But, however it is construed, the test as laid down in 1843 is
insufficient in 1908. Medical science has marched on with
giant strides, while the law, so far as this subject is
concerned, has never progressed at all. It is no longer
possible to determine mental responsibility by any such
artificial rule as that given by the judges to the Lords in
McNaughten's case, and which juries are supposed to apply in
the courts of today. I say "supposed," for juries do not
apply it, and the reason is simple enough--you cannot expect a
juryman of intelligence to follow a doctrine of law which he
instinctively feels to be crude and which he knows is
arbitrarily applied.
No juryman believes himself capable of successfully analyzing
a prisoner's past mental condition, and he is apt to suspect
that, however sincere the experts on either side may appear,
their opinions may be even less definite than the terms in
which they are expressed. The spectacle of an equal number of
intellectual-looking gentlemen, all using good English and all
wearing clean linen, reaching diametrically opposite
conclusions on precisely the same facts, is calculated to fill
the well-intentioned juror with distrust.
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