Full opinion text
EDGERTON, Circuit Judge. We reversed appellant’s former conviction of first degree murder. Blocker v. United States, 107 U.S.App.D.C. 63, 274 F.2d 572. He now appeals from another conviction and sentence of death for the same crime. There was substantial evidence that he was, and substantial evidence that he was not, insane at the time of the offense. In 1895 the Supreme Court ruled that “if the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal * * *." Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 358, 40 L.Ed. 499. That case has been law for 65 years. In the last 10 years we have applied it many times. In 1951 we said: “the function of the trial court in regard to the issue of sanity is to determine whether that issue is brought into the case by evidence. If it is, then it should be submitted to the jury with instructions that if the jury has a reasonable doubt of the defendant’s sanity, there must be an acquittal.” Tatum v. United States, 88 U.S.App.D.C. 386, 390, 190 F.2d 612, 616. In 1954 we said: “Whenever there is ‘some evidence’ that the accused suffered from a diseased or defective mental condition at the time the unlawful act was committed, the trial court * * * should in some way convey to the jury the sense and substance of the following: * * * Unless you believe beyond a reasonable doubt either that he was not suffering from a diseased or defective mental condition, or that the act was not the product of such abnormality, you must find the accused not guilty by reason of insanity. * * * ” Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 875, 45 A.L.R.2d 1430. In 1956 we said: “There was evidence * * * that the accused was of unsound mind when the robberies occurred. The prosecution therefore was under the necessity of establishing to the satisfaction of the jury beyond a reasonable doubt that the robberies were not the result of Douglas’ insanity. * * * Restating the matter within the rule prevailing in this jurisdiction since Durham v. United States, * * * in order to justify a conviction the proof, considered with the presumption of sanity, must exclude beyond a reasonable doubt the hypothesis that the conduct indicted was the product of a diseased mind.” Douglas v. United States, 99 U.S.App.D.C. 232, 235, 239 F.2d 52, 55. In 1957 we said: “when the defendant introduces some evidence to raise the issue of insanity, his sanity at the time of the offense becomes an element of the ci’ime, which, like all other elements of the crime, must be proved by the Government beyond a reasonable doubt.” Wright v. United States, 102 U.S.App.D.C. 36, 39, 250 F.2d 4, 7. Again we said in 1957: “When the issue of insanity is properly raised by evidence, as it was in this case, the burden is on the Government to prove * * beyond a reasonable doubt either (1) that the accused had no mental disease or defect or (2) that, although the accused was defective or diseased, his act was not the product of the affliction.” Carter v. United States, 102 U.S.App.D.C. 227, 233, 234, 252 F.2d 608, 614, 615. We said this again in 1959. Hopkins v. United States, 107 U.S.App.D.C. 126, 128, 275 F.2d 155, 157. On January 21, 1960, we said: “the law in all federal jurisdictions, under a Supreme Court ruling, is and has been for more than half a century that, when a defendant in a criminal case introduces enough evidence of insanity to overcome the presumption of sanity, a burden thereupon falls upon the Government to establish sanity beyond a reasonable doubt.” Isaac v. United States, 109 U.S.App.D.C. 34, 284 F.2d 168, 170. Although these many cases made it uncommonly plain that the burden of proof on the issue of Blocker’s insanity was on the government, the prosecutor asked the court to place the burden on the defendant. His Proposed Instruction No. VI said: “In order for you to find the defendant not guilty by reason of insanity, you must find: (1) that at the time of the offense(s) the defendant was suffering from some mental disease or defect; AND (2) that the act(s) in question * * * was (were) the product of such mental disease or defect. * * * In order for you to acquit on the ground of insanity, you must find both these elements present. It is not sufficient for you to find merely that the defendant was suffering from a diseased or defective mental condition when he committed the offense. You must further find that the act was the product of the mental abnormality.” After thus contradicting the law, the proposed instruction contradicted itself. It said: “However, if there is some evidence of mental disorder, the burden is on the Government to prove beyond a reasonable doubt that at the time in question the defendant was of sound mind. * * * If you should find all the elements of the offense have been proved, but you have a reasonable doubt as to both his mental condition and the causal relation of such mental condition to the offense charged, then you would find the defendant not guilty by reason of insanity.” The net result of the proposed instruction was confusion. The burden was on the defendant; the burden was on the government. The court granted the proposed instruction “in substance”. It first charged the jury in accordance with the law; then in contravention of the law; and finally, once more in accordance with the law: (1) “Basically, there is a presumption that all people are sane. * * * But, when there is some evidence of a mental disorder, as here in this case, then the presumption of sanity of the individual, Comer Blocker, vanishes from the case. And the burden is upon the Government to prove beyond a reasonable doubt that at the time in question, April 5th, 1957, the defendant, Comer Blocker, was of sound mind, or if he suffered from a mental disease or defect, at the time of the offense, that is, the killing of Frances Hall, that the act was not caused by the mental disease or defect, just as the burden is on the Government to prove beyond a reasonable doubt all of the other essential elements * * * that is, malice, premeditation, deliberation, the same burden is on the Government to prove the sanity of Comer Blocker on April 5th, 1957, or that if he was suffering from a mental illness on that date, that it was not the causal effect (sic) of the killing of Frances Hall. * * * ” Assuming “causal effect” was meant for “effective cause”, the foregoing part of the court’s instruction is correct. It places the burden of proof where the law places it, squarely on the government. But the court went on to give a contrary instruction: (2) “Now, a person is relieved of the responsibility for a crime by reason of insanity, where it is found, first, that he was suffering from a mental defect or a mental disease at the time of the offense, and,, second, that his act was the product of that mental defect or disease. * * * Now, you are instructed that if you find that the defendant, Comer Blocker, committed the act complained of, that is, the shooting of Frances B. Hall on April 5th, 1957, while he was suffering from a mental disease or defect, then you must consider the second requirement spoken of before you may find him not guilty by reason of insanity. * * * Turning then to the shooting * * * if your answer to the first requirement is yes, the defendant, Comer Blocker, was suffering from a mental disease or defect, and if you find that the defendant, Comer Blocker, did in fact commit such