The case was moved in January, 1906, and the defence thereupon proceeded to introduce a limited amount of testimony14 tending to show that Thaw[Pg 351] was insane when he did the shooting. While much of this evidence commended itself but little to either the prosecutor or the jury, it was sufficient to raise grave doubt as to whether the accused was a fit subject for trial. The District Attorney's experts united in the opinion that, while he knew that he was doing wrong when he shot White, he was, nevertheless, the victim of a hopeless progressive form of insanity called dementia pr?cox. In the midst of the trial, therefore, Mr. Jerome moved for a commission to examine into the question of how far Thaw was capable of understanding the nature of the proceedings16 against him and consulting with counsel, and frankly17 expressed his personal opinion in open court that Thaw was no more a proper subject for trial than a baby. A commission was appointed which reported the prisoner sane6 enough to be tried, and the case then proceeded at great length with the surprising result that, in spite of the District Attorney's earlier declaration that he believed Thaw to be insane, the jury disagreed as to his criminal responsibility, a substantial number voting for conviction. Of course, logically, they would have been obliged either to acquit18 entirely19 on the ground of insanity or convict of murder in the first degree, but several voted for murder in the second degree.
A year now elapsed, during which equally elaborate preparations were made for a second trial. The State had already spent some $25,000, and yet its experts had never had the slightest opportunity to examine or interrogate20 the defendant, for the latter had not taken the stand at the first trial. The District Attorney still remained on record as[Pg 352] having declared Thaw to be insane, and his own experts were committed to the same proposition, yet his official duty compelled him to prosecute21 the defendant a second time. The first prosecution22 had occupied months and delayed the trial of hundreds of other prisoners, and the next bid fair to do the same. But at this second trial the defence introduced enough testimony within two days to satisfy the public at large of the unbalanced mental condition of the defendant from boyhood.
After a comparatively short period of deliberation the jury acquitted23 the prisoner "on the ground of insanity," which may have meant either one of two things: (a) that they had a reasonable doubt in their own minds that Thaw knew that he was doing wrong when he committed the murder—something hard for the layman24 to believe, or (b) that, realizing that he was undoubtedly25 the victim of mental disease, they refused to follow the strict legal test.
Nearly two years had elapsed since the homicide; over a hundred thousand dollars had been spent upon the case; every corner of the community had been deluged26 with detailed27 accounts of unspeakable filth28 and depravity; the moral tone of society had been depressed29; and the only element which had profited by this whole lamentable30 and unnecessary proceeding15 had been the sensational31 press. Yet the sole reason for it all was that the law of the land in respect to insane persons accused of crime was hopelessly out of date.
The question of how far persons who are victims of diseased mind shall be held criminally responsible for their acts has vexed32 judges, jurors,[Pg 353] doctors, and lawyers for the last hundred years. During that time, in spite of the fact that the law has lagged far behind science in the march of progress, we have blundered along expecting our juries to reach substantial justice by dealing33 with each individual accused as most appeals to their enlightened common sense.
And the fact that they have obeyed their common sense rather than the law is the only reason why our present antiquated34 and unsatisfactory test of who shall be and who shall not be held "responsible" in the eye of the law remains35 untouched upon the statute36-books. Because its inadequacy37 is so apparent, and because no experienced person seriously expects juries to apply it consistently, it fairly deserves first place in any discussion of present problems.
Thanks to human sympathy, the law governing insanity has had comparatively few victims, but the fact remains that more than one irresponsible insane man has swung miserably38 from the scaffold. But "hard cases" do more than "make bad law," they make lawlessness. A statute systematically39 violated is worse than no statute at all, and exactly in so far as we secure a sort of justice by evading40 the law as it stands, we make a laughing-stock of our procedure.
The law is, simply, that any person is to be held criminally responsible for a deed unless he was at the time laboring41 under such a defect of reason as not to know the nature and quality of his act and that it was wrong.
This doctrine42 first took concrete form in 1843, when, after a person named McNaughten, who had[Pg 354] shot and killed a certain Mr. Drummond under an insane delusion43 that the latter was Sir Robert Peel, had been acquitted, there was such popular uneasiness over the question of what constituted criminal responsibility that the House of Lords submitted four questions to the fifteen judges of England asking for an opinion on the law governing responsibility for offences committed by persons afflicted44 with certain forms of insanity. It is unnecessary to set forth45 at length these questions, but it is enough to say that the judges formulated46 the fore-going rule as containing the issue which should be submitted to the jury in such cases.[51]
Now, with that commendable47 reverence48 for judicial49 utterance50 which is so characteristic of the English nation, and is so conspicuously51 absent in[Pg 355] our own country, it was assumed until recently that this solemn pronunciamento was the last word on the question of criminal responsibility and settled the matter once and forever. Barristers and legislators did not trouble themselves particularly over the fact that in 1843 the study of mental disease was in its infancy52, and judges, including those of England, probably knew even less about the subject than they do now. In 1843 it was supposed that insanity, save of the sort that was obviously maniacal54, necessitated55 "delusions56," and unless a man had these delusions no one regarded him as insane. In the words of a certain well-known judge:
"The true criterion, the true test of the absence or presence of insanity, I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely, delusion.... In short, I look on delusion ... and insanity to be almost, if not altogether, convertible57 terms."[52]
This in a certain broad sense, probably not intended by the judge who made the statement, is nearly true, but, unfortunately, is not entirely so.
