DURHAM RULE
A principle of CRIMINAL LAW used to determine the validity of the INSANITY DEFENSE asserted by an accused, that he or she was insane at the time of committing a crime and therefore should not be held legally responsible for the action.
The Durham rule was created in 1954 by Judge David L. Bazelon, of the U.S. Court of
Appeals for the District of Columbia, in Durham v. United States, 214 F.2d 862. The rule,
as stated in the court’s decision, held that “an accused is not criminally responsible if his
unlawful act was the product of mental disease.”
It required a jury’s determination that the accused was suffering from a mental disease and that there was a causal relationship between the
disease and the act. Because of difficulties in its
implementation, the Durham rule was rejected
by the same court in the 1972 case United States
v. Brawner, 471 F.2d 969 (en banc).
The Durham rule replaced a nineteenth-cen-
tury test of criminal responsibility called the
M’NAGHTEN RULE. The M’Naghten rule, or
“right-wrong” test, required the acquittal of
defendants who could not distinguish right
from wrong. This rule was supplemented by the
“irresistible impulse” test, added in the District
of Columbia in 1929, which allowed a jury to
inquire as to whether the accused suffered from
a “diseased mental condition” that did not allow
him or her to resist an “insane impulse.”
By the mid-twentieth century, these early
legal tests of insanity came under increasing
criticism. Critics of the M’Naghten rule, for
example, charged that it was outdated and did
not take into consideration the broad range of
mental disorders that had been identified by
modern science. Commentators also claimed
that these earlier rules did not allow expert wit-
nesses to communicate fully the findings of
modern psychology and psychiatry to a jury.
The Durham rule sought to overcome these
problems. It attempted to create a simple and
open-ended insanity test that would, Judge
Bazelon later wrote, “open up the courtroom to
all the information and analysis available to the
scientific community about the wellsprings of
human behavior.” Bazelon hoped that the new
rule would allow experts to bring to the jury and
the public new insights into “the physiological
and cultural, as well as individual psychological,
factors contributing to criminal behavior.”
Bazelon intended it to be not a precise test but
rather a loose concept comparable to the legal
definition of NEGLIGENCE. Thus, he compared
the term fault in the negligence context to the
term responsibility in the Durham context. The
meaning of such terms, he argued, would have
to be determined by a jury in light of the facts
relevant to each case.
Implementation of the Durham rule ran
into serious difficulties. The rule did not elicit
the detailed courtroom discussion of mental ill-
ness and criminal behavior that Judge Bazelon
and others had hoped for. Instead, just as expert
witnesses had before been asked the yes-or-no
question, “Was the accused capable of distin-
guishing right from wrong?” experts were now
asked the simple yes-or-no question, “Was the
accused’s act a product of mental disease or
defect?” The Durham rule, therefore, perpetu-
ated the dominant role of EXPERT TESTIMONY in
determining criminal responsibility, a task that