acts, then you must find that it resulted from or was produced by the unsoundness, or by the mental illness * * *. Now, if you find that then you may find the defendant, Comer Blocker, not guilty by reason of insanity.” (Emphasis added.) This part of the instruction is plainly erroneous. The words “where it is found”, “you must find” and “if you find” informed the jury that the burden of convincing them — which is the burden of proof — was on the defendant. Finally, the court went on to place the burden, as it had at first, on the government: (3) “And if you should find the Government has proved all of the elements of either first or second-degree murder but you have a reasonable doubt as to whether the offense was the result of a mental disease or defect existing in the defendant at the time he committed the offense, then you must find the defendant not guilty by reason of insanity. If, however, you should find that the Government has proven either first or second-degree murder, and has also proved beyond a reasonable doubt either that the defendant was of sound mind at the time of the offense, or that the act was not caused by any mental disease or defect from which the defendant may have been suffering on that date, that is, April 5th, 1957, * * * you may find the defendant guilty of such offense. Now, ladies and gentlemen, it should be crystal clear to you that when some evidence is introduced to you the presumption of sanity disappears and the responsibility from that point on is on the Government. It is not a responsibility which is on the defendant to prove any mental illness or that the mental illness was the causal effect [effective cause?] or was the motivating force behind the act in question. Those are responsibilities for the Government.” We have considered the erroneous instruction, which we have numbered (2), in its context. We have placed it where the District Judge placed it, between the two correct instructions which we have numbered (1) and (3). We have endeavored to omit nothing that might be thought to have any tendency to reduce the effect of the erroneous instruction. Perhaps the jurors were more likely to act on the correct instructions than on the incorrect one. But we cannot be certain that any juror did so. We think it unlikely that every juror did so. We think it not unlikely that some jurors voted to convict Blocker because (a) they could not decide whether, his act was or was not the product of mental illness and (b) the judge had told them they “must find” the act was produced by mental illness if they were to acquit him on the ground of insanity. We see no reason to assume the jury found that Blocker had no mental disease or defect, or found that no such abnormality produced the act. As we said on January 21, 1960, regarding the charge to the jury in the Isaac case, supra: “The statements to the effect that in order to render a verdict of not guilty by reason of insanity the jury * * * must find that the accused suffered from a mental disease and that his acts were the product of the disease, were erroneous. Those-statements ignored the burden which was-on the prosecution under the Davis case. It is true that the court correctly stated, to the jury several times that the burden of proof was on the Government to establish beyond a reasonable doubt that the-accused was not suffering from a mental disease or that the acts were not the product of a mental disease. The two conflicting views of the law, the erroneous- and the correct, as to the burden of proof were repeated several times in this charge. We cannot speculate that the-correct statements obliterated in the minds of the jurors the repeated erroneous statements. We recognize that the problems posed by the burden-of-proof rule in respect to the defense of insanity are somewhat difficult, but the rule of law is plain and absolutely certain. It should be made plain and certain to juries in such cases.” 109 U.S.App.D.C. at page 37, 284 F.2d at page 171. Wright v. United States, 102 U.S.App.D.C. 36, 43, 250 F.2d 4, 11, and Carter v. United States, 102 U.S.App.D.C. 227, 233, 252 F.2d 608, 614, are to similar effect. Because this is a capital case, it is-especially important to avoid the confusion which the court's self-contradictory instructions may have created in the minds of at least some of the members of the jury. We think the authorities we have cited make it clear that the conviction must be reversed and the case remanded to the District Court for further proceedings consistent with this opinion. Appellant’s court-appointed counsel has expressed deep concern that certain practices in the administration of the rule of criminal responsibility which this court adopted in 1954 endanger its broadened purposes. In dealing with these matters in a number of previous cases, we have expressed similar concern. We think the present case does not present a useful context for further discussion of these matters. PRETTYMAN, BAZELON, FAHY, "WASHINGTON, and DANAHER, Circuit Judges, concur in this opinion. Reversed and remanded. . Except for the unimportant word “further”, the last two quoted sentences of the proposed instruction arc the very words of the instruction we had disapproved in Carter, supra.
BURGER, Circuit Judge (concurring in the result only). In my view we should reverse on the grounds urged by appellant’s very able brief with respect to the mechanical and restrictive aspects of the “disease-defect-product” test for determining criminal responsibility. This would require that we modify the standard of criminal responsibility adopted by us in 1954 from the New Hampshire rule of 1869. Since its adoption in 1954, the “disease-product” test has been both acclaimed and criticized; it has been called “vague,” “confusing,” “ambiguous,” “misleading,” and it has been condemned as taking the fact determination away from jurors and transferring it to experts. Curiously it has even been attacked as “novel” by critics who overlooked its 1869 origins, and as “radical” by some who seemingly are unwilling to allow the same scope to medical testimony in a criminal case as we have allowed historically in civil cases, such as will contests where mental capacity is at issue. As I see it, our Durham opinion was a wrong step but in the right direction; its direction was correct because, like Smith v. United States, 1929, 59 App.D.C. 144, 86 F.2d 548, 70 A.L.R. 654, it sought to open the jury’s inquiry to include the expanding knowledge of the human mind and personality. The precise step — the “disease-product” test— is, however, subject to many valid criticisms which we must face. Among other things it tends to treat unsupported and dubious psychiatric theory as scientific knowledge. It is an example of exercising judicial power beyond judicial comprehension in an area where not even relative certainties are established. From ancient times the development of the law was always on the basic idea that man should be held criminally responsible for his voluntary acts resulting from the exercise of his will. While we have said this was our “basic postulate,” our “disease-product” instruction to the jury totally ignores will or choice. It is obvious, of course, that under a jury system the standard or “test” or “rule” of criminal responsibility is only what is given to the jury as an instruction. What we say in our opinions but withhold from the jury is meaningless except as it discloses the gap between the law as stated by this court and the law as applied by the jury. I Fallacies of Our Present Criminal Responsibility Standard I ágree with appellant’s attack on the mechanical and restrictive “labelling” aspect of the “disease-product” test and I believe that we cannot escape from the dilemma created by that rule except by adopting some other alternative. Of necessity the whole of my reasons must be set forth at some length, since what I propose is that the entire background of this problem be reexamined and that the “disease-product” jury instruction be abandoned. We have devoted literally hundreds of pages in numerous opinions in our effort to explain and interpret what that rule means; not surprisingly it will require some space to review this history, to demonstrate the defects of the rule and to set forth possible alternatives. Appellant’s counsel has not made a direct attack on Durham, but rather couches his attack in terms of the manner in which the prosecution “used” and the court applied it. Without reaching the alleged errors in the charge on burden of proof, which were persuasive to the majority, I am satisfied that the District Judge applied our rule literally and scrupulously in allowing experts to express conclusory opinions in the same terms as the ultimate jury question. Our rule permits, and indeed rests upon the premise that psychiatrists may do precisely that. Appellant’s cogent attack on the “disease-product” concept is best stated in the terms of his own very able brief. First he attacks the “disease” aspect of the rule and argues that in Blocker’s trial “the issue of insanity was for all purposes tried and decided solely on the catch-phrase ‘mental disease,’ with the result that appellant was effectively denied a jury trial on that vital issue.” Second, he attacks the “product” aspect in these terms: “What happened in appellant’s trial was a classic case of usurpation of the jury function by expert witnesses, and it should be promptly corrected. Permitting the sort of questioning and testimony that was indulged in below undermines the whole purpose behind the promulgation of the Durham rule, for it tends to narrow the scope of psychiatric testimony on the accused person’s mental condition. Furthermore, it is especially dangerous to permit psychiatric testimony in terms that the jury is likely to regard as conclusive on the question of criminal responsibility, for psychiatrists have no competence whatsoever to offer opinions on that ultimate question.” (Emphasis added.) (D The Term “Disease” Is Inadequate The rule we adopted in 1954 is based on the premise that the critical threshold issue is whether the defendant has a “mental disease or defect.” Our opinion did not define these terms except to say that the former is a “condition which is considered capable of either improving or deteriorating” while the latter was fixed and subject neither to improvement nor deterioration. This merely distinguishes “disease” from “defect” without defining either term. Not being judicially defined, these terms mean in any given case whatever the expert witnesses say they mean. We know also that psychiatrists are in disagreement on what is a “mental disease,” and even whether there exists such a definable and classifiable condition. So distinguished an authority as Dr. Philip Q. Roche, author of The Criminal Mind, which received the Isaac Ray Award from the American Psychiatric Association, said as recently as 1958: “I will say there is neither such a thing as ‘insanity’ nor such a thing as ‘mental disease.’ These terms do not identify entities having separate existence in themselves. * * * ‘Mental illness,’ a medical term, borrowed from the mechanistic concepts of classical physical disease, refers to an altered internal status of the individual vis-a-vis his external world as interpreted by others. In a way the term is a misnomer, since the mental illness [] is not actually something limited to a place called the ‘mind,’ but rather it is a changed interrelationship of the individual with his fellow creatures. * * * To the psychiatrist the mental illness can have a meaning only in the sense of what in the future mil be done to or with the patient to relieve him and those around him.” (Emphasis added.) Symposium on Criminal Responsibility and Mental Disease, 19th Annual Law Institute, Univ. of Tenn. 1958, in 26 Tenn.L.Rev. 221, 240-41 (1959). Dr. Charles Savage, writing in The American Journal of Psychiatry tells us: “Though widely heralded as bringing legal psychiatry more in line with modern psychology, it [the Durham rule] actually does no such thing. It is a peculiar mixture of Aristotelean faculty psychology, metaphysics, mysticism, and mediaeval theology. * * * It is indeed vague particularly in the matter of the first test of responsibility: that of mental illness. There are very few people who could not qualify under this test * * Dr. C. Savage, Discussion, 116 Am. J. of Psychiatry 295, 296 (1959). Dr. John R. Cavanagh has said: “The term disease is also misleading because it leads to the misconception that each psychic disorder must have some specific cause, e. g., as the specific cause of tuberculosis is the tubercle bacillus. This is not true. In reference to this term, Hinsie and Shatsky make this comment: Tt is not considered in keeping with the available facts to refer to a psychosis as a disease * * “In view of this evidence [various cited authorities omitted], the term disease as applied to mental conditions should be dropped because it is misleading.” Cavanagh, A Psychiatrist Looks At The Durham Decision, 5 Catholic U.L.Rev. 25, 28, SO (1955). The literature on the subject since 1954 abounds with similar comments. This is not to suggest we cannot rely on so uncertain an “infant science” as psychiatry but rather to suggest that no rule of law can possibly be sound or workable which is dependent upon the terms of another discipline whose members are in profound disagreement about what those terms mean. How can lay jurors possibly understand and apply terms whose meaning is unclear to acknowledged experts? This is not simply a matter of experts disagreeing on opinions or on diagnosis, which often occurs, but disagreement at the threshold on what their own critical terms mean. The fallacy of judicial reliance on terms such as “disease” or “disorder” is further illustrated by a series of cases in this court, including the first trial and appeal of this appellant. We reversed Blocker’s first conviction because after his trial and while his appeal was pending in this court, another case, In re Rosenfield, D.C.D.C.1957, 157 F.Supp. 18 was being heard on petition for release on a writ of habeas corpus. In that case a psychiatrist made it known to the District Court that between the court session on Friday and Monday morning, St. Elizabeths Hospital, by some process not then disclosed, altered its “official” view that sociopathic or psychopathic personality disorder was not a mental disease. It had been decided that commencing Monday, St. Elizabeths Hospital and its staff would thereafter call and classify the condition known to them as “psychopathic personality” as a “mental disease” or “mental disorder.” The courts, of course, have neither concern nor control over the nomenclature or diagnostic terms of the medical discipline. To the extent