[Pg 356]
The dense58 ignorance surrounding mental disease and the barbarous treatment of the insane within a century are facts familiar to everybody. Lunatics were supposed to be afflicted with demons59 or devils which took possession of them as retribution for their sins, and in addition to the hopelessly or maniacally60 insane, medical science recognized only a so-called "partial" or delusionary insanity. To-day it would be regarded about as comprehensive to relate all mental diseases to the old-fashioned "delusion" as to regard as insane only those who frothed at the mouth.
But the particular individual out of whose case in 1843 arose the rule that is in 1908 applied61 to all defendants62 indiscriminately was the victim of a clearly defined insane delusion, and the four questions answered by the judges of England relate only to persons who are "afflicted with insane delusions in respect to one or more particular subjects or persons." Nothing is said about insane persons without delusions, or about persons with general delusions, and the judges limit their answers even further by making them apply "to those persons who labor12 under such partial delusion only and are not in other respects insane"—a medical impossibility.
Modern authorities agree that a man cannot have insane delusions and not be in other respects insane, for it is mental derangement63 which is the cause of the delusion.
In the first place, therefore, a fundamental conception of the judges in answering the questions was probably fallacious, and in the second, although the test they offered was distinctly limited to[Pg 357] persons "afflicted with insane delusions," it has ever since been applied to all insane persons irrespective of their symptoms.
Finally, whether the judges knew anything about insanity or not, and whether in their answers they weighed their words very carefully or not, the test as they laid it down is by no means clear from a medical or even legal point of view.
Was the accused laboring under such a defect of reason as not to know the nature and quality of the act he was doing, or not to know that it was wrong? What did these judges mean by know? What does the reader mean by know? What does the ordinary juryman mean by it?
We are left in doubt as to whether the word should be given, as Justice Stephens contended it should be, a very broad and liberal interpretation65 such as "able to judge calmly and reasonably of the moral or legal character of a proposed action,"[53] or a limited and qualified66 one. There are all grades and degrees of "knowledge," and it is more than probable that there is a state of mind which I have heard an astute67 expert call upon the witness stand "an insane knowledge," and equally obvious that there may be "imperfect" or "incomplete knowledge," where the victim sees "through a glass darkly." Certainly it seems far from fair to interpret the test of responsibility to cover a condition where the accused may have had a hazy68 or dream-like realization69 that his act was technically70 contrary to the law, and even more dangerous to make it exclude one who was simply unable to "judge calmly and reasonably" of his proposed action, a doctrine[Pg 358] which could almost be invoked71 by any one who committed homicide in a state of anger.
Ordinarily the word is not defined at all and the befuddled72 juryman is left to his own devices in determining what significance he shall attach not only to this word but to the test as a whole.
An equally ambiguous term is the word "wrong." The judges made no attempt to define it in 1843, and it has been variously interpreted ever since. Now it may mean "contrary to the dictates73 of conscience" or, as it is usually construed75, "contrary to the law of the land"—and exactly what it means may make a great difference to the accused on trial. If the defendant thinks that God has directed him to kill a wicked man, he may know that such an act will not only be contrary to law, but also in opposition76 to the moral sense of the community as a whole, and yet he may believe that it is his conscientious77 duty to take life. In the case of Hadfield, who deliberately78 fired at George III in order to be hung, the defendant believed himself to be the Lord Jesus Christ, and that only by so doing could the world be saved. Applying the legal test and translating the word "wrong" as contrary to the common morality of the community wherein he resided or contrary to law, Hadfield ought to have achieved his object and been given death upon the scaffold instead of being clapped, as he was, into a lunatic asylum79.
On the other hand, if the word "wrong" is judicially80 interpreted to mean "contrary to the dictates of conscience," it would seem to be given an elasticity81 which would invite inevitable82 confusion as well as abuse.
[Pg 359]
Moreover, the test in question takes no cognizance of persons who have no power of control. The law of New York and most of the states does not recognize "irresistible83 impulses," but it should admit the medical fact that there are persons who, through no fault of their own, are born practically without any inhibitory capacity whatever, and that there are others whose control has been so weakened, through accident or disease, as to render them morally irresponsible,—the so-called psychopathic inferiors.
Most of us are only too familiar with the state of a person just falling under the influence of an anesthetic84, when all the senses seem supernaturally acute, the reasoning powers are active and unimpaired, and the patient is convinced that he can do as he wills, whereas, in reality, he says and does things which later on seem impossible in their absurdity85. Such a condition is equally possible to the victim of mental disease, where the knowledge of right and wrong has no real relevancy.
The test of irresponsibility as defined by law is hopelessly inadequate86, judged by present medical knowledge. There is no longer any pretence87 that a perception of the nature and quality of an act or that it is wrong or right is conclusive88 of the actual insanity of a particular accused. In a recent murder case a distinguished89 alienist, testifying for the prosecution, admitted that over seventy per cent. of the patients under his treatment, all of whom he regarded as insane and irresponsible, knew what they were doing and could distinguish right from wrong.
Countless90 attempts have been made to reconcile[Pg 360] this obvious anachronism with justice and modern knowledge, but always without success, and courts have wriggled91 hard in their efforts to make the test adequate to the particular cases which they have been trying, but only with the result of hopelessly confounding the decisions.
