State v. Esser

¶1(dissenting in part). I reaffirm what I said in the concurring opinion of Kwosek v. State (1960), 8 Wis. (2d) 640, 100 N. W. (2d) 339. In the instant case, the trial court gave instructions in terms of free will and this was most important. It does little good to distill and formulate a capsule definition of insanity in several sentences if the standard is not communicated to the jury by meaningful and correct exposition. The jury instructions are the only means by which appellate opinions are translated for the guidance of the triers of the fact.

¶2The problem of formulating a test of insanity in relation to criminal responsibility is admittedly difficult. The major*611ity correctly stated that the test is a legal defense and should be couched in legal terminology rather than in the discipline of psychiatry. The new articulation of the definition of insanity by the majority is a variation of one of the original M’Naghten rules 1 and so far as it goes it is an improvement over the previous statement in Wisconsin. We point out, the uses of the phrase “abnormal condition of the mind, from any cause,” although not defined, is an enlargement of the phrase “a defect of reason, from disease of the mind.” Abnormal condition of the mind must mean at least an unsound mind or a mental illness and not a character defect. The rule further clarifies the word “know” in the M’Naghten rule by substituting the words “understand” and “distinguish.” Thus what has been thought by some scholars to include only conceptual knowledge is broadened to include evaluative knowledge and better describes the cognitive phase of the complex mental process.2 Certainly, it is true if one is incapable of understanding the nature and quality of his acts, the free will has no basis for a rational choice. Likewise, if one is wholly incapable of distinguishing between right and wrong, a prerequisite condition for the free exercise of the will does not exist. I am not convinced that these are the only indicia which should be used to determine the ultimate fact of whether the act of an individual was his own in the sense he should or should not be held criminally responsible for his act. What we are saying by these words is *612that a person did not have the capacity to make a choice or to will or conform or control his conduct. If that is what we mean, why don’t we say so in a legal standard?

¶3Most crimes require an intent, i.e., mens rea in addition to the act. Unless a person’s mental process is capable in a given case of forming such intent, he is deprived of natural choice which the concept of mens rea assumes. Underlying the basis of the M’Naghten rule is the concept of the free will or the power in man to make a choice between alternative courses of action. The exercise of the volitional power, which is the end product of the complex mental process, is dependent upon or interrelated with the cognitive phase of the mental process.

¶4I believe that a test of criminal responsibility should include or be stated in terms of the free will of man because it is that concept of the nature of man upon which we have traditionally and morally placed responsibility and is in accord with current-day medical science.3 The standard of criminal responsibility should be law’s expression of society’s conception of conduct in terms of the traditional, ethical, and moral standards but stated in terms with real meaning to lay jurors who must apply it to the facts and to judges who must frame the instructions.

¶5I agree that criminal responsibility should not be stated as a test keyed to indefinite and nebulous fact situations or in terms of medical discipline. The law should make use of scientific knowledge, but it need not enter into the field of psychiatry in this instance. The majority opinion does not do so, recognizing the inability to evaluate the conflicting *613theories underlying psychiatric testimony. I do not have such great doubts of evaluation and cannot accept all theories as having equal value.

¶6Historically, the law has dealt with problems of responsibility with respect to criminal acts, contracts, wills, and certain intentional torts, in terms of capacity to exercise the will or in more-modern parlance, the capacity to control conduct or to regulate behavior and conformity to certain standards. Responsibility in criminal law has been based on the concept of the freedom of the will, the ability of a human being to act or not to act, the power to choose between alternative courses of action. In Steward Machine Co. v. Davis (1937), 301 U. S. 548, 590, 57 Sup. Ct. 883, 81 L. Ed. 1279, Mr. Justice Cardozo said that all law in the western civilization is “guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of problems.” In Gregg Cartage & Storage Co. v. United States (1942), 316 U. S. 74, 79, 62 Sup. Ct. 932, 86 L. Ed. 1283, we find Mr. Justice Jackson stating:

“How far one by an exercise of free will may determine his general destiny or his course in a particular matter and how far he is the toy of circumstance has been debated through the ages by theologians, philosophers, and scientists. Whatever doubts they have entertained as to the matter, 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.”

¶7Judge Arnold in Fisher v. United States (App. D. C. 1945), 149 Fed. (2d) 28, 29, stated:

“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.”

