Robert M. Morgenthau, District Attorney (Robert M. Pitler, Mark Dwyer and Gregory L. Waples of counsel), for appellant.

Mark M. Baker, Barry Ivan Slotnick and Michael Shapiro for respondent.

Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.

[99] Chief Judge WACHTLER.

A Grand Jury has indicted defendant on attempted murder, assault, and other charges for having shot and wounded four youths on a New York City subway train after one or two of the youths approached him and asked for $5. The lower courts, concluding that the prosecutor's charge to the Grand Jury on the defense of justification was erroneous, have dismissed the attempted murder, assault and weapons possession charges. We now reverse and reinstate all counts of the indictment.

I.

The precise circumstances of the incident giving rise to the charges against defendant are disputed, and ultimately it will be for a trial jury to determine what occurred. We feel it necessary, however, to provide some factual background to [100] properly frame the legal issues before us. Accordingly, we have summarized the facts as they appear from the evidence before the Grand Jury. We stress, however, that we do not purport to reach any conclusions or holding as to exactly what transpired or whether defendant is blameworthy. The credibility of witnesses and the reasonableness of defendant's conduct are to be resolved by the trial jury.

On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Defendant Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench towards the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed towards Chambers Street.

It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated "give me five dollars". Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur's arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor's cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey's side and severed his spinal cord.

All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently [101] taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him.

While the conductor was aiding the youths, Goetz headed towards the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed, and has suffered some degree of brain damage.

On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier. Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.

According to Goetz's statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked "how are you," to which he replied "fine". Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said "give me five dollars". Goetz stated that he knew from the smile on Canty's face that they wanted to "play with me". Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being "maimed".

Goetz then established "a pattern of fire," deciding specifically to fire from left to right. His stated intention at that point was to "murder [the four youths], to hurt them, to make them suffer as much as possible". When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot "tried to run through the crowd [but] they had nowhere to run". Goetz then turned to his right to "go after the other two". One of these two "tried to run through the wall of the train, but * * * he had [102] nowhere to go". The other youth (Cabey) "tried pretending that he wasn't with [the others]" by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been "taken care of". Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, "I said `[y]ou seem to be all right, here's another'", and he then fired the shot which severed Cabey's spinal cord. Goetz added that "if I was a little more under self-control * * * I would have put the barrel against his forehead and fired." He also admitted that "if I had had more [bullets], I would have shot them again, and again, and again."

II.

After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a Grand Jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this Grand Jury. On January 25, 1985, the Grand Jury indicted defendant on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02), for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

Several weeks after the Grand Jury's action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second Grand Jury (see, CPL 190.75 [3]). Supreme Court, Criminal Term, after conducting an in camera inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident. Goetz again chose not to [103] testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first Grand Jury.

On March 27, 1985, the second Grand Jury filed a 10-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25 [1]), four charges of assault in the first degree (Penal Law § 120.10 [1]), one charge of reckless endangerment in the first degree (Penal Law § 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.^[1]

On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment alleging, among other things, that the evidence before the second Grand Jury was not legally sufficient to establish the offenses charged (see, CPL 210.20 [1] [b]), and that the prosecutor's instructions to that Grand Jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective (see, CPL 210.20 [1] [c]; 210.35 [5]).

On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey's hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him. The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings, and that Canty had said to him "we were going to rob [Goetz]". The prosecutor immediately disclosed this information to the court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information. Goetz then orally expanded his motion to [104] dismiss, asserting that resubmission of the charges voted by the second Grand Jury was required under People v Pelchat (62 N.Y.2d 97) because it appeared, from this new information, that Ramseur and Canty had committed perjury.

In an order dated January 21, 1986, Criminal Term granted Goetz's motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. The court, after inspection of the Grand Jury minutes, first rejected Goetz's contention that there was not legally sufficient evidence to support the charges. It held, however, that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz's conduct was that of a "reasonable man in [Goetz's] situation". The court, citing prior decisions from both the First and Second Departments (see, e.g., People v Santiago, 110 AD2d 569 [1st Dept]; People v Wagman, 99 AD2d 519 [2d Dept]), concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant's state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case.^[2]

Criminal Term also concluded that dismissal and resubmission of the charges were required under People v Pelchat (supra) because the Daily News column and the statement by the police officer to the prosecution strongly indicated that the testimony of Ramseur and Canty was perjured. Because the additional evidence before the second Grand Jury, as contrasted with that before the first Grand Jury, consisted largely of the testimony of these two youths, the court found that the integrity of the second Grand Jury was "severely undermined" by the apparently perjured testimony.