But, however it is construed, the test as laid down in 1843 is insufficient92 in 1908. Medical science has marched on with giant strides, while the law, so far as this subject is concerned, has never progressed at all. It is no longer possible to determine mental responsibility by any such artificial rule as that given by the judges to the Lords in McNaughten's case, and which juries are supposed to apply in the courts of to-day. I say "supposed," for juries do not apply it, and the reason is simple enough—you cannot expect a juryman of intelligence to follow a doctrine of law which he instinctively93 feels to be crude and which he knows is arbitrarily applied.
No juryman believes himself capable of successfully analyzing94 a prisoner's past mental condition, and he is apt to suspect that, however sincere the experts on either side may appear, their opinions may be even less definite than the terms in which they are expressed. The spectacle of an equal number of intellectual-looking gentlemen, all using good English and all wearing clean linen95, reaching diametrically opposite conclusions on precisely96 the same facts, is calculated to fill the well-intentioned juror with distrust. Painful as it is to record the fact, juries are sometimes almost as sceptical in regard to doctors as they always are in regard to lawyers.
[Pg 361]
The usual effect of the expert testimony on one side is to neutralize97 that on the other, for there is no practical way for the jury to distinguish between experts, since the foolish ones generally look as learned as the wise ones. The result is hopeless confusion on the part of the juryman, an inclination98 to "throw it all out," and a resort to other testimony to help him out of his difficulty. Of course he has no individual way of telling whether the defendant "knew right from wrong," whatever that may mean, and so the ultimate test that he applies is apt to be whether or not the defendant is really "queer," "nutty" or "bughouse," or some other equally intelligible99 equivalent for "medically insane."
The unfortunate consequence is that there is so general and growing a scepticism about the plea of insanity, entirely apart from its actual merits, that it is difficult in ordinary cases, whatever the jurors may think or say in regard to the matter, to secure twelve men who will give the defence fair consideration at the outset.
This is manifest in frequent expressions from talesmen such as: "I think the defence of insanity is played out," or "I believe everybody is a little insane, anyhow" (very popular and regarded by jurymen as witty), or "Well, I have an idea that when a fellow can't cook up any other defence he claims to be insane."
The result is a rather paradoxical situation: The attitude of the ordinary jury in a homicide case, where the defence of insanity is interposed, is usually at the outset one of distrust, and their impulse is to brush the claim aside. This tendency is[Pg 362] strengthened by the legal presumption100, which the prosecutor invariably calls to their attention, that the defendant is sane. Every expert who has testified for the defence in the ordinary "knock down and drag out" homicide case must have felt with the prisoner's attorneys, that it was "up to them" not so much to create a doubt of the defendant's sanity8 as to prove that he was insane, if they expected consideration from the jury.
Now let us assume that the defence is meritorious101 and that the prisoner's experts have created a favorable impression. Let us go even further and assume that they have generated a reasonable doubt in the mind of the jury as to the defendant's responsibility at the time he committed the offence. What generally occurs? Not, as one would suppose, an acquittal, but, in nine cases out of ten, a conviction in a lower degree.
The only usual result of an honest claim of irresponsibility on the ground of insanity is to lead the jury to reduce the grade of the offence from murder in the first, entailing102 the death penalty, to murder in the second degree. The jury have no intention of "taking the chance" involved in turning the man loose on the community and their minds are filled with the predominating fact that a human being has been killed. They have an idea that it is as easy to get "sworn out" of a lunatic asylum as they suppose it is to get "sworn into" one, and they know that if the prisoner is found to be insane when sent to State's prison he will be transferred elsewhere. They, therefore, as a rule, waste little time upon the question of how far the defendant was irresponsible within the legal definition when[Pg 363] he committed the deed, but convict him "on general principles," trusting the prison officials to remedy any possible injustice104. The jury in such cases ignore the law and decline either to acquit or to convict in accordance with the test. Their action becomes rather that of a lay commission condemning105 the prisoner to hard labor for life on the ground that he is medically insane.
Assuming that the jury take the defence seriously, there is only one class of cases where, in the writer's opinion, they follow the legal test as laid down by the court—that is to say, in cases of extreme brutality107. Here they hold the prisoner to the letter of the law, and the more abhorrent108 the crime (even where its nature might indicate to a physician that the accused was the victim of some sort of mania) the less likely they are to acquit. The writer has prosecuted109 perhaps a dozen homicide and other cases where the defence was insanity. In his own experience he has known of no acquittal. In several instances the defendants were undoubtedly insane, but, strictly110 speaking, probably vaguely111 knew the nature and quality of their acts and that they were wrong. In a few of these the juries convicted of murder in the first degree because the circumstances surrounding the homicides were so brutal106 that the harshness of the technical doctrine they were required to apply was overshadowed in their minds by their horror of the act itself. In other cases, where either the accused appeared obviously abnormal as he sat at the bar of justice, or the details of the crime were less abhorrent, they convicted of murder in the second degree in accordance with the reasoning set forth in the fore-going para[Pg 364]graph. The writer seriously advances the suggestion that the more the brutality of a homicide indicates mental derangement the less chance the defendant has to secure an acquittal upon the plea of insanity.
And this leads us to that increasingly large body of cases where the usual scepticism of the jury in regard to such defences is counterbalanced by some real or imaginary element of sympathy. In cities like New York, where the jury system is seen at its very best, where the statistics show seventy per cent. of convictions by verdict for the year 1907, and where the sentiment of the community is against the invocation of any law supposedly higher than that of the State, our talesmen are unwilling112 to condone113 homicide or to act as self-constituted pardoning bodies, for they know that an obviously lawless verdict will bring down upon them the censure114 of the public and the press. This is perhaps demonstrated by the fact that in New York County a higher percentage of women are convicted of homicide than of men.
