There is probably no procedure which would be held
constitutional whereby a compulsory examination of the accused
could be had upon the mere application of the prosecuting
authorities; but as a commission may generally be appointed at
any time after an accused has been indicted if he "appears" to
the court to be "insane," and as it is usually within the
power of the District Attorney where such is the case to bring
sufficient evidence of it to the attention of the court before
the prisoner is brought to trial, little time is actually lost
and justice is rarely defeated except in those cases (such as
Thaw's) where an attempt is to be made to prove the accused
insane at the time of the alleged crime although sane at the
time of trial. Even here it would be the simplest thing in
the world to remedy the difficulty and the proper legal steps
in all jurisdictions should be taken immediately.
The two chief objects of such reforms should be, first, to
relieve the ordinary jury in as many cases as possible from
the necessity of passing upon the delicate issue of a
defendant's mental condition at a previous time, and second,
where this may not be avoided, to make their task as easy as
possible by providing (a) a more scientific and definite test
of legal responsibility and (b) an opportunity for adequate
examination of defendants availing themselves of this defence.
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