that such nomenclature constitutes a form of “shorthand” language to facilitate communication within the profession it is of no concern to anyone outside. But the impact of this “week-end change” was shown when Blocker then came to this court and claimed (1) that he was a sociopathic or psychopathic personality, (2) that he was entitled to a new trial under circumstances where his condition could be described as a “mental disease” under the revised definition. In Blocker’s first trial three psychiatrists who testified said he had no “mental disease.” I am now satisfied that our reversal of Blocker’s first conviction on the stated grounds without more, was an error (and one in which I participated at the time.) In holding as we did, we tacitly conceded the power of St. Elizabeths Hospital Staff to alter drastically the scope of a rule of law by a “week-end” change in nomenclature which was without any scientific basis, so far as we have any record or information. If the impact of the “week-end” change was confined to the hospital for clinical and professional purposes of psychiatrists and their aides, we would have no cause to concern ourselves. But this change altered the scope of the “disease-produet” test to embrace a vast number of people and problems not contemplated by this court when the rule was adopted. Of course legal rules should be flexible enough to embrace the bona fide, and scientifically recognized developments and discoveries of medicine Standards which are to be relied on by judges and juries, by their very function should not be subject to such wide variation from case to case or witness to witness or month to month. Evenhanded justice cannot be measured out with a “rubber” yardstick. These factors, I think, demonstrate that a term such as “disease” which has no fixed, agreed or accepted definition in the discipline which is called upon to supply expert testimony and which, as we have seen, is literally “subject to change without notice” is a tenuous and indeed dangerously vague term to be a critical part of a rule of law on criminal responsibility. Later I shall try to demonstrate that the law need not concern itself with whether the accused has a “mental disease” or illness by any particular name or label and hence testimony about “disease” as such is not relevant. Our 1954 opinion purported to free the problem from labels, but we are now more prisoners of labels than before. Lest these observations be taken as a criticism of the medical profession, I emphasize that this court, not the psychiatrists, made the rule. (2) The Term “Product” Is Inadequate Appellant’s second attack is on the “product” aspect of the test, particularly the matter of allowing experts to testify in conclusory terms, and terms which are the ultimate issue of criminal responsibility. Our 1954 opinion assumed, without discussion, that mental disease ■can “produce” or cause criminal acts. “This is the kind of alchemy that has no counterpart in the data of experience and which is responsible for much loss of communication. The idea that mental illness causes one to commit a crime or that it produces a crime has an unmistakable lineage from demonology. * * Can one supply an explanation for the observation that ‘mental illness’ does not invariably produce crime; in fact, [it is] the exception to the rule?” Roche, Durham and The Problem of Communication, 29 Temp.L.Q. 264, 269 (1956). In ordinary usage the term “product” has a reasonably well understood meaning in relation to everyday matters. But in Durham the word is not used in relation to ordinary matters or subjects familiar to laymen or indeed even to .judges. There it is used rather in a quasi-medical sense of being the causal link between the “disease” and the criminal act charged. So used it is a spurious term, neither wholly medical nor wholly legal but partaking of both. Another leading psychiatrist states: “Durham takes the notion of ‘mental illness’ and requires the psychiatrist and the jury to determine whether the criminal act in question was committed as a result of such ‘illness.’ This, too, [like disease] is supposed to be a ‘fact.’ Unfortunately, this not only cannot be a fact, but it cannot even be a theory. * * * The very occurrence of the crime — of almost' any crime today — functions as a powerful impetus for the creation of a theory to explain it.” Szasz, Psychiatry, Ethics, and the Criminal Law, 58 Colum.L.Rev. 183, 190-91 (1958). Apart from all other objections the product aspect of Durham is a fallacy in this: assuming arguendo that a criminal act can be the “product” of a “mental disease” that fact should not per se excuse the defendant; it should exculpate only if the condition described as a “mental disease” affected him so substantially that he could not appreciate the nature of the illegal act or could not control his conduct. (3) Scope of Expert Testimony Opinion testimony is one of those practical anomalies of the law of evidence devised to help a jury of laymen understand technical subjects on which they would be required to speculate or guess without some expert explanation. Expert opinion is used on the theory that •the subject cannot be made clear to lay jurors in any other way. The opinion testimony so admitted presumably bears on the issue which the jury must decide, and hence the opinion may well have substantial persuasive effect on the jury, provided they consider the expert trustworthy. The contention that to allow such conclusory opinions in the very terms of the jury issue “usurps” the jury power probably goes too far. But so long as our rule is phrased in terms which make expert testimony essential for elaboration, conclusory testimony is not only relevant but probably the most persuasive testimony that can be offered, as appellant bitterly complains. The hazards in allowing experts to testify in precisely or even substantially the terms of the ultimate issue are apparent. This is a course which, once allowed, risks the danger that lay jurors, baffled by the intricacies of expert discourse and unintelligible technical jargon may be tempted to abdicate independent analysis of the facts on which the opinion rests; this is also likely where the opinion giver is a skilled forensic performer. Professor Wigmore and others have urged.that these dangers, inherent in expert testimony in terms of the ultimate issue, are minimized by the freedom of the jury to reject the expert’s conclusion But this essential protection was abandoned in this context by our decision in Douglas v. United States, 1956, 99 U.S.App.D.C. 232, 239 F.2d 52. Under the Douglas opinion, the case is left in the hands of the jury only if there is disagreement among the psychiatrists or if the expert testimony supports guilt; if the psychiatrists all agree that the defendant has a “disease” and the act was its “product,” then the issue is taken from the jury. Paradoxically we call on laymen to resolve conflicts both in technical terms and substance which the experts cannot resolve among themselves! But Douglas now denies jurors their historic right to pass on the credibility of the experts. Appellant’s contention has much validity if we treat it as addressed to how far we will let experts go in expressing conclusions in the same terms as the jury’s question. So viewed the problem is one of the soundness of a rule whose very terms encourage if not require the experts