Commonwealth v. Rightnour

Dissenting Opinion by

Mr: Justice Roberts:

“If a doctor were to bleed his patients with leeches today, or if a psychiatrist were to attribute insanity to the moon, the hue and cry would be tremendous. And yet instance after instance may be pointed out wherein the law has remained, sometimes for hundreds of years, curiously rigid, despite the changes in scientific opinion upon which the law was based. Many rules in the criminal law are still affected by early views concerning psychology, which views are now outmoded or repudiated by newer discoveries through experimentation. A large number fail utterly to. take cognizance of advances in education and educational methods.” Woodbridge, Some Unusual Aspects of Mental Irresponsibility in the Criminal Law, 29 J. Crim. Law & Criminology 822 (1938-39), quoted • in Taylor, Partial Insanity as Affecting the Degree of Crime—A Commentary on Fisher v. United States, 34 Cal. L. Rev. 625 (1946). In the thirty years that have passed since the foregoing quote was' written, psychiatric knowledge has further greatly increased, a factor recognized in practically all subsequent judicial decisions and commentaries. Plying in the face of this trend is the 4-3 decision of this Court in Commonwealth v. Ahearn, 421 Pa. 311 , 218 A. 2d 561 (1966), which is relied upon by Mr. Chief Justice Bell’s opinion in the ease now before us. I am thus compelled to dis *121 sent from the opinion in favor of affirmance here, and to reinforce my dissenting views in Ahearn . 1

The decision in Ahearn has produced only criticism, see 28 U. Pitt. L. Rev. 679 (1967) ; 71 Dick. L. Rev. 100 (1966), just as the only other near-contemporary decision adhering to the Ahearn rule, Fisher v. United States, 149 F. 2d 28 (D.C. Cir. 1945), aff'd, 328 U.S. 463 , 66 S. Ct. 1318 (1946) (affirmance did not reach merits of rule in issue) 2 was met with apparently unanimous disfavor. See Keedy, A Problem of First Degree Murder: Fisher v. United States, 99 U. Pa. L. Rev. 267 (1950); Weihofen and Overholser, Mental Disorder Affecting the Degree of Crime, 56 Yale L.J. 959 (1947); Taylor, Partial Insanity as Affecting the Degree of Crime—A Commentary on Fisher v. United States, 34 Cal. L. Rev. 625 (1946). The Supreme Courts of California and New Jersey, two states which apparently followed a rule similar to that in Ahearn at the time of the Fisher decision, see Weihofen and Overholser, supra at 965, have subsequently unanimously repudiated their old law and now allow the admission of evidence of “diminished responsibility.” See State v. DiPaolo, 34 N.J. 279 , 168 A. 2d 401 (1961); People v. Wells, 33 Cal. 2d 330 , 202 P. 2d 53 (1949) (dissents on other grounds), followed in People v. Henderson, 35 Cal. Rptr. 77 , 386 P. 2d 677 (1963) and People v. Gorshen, 51 Cal. 2d 716 , 336 P. 2d 492 (1959). *122 See also Stewart v. United States, 214 F. 2d 879 (D.C. Cir. 1954). Even in Great Britain, bastion of the common law and birthplace of the M’Naghten Rule, the law has been brought in line with the Scotch practice which has been evolving since the 19th Century, see 28 U. Pitt. L. Rev. 679 , 685 n.33 (1967), and diminished responsibility is now cognizable in homicide cases. English Homicide Act, 1957, 5 & 6 Eliz. II, c.11, §2(1) ; see Regina v. Dunbar, 41 Cr. App. R. 182 (1957). Irish legal thought evidences the same trend. See O’Doherty, Men, Criminals and Responsibility, 1 Irish Jurist 285 (1966).

These developments are paralleled by Model Penal Code §4.02(1) (proposed official draft 1962), which provides that: “Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense.” All this proves to me that the dissenters in Ahearn were hardly voices in the wilderness, but rather represent what quite clearly is the apparently unanimous position of enlightened legal thinkers, while those who support the affirmance today stand with feet firm and teeth tightly clenched, desperately holding out against the advent of the 20th Century.

