make the insanity defense available to persons who are
unable to control their actions, just as it does to those
who fit M’Naghten;fourth, no matter how broadly
M’Naghten is construed, there will remain areas of
serious disorder which it will not reach. (p. 67)At its high-water mark, this test had been adopted in
18 jurisdictions, but today, far fewer states follow its
teachings.The Product Test
Charles Doe, a mid-19th-century New Hampshire
State Supreme Court judge, first crafted what became
known as the product test: “If the [crime] was the off-
spring or product of mental disease in the defendant,
he was not guilty by reason of insanity” (State v. Pike,
1870). This test first entered the legal public’s con-
sciousness in 1954, when it was adopted by the
District of Columbia in Durham v. United States,
rejecting both the M’Naghten and the irresistible
impulse tests as based on “an entirely obsolete and
misleading conception of the nature of insanity,” one
that ignored the reality that “the science of psychiatry
now recognizes that a man is an integrated personality
and that reason, which is only one element in that
personality, is not the sole determinant of his conduct”
(p. 871) and that a far broader test would be appropriate.
Durhamheld that an accused would not be crimi-
nally responsible if his “unlawful act was the product
of mental disease or mental defect” (pp. 874–875).
This test would provide for the broadest range of psy-
chiatric expert testimony, “unbound by narrow or psy-
chologically inapposite legal questions” (Weiner,
1985, p. 710). The case was the first modern, major
break from the M’Naghten approach and created a
feeling of intellectual and legal ferment. It was
adopted, however, in fewer than a handful of jurisdic-
tions and became the topic of fairly rigorous criticism,
that it allegedly failed to provide helpful guidelines to
the jury and that it was—at its core—a “nonrule,” pro-
viding the jury with no standard by which to judge the
evidence; that it misidentified the moral issue of
responsibility with the scientific issues of diagnosis
and causation; and that it was too heavily dependent on
expertise, leading to the usurpation of jury decision
making by psychiatrists. Within a few years after the
Durhamdecision, the court began to modify and—
ultimately—dismantle it, culminating in its decision in
United States v. Brawner(1973), the most important ofthe many federal cases that had rejected M’Naghten
and adopted instead the ALI-MPC test.American Law Institute’s
Model Penal Code Test
In an effort to avoid the major criticisms of M’Naghten,
the irresistible impulse test, and Durham, the ALI
couched the substantive insanity defense standard of its
MPC in language that focused on volitional issues as
well as cognitive ones. According to the ALI-MPC
standard, a defendant is not responsible for his criminal
conduct if, as a result of mental disease or defect, he
“lacks substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to
the requirements of law” (§ 4.01(1)). Under this formu-
lation, the term mental disease or defect specifically
excluded “an abnormality manifested only by repeated
criminal or otherwise antisocial conduct”(§ 4.01(2)).
Although the ALI-MPC test was rooted in the
M’Naghten standard, there were several significant dif-
ferences. First, its use of the word substantial was
meant to respond to case law developments that had
required a showing of total impairment for exculpation
from criminal responsibility. Second, the substitution of
the word appreciatefor the word knowshowed that a
sane offender must be emotionally as well as intellectu-
ally aware of the significance of his or her conduct and
that mere intellectual awareness that the conduct is
wrongful when divorced from an appreciation or under-
standing of the moral or legal import of behavior can
have little significance. Third, by using a broader lan-
guage of mental impairment than had M’Naghten, the
test captured both the cognitive and affective aspects of
impaired mental understanding. Fourth, its substitution
in the final proposed official draft of the word wrong-
fulnessfor criminalityreflected the position that the
insanity defense dealt with an impaired moral sense
rather than an impaired sense of legal wrong.
Although there were some immediate criticisms of
the ALI-MPC test, principally due to the attempt to
bar “psychopaths” or “sociopaths” from successfully
using the defense, the test was generally applauded as
encouraging adjudication based on reality and the prac-
tical experience of psychiatrists by recognizing that
both the volitional and the cognitive processes of an
individual may be impaired. The test was subsequently
adopted by more than half of the states and, in some
form, by all but one of the federal circuits. Perhaps
most significant, the District of Columbia Court of164 ———Criminal Responsibility, Defenses and StandardsC-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 164