¶8*614A most-vigorous plea for stating the rule of insanity in terms of free will is made by Judge Berger in his separate opinion in Blocker v. United States (D. C. Cir. 1961), 288 Fed. (2d) 853.4

¶9I suspect the failure to state a standard of criminal responsibility in the primary language of the freedom of the will is due to several causes: (1) Disbelief in the existence of the freedom of the will, (2) the difficulty of stating such a rule, (3) the fear of accepting the theory of irresistible impulse, and (4) the refusal by some forensic psychiatrists to translate or key their testimony to such a standard because under their theory of dynamic psychiatry, there is either no freedom of the will or it plays a very subordinated role in human conduct. We are cautioned, “The law should not accept the apodictic statements of some extremists as representative of all psychiatric thought.” Cavanagh, Fundamental Psychiatry, p. 576. To these reasons we must include the additional ones stated in the majority opinion: (1) That the variations of the M’Naghten rule have worked satisfactorily, (2) that any restatement expressly including or recognizing the “free will” would possibly enlarge the number of defendants who would escape the social ostracism of being found guilty, and (3) in Wisconsin, it does not make much difference if a person is found guilty and he is insane because he will be transferred to a hospital for criminally insane. Even in this, the majority is not united because the author of the opinion expressed a personal preference for a more-liberal rule if the burden of affirmatively proving the plea of insanity were on the accused.

¶10We have no quarrel with placing the burden of proof of meeting any standard of insanity upon the defendant. Such defense, which must be pleaded specially, could well be con*615sidered an affirmative one which ought to be proven by the preponderance of the evidence as in civil cases because a finding of not guilty because of insanity as a practical matter results in an automatic commitment under the statutes to a mental institution. This view was taken in United States v. Naples (D. C. Cir. 1961), 192 Fed. Supp. 23. It is somewhat of an incongruous result under our present law when a person is committed to a mental institution not on an affirmative finding of insanity but on an essentially negative one that the jury had a “reasonable doubt of his sanity or mental responsibility.” Sec. 957.11, Stats. In civil cases, such a finding would not sustain a commitment. Secs. 51.03 and 51.05. However, wherever the burden of proof is placed by the legislature, it has no logical relationship to the problem of correctly stating the test of insanity unless the court is attempting to control the end result in criminal cases by tailoring the means to attain that purpose.

¶11Perhaps the two most-serious objections to stating the rule in basic terms of freedom of the will are the disbelief in that concept or the fear of those who recognize such a belief that the doctrine of irresistible impulse will take over the field of criminal insanity as a defense. Professor Wilber G. Katz, from a behavioristic standpoint and not admitting the existence of the freedom of the will, suggests a possible understanding between the psychoanalytical school of psychiatry and the law by both recognizing the concept of free will “as if” it existed in man. Katz, Law, Psychiatry, and Free Will, 22 University of Chicago Law Review (1955), 397. John R. Cavanagh, a noted psychiatrist, recognizing the existence of the freedom of the will, believes the “irresistible-impulse test” is misnamed and misunderstood and advocates the renaming and retention of the test as the “unresisted-urge test.” In his view, the individual is' considered not responsible when, even if he knows what is right, he is unable by reason of mental illness to adhere to this judgment and this *616concept, properly understood, preserves the principle of the freedom of the will.

¶12The great difficulty in solving this problem or of even understanding various phases of it is a matter of semantics. For an exhaustive review and evaluation of the subject, and bibliography, see Lindman and McIntyre, The Mentally Disabled and the Law (1961), pp. 330-372. Psychiatrists do not agree among themselves on their own terminology.5 Neither do they agree on the basic theory of their psychiatry, and consequently the same clinical facts give rise to diametrically opposed interpretations. Likewise, in legal literature, the terms of any definitions or any rule connote different meanings to various judges, law professors, and lawyers. Underlying these various concepts are fundamental differences in the purpose of punishment and the function of the criminal law, differences in philosophical thought, and differences in theories of psychiatry and especially of the nature of man, his personality, and his mental process.

¶13Some defenders of the various variations of the M’Naghten rule deny the existence or the possibility of an irresistible impulse. If by “irresistible impulse” is meant that there is no power in man to choose and that all human action is determined in a behavioristic or mechanical way, I would repudiate the theory because that concept of irresistible impulse forecloses and denies even the possible existence of a free will. If by “irresistible impulse” is meant exaggerated, uncontrolled passions, emotions, or urges, I would likewise not accept the existence of such an “irresistible impulse” because such emotions and passions and urges are to a large extent controllable by the will. In such cases where the will has not been developed and strengthened by exercise, such urges are most influential but not determinative of the *617action; and if determinative, criminal responsibility should still attach. To my mind, this class of cases, regardless of what label is put on them by a psychiatrist, is not an abnormal condition of the mind but a defect of character or personality. A person cannot be indisposed to develop his personality in accordance with his nature as a human being and the demands of society and then claim he is not responsible for his acts. Such state of personality did not arise out of a blameless condition of the mind, whether we call it a defect of reason, an abnormal condition, or a mental illness, but originated in a voluntary disposition. For cases involving irresistible impulse, see Annos. 70 A. L. R. 659, and 173 A. L. R. 391.

