28 Fed. Probation 3 (1964)
Psychiatrists, Lawyers, and the Courts

handle is hein.journals/fedpro28 and id is 83 raw text is: Psychiatrists, Lawyers, and the Courts*
BY WARREN E. BURGER
Judge, United States Court of Appeals, Washington, D.C.

N THE 16TH CENTURY legal literature an author
observed that many books have appeared
in which sorcery is considered not a crime
but a superstition and a melancholy, and these
[writers] insist violently that it should not be
punished by death. The [reasonings of Dr. Weyer
however] are not very important, for he is a
physician and not a jurist.'
What a change has occurred since Dr. Johann
Weyer took issue with the stern judges of 16th-
century Germany. Today it is the judge who must
preface his observations on this subject with a
warning that his views about the law of criminal
responsibility are not very important because
he is only a jurist and not a psychiatrist.
For more than 2,000 years, one problem in the
administration of justice which has perplexed all
organized societies has been the development of
some procedural or legal mechanism which would
enable society to decide accurately which persons
should be punished as willful wrongdoers and
which should be excused from the normal legal
consequences because of some mental aberration
that prevented the act from being a willful act
prompted by criminal intent which the law iden-
tifies as the mens rea. We can find this problem
discussed in the Talmud, where the law of the
ancient Hebrews provided that infants and men-
tally disordered persons were not to be held ac-
countable for their crimes because with them
only the act is of consequence while the intention
is of no consequence.
The writings of St. Thomas Aquinas and others
in later times, and the recorded expressions of
philosophers, theologians, judges, lawyers, and
physicians down to the present day reflect a con-
tinuing preoccupation with this subject. With the
growing emphasis on psychiatry over the past 25
years, the literature abounds with an enormous
volume of articles and lectures.
All organized societies have thought that in
order to preserve freedom and ordered liberty,
wrongdoing must be deterred by penalties and
This article is based on materials used by the -author in the Mayo
Foundation Lecture, University of Minnesota Graduste School of
Medicine in 1963, Lectures at Duke University Law  School in  1961.
and University of Pennsylvania Law School in 1964 and Seminar at
the 1963 Conference of -State Trial Judges in' Chicago.  ,
1 Gregory Zilboorg, A History of Medical Pspchology, 1941. p. 238.

that efforts should be made to reform violators of
the criminal law. With the passage of time the
emphasis has decreased on the purely punitive
aspect, and greater emphasis has been placed on
reform and rehabilitation of wrongdoers as man's
knowledge has increased. Those who today rail at
penal systems based only on retributive justice are
beating a dead horse to a large extent.
As we look back we can see that even the
ancient societies recognized that some forbidden
or criminal acts are committed by persons who
cannot help themselves, that is, people who do
wrong without intending wrong, but we must
also remember that in the primitive state of med-
ical knowledge these societies recognized as mental
illnesses only those which were manifested by
rather obvious overt symptoms-the drooling
idiot and the raving maniac. But we can accept as
a generalization that for well over a century the
laws of all organized societies have held that to
constitute a crime there must be a union of a for-
bidden act and a vicious intent or vicious will.
For at least 100 years the legal techniques,
rules and procedures have been aimed at trying to
determine, from external evidence and from overt
acts, whether the accused possessed this indis-
pensable criminal intent without which a verdict
of guilty cannot be pronounced. In the civil law
countries, particularly since the Napoleonic Code
a century and a half ago, these issues have been
resolved in most cases by professional judges
without the use of lay jurors. In the common law
countries, that is, England, the Commonwealth
and the United States of America, juries of
laymen have been asked to resolve this issue of
criminal intent in the form of questions which
have differed from time to time in different juris-
dictions. Beginning with the M'Naghten test in
1843 in England, medical opinion and medical
influence superseded ecclesiastical influence and
led to posing the questions submitted to the jury
in terms of whether the accused knew the nature
and quality of his act or its wrongness at the time
he committed it. In short, common law juries were
asked to decide whether the accused knew what
he was doing.

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