State v. Esser

Currie, J.

(dissenting in part). The underlying reason why society acting through law has adopted the policy of not punishing as a criminal one who, because of mental disease or defect, has committed an act prohibited by the criminal law, is because such person is deemed to have been incapable of exercising any freedom of choice in doing the criminal act. In other words, his mental illness or defect prevented him from exercising any control over the particular act.

The M’Naghten test of insanity, to which the majority opinion adheres, is grounded on the hypothesis that one, even though afflicted with a mental disease or defect, who knows the difference between right and wrong, necessarily possesses the ability to control his actions to conform with this knowledge. While that hypothesis was in accord with psychiatric knowledge back in 1843 when the M’Naghten rule was an *608 nounced, it is rejected today by a very substantial number of psychiatrists, probably the majority. The basic hypothesis of those psychiatrists who support the M’Naghten rule is that diseased volition cannot exist apart from diseased cognition. 1 However, not many years ago this question was put to a group of leading psychiatrists: “Are there cases where a person, suffering from mental derangement, knows that it is wrong to inflict bodily harm (killing, maiming, ravishing) upon another person, but owing to the mental derangement is incapable of controlling (resisting) the impulse to commit such bodily harm?” Of the answers received, 93 answered “Yes,” only nine answered “No,” and six expressed the opinion that no definite answer could be given. 2

The majority opinion has placed its stamp of approval on Dr. Guttmacher’s stated position that a psychiatrist, when testifying in a criminal trial with respect to an accused whom the witness has found is suffering from a mental disorder, should be expected to state, among other things, how the disorder has affected the accused’s social behavior and self-control. Yet under the rephrased M’Naghten test of insanity, the jury is in effect told to disregard such testimony and base its findings solely on whether the accused understood the nature and quality of his act, or whether he was capable of distinguishing between right and wrong with respect to such act.

There is something incongruous in a rule of law which takes away from the jury the right of choosing between two conflicting and well-supported medical theories, and requires the jury to base its determination on one and not the other. However, that is exactly what occurs when a Wisconsin jury is instructed under the rephrased M’Naghten rule. This *609 is because under this instruction, if a jury concludes that the accused was capable of distinguishing between right and wrong with respect to the act with which he is charged, the jury must regard as wholly immaterial any evidence that mental abnormality may have rendered him incapable of conforming his conduct to such knowledge.

Had this court adopted the American Law Institute test of insanity, this incongruity would not be present. The A. L. I. test has the advantage of not ruling out a jury determination based on any recognized theory of psychiatry that may have been advanced by expert testimony at the trial. For example, there is nothing in an instruction embodying the A. L. I. test which would prevent a jury from basing its conclusion on expert psychiatric opinion testimony that the accused, although suffering from mental abnormality, was capable of distinguishing between right and wrong with respect to his act, and that as a result he did not lack substantial capacity to conform his conduct to the requirements of law. The jury could reach such a conclusion even though there was present other expert psychiatric opinion testimony that the accused, in spite of being capable of distinguishing between right and wrong with respect to his act, had been rendered incapable by mental disease or defect from conforming his conduct to the requirements of law.

In criminal cases in which a defense of not guilty by reason of insanity has been interposed, the law is concerned with the moral issue of whether the accused had the capacity to exercise a freedom of choice. In resolving this issue, why should not the jury be frankly instructed that an element to be considered is the capacity of the accused to have conformed his conduct to the requirements of law? The charge of the learned trial judge did just that, but the majority holds this was error. This is in marked contrast to the recent enlightened decision of the Eighth circuit court of appeals in *610 Dusky v. United States (1961), 295 Fed. (2d) 743, 759, where the court stated:

“[W]e would be loath, indeed, to reverse where, as here, the trial court has used instructions, whether based theoretically on a M’Naghten variation or on the test set forth in the Modern Penal Code proposed by the American Law Institute or on that form revised as suggested by the third circuit in Currens [United States v. Currens (3d Cir. 1961), 290 Fed. (2d) 751], or whether couched in still other language if the charge appropriately embraces and requires positive findings as to three necessary elements, namely, the defendant’s cognition, his volition, and his capacity to control his behavior.”

The reason advanced by the majority, as to why the element of the effect of mental abnormality on capacity to control action should not be included in the instruction on insanity in criminal cases, that juries might find some accused not guilty by reason of insanity who should be found guilty, leaves me wholly unconvinced. I am unable to bring myself to believe that Wisconsin jurors will fail to exercise the good common sense in this particular type of case that they traditionally have employed in others.

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

Keedy, Irresistible Impulse as a Defense in the Criminal Law, 100 University of Pennsylvania Law Review (1952), 956, 989.