to state conclusions in the terms of the ultimate issue. The solution lies not in throwing out the psychiatrist with the problem, but in adopting a test which renders such conclusions less important. We should, then, firmly prohibit all questions which allow the expert literally “to tell the jury how to decide the case.” We emphasize that we would bar these opinions not because they are conclusions, but because they are, in this context and for these purposes, conclusions of law, for which the psychiatrist has no competence. Allowing such conclusory opinions is comparable to allowing some “traffic expert” to testify that a litigant drove his car in a “reckless manner,” or that he failed to exercise “ordinary care.” See Kenney v. Washington Properties, Inc., 1942, 76 U.S.App.D.C. 43, 128 F.2d 612, 146 A.L. R. 1. Excluding such “conclusions” expressed in the same terms as the ultimate jury question seems to me the only safeguard to avoid transferring the jury function to experts, a burden few in the medical profession seek. A reasonable corollary to a holding that experts may not testify precisely or substantially in the terms of the ultimate jury issue is that the experts should have wide latitude in describing their findings in their own terms, translated, one would hope, so that the judges and jurors can understand. While the law should resist any effort of another discipline to impose its terms upon the law, judges should be hospitable to allowing technical experts to .express themselves in terms meaningful to them. This is not simply a matter of prohibiting a psychiatrist from testifying in terms of a legal or jury test. A standard of criminal responsibility which is intelligible to laymen will, of necessity, be in terms other than those of the psychiatrist’s discipline. It is the explanation of the abnormality, not its name, that is important. Some juries will be impressed by a “name” like schizoprenia or manic depressive psychosis, others may not. All juries will be impressed by lucid explanations of the forces, drives and compulsions which affect the controls of an abnormal personality which has become separated from reality. Perhaps the reason why the legal profession and the experts have ignored the admonition of Carter to emphasize medical reasons and explanation rather than conclusions is that they all tend to take the “easy way” and Durham puts a premium on this “easy way.” II Experience Under Disease-Product Test It is not too surprising that the problem of standards of criminal responsibility has caused so much difficulty. For centuries the most perplexing problem in criminal justice has been the fixing of reliable standards to distinguish the wrongdoer who should be punished from the one who should be treated. This is reflected in part by the fact that in the short span since 1954 this court has written some 70 opinions growing directly out of the “disease-product” test. In large part, however, the inordinate number of appeals and appellate opinions in this jurisdiction stems from the vagueness, lack of clarity, and the psychiatric orientation of that test and in its departure from accepted legal concepts in the jury instruction. While the time span since 1954 is brief, our total study and collective case consideration of the problem is equal perhaps to as much as a half century of case review of this problem in most jurisdictions. Although 90 years have elapsed since New Hampshire first adopted a related “disease-product” test, its appellate experience since then sheds no light on the problem. The antiquity of the test thus proves nothing as to its soundness. No other court has any experience with the “disease-product” test as such. As we tried to cope with the flood of cases and problems arising out of our 1954 decision, it is plain that this court made a sincere and maximum effort to render the new test workable. That it is not workable and ought to be changed is, as suggested, a consequence of its being medically rather than legally oriented and being cast in language which is vague and confusing in some respects and restrictive in others. Having adopted a standard of criminal responsibility with “built in” ambiguities, we virtually invited “reasonable doubt” in every case where the issue was presented. The correct direction of Durham was to broaden the scope of medical inquiry but the incorrect step was to try to do this in terms which ignore the elements of recognition of wrongdoing and capacity to control conduct. As has been shown, the majority of psychiatric writers do not want the jury inquiry limited to the terms of the medical inquiry. III An Alternative Approach (1) Basic Assumptions of the Criminal Law While philosophers, theologians, scientists and lawyers have debated for centuries whether such a thing as “free will” really exists, society and the law have no choice in the matter. We must proceed, until a firm alternative is available, on the scientifically unprovable assumption that human beings make choices in the regulation of their conduct and that they are influenced by society’s standards as well as by personal standards.' We can, in the abstract, agree with Aquinas that man “the framer of human law, is competent to judge only the outward acts; * * * God alone the framer of the divine law, is competent to judge the inward movement of wills.” But an ordered society-must make preliminary judgment on its members to protect and preserve society even while leaving perfect justice to higher authority. Our Durham utterances which seemed to align this court on the side of “free will” alarmed some scientific minds but their fears were groundless. When it came to explaining to the jurors the standards they were to use, we see that all reference to man’s capacity to make choices in regulating conduct or any connection between the power to make choices and criminal responsibility was carefully eliminated. Mr. Justice Cardozo said that all law in Western civilization is “guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of [legal] problems.” Steward Machine Co. v. Davis, 1937, 301 U.S. 548, 590, 57 S.Ct. 883, 892, 81 L.Ed. 1279 and Mr. Justice Jackson in a similar vein said: “Whatever doubts [theologians, philosophers and scientists] have entertained as to the matter, [of free will] the practical business of government and administration of the law is obliged to proceed on more or less rough and ready judgments based on the assumption that mature and rational persons are in control of their own conduct.” Gregg Cartage & Storage Co. v. United States, 1942, 316 U.S. 74, 79-80, 62 S.Ct. 932, 935, 86 L.Ed. 1283. Judge Arnold in Fisher v. United States, 1945, 80 U.S.App.D.C. 96, 97, 149 F.2d 28, 29, echoed Cardozo and Jackson: “In the determination of guilt age old conceptions of individual moral responsibility cannot be abandoned without creating a laxity of enforcement that undermines the whole administration of criminal law.” When we say that the standard of criminal responsibility is a legal rather than a medical or scientific problem, we are saying that in a larger sense it is a social question in that it is established to regulate the social order. As such we may appropriately use scientific aids in the application of the standard, but the standard itself is the law’s expression of the collective morality. The New Hampshire “disease-product” test of 1869 was, as we now know, strongly