Evening star., 1954-11-13
Aouin-The Durhum cuse

AquIrl- The Durham Cuse
lSee editorial: "AgGin-The Dur
ham CGse.'J
The Stars editorial OF November 10,
attacking my letter relating to the
Monte Durham case, is surprising
mixture Of bad temper and bad law.
You have again completely confused
the meaning and effect OF the decision
OF the Court Of Appeals in the Durham
case. Let me put It as plainly as ]
can:
/. Religious, moral. and legal prin-
ciples for many centuries have for
hidden the imposition Of punishment
upon persons for criminal acts COM
mitted while they were insane"
2. At various times during these CEN
turies. there have been different tests
for ascertaining whether an accused
person was sane or insane. For ex-
ample, test used centuries ago was
whether a person could count to
{ twenty.
5. In l843, the House OF Lords in
England announced the famous
M'Naghten Rule (the right and
wrong" test): That the test Of insan-
ity was whether "the party accused was
laboring under such q defect OF rea-
son, from disease OF the mind, as not to
know the nature and quality Of the act
he was doing. or If he did know 1t, that
he did not know that he was doing
what was wrong" This test has been
used In most courts since its an.
nouncement.
4. In addition to the right and wrong
test, many Jurisdictions held that an
accused was insane" and not criminally
responsible if he committed the act as
a result of an irresistible impulse"
5. The Star says that my letter was
wrong in saying that these tests OF
insanity were formulated long before
the discoveries of modern psychiatry.
The fright and wrong" test was
adopted in 1843.
The irresistible impulse" test was
first announced In reported decisions
in the United States before 1850. It's
leading exposition appears in Parsons
v. State, decided by the Supreme Court
Of Alabama in 1866.
Most people would agree that modern
psychiatry began with the writings Of
Sigmund Freud, in the 1905.
6. The Monte Durham case substi-
tutes for the fright and wrong" and
irresistible impulse" tests Of insanity
a simple, Ineligible standard. It is
interesting that The Stars editorial does
not state the Durham standard, but
quotes only some of the courts COM
ment about it. The Durham rule is
this: That an accused is not criminally
responsible If his unlawful act was
the product Of mental disease or mental
defect. It Is, in my opinion, wrong to
characterize this as more liberal or
less liberal test of insanity. It is a
different test It is more realistic
and an honest test. The only thing
that we can be reasonably sure of in
advance of actual experience is that
the Durham rule will result in more
accurate classification of those who
are sane and those who are insane.
A psychiatrist can testify as to
whether person Is or was suffering
from mental disease or mental defect.
Nothing in his training or experience
qualities him to testify, except in cases
so rare as to be completely unimportant,
as to whether a person could tell the
difference between right and wrong.
For example, In the Durham case,
the Government psychiatrist the dis
tinguished Dr.. Gilbert, testified that
Durham was insane at the time of the
commission Of the burglary. He was
then asked whether in his opinion
Durham at that time could. tell the
difference between right and wrong.
DIR. Gilbert said that he had no opin-
ion on this subject. How could he
have? There Is nothing in his training
or his science that would enable him
or entitle him to make this essentially
non-scientific judgment. The Durham
test makes this kind of testimony un-
necessary.
It requires only that the doctor
testify as to mental diseases or defects
and their consequences. The Judge or
jury will then decide in light of all the
evidence whether the accused should
be committed to Jail, If sane, or to q
mental hospital, if insane.
assure you that the sole purpose
Of my letter to The Star was to at
tempt to clarity the precise meaning
and scope of the Durham case. in
which was counsel by designation Of
the Court Of Appeals. did. indeed.
fear that The Star had contributed to
q basic misunderstanding as to the
meaning and effect of the opinion in
that case. am afraid that the diff
Guilty arises from the fact that The
Star itself is being badly advised as
to the law and the psychiatric consid-
erations involved.
Abe Fortas.