“When a defendant pleads insanity, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his insanity at the time of the commission of the crime.”

If a defendant intends to prove himself irresponsible for his offence, why should he not be compelled to enter a specific plea to that effect?  Once he has entered that plea, the law as it stands just quoted will do the rest.  No reason has been brought to the attention of the writer why the admission of any evidence upon the defendant’s trial tending to show that he was mentally irresponsible at the time of committing the crime should not be made contingent upon the defence of insanity having been specifically pleaded either at the time of his arraignment or later by substitution for or in conjunction with the plea of “not guilty.”  This would deprive him of no constitutional right whatever.  There is no legal necessity of permitting an accused to prove insanity under a general answer of “not guilty.”  Then upon his own plea that he had been insane he could instantly be committed to some place of observation where a permanent medical board of inquiry could be given full opportunity to examine him and study his case with a view to determining his present and past mental condition.  He would still have in prospect his regular jury trial, but if this board found him at the present time insane, the court could immediately commit him to an asylum pending recovery, precisely as under the present procedure, while if they found him sane at the present time, but reported that, in their opinion (whatever test, “medical” or “legal,” they might have applied), he was irresponsible at the time he committed the crime, it is unlikely that any prosecutor would bring him to trial.  If, however, they reported that he was not only sane, but had been sane at the time of his crime, it is probable that any proposed defence of insanity would be abandoned, while if it was still urged by the accused, the opinion of such a board would carry far greater weight at the ultimate trial of the case than the individual opinions of experts retained and paid by either side for that particular occasion only, and having had only a comparatively limited opportunity for examination.  At any rate, if the court called in the services of such a board of medical judges to assist as amici curie in determining the defendant’s condition, while their opinion would not be conclusive upon the jury, it would at least do away with the present lamentable necessity of learned men answering “yes” or “no” to a hypothetical question fifty thousand words long, when the most superficial personal examination of the accused would settle the matter definitely in their minds.  Such a procedure is in general use in Germany and other continental countries, and is likewise substantially followed in Massachusetts, Maine, Vermont, and New Hampshire.*