¶14One can recognize free will and not accept the irresistible-impulse theory. The will always acts consciously in making a choice. This is not to say the will is not influenced by the unconscious forces and perhaps by not understandable urges, passions, and emotions, but the will is not inexorably determined or coerced by them. Many of our actions are not voluntary and not acts of the free will. Only those acts which follow and are based upon deliberation can be free. The will can only act upon what appears to it as good, a subjective presentation by the intellect which may or may not have a basis in reality.

¶15The disputed question' of criminal culpability, however, remains in those cases where the so-called irresistible impulse, or, as sometimes stated, an unresisted urge, has developed so excessively because of mental illness at the expense of the other psychic powers that in comparison to this urge or impulse, the other powers exert negligible influence upon reason when it is called upon to make a judgment. The impulse, occupying as it does not the subconscious but the central point of consciousness, becomes the basis upon which the intellect represents the course of conduct as desirable to the will. If such a mental condition is the result *618of mental illness and not of a blameworthy defect of personality, ought the accused be held criminally responsible ?

¶16The lack of capital punishment in Wisconsin and the state’s policy in respect to sex crimes have little justification in stating legal insanity in terms of M’Naghten. One solution open to those who are unsure of the correct solution to the problem or who attempt to reconcile what is irreconcilable is to espouse the suggestion that the accused who pleads insanity should be tried first on the basis of whether or not he committed the antisocial act without reference to any legal test of insanity, then after an affirmative finding, to determine his insanity or lack of it in a medical sense and make such disposition as the facts warrant. See the concurring opinion of Mr. Chief Justice Weintraub, in State v. Lucas (1959), 30 N. J. 37, 83, 152 Atl. (2d) 50, 75.

¶17Our second main objection to the majority opinion is the reaffirmance of certain language in State v. Carlson (1958), 5 Wis. (2d) 595, 93 N. W. (2d) 354. It has traditionally been the practice to apply the same test of materiality of evidence in criminal cases as in civil cases and to require expert medical opinions to be given to a medical certainty. We have also required the acceptance and validation of various tests by the medical profession. It seems to me the majority has done away with these requirements in allowing into evidence any and all medical testimony on the nebulous catchall phrase of giving the jury a picture of the whole man. Under this concept, all medical evidence is material. A great deal of medical testimony which has no relevancy or materiality to the act charged will be let in and the trial will become a battle of the experts over conflicting psychiatric theories and interpretations. When the jury has been sufficiently confused, the trial court under our present procedure will then attempt to narrow the legal issues in its instructions on the M’Naghten rule. I venture to say that these instruc*619tions, whatever they may be, will come too late to be of much help or guide to the jury.

¶18Threading its way through the majority opinion is a vague concept that criminal responsibility in each case ought to be determined by the jury’s vague sense of contemporary social justice. This concept is that justice should be egocentric rather than public-centric. This idea is disavowed, but the result is reached under the application of the majority rule tied as it is with the unlimited admissibility of evidence. For practical purposes, we reached the result enunciated in Durham v. United States (D. C. Cir. 1954), 214 Fed. (2d) 862, and the unaccepted recommendation of the British Royal Commission on capital punishment — a standardless standard of whether the accused ought to be held responsible. Instructions under the majority rule or any standard come too late to counteract effectively the image created in a jury if any psychiatrist can give any and all information on the accused’s mental condition, whether such testimony has anything to do with the act or not. The burden is placed upon the jury to exclude the immaterial evidence after it has heard it rather than upon the court.

¶19The justification for this result cannot be grounded as it is by the majority on the basis of the criticism by some psychiatrists who assert they cannot testify in terms of impairment of the capacity to distinguish right from wrong, or to key or translate their testimony or evaluations to any legal test. Nor do wre believe justification can be predicated on the statement that the jury will be best able to perform its function if given all the-information qualified experts are able to give even if such information does not fit nicely into the definition. Coupled with this reason is the belief or fear of the majority of the probability that no general standard can be devised which would satisfactorily fit all cases.

¶20I believe the approach to the problem of adopting a limited legal definition of insanity and practically disregarding it *620by allowing in all evidence of what might be called medical insanity or mental illness is wrong and will not fulfil the purpose of society or the function of criminal law. The proper method is to formulate a more-fundamental definition of legal insanity and restrict medical testimony to what is material to that standard. Because of the doubts expressed in the majority opinion and the apparent lack of unanimity in all its phases, I suspect the problem remains with us. When it is again re-examined, the rule of insanity should be stated expressly in terms of the freedom of the will with appropriate instructions and explanations given in the opinion and the scope of medical testimony reasonably restricted to what is material to that issue.