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The following program is produced by the University of Michigan broadcasting service under a grant of aid from the National Educational Television and Radio Center in cooperation with the National Association of educational broadcasters. Some historic aspects of the law and mental health. The program from the series of human behavior social and medical research produced by the University of Michigan Broadcasting Service. This program is one of five from the series dealing with the law and behavioral science programs have been developed from interviews with men and women who have the too often unglamorous job of basic research. Research in medicine the physical sciences social sciences and the behavioral sciences. Occasionally you will hear what may seem like strange or on familiar sound. These are the sounds of the participants office laboratory or clinic where the interviews were conducted. Today you will hear the Honorable
David L. bass a lot circuit judge of the United States Court of Appeals in Washington D.C. And my name is Glenn Phillips. On today's program we hope to place into perspective as our title suggests the historic elements of law and behavioral science chargebacks along with one of the first in the United States to recognize a correlation between his profession and that of science. In answer to this question What can behavioral science contribute to law or its concept he said. I think the law depends on the knowledge of the disciplines. I think we must in order to. To grow. The law must
recognize the existence of knowledge and that does not mean to say that the law must accept everything that the behavioral sciences have to offer. The law can be discriminating. Many of the postulates of their own sciences. Have not been. Proven. But certainly they deserve the most serious consideration. One thing we should not have rules of law which preclude. An examination of this information. We ought to have rules of law which allow. The disciplines of the behavioral sciences from
presenting their points of view. I do not think that the problems of the law or the growth of the law depends on the behavioral sciences alone of course. The growth of the law the Benz on the wide range of the social sciences for example a psychiatrist may be able to tell us. Something about the dynamics of behavior. And to explain to us for example. The Genesis and development. Of a criminal act. And let's say that in the course of this explanation we find that. Related to this behavior. Our economic deprivations educational deprivations rather social deprivations. The psychiatrist cannot cure these conditions.
You can tell us what impact they have or give us a fair idea of what impact they have on the behavioral event in question. But it can't cure them. To do the entire job. We must recognize that the sociologist The anthropologist The Economist as well as the psychologist and psychiatrist. Have information which is relevant. To the issue before the court. In conversation the judge noted various legal formulations that have bearing on present day law practices. For clarification I requested the judge Basle and enumerate further on two of the the 1843 formulation and his own 1954 opinion. The McNaughton rules were laid down by the English courts.
In 1843. Let me tell you something about the McNaughton case. In January and January 20th 1843 Daniel McNaughton the Scottish woodturner. Fatally shot Edward Drummond. Secretary to the prime minister saw Robert Peel. He did this is Drummond was entering a government office in London. The assassin. Had mistaken the secretary for the prime minister. The Tories in my native city have compelled me to do this he explained later. They follow and persecute me wherever I go. They have entirely destroyed my peace of mind. Unquote. The sole issue of McNaughton's trial was insanity. His council called Nine physicians and
surgeons to the stand. All testified that the accused was insane. The prosecution produced no medical testimony in opposition. Large of Justice directed a verdict of not guilty on the grounds of insanity and McNaughton spent the rest of his life in a mental and in mental institutions. The public reaction was indignant. Many people ascribe the shooting to a political plot. Queen Victoria herself protested the verdict. As a result the House of Lords put several questions to the judges of England. Their answers govern the insanity defense ever since throughout most of the in the English speaking world. And this in essence is the rule that they laid down. To establish a defense on the ground of insanity. It must be
clearly proved. That at the time of committing the act. The party accused was laboring under such a defect of reason. From disease of the mind. As not to know the nature and quality of the act he was doing. Or if he did know it. That he did not know. He was doing. What. Was wrong. Now the concept of insanity. Is a legal concept. It was conceived by lawyers not by doctors. It has its roots. In a requirement of the angel requirement of the law. That before a person can be guilty of a crime he must be capable. Of many Israel
which means a guilty mind or evil intent. The insanity defense. Is related to that the legal concept. Arises from it. Originally the insane defendant was thought of. As one so bereft of reason. So obviously bereft of reason. That on the basis of common experience alone all man could agree. That he was incapable of entertaining. That. Evil intent. Throughout the early legal history. Only total insanity was recognized as a defense. And I suggest probably because. No scientific knowledge existed. To differentiate the shadings and gradations of mental disease. The concept. Of the McNaughton
rules. Boys under attack even before the rules were announced. As a matter of fact in 1838. Doctor a sometimes referred to as their founder of American psychiatrist. Had written a book. Called the treatise on the medical jurisprudence of insanity. And in that treatise. He attacked. The concept upon which the McNaughton rules were based. Five years later. In this century. A chorus of protest. Against the McNaughton rules has been well-nigh deafening. Some of the world's leading psychiatrists have refused to testify in court. Under this rule because they say it distorts. The
knowledge of their discipline. And Justice Cardozo. In referring. To them and not Rose said this. Everyone concedes that the present definition of insanity meaning the McNaughton rules. Has little relation to the true diz of mental life unquote. Now. One of the arguments in favor of this restricted rule. Chiefly. That it reflects. Traditional morality. Governing the conduct of normal persons. That it has persisted historically for 100 20 years. That alternative tests are inadequate. And perhaps one of the most important arguments in its favor. Is said to be that many courts. Ignore the test as often as
they apply it. Now. What are they. And. What are they. The arguments in favor I mean against me against. The mid-autumn rules well they seem to be. Under four headings. First. These rules. Missed the point entirely. Because whatever insanity means. The term refers to abnormal conditions of mind that cannot all be gathered together. Under the rubrics of no. And wrong. When I say no I mean King A.W.. Second. The test is based on an outmoded theory of for
of faculty psychology which was derived from for an ology. And under this theory. The mind is seen as divided into separate compartments. Now today. We all agree that. That and that a man. Is an integrated personality. And reason is only one hell of a nt of that personality. And it is not the sole determinant of conduct. Third. The test poses to the expert and ultimate question involving legal and moral as well as medical issues. And since the witness is only a medical man he should not be called upon to answer a legal and moral questions. Fourth.
The test is so straight jacketed the psychiatrist and testify that he has abandoned. His own knowledge. And defines insanity. Exclusively in terms of extreme psychosis. Or pigment organic deterioration of the brain. In so doing. He misleads everyone. Now. It is perfectly obvious. That. Almost everybody. Except the drooling idiot knows the difference between right and wrong. Our mental institutions are filled with people who are seriously ill. But who nevertheless know.
If you ask them whether a certain act was right or wrong they could tell you. And. Since I as I just suggested only the drooling idiot. Is not really know the difference being right or wrong. We must remind ourselves of the drooling idiot is not the man who gets into trouble. He was and doesn't bother anybody. So that for all practical purposes. A strict application of the name of the McNaughton rules in other words does a man know the difference between right and wrong. Under strict application of that rule. Everybody is responsible and everybody would be punished under our law. As I've just mentioned there has been a great chorus of protest against these rules. There's no mistake from a reading of the relevant literature on the subject
that. No one was really satisfied. But nothing had been done because. There were no assurances. That. An alternative test could be devised which would be acceptable. It was against this background. That this court. Decided the case of Durham versus United States. In 1954. Derm Monte Durham. I. Was 23 or was a 23 year old boy. Who broke into a home in Washington and was caught pilfering close. This was his background. At the age of 16 Martin
had been charged with passing bad checks and doesn't parole violation. Car theft and attempted suicides. Three times he had been committed to mental institutions. He had been diagnosed variously as psychotic with a psychopathic personality. And another time without mental disorder but with a psychopath. But with a psychopathic personality. Shortly after his indictment for this house breaking. He was a judge to be of unsound mind. And mentally incompetent to stand trial. As distinguished from insane as a basis for acquittal by reason of insanity. He stayed at the hospital for 16 months. Then to which time
the superintendent certified the bus. And I quote the psychiatric study has established that derm suffers from psychological illness but is mentally competent to stand trial unquote. The term mentally competent to stand trial means simply that he understands the charges against them against him and that he is able. To assist and advise with his counsel at the trial. And just as in the McNaughton trial the song issue. In the Durham case. Was the mental condition of the defendant. Following the McNaughton rules.
The psychiatrist and the government psychiatrist. Was asked whether or not Durham knew the difference between right and wrong. In effect. The government psychiatrist testified that he didn't know. Whether or not Durham knew the difference between right and wrong. Because the psychiatrist. Would not express an opinion. The Court. Found. That. Derm was sane. Legally sane that is. For the purposes of responsibility under and under the law. Notwithstanding the fact that the psychiatrist also said. That he thought the derm. Was suffering from a psychosis. At the time of the crime. In other
words the fact. Of UN contradicted testimony. That Dharm was a psychotic. Suffering from psychosis at the time of the crime. Because the psychiatrist could not say that he did not know the difference between right and wrong at that time. The court concluded. That Dharm. Was. A responsible person and should be punished under the law. When that case reached our court on appeal. We reversed the conviction. And we announced a new rule. Of criminal responsibility. Which is now. Effective. In the District of Columbia. The
jurisdiction of our court. In this case we said that the rule. Is simply that an accused is not criminally responsible. It is an unlawful act. Was the product of a mental disease or defect. Now under this test. We said. The question would be 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 disorders. That is. The symptom of knowing the difference between right and wrong. Now the purpose of this new rule
is to unfreeze. The expanding knowledge of psychiatry. As it could be applied to the law. And to free the psychiatrist from having to make moral and legal determinations required by the right and wrong test. Because as I've said before the psychiatrist has no special qualifications to determine the matters of right and wrong and under this rule the psychiatrist could address himself to the problems of mental disease and defect. These are matters for which he is qualified. And finally we said in this case that our purpose was to restore it to the jury is traditional function of applying our inherited ideas of moral responsibility to individuals prosecuted for crime under the historically sanctioned precept that our collective conscience.