influenced by Dr. Isaac Ray, often described as the “father of American psychiatry.” For 85 years every court which considered the New Hampshire test rejected it. Every court which considered Durham has rejected it. It is sometimes argued that this alone shows the concept was unsound and not in keeping with American legal ideas. I do not think that follows. The “disease-product” test was rejected not because the underlying concept was unsound but because the “rule” or standard was stated in terms unfamiliar and without real meaning to the lay jurors who had to apply it to the facts and to the judges who had to frame the instructions. Judges and lawyers for centuries have approached problems of responsibility for criminal acts, for contracts, for wills as well as certain intentional torts in terms of capacity to exercise will which in modern parlance is capacity to control conduct or regulate behavior to conform to certain standards. Testamentary disposition of property embodied this basic concept into the very name of the implementing document by calling it the testator’s “will.” A “will” is recognized by society and attended by fixed legal consequences only if it is truly a manifestation of the exercise of the maker’s will and choice. There was no reason to depart from these basic principles in 1954. To resort to the “product of disease” test rather than continue to develop the familiar concept of capacity to make choices pointlessly breaks continuity with the experience of past centuries. Moreover, it unnecessarily complicated and delayed the logical development of the law on this subject by many decades. Justice Ladd, even while adopting the original 1869 “disease-produet” test in New Hampshire, qualified it in correct terms in a very sound discussion which has been largely overlooked. He said: “If the defendant had an insane impulse to kill his wife, which he could not control, then mental disease produced the act. If he could have controlled it, then his will must have assented to the act, and it was not caused by the disease, but by the concurrence of his will, and was therefore crime.” State v. Jones, 1871, 50 N.H. 369, 399. (Emphasis added.) This is what we ought to tell the jury, for here we have a clear recognition that capacity for choice and control was not abandoned as a rationale of the New Hampshire rule. That court, however, seems to have taken the same step we did in treating this most important element of criminal responsibility as something to be kept secret from the jury. No test for criminal responsibility can be adequate if it does not place squarely before the jury the elements of cognition and capacity to control behavior. It is not enough for judges to say this is the basis or the “basic postulate”; it literally must be the “yardstick” the jury is instructed to apply. Our failure to put the issue to the jury in these “basic” terms has led critics of our test to charge us with paying merely “lip service” to the “legal and moral traditions of the western world.” Until we put this “basic postulate” into the fury instructions the criticism is valid; if we really accept what we say is the “basic postulate” we cannot rationally justify withholding that idea from the jury. Indeed until we put it into the jury instruction we are denying it. It is the combination of our “disease-product” test and the rigors of the Douglas holding and both of these super-imposed on the Davis burden of proof, which, as I see it, has operated to reject the historic basis of criminal responsibility and to substitute something resembling the “determinist” thesis that man’s conduct is simply a manifestation of irresistible psychological forces in which ethical and moral values and standards play small part, if any part. Harvard’s Professor Berman seems plainly to be addressing himself to the determinists, and indeed answering them when he states: “The lawyers in all countries will answer ‘if there is no reason, no choice, no will, then there can be no law; we will not sacrifice the legal order to the vagaries of your science.’ ” Berman, Law as an Instrument of Mental Health in the United States and Soviet Russia, 109 U.Pa. L.Rev. 361, 366 (1961). The inquiry of the law, whether as to a will, a contract, or a crime should be concerned with and directed to determining whether the act and its consequences were understood and appreciated by the one who performed it and whether it was a manifestation of will or choice. The fact that psychiatrists think of this in terms of behavior controls while lawyers may think of it in terms of will and choice is not particularly important. A jury which hears a psychiatrist testify that an accused suffered from some medically recognized abnormality which destroyed his capacity to control and regulate behavior generally can translate testimony about behavior controls and draw the inference that the accused lacked capacity to exercise his will and make and control a choice between doing or not doing the act charged. Judge Thurman Arnold was plainly correct in the Holloway opinion in saying that “reconciliation between the medical tests of insanity and the moral tests of criminal responsibility is impossible * * * [because their] purposes are different * * *." Fixing standards of criminal responsibility is a legal not a medical problem and if we adopt a test based, as it should be, on legal concepts which grow from our traditional ethical and moral standards, we need not be concerned about reconciling the two. The expert witness describes the mental capacity of the accused in his terms and by his scientific standards and the jury applies to the evidence society’s legal standard in terms of capacity to exercise will and choice and decides whether the accused is to be punished or treated. The proposals we now make would, presumably, satisfy psychiatrists who believe that experts should give medical testimony and jurors apply legal standards to that testimony. It cannot be emphasized too much that it is neither necessary nor desirable for the psychiatrist to testify in terms of “free will” or “free choice” or “moral blame” or “right and wrong.” Appellant’s brief correctly points out that the psychiatrist has no special competence in this area and indeed the psychiatrist does not want this burden. His competence, and even that does not rest on certainties, is in medical appraisals of capacity for controls of conduct. The standards we propose for consideration are not at all intended to reduce the scope of the psychiatrist’s contribution but, if anything, to enlarge it as to describing all the dimensions of the defendant’s capacity, his competence and ability to control and regulate conduct and behavior. Except for “conclusory opinions” in the same terms as the jury charge, these proposals would allow at least as wide a scope to expert testimony as the New Hampshire test or the Durham test. This is consistent, as I have noted, with the basic lines of development of the law of criminal responsibility for centuries and maintains continuity with the past. Those who can control conduct are to be held responsible; those who cannot are relieved but isolated from society so long as their freedom is the source of danger to themselves or to society. If this court meant in Durham [94 U.S.App.D.C. 228, 214 F.2d 876] that the “legal and moral traditions of the western world require that those who, of