On appeal by the People, a divided Appellate Division [105] affirmed Criminal Term's dismissal of the charges. The plurality opinion by Justice Kassal, concurred in by Justice Carro, agreed with Criminal Term's reasoning on the justification issue, stating that the grand jurors should have been instructed to consider only the defendant's subjective beliefs as to the need to use deadly force. Justice Kupferman concurred in the result reached by the plurality on the ground that the prosecutor's charge did not adequately apprise the grand jurors of the need to consider Goetz's own background and learning. Neither the plurality nor the concurring opinion discussed Criminal Term's reliance on Pelchat as an alternate ground for dismissal.

Justice Asch, in a dissenting opinion in which Justice Wallach concurred, disagreed with both bases for dismissal relied upon by Criminal Term. On the justification question, he opined that the statute requires consideration of both the defendant's subjective beliefs and whether a reasonable person in defendant's situation would have had such beliefs. Accordingly, he found no error in the prosecutor's introduction of an objective element into the justification defense. On the Pelchat issue, Justice Asch noted the extensive differences between the Grand Jury evidence in that case and the case at bar and concluded that the out-of-court statements attributed to Cabey and Canty did not affect the validity of the indictment. In a separate dissenting opinion, Justice Wallach stressed that the plurality's adoption of a purely subjective test effectively eliminated any reasonableness requirement contained in the statute.

Justice Asch granted the People leave to appeal to this court. We agree with the dissenters that neither the prosecutor's charge to the Grand Jury on justification nor the information which came to light while the motion to dismiss was pending required dismissal of any of the charges in the second indictment.

III.

Penal Law article 35 recognizes the defense of justification, which "permits the use of force under certain circumstances" (see, People v McManus, 67 N.Y.2d 541, 545). One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15 (1) sets forth the general principles governing all such uses of force: "[a] [106] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person" (emphasis added).^[3]

Section 35.15 (2) sets forth further limitations on these general principles with respect to the use of "deadly physical force": "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * *^[4] or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery" (emphasis added).

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met (see, Robinson, Criminal Law Defenses § 121 [a], at 2). As to the triggering conditions, the statute requires that the actor "reasonably believes" that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes" that such force is necessary to avert the perceived threat.^[5]

Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury (see, CPL 190.25 [6]; People v Valles, 62 N.Y.2d 36, 38). The prosecutor properly instructed the grand jurors to [107] consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law § 35.15. The defense does not contend that he committed any error in this portion of the charge.

When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term "reasonably believes". The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine "whether the defendant's conduct was that of a reasonable man in the defendant's situation". It is this response by the prosecutor — and specifically his use of "a reasonable man" — which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division's plurality opinion, because section 35.15 uses the term "he reasonably believes", the appropriate test, according to that court, is whether a defendant's beliefs and reactions were "reasonable to him". Under that reading of the statute, a jury which believed a defendant's testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant's situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term "reasonably" in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.

Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in self-defense (see, e.g., 1829 Rev Stat of NY, part IV, ch 1, tit II, § 3; 1881 Penal Code § 205; People v McManus, supra, at p 546). These provisions have never required that an actor's belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness. The 1829 statute, using language which was followed almost in its entirety until the 1965 recodification of the Penal Law, provided that the use of deadly force was justified in self-defense or in the defense of specified third persons "when there shall be a reasonable ground to apprehend [108] a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished".

In Shorter v People (2 N.Y. 193), we emphasized that deadly force could be justified under the statute even if the actor's beliefs as to the intentions of another turned out to be wrong, but noted there had to be a reasonable basis, viewed objectively, for the beliefs. We explicitly rejected the position that the defendant's own belief that the use of deadly force was necessary sufficed to justify such force regardless of the reasonableness of the beliefs (id., at pp 200-201).

In 1881, New York reexamined the many criminal provisions set forth in the revised statutes and enacted, for the first time, a separate Penal Code (see generally, 1937 Report of NY Law Rev Commn, Communication to Legislature Relating to Homicide, at 525, 529 [hereafter cited as Communication Relating to Homicide]). The provision in the 1881 Penal Code for the use of deadly force in self-defense or to defend a third person was virtually a reenactment of the language in the 1829 statutes,^[6] and the "reasonable ground" requirement was maintained.

