Bernard L. Diamond

The Psychiatric Expert Witness

From 1866 to 1872 Isaac Ray and Charles Doe, Justice of the New Hampshire Supreme Court, engaged in correspondence in which they planned the substance and strategy for revision of the traditional McNaughten rule of criminal insanity.1 This is the first reported example of a psychiatrist working behind the scenes to impact upon a legal decision, and resulted in the historically significant “New Hampshire rule” as set forth in the Pike 2 and Jones 3 decisions. Dr. Ray and Justice Doe had agreed that there could be no satisfactory legal rule of criminal responsibility of the mentally abnormal offender. Rather, the issue was one of two facts to be decided by the jury: Did the defendant suffer from a mental disease or defect at the time of offense, and was the crime a result or product of the mental abnormality? This was the forerunner and model for the 1954 Durham decision in the District of Columbia.4