Barton, Allen H.

English

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Buffalo Law Review Volume 17 Number 3 Article 23 4-1-1968 The Jury and the Defense of Insanity. by Rita James Simon. Allen H. Barton Columbia University Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Criminal Procedure Commons Recommended Citation Allen H. Barton, The Jury and the Defense of Insanity. by Rita James Simon., 17 Buff. L. Rev. 962 (1968). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol17/iss3/23 This Book Review is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BOOK REVIEWSTHE JURY AND TE DE ENSE OF INSANITY. By Rita James Simon. Boston:Little, Brown & Co., 1967. Pp. 269. $10.00.This book reports one of the major studies of the University of ChicagoJury Project. Two cases in which the defense of insanity was raised werepresented in tape-recorded reenactments to 98 experimental juries, made upof almost 1200 jurors drawn from actual jury pools in the courts of Chicago,St. Louis, and New York. Their individual positions prior to deliberation wereindicated on questionnaires; the deliberations, lasting several hours each, wererecorded; and the final verdicts (or failure to reach a verdict in some cases)were reported to the court. The result is a unique examination of the effects ofa new legal doctrine, the Durham rule, and of a very old legal institution, thejury. Several questions of major importance were posed, and at least partialanswers obtained.Question 1: What Is the Effect of a Change in the Law on Jury Verdicts?The judge's instructions on the law were systematically varied, with Yof the juries getting the Durham rule, % the McNaughten rule, and the last% a simple instruction that "if the defendant was insane at the time he com-mitted the act of which he is accused, then you must find the defendant notguilty by reason of insanity." The first experimental case was modeled on theoriginal trial of Monte Durham for housebreaking. Compared with jurors giventhe traditional McNaughten rule, those given the Durham rule were slightlymore likely to go into the deliberations favoring a verdict of not guilty byreason of insanity (NGI). Fifty-nine percent of the jurors given the McNaugh-ten rule, 65% of those given the Durham rule, and 76% of those given the in-struction which did not attempt to define insanity, favored NGI. No significantdifference was found in the final jury verdicts, but too few juries (ten witheach of the three instructions) were tested with this case to provide a precisemeasure of effect on the group level.In a rather bizarre case of incest with two daughters over a period of years,committed by a respected and otherwise apparently normal fireman, the Dur-ham rule produced 12% more jurors favoring NGI at the start of their delibera-tions than did the McNaughten rule; 24% of the McNaughten rule jurors fa-vored NGI compared with 36% of those given the Durham rule, and 34% ofthose given instruction which did not define legal insanity. The jury verdictswere: McNaughten rule, no NGI, 19 Guilty, and one hung; Durham rule,5 NGI, 15 Guilty, and 6 hung; "no rule," 4 NGI, 14 Guilty, and 4 hung.The more "liberal" Durham rule thus had a small effect in the expecteddirection. One reason for the relatively small difference may have been thatthe criterion of "ability to distinguish right from wrong" has become part ofBOOK REVIEWSour culture. While two-thirds of the McNaughten rule juries discussed thiscriterion in their deliberations, half of the Durham and no-standard juries alsodiscussed it. Unfortunately, individual jurors were not asked directly whetherthey took such a criterion into account in their decision. Perhaps a specificcorrective instruction that inability to tell right from wrong is not a necessarycriterion would have had more effect; it is obviously necessary if we want to(repeal" a part of accepted "juror law."Question 2: What Is the Significance of a Verdict of Not Guilty byReason of Insanity in the Eyes of the Jurors?Part of the experiment consisted in the judge's telling half the juries inthe housebreaking case that the result of a NGI verdict would be commitmentof the defendant to a mental institution. This treatment had little effect, how-ever, because over 90% of the jurors belived that this is what would happeneven when they were not told so by the judge. Jurors deciding between prisonand commitment therefore knew what the alternatives were. But it may bequestioned whether those who favored the NGI verdict were more "liberal"than those who favored a guilty verdict. The author summarizes the recordeddeliberations on this point:As most jurors saw it, the realistic choice was between about a five-year prison term and an indefinite confinement to a mental institution.Jurors who advocated commitment to a mental hospital emphasizedthat if the defendant was found not guilty by reason of insanity, hewould be removed from his family and society for a longer period oftime than if he was convicted.The mental institution was thought by many jurors as a means of provid-ing humane custodial care for people from whom society needs protection.There was some discussion of its curative powers, but many thought the defen-dant would never be cured and released. Conversely, some advocates of prisonthought that the defendant would receive psychiatric treatment there, and thathis release might be influenced by the results.Question 3: How Do Jurors Interpret Legal Rules?The deliberation transcripts provide fascinating insights into jurors' think-ing about the "insanity" issue. They had intense discussions of whether thedefendant in each case was "insane," "psychotic," "neurotic," or merely "emo-tionally disturbed," and what the consequences should be for his legal respon-sibility. In rejecting the Durham rule, courts have argued that "the Durhamrule leaves the triers with virtually no standard to guide them .... The chiefcriticism directed against the Durham rule is that it leaves the words disease,defect and product, undefined." In their