e vs. Richards, 1873, Conn.

The reader may feel that little after all would be gained, but he will
observe that at any rate such a test, however imperfect, would permit
juries to do lawfully that which they now do by violating their oaths.
The writer believes that the best concrete test yet formulated and
applied by any court is that laid down in Parsons vs. The State of
Alabama (81 Ala., 577):

"1. Was the defendant at the time of the commission of the alleged
crime, as matter of fact, afflicted with a disease of the mind, so as to
be either idiotic, or otherwise insane?

"2. If such be the case, did he know right from wrong as applied to the
particular act in question? If he did not have such knowledge, he is not
legally responsible.

"3. If he did have such knowledge, he may nevertheless not be legally
responsible if the two following conditions concur:

"(1) If, by reason of the duress of such mental disease, he had so far
lost the power to choose between the right and wrong, and to avoid doing
the act in question, as that his free agency was at the time destroyed.

"(2) And if, at the same time, the alleged crime was so connected with
such mental disease, in the relation of cause and effect, as to have
been the product of it solely."

But whatever modification in the present test of criminal responsibility
is adopted, there must come an equally, if not even more important,
reform in the procedure in insanity cases, which to-day is as cumbersome
and out of date as the law itself. As things stand now in New York and
most other jurisdictions there are no adequate means open to the State
to find out the actual present or past mental condition of the defendant
until the trial itself, and ofttimes not even then.

In New York, in cases like Thaw's, the accused, while fully intending
to interpose the defence of insanity (which he is now permitted to do
simply under the general plea of "not guilty") may not only conceal the
fact until the trial, but may likewise successfully block every effort
of the authorities to examine him and find out his present mental
condition. He may thus keep it out of the power of the District Attorney
to secure the facts upon which to move for a commission to determine
whether or not he ought to be in an insane asylum or is a fit subject
for trial, and at the same time prevent the prosecutor from obtaining
any evidence through direct medical observation by which to meet the
claim