their own free will and with evil intent * * commit acts which violate the law, shall be criminally responsible for those acts” then the jury should so be instructed for the jury under our system is society sitting in judgment on one of its members. This alternative would involve no more than to reverse the order of things, using the “disease-product” concept as one means of explaining our own judicial view of what is meant by the “free will” utterance of Durham and Carter, submitting the issue to the jury with instructions cast in terms of whether they believe the defendant was aware his act was a violation of law and if so whether he could have refrained from doing it. This and other alternatives will now be discussed. (2) Alternative Proposals As we look back, it is now clear that we recognized the shortcomings of our “disease-product” test when we tried to explain it in Carter v. United States, supra, in the very terms the law had used for many years prior to 1954, namely the capacity to exercise free will and choice. But it is not enough to recast and restate or explain the 1954 rule in these familiar terms for lawyers and judges. It is far more important — indeed imperative — to make the explanation in these terms to the jury which must apply the test and decide the issue. That can be accomplished only by changing the instruction from “disease-product” terms to traditional and familiar terms in keeping with the underlying philosophy of our criminal law. Since at present the views expressed in this opinion are those of less than a majority of the court, we are not called upon to propose with finality a single substitute for the “disease-product” test. The solution should be approached by careful consideration of various proposals which have been under study or actually used, subject, of course, to being framed in compliance with the Davis burden of proof. Using the Alabama rule as a basis, one alternative can be developed in terms of these questions for the jury; (a) Was the defendant suffering from some medically recognized mental illness, disorder or defect when he committed the act? (b) If so, did he understand the nature and consequences of the illegal act? (c) Did his mental condition deprive him of the power to choose between doing the criminal act and avoiding it? - A second alternative is provided by the proposed Model Penal Code of the American Law Institute, which has long and carefully considered the problem of criminal responsibility. The latest proposal, in which Judge John J. Parker had a large part, would provide that “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 of his conduct or to conform his conduct to the requirements of law.” Model Penal Code § 4.01 (Tent. Draft No. 4, 1955). A third proposal is that of the Committee on Criminal Responsibility of the Bar Association of the District of Columbia : “The jury shall be * * * instructed that the defendant is not mentally responsible if at the time of the alleged offense the defendant, because of an impaired or defective mental condition, was substantially lacking either in his capacity to appreciate that his conduct was wrong or in violation of law, or in his capacity to conform his conduct to the right or to the requirements of law.” Report, 26 D.C.B.Ass’n J. 301 (1959). Some of these approaches suffer from the demonstrated defect of “labels” which have shifting, restrictive meaning and they fail to come to grips directly with the heart of the problem of criminal responsibility, namely: was the defendant possessed of the indispensable criminal intent, of “a vicious will which motivates a criminal act.” Carter v. United States, 1957, 102 U.S.App.D.C. 227, 235, 252 F.2d 608, 616. For this reason the opinion in Carter affords perhaps the best basis for the formulation of a substitute or amended jury instruction. There we said: “The basic import of the criminal law is punishment for a vicious will which motivates a criminal act. To understand the defense of insanity one must keep constantly and clearly in mind the basic postulate of our criminal law — in the words of Dean Pound, quoted by Justice Jackson in Morissette, ‘a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.’ If a man is ‘amens (id est) sine mente’ in respect to an act to such an extent that in doing the act he is not a free agent, or not making a choice, or unknowing of the difference between right and wrong, or not choosing freely, or not acting freely, he is outside the postulate of the law of punishment. An insane man is not held responsible, because he has not a criminal mind in respect to the act he committed. That philosophy has never changed, and it is not proposed to change it now. The problem over the years— and the problem now — is not one of philosophy. It is one of translating the accepted philosophy into practical rules of action for everyday use in the courtroom.” 102 U.S.App.D.C. at page 235, 252 F.2d at page 616 (Footnotes omitted, emphasis added.) Applying this concept to guide a jury “for everyday use in the courtroom” it can be put in terms such as the following: The defendant is not to be found guilty as charged unless it is established beyond a reasonable doubt that when he committed the act, first, that he understood and appreciated that the act was a violation of law, and second, that he had the capacity to exercise his will and to choose not to do it. If, because of some abnormal mental condition, either of these elements is lacking, he cannot be found guilty. To hold him guilty the jury must find, beyond a reasonable doubt, both that he understood and appreciated the act charged was a violation of law and that he possessed the capacity or competence to choose to do it or refrain from doing it. One of the fallacies of the formulation of the “disease-product” test of Durham v. United States, apart from its being stated in terms unfamiliar to jurors, was the tacit assumption that the test and the instruction to the jury could be stated “simply.” It cannot be stated simply because it is the most complicated, elusive and difficult problem in the criminal law. Attention may well be called to the fact that a unanimous division of this court said in Carter that the trial judge “ought to explain — not just state by rote but explain — the applicable rules of law.” 102 U.S.App.D.C. at page 237, 252 F.2d at page 618. The utterances of this court supply the logical basis for that explanation. It might be helpful if some District Judge would act on our suggestion by venturing to “explain” our standard of criminal responsibility in the same general terms we used to explain it in Carter. See id., 102 U.S.App.D.C. at pages 235-237, 252 F.2d at pages 616-618. To the extent that this opinion is consistent with those utterances it may also afford some aid. The critical factor is that the jury be informed fully on the “basic postulate” of the law of criminal responsibility as this court has described it in Carter and in the closing paragraph of Durham. We would err gravely if we were to suggest that these proposed tests or standards possess the virtue of certainty. They do not. No test fashioned by man and relying on words can achieve absolute certainty. All we can do is to try, on the basis of experience rather than logic, to reduce the uncertainty when we recognize it. That in itself would be progress. Home one or a combination of these proposals must sooner or later supplant the Durham rule. I am authorized to state that Chief Judge MILLER, and Circuit Judge BASTIAN join in the views expressed in this opinion as to the need for a change in the standard of criminal responsibility. . “Disease” as hereafter used is intended to include “defect.” . Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862, 874. . The rule we adopted in 1954 was “that an accused is not criminally responsible if Ms unlawful act was the product of mental disease or mental defect" Compare State v. Pike, 1870, 49 N.H. 899, 402, where the rule is “the verdict should be ‘not guilty by reason of insanity’ if the [unlawful act] was the offspring or product of mental disease * * Some commentators emphasize that while the 1869 rule and our 1954 rule are virtually identical in language, they differ in that New Hampshire cast its rule as one of evidence governing the scope of evidence to be received while Durham lays down a rule of law. Reid, Understanding The New Hampshire Doctrine of Criminal Insanity, 69 Yale L.J. 367, 371, 389-91 (1960). Similarly the so called “right and wrong” test is not the same as the M’Naghten test. . E. g. Zilboorg, A Step Towards Enlightened Justice, 22 U.Chi.L.Rev. 331 (1955). . Professor Mueller states: “The first part of M’Naughten is designed to determine [defendant’s capacity for understanding the nature and consequences of the act charged]. The vague Durham test does not, and is, therefore, rightly rejected by most of our courts. * * * let us not be hasty about changing our law on capacity. Although psychiatry and neurology continue to make enormous advances, psychiatrists are likely to reverse themselves completely between fall and spring.” 1959 Ann.Survey Am.L. 112-114. Professor Wechsler in The Criteria of Criminal Responsibility, 22 U.Chi.L.Rev. 367, 373 (1955) observed “Durham then puts forth, in my opinion, a legal principle beclouded by a central ambiguity, both unexplained and unsupported by its basic rationale.” Judge L. Hand said: “I have read the [Durham] opinion * * * but, frankly, it did not seem to me to- give us any guidance that perceptibly would help. “The truth appears to me to be that the question goes to the heart of whatever we choose to make our purpose in criminal punishment. It is only indirectly, or at second hand, a psychiatric question.” (Emphasis added.) Letter from Judge L. Hand, 22 U.Chi.L.Rev. 319 (1955). Professor Guttmacher viewed Durham hopefully but with reservations saying that while it “will be a vast improvement over the criteria of responsibility in common use, difficulties will still exist. * * * There will be uncertainty and differences of opinion as to what constitutes a ‘diseased or defective mental condition.’ And there will at times be doubt as to whether or not the act was the product of the existing mental abnormality.” Guttmacher, The Psychiatrist As An Expert Witness, 22 U.Chi.L. Rev. 325, 327 (1955). “The Durham court rejected the New Hampshire approach of refusing to rule that any particular overt condition or action was a manifestation of mental disease, and instead has ruled, as a matter of law, that knowledge of right and wrong, while no longer the test for mental disease, was a symptom of it. Thus the Durham judges refused to heed Doe’s dictum that the law is not concerned with the correctness of any medical theory, and did the very thing for which they condemned the M’Naghten judges, transforming contemporary medical theory into judicial fact. As a result, the Durham court has not only offered definitions on questions which New Hampshire would leave to the jury, but, despite clearly stated intentions to the contrary, may also be said to have set itself up as the ultimate trier of facts, reversing convictions when it has disagreed with the jury’s conclusions as to the value of specific expert psychiatric testimony.” Reid, Understanding The New Hampshire Doctrine of Criminal Insanity, 69 Yale L.J. 367, 390-91 (1960). (Footnotes omitted.) “To believe that one’s own theories are facts is considered by many contemporary psychiatrists as a ‘symptom’ of schizophrenia. Yet this is what the language of the Durham decision does. It reifies some of the shakiest and most controversial aspects of contemporary psychiatry (i. e., those pertaining to what is ‘mental disease’ and the classification of such alleged diseases) and by legal fiat seeks to transform inadequate theory into ‘judicial fact.’ ” Dr. T. S. Szasz, Psychiatry, Ethics, and the Criminal Law, 58 Colum.L.Rev. 183, 190 (1958). . Carter v. United States, 1957, 102 U.S. App.D.C. 227, 235, 252 F.2d 608, 616. . The Durham opinion treated the terms “mental disease” and “mental illness” as interchangeable. . See also testimony in United States v. Leach, Crim. No. 450-57 D.D.C.; and discussion in Blocker v. United States, 1959, 107 U.S.App.D.C. 63, at pages 65-71, 274 F.2d 572, at pages 574-580 (dissent) . . This is reminiscent of Lewis Carroll’s classic utterance: “When I use a word,” Humpty Dumpty said, in ratlier a scornful tone, “it means just what I choose it to mean — neither more nor less.” . Other substantial asserted grounds for reversal of Blocker’s first conviction were not reached in our opinion and may well have warranted such action. . We can take judicial notice that the American Psychiatric Association altered its nomenclature in 1952 to change psychopathic personality disturbance or sociopathic personality disturbance from a non-disease category into a mental disease. Whether this was by “voice vote” at a convention or some other parliamentary process we are not informed. The medical literature suggests that a large number, perhaps even a majority of psychiatrists do not consider “psychopathic personality disturbance” a mental disease. In his recent Isaac Bay Award book The Criminal Mind (1958), Dr. Boche tells us: “Psychiatric nomenclature is undergoing revision and there is considered the possibility of discarding the terms ‘psychosis’ and ‘neurosis’ altogether in favor of a more flexible framework in keeping with our present knowledge and operational methods. * * * It would be of interest to the legal profession that the term ‘psychopathic personality’ is no longer regarded by psychiatry as meaningful, yet it will probably remain embalmed for some time to come in the statutes of several States. * * * ” Id. at 25. On the preceding page of the same work the author has already told the reader that “Two of the most frequently encountered terms in psychiatry are ‘psychosis’ and ‘psychoneurosis’ (‘neurosis’) and it might appear that in such currency their meaning should be settled in universal agreement. This is not the case. Not only is there confusion, theoretically and practically, as to the precise meaning of each term, but also is there often as much confusion as to the existence of a pathological process to which either or both terms can be applied.” Id. at 24-25. . As to the substance of the change in classification or nomenclature there is good reason to reject it categorically so far as the courts are concerned. Many psychiatrists do not accept the view that “psychopathy” is or should be classified as a “disease.” Besponsible experts have testified in cases in this jurisdiction that to cure a psychopath the treatment must change his entire personality —something few psychiatrists think possible. The Isaac Bay Award book, The Criminal Mind states