deliberations, the jurors generally drewthe line of criminal responsibility between the psychotic person who manifestsirrational conduct in many areas of life -(as did the defendant in the house-BUFFALO LAW REVIEWbreaking case), who was not considered legally responsible, and the person whoappears generally rational and competent except for the commission of thecriminal act itself, who was considered legally responsible, even though that actarises out of deeply rooted psychological problems and an abnormal childhoodsituation (as in the incest case).Question 4: Do Jurors Follow Instructions on the Law?In the incest case 26 experimental juries received the Durham instructionthat "where such acts stem from and are the product of mental disease or de-fect, there is no legal responsibility on the part of the defendant." They heardexpert medical testimony that the defendant was a "psychoneurotic" of longstanding with an "oedipus complex." Yet only 367 of the individual jurorsso instructed went into their deliberations favoring the NGI verdict, and only19% of these juries brought back such a verdict. It is not clear whether failureto bring in a NGI verdict in this case should be described as defiance of theinstructions, however, since many jurors appear to have argued that a neurosisof the kind the defendant suffered from was not a "mental disease" of the sortenvisaged by the instruction.In the housebreaking case, the majority of jurors given the McNaughtenrule still voted for NGI; unfortunately, in the experiment the psychiatric wit-nesses gave no opinion of the defendant's ability to tell right from wrong. Ifthe experiment were run again with clear psychiatric testimony that he couldtell right from wrong, we could get evidence of the extent to which jurors arewilling to follow the McNaughten rule where the defendant is pretty clearlysuffering from a severe and general mental illness. Even in the incest case wherethe psychiatrists all testified that the defendant was able to distinguish rightfrom wrong, 24% of the jurors given the McNaughten rule favored NGI atthe beginning of the deliberations. We may speculate that most jurors acceptneither rule literally, but devise their own criteria of how "sick" someone hasto be before he is relieved of responsibility for his acts.The book reports many subsidiary findings of interest, concerning theeffects of giving "model" psychiatric testimony to the jurors, the relation ofjurors' background and attitudes to acceptance of the insanity plea, the relativelength of deliberations under the different instructions, and the jurors' preferencefor one or the other rule.The book is well written and presents its statistical materials very clearly;it also contains a wealth of quotations from the jurors themselves, which shouldbe of interest to lawyers. It is a model presentation of the application of socialscience methods to a legal problem-as providing useful evidence and concep-tual clarification, but not necessarily the last definitive word on what should bedone.Beyond its immediate findings, the book raises an important possibilityfor further work. We have a common law tradition, centuries old, of minuteBOOK REVIEWSexamination of what judges say in their case decisions. The jury too is centuriesold as a device for bringing public attitudes and understanding into the court-room process; juries continue to decide so many cases and influence the settle-ments of so many more that juror opinions too are a central part of our legalsystem. But actual jury verdicts leave the jurors' reasons hidden, except wherejudges, lawyers or reporters interview them; these interviews are often hurriedand inadequate, and many judges discourage or forbid them. A continuing pro-gram of experimental jury deliberations, sponsored by the courts and covering awide range of legal topics, would permit us to examine what jurors say in arriv-ing at their case decisions. This would make available to the law the wisdom orfoolishness of the jury so that reasonable instructions and trial procedures couldbe developed, and it would make available to the judicial and political law-makers the operating "sense of justice" of the public on major legal issues. Thedeliberations of experimental juries who have been exposed to concrete casesand argument on both sides can provide a much more valuable and thoughtfulform of public opinion data on legal issues than the normal public opinion polls.The Simon study is a prototype for such ventures.ALLEN H. BARTONDirectorBureau of Applied Social ResearchColumbia UniversityHONESTY AND COMPETITION: FALSE-ADVEpRTISING LAW AND POLICY UNDERFTC ADMNISTRATION. By George J. Alexander. Syracuse: Syracuse Uni-versity Press, 1967. Pp. 315. $10.This excellent book packs into several hundred pages a summary of theprecedents and problems to which the Federal Trade Commission has givenbirth since it first won clear authority to stop false or misleading advertisingpractices.' An additional reason why it will be well worth its space on the desk ofany attorney who counsels those who market goods across state lines is thatGeorge J. Alexander, professor and associate dean at Syracuse University Collegeof Law, has avoided three of the most damaging pitfalls facing the scholar whoadds to the law books in print.The first pitfall lies in the mounting tendency of the scholar to combine astring of theoretical generalizations without explaining them by examples orhypothetical instances. The result, quite frequently, is a failure of communica-tion for which any judge or client would be justifiably upbraided. DeanI. See FTC v. Gratz, 253 US. 421, 428 (1920) where complaint of tie-in sales of jutebagging with baling wire for cotton was held not proven an unfair method of competition,inter alia, because no proof of deception or misrepresentation was produced by the Com-mission. See also G.J. Alexander, Honesty and Competition 1-6 (1967) (thumbnail sketch ofthe sources of Commission jurisdiction).

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