But the plea of insanity, with its vague test of responsibility, whose terms the juryman may construe74 for himself (or which his fellow-jurors may construe for him) offers an unlimited115 and fertile field for the "reasonable" doubt and an easy excuse for the conscientious talesman who wants to acquit if he can. Juries take little stock in irresistible impulses and emotional or temporary insanity save as a cloak to cover an unrighteous acquittal.
In no other class of cases does "luck" play so large a part in the final disposition116 of the prisoner. A jury is quite as likely to send an insane man to the[Pg 365] electric chair as to acquit a defendant who is fully64 responsible for his crime.
To recapitulate117 from the writer's experience:
(1) The ordinary juror tends to be sceptical as to the good faith of the defence of insanity.
(2) When once this distrust is removed by honest evidence on the part of the defence, he usually declines to follow the legal test as laid down by the court on the general theory that any one but an idiot or a maniac53 has some knowledge of what he is doing and whether it is right or wrong.
(3) He applies the strict legal test only in cases of extreme brutality.
(4) In all other cases he follows the medical rather than the legal test, but instead of acquitting118 the accused on account of his medical irresponsibility, merely convicts in a lower degree.
The following deductions120 may also fairly be made from observation:
(1) That the present legal test for criminal responsibility is admittedly vague and inadequate, affording great opportunity for divergent expert testimony and a readily availed of excuse for the arbitrary and sentimental121 actions of juries, to which is largely due the distrust prevailing122 of the claim of insanity when interposed as a defence to crime.
(2) That expert medical testimony in such cases is largely discounted by the layman.
(3) That in no class of cases are the verdicts of jurors so apt to be influenced solely123 by emotion and prejudice, or to be guided less by the law as laid down by the court.
(4) That a new definition of criminal responsi[Pg 366]bility is necessary, based upon present knowledge of mental disease and its causes.
(5) Lastly, that, as whatever definition may be adopted will inevitably124 be difficult of application by an untutored lay jury, our procedure should be so amended125 that they may be relieved wherever possible of a task sufficiently126 difficult for even the most experienced and expert alienists.
A classification of the different forms of insanity, based upon its causes to which the case of any particular accused might be relegated127, such as has recently been urged by a distinguished young neurologist, would not, with a few exceptions, assist us in determining his responsibility. It would be easy to say then, as now, that lunatics or maniacs128 should not be held responsible for their acts, but we should be left where we are at present in regard to all those shadowy cases where the accused had insane, incomplete or imperfect knowledge of what he was doing. It would be ridiculous, for example, to lay down a general rule that no person suffering from hysterical129 insanity should be punished for his acts. Yet, even so, such a classification would instantly remedy that anachronism in our present law which refuses to recognize as irresponsible those born without power to control their emotions—the psychopathic inferiors of science, and the real victims of dementia pr?cox.
Of course, if the insanity under which the defendant labors130 bears no relation to or connection with the deed for which he is on trial, there would logically be no reason why his insanity on other subjects should be any defence to his crime. For[Pg 367] example, there is the well-known case of the Harvard professor who was apparently131 sane on all other matters, yet believed himself to be possessed132 of glass legs. Had this man in wanton anger struck and killed another, his "glass leg" delusion could not logically have availed him. If, however, he had struck and killed one who he believed was going to shatter his legs it might have been important. The illustration is clear enough, but its application probably involves a mistaken premise133. If he thought he had glass legs his mind was undoubtedly deranged—whether enough or not enough to constitute him irresponsible or beyond the effect of penal103 discipline might be a difficult question. The generally accepted doctrine is, that if a man has a delusion concerning something, which if actually existing as he believed it to be would be no excuse for his committing the criminal act, he is responsible and liable to punishment; but, as Bishop134 well says:
"This branch of the doctrine should be cautiously received; for delusion of any kind is strongly indicative of a generally diseased mind."
The new test to determine responsibility will recognize, as does the law of Germany, that there can be no criminal act where the free determination of the will is excluded by disease, and that the capacity to distinguish between right and wrong is inconclusive. It may perhaps have to take a general form, leaving it to a lay, expert, or a mixed lay-and-expert jury to say merely whether the accused had a disease of the mind of a type recognized by science, and whether the alleged135 criminal act was of such a character as would naturally flow from that type of insanity, in which case it would seem[Pg 368] obviously just to regard the defendant as partially136 irresponsible, and perhaps entirely so. Possibly the practical needs of the moment might be met by permitting such a jury to determine whether the defendant had such a knowledge of the wrongful nature and consequences of his act and such a control over his will as to be a proper subject of punishment.[54] This would require the jury to find that the defendant had some knowledge of right and wrong and the power to choose between them. In any event, to render the accused entirely irresponsible, his act should arise out of and be caused solely by the diseased condition of his mind. The law, while asserting the responsibility of many insane people, should recognize "partial" responsibility as well.
The reader may feel that little after all would be gained, but he will observe that at any rate such a test, however imperfect, would permit juries to do lawfully137 that which they now do by violating their oaths. The writer believes that the best concrete test yet formulated and applied by any court is that laid down in Parsons vs. The State of Alabama (81 Ala., 577):
"1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic138, or otherwise insane?