The 1909 Penal Law replaced the 1881 Penal Code. The language of section 205 of the 1881 code pertaining to the use of deadly force in self-defense or in defense of a third person was reenacted, verbatim, as part of section 1055 of the new Penal Law. Several cases from this court interpreting the 1909 provision demonstrate unmistakably that an objective element of reasonableness was a vital part of any claim of self-defense. In People v Lumsden (201 N.Y. 264, 268), we approved a charge to the jury which instructed it to consider whether the circumstances facing defendant were such "as would lead a reasonable man to believe that [an assailant] is about to kill or to do great bodily injury" (see also, People v Ligouri, 284 N.Y. 309, 316, 317). We emphatically rejected the position that any belief by an actor as to the intention of another to cause severe injury was a sufficient basis for his use of deadly force, and stated specifically that a belief based upon "mere fear or fancy or remote hearsay information or a delusion pure and simple" would not satisfy the requirements of the statute (201 NY, at p 269). In People v Tomlins (213 N.Y. 240, 244), [109] we set forth the governing test as being whether "the situation justified the defendant as a reasonable man in believing that he was about to be murderously attacked."

Accordingly, the Law Revision Commission, in a 1937 Report to the Legislature on the Law of Homicide in New York, summarized the self-defense statute as requiring a "reasonable belief in the imminence of danger", and stated that the standard to be followed by a jury in determining whether a belief was reasonable "is that of a man of ordinary courage in the circumstances surrounding the defendant at the time of the killing" (Communication Relating to Homicide, op. cit., at 814). The Report added that New York did not follow the view, adopted in a few States, that "the jury is required to adopt the subjective view and judge from the standpoint of the very defendant concerned" (id., at 814).

In 1961 the Legislature established a Commission to undertake a complete revision of the Penal Law and the Criminal Code. The impetus for the decision to update the Penal Law came in part from the drafting of the Model Penal Code by the American Law Institute, as well as from the fact that the existing law was poorly organized and in many aspects antiquated (see, e.g., Criminal Law Revision Through A Legislative Commission: The New York Experience, 18 Buff L Rev 213; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469). Following the submission by the Commission of several reports and proposals, the Legislature approved the present Penal Law in 1965 (L 1965, ch 1030), and it became effective on September 1, 1967. The drafting of the general provisions of the new Penal Law (see, Penal Law part I), including the article on justification (id., art 35), was particularly influenced by the Model Penal Code (see, Denzer, Drafting a New York Penal Law for New York, 18 Buff L Rev 251, 252; Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1428). While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.

The provisions of the Model Penal Code with respect to the use of deadly force in self-defense reflect the position of its drafters that any culpability which arises from a mistaken belief in the need to use such force should be no greater than the culpability such a mistake would give rise to if it were made with respect to an element of a crime (see, ALI, Model [110] Penal Code and Commentaries, part I, at 32, 34 [hereafter cited as MPC Commentaries]; Robinson, Criminal Law Defenses, op. cit., at 410). Accordingly, under Model Penal Code § 3.04 (2) (b), a defendant charged with murder (or attempted murder) need only show that he "believe[d] that [the use of deadly force] was necessary to protect himself against death, serious bodily injury, kidnapping or [forcible] sexual intercourse" to prevail on a self-defense claim (emphasis added). If the defendant's belief was wrong, and was recklessly, or negligently formed, however, he may be convicted of the type of homicide charge requiring only a reckless or negligent, as the case may be, criminal intent (see, Model Penal Code § 3.09 [2]; MPC Commentaries, op. cit., part I, at 32, 150).

The drafters of the Model Penal Code recognized that the wholly subjective test set forth in section 3.04 differed from the existing law in most States by its omission of any requirement of reasonableness (see, MPC Commentaries, op. cit., part I, at 35; LaFave & Scott, Criminal Law § 53, at 393-394). The drafters were also keenly aware that requiring that the actor have a "reasonable belief" rather than just a "belief" would alter the wholly subjective test (MPC Commentaries, op. cit., part I, at 35-36). This basic distinction was recognized years earlier by the New York Law Revision Commission and continues to be noted by the commentators (Communication Relating to Homicide, op. cit., at 814; Robinson, Criminal Law Defenses, op. cit.; Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum L Rev 914, 918-920).

New York did not follow the Model Penal Code's equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all to a defendant charged with any crime involving the use of deadly force. The drafters of the new Penal Law adopted in large part the structure and content of Model Penal Code § 3.04, but, crucially, inserted the word "reasonably" before "believes".