In my view, the position advanced in Mr. Chief Justice Bell’s opinion must be based, at least in part, on the belief that a person is wholly sane or wholly insane, a position which “is now abandoned as based on psychological untruth.” Taylor, supra at 629. It is a position that is not even freshly abandoned; writing in 1946, Professor Taylor was able to quote the following, written twenty-three years earlier: “To conceive that an individual is either absolutely responsible or absolutely irresponsible is to fly in the face of perfectly patent facts that are in everybody’s indi *123 vidual experience and is only comparable to such beliefs of the Middle Ages that a person is possessed of a devil or is not possessed of a devil, and therefore is or is not a free moral agent.” White, Insanity and the Criminal Law 89 (1923). Yet by holding that appellant must be (wholly) insane within M’Naghten, or we will not consider his mental state as bearing on his criminal responsibility, the other opinion here has reinforced exactly that medieval and “abandoned” theory and has turned its back on years of psychiatric progress. See State v. Gramenz, 256 Iowa 134, 140-41 , 126 N.W. 2d 285, 289 (1964).

Nor do I find in the least bit tenable Mr. Chief Justice Bell’s argument, here and in Ahearn , that psychiatric testimony is so inherently unreliable that it cannot be utilized in cases of this type. The most obvious answer to this is that psychiatric evidence is no less reliable here than it is when used to make the initial M’Naghten determination. See State v. DiPaolo, supra; 71 Dick. L. Rev. at 113 (relying also on the fact that psychiatric evidence has been legislatively determined in this Commonwealth to be relevant in setting sentence under 18 P.S. §4701).

Regardless, I cannot accept the proposition that psychiatric testimony suffers from an incurable reliability problem. I do not think it is necessary to argue that psychiatric testimony will always be absolutely accurate in order to reach this conclusion. Psychiatry is a science that is inherently less exact than chemistry or physics, but that hardly means that psychiatrists engage in nothing more than guesswork. Additionally, it is safe to say that there is a growing appreciation among psychiatrists of the difficulties involved in giving useful courtroom testimony, and attempts are being made to develop a procedure by which psychiatric testimony can be even more useful to the trier of facts. *124 See, e.g., Guttmacher, Why Psychiatrists Do Not Like to Testify in Court, 20 Bull. of The Menninger Clinic 300, 306 (1956).

The fact that psychiatric testimony must frequently be based on statements made by the defendant himself is also exaggerated by the Ahearn opinion. There appears to be substantial psychiatric evidence that “the insane do not lie—they expose the truth with alarming candor.” Roche, Truth Telling, Psychiatric Expert Testimony and the Impeachment of Witnesses, 22 Pa. B.Q. 140, 146 (1951). Although a psychiatrist may not be able to establish the truth or falsity of any given statement, this is not really his aim; rather he is trained to “evaluate the whole of the individual’s mental processes from the clinical standpoint.” He is thus capable of identifying “ The suggestibility and unreliability of the intellectually defective and the demented, the hallucinations and the delusions of the psychotic, [and] the irresponsibility of the true psychopath’ and from his conclusions he renders his expert opinion.” 28 U. Pitt. L. Rev. at 685, quoting Guttmacher and Weihofen, Psychiatry and the Law 365 (1952).

Ultimately it must be remembered that the final decision will be made not by the testifying psychiatrist but by the trier of facts. There may well be conflicting psychiatric testimony, but this does not mean that psychiatric testimony is necessarily unreliable since psychiatrists—like lawyers—can have legitimate disagreements.

The point is that psychiatric testimony, even if conflicting, is relevant and should be available for the consideration of the trier of facts. “If the mental state requisite to a given crime is absent, the crime has not been committed. To what cause the absence of such mental state is to be attributed would seem immate *125 rial.” Weihofen and Overholser, supra at 962. This is of course the rule that this Court has followed in intoxication cases. See, e.g., Commonwealth v. McCausland, 34 8 Pa. 275 , 35 A. 2d 70 (1944). It seems almost incredible that this Court can adhere to a rule that gives intoxicants, who presumably may have some control over their condition, cf. Powell v. Texas, 392 U.S. 514 , 88 S. Ct. 2145 (1968), the use of evidence that is denied to the mentally ill, who certainly are not responsible for their deficiencies. See 71 Dick. L. Rev. at 111; Weihofen and Overholser, supra at 290; Taylor, supra at 635. “[I]f states of mind such as deliberation or premeditation are accorded legal significance, psychiatric evidence should be admissible when relevant to prove or disprove their existence to the same extent as any other relevant evidence.” A.L.I. Model Penal Code, §4.02(1), comment (Proposed Official Draft, 1962). See State v. DiPaolo, supra.

