Thus when Thaw came to the bar at his first trial the State had never had any opportunity, through an examination by its physicians, to learn what his present condition was or past mental condition had been.  The accused, on the other hand, had had over six months to prepare his defence and had fully availed himself of the time to submit to the most exhaustive examinations on the part of his own experts.  The defendant’s physicians came to court brimming with facts to which they could testify; while the State’s experts had only the barren opportunity for determining the defendant’s condition afforded by observing him daily in the court room and hearing what Thaw’s own doctors claimed that they had discovered.  There was no chance to rebut anything which the latter alleged that they had observed, and their testimony, save in so far as it was inconsistent or contradictory in itself, remained irrefutable.

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.

This last and most practical reform can be easily secured by a slight alteration in the New York Code of Criminal Procedure, which already provides both for the entering of the specific plea of insanity and for the introduction of the defence and the proof of insanity under the general plea of “not guilty.”  At present the defendant has his choice of openly announcing or of concealing until the trial his intention of claiming that he was insane and so irresponsible for his crime.  This is an advantage the results of which were probably not fully contemplated by the Legislature, and one to which an accused has no fair claim.

Fortunately, in the same section of the Code (658), which provides that the court may appoint a Commission to inquire into the sanity of a defendant at the time of his trial, there exists another provision, hitherto little noticed, that: