2.9 The Product Test

2.8 “A Rumor in My Own Mind”

Book Two / 9

What was a court to do with people like Terence Myers?  With all the individuals like him who land somewhere between psychotic and sane?  Defendants who, though aware of the criminality of their acts, would not have become violent but for a substantial mental impairment?

There had been a time when the appellate courts expressed more interest in understanding them.  In the decades following M’Naghten’s Case the federal courts had adopted M’Naghten’s Rule as the law governing the insanity defense in their respective jurisdictions.  From that rule came the standard test, termed “the right-wrong test,” or the knowledge test, because it required a jury to decide whether the defendant, at the time of the criminal act, knew the difference between right and wrong with respect to that act.

It was a high bar.  Most defendants, even those with severe mental illness, still maintained some conscious awareness that their criminal acts were wrong.  Nevertheless, by the early 1950s M’Naghten’s right-wrong test had been used by federal courts for nearly a century.

Then, in 1954, the U. S. Court of Appeals for the District of Columbia announced that it was abandoning M’Naghten’s Rule, along with its rigid ‘knowledge’ test of right and wrong.

The Court of Appeals for the District of Columbia is considered by many to be the most influential court of the United States after the Supreme Court.  Between the years of 1949 and 1985 its Chief Judge, David Bazelon, authored many of that court’s ground-breaking opinions on cases involving the insanity defense.  He called these cases “responsibility cases,” referring to the legal requirement that, to be convicted of a crime, a defendant must have been legally responsible for his criminal act at the time of its commission.  If a defendant’s state of mind at the time of the act had rendered him incapable of being mentally responsible, then he could not be legally responsible either.

As Judge Bazelon described the concept in one of the court’s best-known rulings on the issue, the law should only impose legal responsibility for an act that is “the product of a free choice on the part of the defendant, and not of a mental disease or defect.”*


In 1954 the United States was emerging from the second World War in good shape relative to other countries.  Its economy was newly dominant in the world, the wealth it produced was finding its way into an increasingly broad number of households, and a large number of men — and women — were becoming the first in their families to attend and graduate from the country’s public colleges and universities.  Middle class wealth and public education were supporting a sense of psychological security and expansion.

Into this welcoming arena of inquiry the D.C. Court of Appeals issued its challenge.  Declaring M’Naghten’s Rule obsolete after “nearly a century of agitation for reform,” the Court, in the case of Durham v. United States, announced that it was throwing the test out.

Writing for the panel of circuit judges, Judge Bazelon began the court’s opinion with a survey of the scientific and legal communities’ opinions on the definition of legal insanity.  Reaching back to 1838, even earlier than M’Naghten’s Case, he noted that one of the founders of the American Psychiatric Association had called the right-wrong test for insanity “fallacious.”

In 1928, nearly a century later, Harvard Law School professor Sheldon Glueck had written that the test was based on “questionable assumptions” from “an outworn era in psychiatry.”  Speaking from his knowledge of modern psychiatric science, the professor had observed that “the capacity of knowing right from wrong can be completely intact and functioning perfectly even though a defendant is otherwise demonstrably of disordered mind.”  Whereas M’Naghten’s right-wrong test relied solely on the cognitive element of a defendant’s “mental life,” he explained, modern science now understood that the cognitive element is “not the most important factor in conduct and its disorders.”

Judge Bazelon further bolstered his court’s decision in Durham with reference to a statement Judge Benjamin Cardozo had made in his address to the New York Academy of Medicine a few years before his appointment to the United States Supreme Court.  “Everyone concedes,” Cardozo had announced to the Academy in reference to M’Naghten’s right-wrong test, “that the present (legal) definition of insanity has little relation to the truths of mental life.”

Despite Judge Cardozo’s declaration of a universal concession, however,  by 1954 — when Durham was decided by the D.C. Circuit — the other circuits had not yet themselves conceded.  Still, the D.C. court was prepared to be the first.  The Durham court had concluded from its survey of the body of expert opinion that M’Naghten’s test of right and wrong, with its emphasis on a defendant’s cognitive capacity, was “based on an entirely obsolete and misleading conception of the nature of insanity.”

In closing its analysis, the Durham court announced its departure from M’Naghten’s Rule, and its adoption of a different test, with a different definition of legal insanity.  Importantly, the test would replace the cognitive element of right-wrong with a volitional element that focused on a defendant’s capacity for self-control.  That simple modification would allow more individuals to pursue the defense if their mental illness was severe enough that it impacted their self-control over an act.

From this point forward, Judge Bazelon wrote, jurors in the District of Columbia would not answer whether a mentally ill defendant knew the difference between right and wrong with respect to his criminal act.  Rather, they would answer simply whether his unlawful act was “the product of a mental disease or defect.”  This test would be known as “the product test.”

In a footnote to its opinion the court commented on its historic decision that day, a decision reversing law that had governed the insanity defense in its jurisdiction since 1882.  The footnote stated simply that “former common law should not be followed where changes in conditions have made it obsolete.”


The Court’s ruling in Durham set a trailblazing precedent for mental responsibility cases, inaugurating a shift among the nation’s courts toward a more modern approach to the insanity defense.  The shift would continue through the 1960s and ‘70s.  Not every state would abandon M’Naghten’s right-wrong test, though many did.

More importantly, although the U.S. Supreme Court never overruled the right-wrong test, between 1961 and 1970 every federal appeals court but one would reconsider M’Naghten and adopt a more contemporary, expansive test for legal responsibility in its jurisdiction.

*Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954).

All quotes and references in this section are from the Durham decision.

2.10 The Retreat