"2. If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible.
"3. If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur139:
"(1) If, by reason of the duress140 of such mental disease,[Pg 369] he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed.
"(2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely."
But whatever modification141 in the present test of criminal responsibility is adopted, there must come an equally, if not even more important, reform in the procedure in insanity cases, which to-day is as cumbersome142 and out of date as the law itself. As things stand now in New York and most other jurisdictions143 there are no adequate means open to the State to find out the actual present or past mental condition of the defendant until the trial itself, and ofttimes not even then.
In New York, in cases like Thaw's, the accused, while fully intending to interpose the defense144 of insanity (which he is now permitted to do simply under the general plea of "not guilty") may not only conceal145 the fact until the trial, but may likewise successfully block every effort of the authorities to examine him and find out his present mental condition. He may thus keep it out of the power of the District Attorney to secure the facts upon which to move for a commission to determine whether or not he ought to be in an insane asylum or is a fit subject for trial, and at the same time prevent the prosecutor from obtaining any evidence through direct medical observation by which to meet the claim, which may be "sprung" suddenly upon him later at the trial, that the defendant was irresponsible.
In order that this may be clearly understood by the reader he should fully appreciate the distinction[Pg 370] between (1) the claim on the part of an accused that he is at present insane, and for that reason should not be either tried or punished for his alleged offence, and (2) the defence that he was (irrespective of his present mental condition) insane within the legal definition of irresponsibility at the time he committed it. No person who is incapable146 of understanding the nature of the proceedings against him or of consulting with counsel and preparing his defence can be placed on trial at all, or, if already on trial, can continue to be tried, and if a defendant "appears to the court to be insane," the judge may appoint a commission to examine him and report as to his present condition. This may be done upon the application either of the State or of the accused through his counsel.
It was such a commission to determine the accused's present mental condition that District Attorney Jerome, upon the basis of the evidence introduced by the defence, applied for and secured during the first trial of Harry K. Thaw. The commission reported that Thaw was sane enough to be tried and the court then proceeded with the original case for the purpose of allowing the jury to say whether he knew the nature and quality of his act and that it was wrong when he shot and killed White.
This was a totally distinct proceeding from the interposition of the DEFENCE that the accused was irresponsible when he committed the crime charged against him and was not inconsistent with it.
Now supposing that the Commission had reported that Thaw was insane at the time of examination and not a fit subject for trial, but, on the contrary, ought to be confined in an insane asylum, the Dis[Pg 371]trict Attorney would have spent some twenty odd thousand dollars and a year's time of one or more of his assistants in fruitless preparation. Yet, as the law stands on the books to-day in New York, there is no adequate way for the prosecution to find out whether this enormous expenditure147 of time or money is necessary or not, for it cannot compel the defendant to submit either to a physical or mental examination. To do so has been held to be a violation148 of his constitutional rights and equivalent to compelling him to give evidence against himself.
Thus when Thaw came to the bar at his first trial the State had never had any opportunity, through an examination by its physicians, to learn what his present condition was or past mental condition had been. The accused, on the other hand, had had over six months to prepare his defence and had fully availed himself of the time to submit to the most exhaustive examinations on the part of his own experts. The defendant's physicians came to court brimming with facts to which they could testify; while the State's experts had only the barren opportunity for determining the defendant's condition afforded by observing him daily in the court room and hearing what Thaw's own doctors claimed that they had discovered. There was no chance to rebut149 anything which the latter alleged that they had observed, and their testimony, save in so far as it was inconsistent or contradictory150 in itself, remained irrefutable.
There is probably no procedure which would be held constitutional whereby a compulsory151 examination of the accused could be had upon the mere119 application of the prosecuting152 authorities; but as[Pg 372] a commission may generally be appointed at any time after an accused has been indicted if he "appears" to the court to be "insane," and as it is usually within the power of the District Attorney where such is the case to bring sufficient evidence of it to the attention of the court before the prisoner is brought to trial, little time is actually lost and justice is rarely defeated except in those cases (such as Thaw's) where an attempt is to be made to prove the accused insane at the time of the alleged crime although sane at the time of trial. Even here it would be the simplest thing in the world to remedy the difficulty and the proper legal steps in all jurisdictions should be taken immediately.
The two chief objects of such reforms should be, first, to relieve the ordinary jury in as many cases as possible from the necessity of passing upon the delicate issue of a defendant's mental condition at a previous time, and second, where this may not be avoided, to make their task as easy as possible by providing (a) a more scientific and definite test of legal responsibility and (b) an opportunity for adequate examination of defendants availing themselves of this defence.
This last and most practical reform can be easily secured by a slight alteration153 in the New York Code of Criminal Procedure, which already provides both for the entering of the specific plea of insanity and for the introduction of the defence and the proof of insanity under the general plea of "not guilty." At present the defendant has his choice of openly announcing or of concealing154 until the trial his intention of claiming that he was insane and so irresponsible for his crime. This is an advantage the results[Pg 373] of which were probably not fully contemplated155 by the Legislature, and one to which an accused has no fair claim.
Fortunately, in the same section of the Code (658), which provides that the court may appoint a Commission to inquire into the sanity of a defendant at the time of his trial, there exists another provision, hitherto little noticed, that
"When a defendant PLEADS INSANITY, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested156 persons to examine him and report to the court as to his insanity at the time of the commission of the crime."
If a defendant intends to prove himself irresponsible for his offence, why should he not be compelled to enter a specific plea to that effect? Once he has entered that plea, the law as it stands just quoted will do the rest. No reason has been brought to the attention of the writer why the admission of any evidence upon the defendant's trial tending to show that he was mentally irresponsible at the time of committing the crime should not be made contingent157 upon the defence of insanity having been specifically pleaded either at the time of his arraignment158 or later by substitution for or in conjunction with the plea of "not guilty." This would deprive him of no constitutional right whatever. There is no legal necessity of permitting an accused to prove insanity under a general answer of "not guilty." Then upon his own plea that he had been insane he could instantly be committed to some place of observation where a permanent medical board of[Pg 374] inquiry159 could be given full opportunity to examine him and study his case with a view to determining his present and past mental condition. He would still have in prospect160 his regular jury trial, but if this board found him at the present time insane, the court could immediately commit him to an asylum pending recovery, precisely as under the present procedure, while if they found him sane at the present time, but reported that, in their opinion (whatever test, "medical" or "legal," they might have applied), he was irresponsible at the time he committed the crime, it is unlikely that any prosecutor would bring him to trial. If, however, they reported that he was not only sane, but had been sane at the time of his crime, it is probable that any proposed defence of insanity would be abandoned, while if it was still urged by the accused, the opinion of such a board would carry far greater weight at the ultimate trial of the case than the individual opinions of experts retained and paid by either side for that particular occasion only, and having had only a comparatively limited opportunity for examination. At any rate, if the court called in the services of such a board of medical judges to assist as amici curi? in determining the defendant's condition, while their opinion would not be conclusive upon the jury, it would at least do away with the present lamentable necessity of learned men answering "yes" or "no" to a hypothetical question fifty thousand words long, when the most superficial personal examination of the accused would settle the matter definitely in their minds. Such a procedure is in general use in Germany and other continental161 countries, and is likewise substan[Pg 375]tially followed in Massachusetts, Maine, Vermont, and New Hampshire.[55]
There is good reason to hope that we may soon see in all the states adequate provision for preliminary examination upon the plea of insanity, and a new test of criminal responsibility consistent with humanity and modern medical knowledge. Even then, although murderers who indulge in popular crime will probably be acquitted on the ground of insanity, we shall at least be spared the melancholy162 spectacle of juries arbitrarily committing feeble-minded persons charged with homicide to imprisonment163 at hard labor for life, and in a large measure do away with the present unedifying exhibition of two groups of hostile experts, each interpreting an archaic164 and inadequate test of criminal responsibility in his own particular way, and each conscientiously165 able to reach a diametrically opposite conclusion upon precisely the same facts.
The End
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1
harry
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| vt.掠夺，蹂躏，使苦恼 | |
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2
thaw
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| v.（使）融化，（使）变得友善；n.融化，缓和 | |
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3
irrational
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| adj.无理性的，失去理性的 | |
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4
indicted
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| 控告，起诉( indict的过去式和过去分词 ) | |
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5
pending
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| prep.直到，等待…期间；adj.待定的；迫近的 | |
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sane
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| adj.心智健全的，神志清醒的，明智的，稳健的 | |
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insanity
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| n.疯狂，精神错乱；极端的愚蠢，荒唐 | |
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8
sanity
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| n.心智健全，神智正常，判断正确 | |
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9
indictment
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| n.起诉；诉状 | |
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10
positively
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| adv.明确地，断然，坚决地；实在，确实 | |
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11
prosecutor
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| n.起诉人；检察官，公诉人 | |
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12
labor
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| n.劳动，努力，工作，劳工；分娩；vi.劳动，努力，苦干；vt.详细分析；麻烦 | |
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13
defendant
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| n.被告；adj.处于被告地位的 | |
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14
testimony
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| n.证词；见证，证明 | |
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15
proceeding
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| n.行动，进行，(pl.)会议录，学报 | |
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16
proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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17
frankly
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| adv.坦白地，直率地；坦率地说 | |
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18
acquit
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| vt.宣判无罪；(oneself)使(自己)表现出 | |
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19
entirely
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| ad.全部地，完整地；完全地，彻底地 | |
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20
interrogate
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| vt.讯问，审问，盘问 | |
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21
prosecute
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| vt.告发；进行；vi.告发，起诉，作检察官 | |
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22
prosecution
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| n.起诉，告发，检举，执行，经营 | |
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23
acquitted
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| 宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现 | |
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24
layman
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| n.俗人，门外汉，凡人 | |
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25
undoubtedly
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| adv.确实地，无疑地 | |
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26
deluged
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| v.使淹没( deluge的过去式和过去分词 )；淹没；被洪水般涌来的事物所淹没；穷于应付 | |
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27
detailed
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| adj.详细的，详尽的，极注意细节的，完全的 | |
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28
filth
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| n.肮脏，污物，污秽；淫猥 | |
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29
depressed
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| adj.沮丧的，抑郁的，不景气的，萧条的 | |
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30
lamentable
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| adj.令人惋惜的，悔恨的 | |
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31
sensational
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| adj.使人感动的，非常好的，轰动的，耸人听闻的 | |
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32
vexed
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| adj.争论不休的；（指问题等）棘手的；争论不休的问题；烦恼的v.使烦恼( vex的过去式和过去分词 )；使苦恼；使生气；详细讨论 | |
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33
dealing
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| n.经商方法，待人态度 | |
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34
antiquated
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| adj.陈旧的，过时的 | |
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35
remains
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| n.剩余物，残留物；遗体，遗迹 | |
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36
statute
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| n.成文法，法令，法规；章程，规则，条例 | |
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37
inadequacy
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| n.无法胜任，信心不足 | |
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38
miserably
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| adv.痛苦地；悲惨地；糟糕地；极度地 | |
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39
systematically
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| adv.有系统地 | |
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40
evading
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| 逃避( evade的现在分词 )； 避开； 回避； 想不出 | |
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41
laboring
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| n.劳动，操劳v.努力争取(for)( labor的现在分词 )；苦干；详细分析；（指引擎）缓慢而困难地运转 | |
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42
doctrine
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| n.教义；主义；学说 | |
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43
delusion
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| n.谬见，欺骗，幻觉，迷惑 | |
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44
afflicted
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| 使受痛苦，折磨( afflict的过去式和过去分词 ) | |
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45
forth
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| adv.向前；向外，往外 | |
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46
formulated
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| v.构想出( formulate的过去式和过去分词 )；规划；确切地阐述；用公式表示 | |
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47
commendable
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| adj.值得称赞的 | |
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48
reverence
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| n.敬畏，尊敬，尊严；Reverence:对某些基督教神职人员的尊称；v.尊敬，敬畏，崇敬 | |
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49
judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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50
utterance
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| n.用言语表达，话语，言语 | |
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51
conspicuously
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| ad.明显地，惹人注目地 | |
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52
infancy
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| n.婴儿期；幼年期；初期 | |
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53
maniac
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| n.精神癫狂的人；疯子 | |
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54
maniacal
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| adj.发疯的 | |
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55
necessitated
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| 使…成为必要，需要( necessitate的过去式和过去分词 ) | |
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56
delusions
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| n.欺骗( delusion的名词复数 )；谬见；错觉；妄想 | |
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57
convertible
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| adj.可改变的，可交换，同意义的；n.有活动摺篷的汽车 | |
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58
dense
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| a.密集的，稠密的，浓密的；密度大的 | |
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59
demons
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| n.恶人( demon的名词复数 )；恶魔；精力过人的人；邪念 | |
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60
maniacally
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61
applied
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| adj.应用的；v.应用，适用 | |
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62
defendants
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| 被告( defendant的名词复数 ) | |
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63
derangement
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| n.精神错乱 | |
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64
fully
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| adv.完全地，全部地，彻底地；充分地 | |
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65
interpretation
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| n.解释，说明，描述；艺术处理 | |
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66
qualified
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| adj.合格的，有资格的，胜任的，有限制的 | |
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67
astute
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| adj.机敏的，精明的 | |
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68
hazy
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| adj.有薄雾的，朦胧的；不肯定的，模糊的 | |
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69
realization
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| n.实现；认识到，深刻了解 | |
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70
technically
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| adv.专门地，技术上地 | |
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71
invoked
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| v.援引( invoke的过去式和过去分词 )；行使（权利等）；祈求救助；恳求 | |
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72
befuddled
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| adj.迷糊的，糊涂的v.使烂醉( befuddle的过去式和过去分词 )；使迷惑不解 | |
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73
dictates
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| n.命令，规定，要求( dictate的名词复数 )v.大声讲或读( dictate的第三人称单数 )；口授；支配；摆布 | |
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74
construe
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| v.翻译，解释 | |
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75
construed
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| v.解释（陈述、行为等）( construe的过去式和过去分词 )；翻译，作句法分析 | |
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76
opposition
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| n.反对，敌对 | |
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77
conscientious
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| adj.审慎正直的，认真的，本着良心的 | |
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78
deliberately
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| adv.审慎地；蓄意地；故意地 | |
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79
asylum
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| n.避难所，庇护所，避难 | |
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80
judicially
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| 依法判决地，公平地 | |
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81
elasticity
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| n.弹性，伸缩力 | |
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82
inevitable
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| adj.不可避免的，必然发生的 | |
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83
irresistible
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| adj.非常诱人的，无法拒绝的，无法抗拒的 | |
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84
anesthetic
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| n.麻醉剂，麻药；adj.麻醉的，失去知觉的 | |
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85
absurdity
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| n.荒谬，愚蠢；谬论 | |
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86
inadequate
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| adj.(for,to)不充足的，不适当的 | |
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87
pretence
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| n.假装，作假；借口，口实；虚伪；虚饰 | |
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88
conclusive
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| adj.最后的，结论的；确凿的，消除怀疑的 | |
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89
distinguished
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| adj.卓越的，杰出的，著名的 | |
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90
countless
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| adj.无数的，多得不计其数的 | |
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91
wriggled
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| v.扭动，蠕动，蜿蜒行进( wriggle的过去式和过去分词 )；（使身体某一部位）扭动；耍滑不做，逃避（应做的事等） | |
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92
insufficient
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| adj.(for，of)不足的，不够的 | |
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93
instinctively
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| adv.本能地 | |
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94
analyzing
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| v.分析；分析( analyze的现在分词 )；分解；解释；对…进行心理分析n.分析 | |
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95
linen
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| n.亚麻布，亚麻线，亚麻制品；adj.亚麻布制的，亚麻的 | |
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96
precisely
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| adv.恰好，正好，精确地，细致地 | |
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neutralize
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| v.使失效、抵消，使中和 | |
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inclination
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| n.倾斜；点头；弯腰；斜坡；倾度；倾向；爱好 | |
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intelligible
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| adj.可理解的，明白易懂的，清楚的 | |
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100
presumption
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| n.推测，可能性，冒昧，放肆，[法律]推定 | |
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101
meritorious
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| adj.值得赞赏的 | |
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102
entailing
