Durham and the Little Man of Reason: Insanity as a Defense, Part 2

Welcome back to Lawyers & Liquor and oh my god has this series become somewhat in bad taste since I started writing it last week. Over the recent weekend there were two mass shootings in the United States, killing in excess of thirty people and wounding many others, and the national conversation has gone to the most reasonable place ever since then: mental health care. Because, of course, no matter what happens it can’t be the availability of firearms that can empty out thirty shots in less time than it takes to read this post, reload, and empty out thirty more. No, the real problem is that all of the people who engage in mass shootings are obviously mentally unsound…which is a no shit statement because generally mentally sound people don’t consider “shooting a bunch of people in a retail store is the perfect way to express myself” to be a reasonable conclusion to reach.

However, as we talked about last time, merely being mentally unsound isn’t enough to properly defend the actions of an accused party in court. And nothing we’re going to talk about today is going to change that shit, because while M’Naghten, in some form, is still the majority rule throughout the United States, even under the tests used by the minority of states to make a determination of whether insanity relieves a party of criminal liability the standard still wouldn’t be met simply be means of mental defect. That’s right, today we’re going to examine the three other tests used to determine whether or not a defendant’s insistence that they shouldn’t be punished because of their mental state is,unlike their alleged mentality, sound.

But first, a disclaimer.

If you think this is legal advice, you may qualify to assert one of these defenses.

Look folks, I’m certainly a lawyer. However, in no way, shape, or form am I your lawyer, and for reasons that will become clear today unless I was licensed in all 50 states I am in no way a final word or source on any of this information. What pops up here on Lawyers & Liquor is a discussion of general legal principles for the purposes of education, entertainment, and occasionally explicit evisceration of how the law is applied in specific instances. This isn’t legal advice, and there is no attorney-client privilege that’s going to attach to everything or anything you send me or comment. Further, if you’re in a position where anything I profanely proliferate on herein may apply to you, you should most definitely seek out an attorney licensed to practice in your jurisdiction and heed their wise advice and counsel over that of a sentient and angry whiskey glass on the internet.

With all that said and understood, I’m gonna drag out our Completely Sane Strawman for today’s discussion, whose sole purpose is to give me a nice foil to play off of as we dive deep into the world of mental issues, illness, and instability for today’s discussion.

Oh, we’re back for more?

Yes we are my fickle fictional friend, because although we covered the basic background of insanity as a legal defense last time and the principles of M’Naghten, there’s still more to talk about here.

See, while M’Naghten survives as the basic standard, sometimes modified slightly or sometimes in combination with certain other tests used to determine criminal culpability, it is by no means the sole test utilized by courts in this great nation. As with everything in the law, courts, lawyers, and legal scholars have been unwilling to just say “Yeah, that sounds pretty good, we’ll use that instead” and created no less than three additional tests that, depending on where you are, could be utilized to judge the sufficiency of an insanity argument.

Wait…three additional tests? You spent the whole time last time talking about one test and some history shit.

Yep. And today we’re going to examine the second of them. I’ll try to be brief.

Lawyers call a 30 page document “brief,” Boozy.

At least we’re all on the same page here.

….Just get on with it then.

Cool. So, the M’Naghten rule was widely accepted as the only way to establish a defense of insanity for the longest damn time in the United States. But in 1954 the United States Court of Appeals for the District of Columbia, which holds a significant amount of weight in federal and constitutional law issues because of where it’s located, took a look at M’Naghten and basically said “You know what? This test doesn’t really account for a lot of situations where the defendant may know the nature and character of their act, but still be driven by a mental condition to perform the act. Like, what if someone is so mentally ill that although they know murder is wrong and they know what they are doing, the act is clearly the result of a diseased mind? Should we hold those people accountable despite the fact their crime is clearly the result of them being unwell?”

This matter came before the D.C. Circuit on an appeal from a New Hampshire criminal conviction of Monte Durham for a crime called “housebreaking” in 1951. Note: Housebreaking is apparently a really fancy way of saying “breaking into a house” or, in a lot of places “burglary.” We sometimes have funny names for these things in law. Durham was a bit of a frequent flier in both the judicial and psychological treatment circles, with a long history of “hallucinations” and other various psychotic episodes dating back to his 1945 discharge from the U.S. Navy at the age of 17, and had, prior to breaking into a house on July 13, 1951, been most recently discharged from psychiatric care with a clean bill of health the preceding May.

At trial on the matter, though, while doctors testified that Durham was definitely mentally unsound at the time of the commission of the crime, they were unable to subjectively or objectively say that, at the time of the housebreaking, Durham was so far gone he neither knew right from wrong nor did not understand what he was doing. Because, as we talked about last time, the law presumes that everyone is sane, some showing of mental defect and lack of cognition was required for a defense of insanity to be successful (at which point the burden would go back to the prosecution to prove he was sane at the time of commission of the crimes). By not being able to get in testimony that Durham was unable to distinguish right from wrong, driven by an irresistible impulse, or thought the house he was breaking into was his own or something, the defense necessarily failed and Durham was convicted of the offense. Despite the fact that the guy had pretty much consistently been in a cycle of psychiatric admissions, getting well enough to be released, being discharged, and then being readmitted for six goddamn years and obviously was not well.

That…really sounds like a guy we shouldn’t presume sanity for.

I mean, in this case you’re sort of right, because a federal appellate court agrees with you.

In this case, called Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954), the D.C. Circuit answered these questions with a resounding “No, we’re pretty sure that requiring them to not know what they or doing or that the act is wrong is too much to let someone with a ‘mental defect’ not be judged guilty.” Or, as that court put it:

“The modern science of psychology * * * does not conceive that there is a separate little man in the top of one’s head called reason whose function it is to guide another unruly little man called instinct, emotion, or impulse in the way he should go.”

By its misleading emphasis on the cognitive, the right-wrong test requires court and jury to rely upon what is, scientifically speaking, inadequate, and most often, invalid and irrelevant testimony in determining criminal responsibility.

The fundamental objection to the right-wrong test, however, is not that criminal irresponsibility is made to rest upon an inadequate, invalid or indeterminable symptom or manifestation, but that it is made to rest upon any particular symptom. In attempting to define insanity in terms of a symptom, the courts have assumed an impossible role, not merely one for which they have no special competence.  As the Royal Commission emphasizes, it is dangerous “to abstract particular mental faculties, and to lay it down that unless these particular faculties are destroyed or gravely impaired, an accused person, whatever the nature of his mental disease, must be held to be criminally responsible * * *.”  In this field of law as in others, the fact finder should be free to consider all information advanced by relevant scientific disciplines.

Id. at 871-72.

Essentially, what the court there said was “Whoa, whoa, wait a second. Whether or not someone knows right from wrong or understands what they are doing isn’t really a good test to determine if they were acting under the compulsion or influence of a mental illness.” It basically, in a lot of footnotes (which I’ve omitted), stated that the idea there is some little jockey dude riding the mental thoroughbred of sanity, and culpability for a criminal act can only be avoided if he’s not only unable to control the horse but entirely unconscious from a coke binge in the dressing room, was asinine and shouldn’t be used to condemn people. In fact, the court elaborated, a lot of folks who have the cognitive ability to both know what they’re doing and determine right from wrong at the time of the act can still have their actions ruled by a mental defect such that they should not necessarily be considered liable, stating:

The sufferer from [melancholia, for example] experiences a change of mood which alters the whole of his existence. He may believe, for instance, that a future of such degradation and misery awaits both him and his family that death for all is a less dreadful alternative. Even the thought that the acts he contemplates are murder and suicide pales into insignificance in contrast with what he otherwise expects. The criminal act, in such circumstances, may be the reverse of impulsive. It may be coolly and carefully prepared; yet it is still the act of a madman.

… We find that as an exclusive criterion the [M’Naghten] test is inadequate in that (a) it does not take sufficient account of psychic realities and scientific knowledge, and (b) it is based upon one symptom and so cannot validly be applied in all circumstances. We find that the “irresistible impulse” test is also inadequate in that it gives no recognition to mental illness characterized by brooding and reflection and so relegates acts caused by such illness to the application of the inadequate right-wrong test. We conclude that a broader test should be adopted.

Id. at 873-74.

To translate that, again, from “Holy hell these law-talkin’ folk sure know a lot of fancy words” into english, what the court is saying is “Because M’Naghten doesn’t account for circumstances where a person may be subject to a mental illness and acting under the influence of it, but otherwise that little jockey-man is still riding strong on top, we should toss that fucker right out of there and develop a test for what happens if the jockey is, you know, not out cold but rather thinks the only way out is to ride the horse right through the fucking stands because it can’t figure out another way to handle the situation.”

And then the court proceeded to establish what we now refer to as the Durham Test for an insanity defense.

Okay. So what’s the “Durham Test” then? What did they replace M’Naghten with?

I’ll let the court state the rule first, because it’s a lot easier to explain this shit when you know what the basic goal of it is:

The question will be simply whether the accused acted because of a mental disorder, and not whether he displayed particular symptoms which medical science has long recognized do not necessarily, or even typically, accompany even the most serious mental disorder.

Id. at 876

So here’s what that meant: Now, instead of proving that (1) the defendant was under some “mental illness of defect” at the time and (2) either (a) did not understand the nature of what he was doing – whether it was right or wrong- or (b) the quality of what they were doing – i.e. actually knew they were breaking into a house and not into a castle to rescue a princess like a modern day Mario, the defense needed to prove:

  1. The Defendant had some mental condition or defect that was in effect at the time of the offense, and;
  2. The criminal act was causally connected to the mental condition.

In other words, it established a “but for” test that disregarded the question of cognitive ability to understand the right or wrongness of an action or comprehend what was actually happening.

Boozy, what’s a “but for?”



Alright, a “but for” test is what we use in law to determine whether there is a causal connection between one thing and the next. For instance, if you are suing for broken legs because someone hit you with a car, your causal connection is “but for the defendant’s negligence in operating the vehicle, I would not have broken legs.” However, if that car makes you jump to the sidewalk where some unrelated third-party has negligently left a manhole uncovered, that wouldn’t apply. In that case it is “But for the driving I would not have jumped onto the sidewalk, and but for the person leaving the manhole uncovered I wouldn’t have broken my leg.” That second “but for” is what we refer to as an “intervening cause” and could serve to break the direct causal connection.

So what the court in Durham was setting forth was “Where a jury finds, based on the evidence, that but for the mental illness the defendant would not have committed the crime, there is a causal connection between the mental illness and the crime and therefore the crime was caused by the illness. In that circumstances, the defendant should be acquitted.”

Or, as the Durham court put it in summary:

The legal and moral traditions of the western world require that those who, of their own free will and with evil intent (sometimes called mens rea), commit acts which violate the law, shall be criminally responsible for those acts. Our traditions also require that where such acts stem from and are the product of a mental disease or defect as those terms are used herein, moral blame shall not attach, and hence there will not be criminal responsibility.

Id. at 876.

…Okay, that really seems ripe for abuse.

Right? I mean, let’s go back to my topical introduction here. I specifically stated that “[A]ll of the people who engage in mass shootings are obviously mentally unsound…which is a no shit statement because generally mentally sound people don’t consider ‘shooting a bunch of people in a retail store is the perfect way to express myself‘ to be a reasonable conclusion to reach.” Under Durham, if someone were to suffer from any of a variety of mental illnesses, they could then point to their actions and say “Does this sound like the action of a sane person? Of course not! Obviously it must be a result of the mental illness!”

But that can be overcome as well by showing things like how the defendant was acting, whether such actions can typically lead to the criminal conduct of the type shown, or whether or not people with that illness typically engage in such conduct. Using the offense as proof of insanity is a case of post hoc, ergo propter hoc, or for you non-latin speakers, “After the this, therefore because of it.” In law, we generally don’t give weight to such arguments without something more. Just because thing A happened doesn’t mean that thing B necessarily follows or was caused by it – and so in a Durham jurisdiction the defense is focused indicating that the criminal act was the result of the pre-existing mental condition, while the prosecution is focused on showing the criminal act, beyond a reasonable doubt, was not the product of the mental condition.

Or as the court in Durham stated in their proposed jury instructions to be used in these cases:

If you the jury believe beyond a reasonable doubt that the accused was not suffering from a diseased or defective mental condition at the time he committed the criminal act charged, you may find him guilty. If you believe he was suffering from a diseased or defective mental condition when he committed the act, but believe beyond a reasonable doubt that the act was not the product of such mental abnormality, you may find him guilty. 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. Thus your task would not be completed upon finding, if you did find, that the accused suffered from a mental disease or defect. He would still be responsible for his unlawful act if there was no causal connection between such mental abnormality and the act.

Id. at 875.

In other words, in Durham, as in M’Naghten, the condition of a “diseased or defective mental condition” at the time of the offense is a requirement to raise insanity, and then there has to be prove showing the criminal act was the “but for” result of the mental condition and no other intervening factor – which the defense must for the prosecution to prove beyond a reasonable doubt.

But, really, unless you live in one specific place none of this matters at all for Durham.


Yeah. See, some state and all federal courts dropped M’Naghten based defenses after the 1954 ruling in Durham and began to embrace the more lenient Durham standard for insanity defenses. But you remember that whole “ripe for abuse” commentary from the fictional strawman a moment ago? That turned out to be a real thing that courts had to deal with. Suddenly there were insanity defenses popping up whenever there was a whiff of a mental illness present in a criminal case. To the extent that some people even used insanity defenses to claim their gambling addictions were the cause of their arrest for shit like bookmaking charges.

As a result, in 1972 the federal courts began to adopt a standard devised by the American Law Institute (ALI), which was basically a modified M’Naghten case and a lot of state courts that changed to Durham ended up reverting to their pre-Durham standards for the insanity defense.

Which leaves the only state where Durham applies in the form created by the court here as…New Hampshire. Literally only New Hampshire.

…All of that for one fucking state?

It’s important, I swear. As we’ll discuss next time when we cover both the ALI standard for insanity defenses (also known as the Model Penal Code standard) and how the attempted assassination of a president changed it again, and the irresistible impulse standard of an insanity defense.

Until then, I’m Boozy, and you’re not.


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