they would have immediately been confined for treatment at Central State Hospital rather than being found sane under the M’Naghten-Esser test and sent to prison but transferred later because of mental illness. In any event each person in the end would be confined and treated for mental illness.

In essence, I favor the A. L. I. test because it would permit the adjudication of individuals as responsible or irresponsible on a basis consistent with the advances of modern medicine. Certain individuals would be regarded as insane and therefore not responsible for acts which would otherwise have been criminal. This would be entirely consistent with our basic philosophy of holding accountable for crimes only those who are really responsible for their acts, i.e., those who commit these acts with a freedom of choice. At the same time those “insane” persons- would be institutionalized and treated as mentally ill, to be released only after they are found by the trial court to be “sane and mentally responsible” 29 and additionally, “not likely to have a recurrence of insanity or mental irresponsibility as will result in acts which but for insanity or mental irresponsibility would be crimes.” 30

State v. Esser (1962), 16 Wis. (2d) 567, 115 N. W. (2d) 505 .

Model Penal Code, Proposed Official Draft, May 4, 1962, p. 66, sec. 4.01, see infra footnote 21 at page 441.

M’Naghten’s Case (1843), 10 Clark & F., *200, *210, 8 Eng. Reprint 718.

State v. Esser, supra, footnote 1, at pages 570-599.

Id. at page 599.

State v. Shoffner, ante, at page 418.

United States v. Freeman (2d Cir. 1966), 357 Fed. (2d) 606.

Wion v. United States (10th Cir. 1963), 325 Fed. (2d) 420.

(3d Cir. 1961), 290 Fed. (2d) 751.

United States v. Currens, supra, footnote 9, at page 765.

United States v. Freeman, supra, footnote 7, at page 618.

Ibid.

Ibid.

United States v. Freeman, supra, footnote 7, at page 619.

Ibid.

Ibid.

United States v. Freeman, supra, footnote 7, at page 620.

Hall, General Principles of Criminal Law (2d ed.), p. 524.

(1958), 5 Wis. (2d) 595, 93 N. W. (2d) 354 .

State v. Carlson, supra, footnote 19, at page 607.

The American Law Institute, Model Penal Code, Proposed Official Draft, May 4, 1962, p. 66, see. 4.01.

The evolution of the A.L.I. test is fully described in Freeman, supra, footnote 7, at page 622: “In 1953, a year before Durham, the American Law Institute commenced an exhaustive study of criminal conduct including the problem of criminal responsibility. In the ensuing months and years, under the scholarly direction of Professors Herbert Wechsler of Columbia University, its Chief Reporter, and Louis B. Schwartz of the University of Pennsylvania, Co-Reporter, the leading legal and medical minds of the country applied themselves to the task. Gradually and painstakingly a new definition of criminal responsibility began taking shape as Section 4.01 of the Model Penal Code was evolved. Before its penultimate articulation, drafts and redrafts of the section were submitted to and revised by an advisory committee comprised of distinguished judges, lawyers, psychiatrists, and penologists. After committee approval was obtained, successive drafts were debated and considered by the Council, and later by the full membership, of the Institute. Nine long years of research, exploration and consideration culminated in the definitive version of Section 4.01, which was finally adopted by the Institute in 1962.”

Glueck, Law and Psychiatry (1962), at page 42.

United States v. Freeman, supra, footnote 7, at page 622.

Ibid.

United States v. Freeman, supra, footnote 7, at page 623.

Brook v. State (1963), 21 Wis. (2d) 32, 46, 123 N. W. (2d) 535 , in which the court refused to adopt a flat rule that persons classified as psychopaths were not insane. Cullen v. State (1965), 26 Wis. (2d) 652, 657, 133 N. W. (2d) 284 , where evidence was not put in by the defense to rebut the presumption of sanity. State v. Kanzelberger (1965), 28 Wis. (2d) 652, 663, 137 N. W. (2d) 419 , in which no evidence of mental illness under any other test was offered and the court expressly refused to reconsider the definition upon the record presented.

Supra, footnote 7, at page 626.

State v. Esser, supra, footnote 1, at page 591.

See. 957.11 (4), Stats.

Ibid.