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| 使…成为必要( entail的现在分词 )； 需要； 限定继承； 使必需 | |
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103
penal
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| adj.刑罚的；刑法上的 | |
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104
injustice
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| n.非正义，不公正，不公平，侵犯（别人的）权利 | |
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105
condemning
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| v.（通常因道义上的原因而）谴责( condemn的现在分词 )；宣判；宣布…不能使用；迫使…陷于不幸的境地 | |
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106
brutal
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| adj.残忍的，野蛮的，不讲理的 | |
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brutality
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| n.野蛮的行为，残忍，野蛮 | |
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108
abhorrent
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| adj.可恶的，可恨的，讨厌的 | |
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109
prosecuted
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| a.被起诉的 | |
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110
strictly
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| adv.严厉地，严格地；严密地 | |
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111
vaguely
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| adv.含糊地，暖昧地 | |
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112
unwilling
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| adj.不情愿的 | |
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113
condone
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| v.宽恕；原谅 | |
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114
censure
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| v./n.责备；非难；责难 | |
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115
unlimited
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| adj.无限的，不受控制的，无条件的 | |
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116
disposition
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| n.性情，性格；意向，倾向；排列，部署 | |
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117
recapitulate
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| v.节述要旨，择要说明 | |
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acquitting
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| 宣判…无罪( acquit的现在分词 )； 使（自己）作出某种表现 | |
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119
mere
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| adj.纯粹的；仅仅，只不过 | |
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120
deductions
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| 扣除( deduction的名词复数 )； 结论； 扣除的量； 推演 | |
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121
sentimental
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| adj.多愁善感的，感伤的 | |
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122
prevailing
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| adj.盛行的；占优势的；主要的 | |
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123
solely
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| adv.仅仅，唯一地 | |
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inevitably
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| adv.不可避免地；必然发生地 | |
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125
Amended
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| adj. 修正的 动词amend的过去式和过去分词 | |
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sufficiently
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| adv.足够地，充分地 | |
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127
relegated
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| v.使降级( relegate的过去式和过去分词 )；使降职；转移；把…归类 | |
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128
maniacs
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| n.疯子（maniac的复数形式） | |
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129
hysterical
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| adj.情绪异常激动的，歇斯底里般的 | |
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labors
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| v.努力争取(for)( labor的第三人称单数 )；苦干；详细分析；（指引擎）缓慢而困难地运转 | |
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apparently
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| adv.显然地；表面上，似乎 | |
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possessed
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| adj.疯狂的；拥有的，占有的 | |
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133
premise
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| n.前提；v.提论，预述 | |
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bishop
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| n.主教，（国际象棋）象 | |
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135
alleged
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| a.被指控的，嫌疑的 | |
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partially
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| adv.部分地，从某些方面讲 | |
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137
lawfully
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| adv.守法地，合法地；合理地 | |
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138
idiotic
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| adj.白痴的 | |
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concur
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| v.同意，意见一致，互助，同时发生 | |
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140
duress
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| n.胁迫 | |
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141
modification
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| n.修改，改进，缓和，减轻 | |
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142
cumbersome
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| adj.笨重的，不便携带的 | |
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143
jurisdictions
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| 司法权( jurisdiction的名词复数 )； 裁判权； 管辖区域； 管辖范围 | |
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defense
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| n.防御，保卫；[pl.]防务工事；辩护，答辩 | |
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conceal
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| v.隐藏，隐瞒，隐蔽 | |
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146
incapable
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| adj.无能力的，不能做某事的 | |
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147
expenditure
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| n.(时间、劳力、金钱等)支出；使用，消耗 | |
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violation
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| n.违反(行为)，违背(行为)，侵犯 | |
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rebut
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| v.辩驳，驳回 | |
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150
contradictory
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| adj.反驳的，反对的，抗辩的；n.正反对，矛盾对立 | |
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151
compulsory
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| n.强制的，必修的；规定的，义务的 | |
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152
prosecuting
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| 检举、告发某人( prosecute的现在分词 )； 对某人提起公诉； 继续从事（某事物）； 担任控方律师 | |
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153
alteration
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| n.变更，改变；蚀变 | |
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154
concealing
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| v.隐藏，隐瞒，遮住( conceal的现在分词 ) | |
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contemplated
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| adj. 预期的 动词contemplate的过去分词形式 | |
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disinterested
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| adj.不关心的，不感兴趣的 | |
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157
contingent
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| adj.视条件而定的；n.一组，代表团，分遣队 | |
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158
arraignment
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| n.提问，传讯，责难 | |
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inquiry
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| n.打听，询问，调查，查问 | |
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prospect
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| n.前景，前途；景色，视野 | |
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161
continental
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| adj.大陆的，大陆性的，欧洲大陆的 | |
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162
melancholy
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| n.忧郁，愁思；adj.令人感伤（沮丧）的，忧郁的 | |
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163
imprisonment
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| n.关押，监禁，坐牢 | |
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164
archaic
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| adj.(语言、词汇等)古代的，已不通用的 | |
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conscientiously
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| adv.凭良心地；认真地，负责尽职地；老老实实 | |
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