Does not allow punishment or it cannot impose blame. We said that the jury will still make moral judgments but they will be and they will be made under the guidance. Of wider horizons of knowledge concerning the facts of mental life. Many people have said that this new rule creates more problems than it solves. I would suggest if the word creates the amended Duraid uncovers then I would agree but I think that any realistic revision of an approach to the problem of responsibility is bound to reveal difficult problems which have been ignored or suppressed
under the old. Right and wrong test. I agree also with another criticism of the dorm room. That the term mental disease cannot be rigidly defined. But I submit that the term is a dynamic concept which undergoes continual redefinition in the course of clinical experience. And I further submit that it is strange logic to conclude. From the fact. From this fact that the complexities behind the term should therefore be ignored and that lawyers should arrive. At a definition Op. Aurore.
It seems to me but we should seek out the best current scientific explanations. To fill the concept of mental disease. In his previous discussion judge by Salon has been speaking of a code of law known as the Washington D.C. Code of punishment. The code for which judge by Salon has gained fame. Explain further this code of punishment render her statues here and the person acquitted by reason of insanity must be sent to our big government mental institution here St. Elizabeth. And he must remain there until. The staff of the hospital certifies that he is no longer likely to be dangerous to himself or others. And if there is the prosecuting
authorities or the judge himself has any doubts about the certification then a hearing is conducted before the court and the court makes a judicial determination. Other words there are adequate safeguards. Now it's quite clear of course that. The. Psychiatrists. And. From mental hospitals are going to are going to make mistakes. They are fallible they are human. And he may err in his prognosis. And he may recommend release prematurely with disastrous results to the community. And many state hospitals are were too overcrowded and understaffed. To provide optimum care. But at least the effort is made to exercise responsible medical judgment.
Where is the prison warden is called upon enter no judgment at all except as to parole and including today I asked Judge bass a lot and if he felt that research would cause a loo or revised approach to the law. Well I don't think that the. Consideration. Of information from the behavioral sciences required anything new I think that the law particularly our concept of the common law. It requires that we have this information so that the law can adapt itself. Not only to the knowledge of the day but to the conditions of the day. A rule announced 100 years ago. 200 years ago may be valid today. It doesn't become invalid simply from the passage of time but the conditions. Which were the impulse for the rule. May have changed. If they have changed. The rulers operating
out of context. And is likely to be. Unfair. Unjust. So I would say. That. The law. Needs to feed. On information. Regarding the change in conditions and their effect. And of course it's the social scientists and the behavioral scientists. Who can furnish most of the information required. For that process. Next week judged by Salon we'll be joined by Dr. Philip Hugh Roche of Philadelphia and Dr. Harry Calvin Jr. of Chicago. As they discuss a new approach to the law. On the next program from the series human behavior social and medical research consultant for this program was Dr. Andrew Watson of the University of Michigan. Glenn Phillips speaking asking that you join us next week and thanking you for being with us at this time. This program has been produced by the University of Michigan broadcasting service under a grant in
Behavioral science research
Behavioral science and law, part one
Producing Organization
University of Michigan
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University of Maryland (College Park, Maryland)
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Episode Description
This program, the first of five parts, discusses some historic aspects of the law and mental health. Guest is The Hon. David L. Bazelon, Circuit Judge, U.S. Court of Appeals, Washington, D.C.
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A documentary series on behavioral science and its role in understanding human health.
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Host: Cowlin, Bert
Interviewee: Bazelon, David L.
Producing Organization: University of Michigan
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University of Maryland
Identifier: 61-36-17 (National Association of Educational Broadcasters)
Format: 1/4 inch audio tape
Duration: 00:29:41
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Chicago: “Behavioral science research; Behavioral science and law, part one,” 1961-09-26, University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed May 20, 2022,
MLA: “Behavioral science research; Behavioral science and law, part one.” 1961-09-26. University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. May 20, 2022. <>.
APA: Behavioral science research; Behavioral science and law, part one. Boston, MA: University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from