One final comment is in order. It has been argued that allowing “diminished responsibility” testimony to reduce the degree of crime will result in shorter sentences and hence earlier freedom for dangerous persons. One proposed solution is to require the jury to return a verdict of not guilty of the higher offense by reasons of the defendant’s mental disorder, under which verdict the trial judge could order confinement for care. Weihofen and Overholser, supra at 981. The new Pennsylvania Mental Health and Mental Retardation Act, Act of October 20, 1966 (Spec. Sess.) P. L. 96, §101 et seq., 50 P.S. §4101 et seq., which became effective after the decision of this Court in Ahearn and was thus not available in deciding that case, provides that: “§4413(a) Whenever any person charged with any crime is acquitted on the ground of insanity or having been insane at the time he committed the crime, the jury or the court as the case may be, shall state such *126 reason for acquittal in its verdict, (b) In such event, the court may direct the Attorney for the Commonwealth to act as petitioner to initiate commitment proceedings under section 406.” Section 406, 50 P.S. §4406, is the Act’s civil commitment procedure and allows, inter alia, an officer or agent of a governmental health or welfare organization or agency or “any responsible person” to bring the petition to commit any person in need of care. Thus while we would not need to decide in this case whether §4413 is applicable to a diminished responsibility case, it is clear that under §4406, the Commonwealth will have the option of moving to keep confined any person whom it considers dangerous, or whom it merely considers to be in need of care. The opinion in support of the order then is completely wrong in arguing that the protection and safety of law-abiding citizens would be further greatly jeopardized and the convictions of dangerous criminals substantially reduced if the testimony in question were admissible. Total acquittal is not at issue at all here; that of course is governed by M’Naghten, and the testimony is without doubt admissible. And if a shorter sentence results because of an acquittal of a higher offense, the Mental Health Act provides a simple mechanism for the Commonwealth to keep confined a still dangerous individual.

It has recently been suggested by Dr. Karl Menninger 3 that a significant cause of the “lack of safety of law-abiding citizens” is the failure of law and psychiatry to properly communicate and create valid *127 standards of conduct and responsibility. A society that develops a fixation on punishment and revenge may do no better protecting innocent citizens than dealing with “guilty” ones: “But you may ask—the man was dangerous, immoral, ruthless, unpredictable— why not eliminate him?

“For the reasons that .... Eliminating one offender who happens to get caught weakens public security by creating a false sense of diminished danger through a definite remedial measure. Actually, it does not remedy anything, and it bypasses completely the real and unsolved problem of how to identify, detect, and detain potentially dangerous criminals.

“What kind of creature was this anyway? And how did he get that way? What gave him the wild and fearful idea? What was he most afraid of? What was burning him inside? What might have deterred him? .... How do patterns of thought and action such as this get started, and how can the rest of us become alerted in time to prevent such tragedies?

“We will never know the answers to these questions because we were in such a hurry to get this wretch disposed of, as if he were our only social menace, and the only one that ever would be born who would do such a ghastly thing. We can wish that, but we know better.” Menninger, The Crime of Punishment 108-09 (1968) (Emphasis in original.).

For the foregoing reasons I continue to dissent and would grant appellant a new trial.

Mr. Justice Jones joins in this dissent.

Justice Jones joined in this writer’s dissent. Justice Cohen also filed a dissenting opinion.

The Supreme Court affirmed because it believed it should not interfere with the common law development of insanity rules in the District of Columbia, but in no way affirmed the rule on the merits. The Court of Appeals for the District of Columbia Circuit has subsequently implied that it would not have allowed Fisher to stand had it not replaced the M’Naghten Eule with the more progressive Durham test. See Stewart v. United States, 214 F. 2d 879 (D.C. Cir. 1954).

In addition to his unquestioned psychiatric qualifications and achievements, Dr. Menninger is a member of the Project on Mental Health and the Law of the American Bar Association, and formerly served on the Special Commission on Insanity and Criminal Offenders of the State of California and on the Committee on Legal Aspects of Psychiatry of the American Psychiatric Association.