The plurality below agreed with defendant's argument that the change in the statutory language from "reasonable ground," used prior to 1965, to "he reasonably believes" in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard contained in Model Penal Code § 3.04. This argument, however, ignores the plain significance of the [111] insertion of "reasonably". Had the drafters of section 35.15 wanted to adopt a subjective standard, they could have simply used the language of section 3.04. "Believes" by itself requires an honest or genuine belief by a defendant as to the need to use deadly force (see, e.g., Robinson, Criminal Law Defenses, op. cit. § 184 (b), at 399-400). Interpreting the statute to require only that the defendant's belief was "reasonable to him," as done by the plurality below, would hardly be different from requiring only a genuine belief; in either case, the defendant's own perceptions could completely exonerate him from any criminal liability.

We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.

We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. The plurality's interpretation, as the dissenters below recognized, excises the impact of the word "reasonably". This same conclusion was recently reached in Justice Levine's decision for a unanimous Third Department in People v Astle (117 AD2d 382), in which that court declined to follow the First Department's decision in this case (see also, People v Hamel, 96 AD2d 644 [3d Dept]).

The change from "reasonable ground" to "reasonably believes" is better explained by the fact that the drafters of section 35.15 were proposing a single section which, for the first time, would govern both the use of ordinary force and deadly force in self-defense or defense of another. Under the 1909 Penal Law and its predecessors, the use of ordinary force was governed by separate sections which, at least by their literal terms, required that the defendant was in fact responding to an unlawful assault, and not just that he had a reasonable ground for believing that such an assault was occurring (see, 1909 Penal Law §§ 42, 246 [3]; People v Young, 11 N.Y.2d 274; 7 Zett, New York Criminal Practice ¶ 65.3). [112] Following the example of the Model Penal Code, the drafters of section 35.15 eliminated this sharp dichotomy between the use of ordinary force and deadly force in defense of a person. Not surprisingly then, the integrated section reflects the wording of Model Penal Code § 3.04, with the addition of "reasonably" to incorporate the long-standing requirement of "reasonable ground" for the use of deadly force and apply it to the use of ordinary force as well (see, Zett, New York Criminal Practice, § 65.3 [1], [2]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1500).

The conclusion that section 35.15 retains an objective element to justify the use of deadly force is buttressed by the statements of its drafters. The executive director and counsel to the Commission which revised the Penal Law have stated that the provisions of the statute with respect to the use of deadly physical force largely conformed with the prior law, with the only changes they noted not being relevant here (Denzer & McQuillan, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.15, p 63 [1967]). Nowhere in the legislative history is there any indication that "reasonably believes" was designed to change the law on the use of deadly force or establish a subjective standard. To the contrary, the Commission, in the staff comment governing arrests by police officers, specifically equated "[he] reasonably believes" with having a reasonable ground for believing (Penal Law § 35.30; Fourth Interim Report of the Temporary State Commission on Revision of the Penal Law and Criminal Code at 17-18, 1965 NY Legis Doc No. 25).

Statutes or rules of law requiring a person to act "reasonably" or to have a "reasonable belief" uniformly prescribe conduct meeting an objective standard measured with reference to how "a reasonable person" could have acted (see, e.g., People v Cantor, 36 N.Y.2d 106; Donovan v Kaszycki & Sons Contrs., 599 F Supp 860, 871; Klotter, Criminal Law, at 312; Fletcher, The Right and the Reasonable, 98 Harv L Rev 949; 57 Am Jur 2d, Negligence, §§ 67, 68). In People v Cantor (supra), we had before us a provision of the Criminal Procedure Law authorizing a police officer to stop a person "when he reasonably suspects that such person is committing, has committed or is about to commit [a crime]" (CPL 140.50 [1]; emphasis added). We held that this section authorized "stops" only when the police officer had "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [113] under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d, at pp 112-113, supra).

In People v Collice (41 N.Y.2d 906), we rejected the position that section 35.15 contains a wholly subjective standard. The defendant in Collice asserted, on appeal, that the trial court had erred in refusing to charge the justification defense. We upheld the trial court's action because we concluded that, even if the defendant had actually believed that he was threatened with the imminent use of deadly physical force, the evidence clearly indicated that "his reactions were not those of a reasonable man acting in self-defense" (id., at p 907). Numerous decisions from other States interpreting "reasonably believes" in justification statutes enacted subsequent to the drafting of the Model Penal Code are consistent with Collice, as they hold that such language refers to what a reasonable person could have believed under the same circumstances (see, e.g., State v Kelly, 97 NJ 178, 478 A2d 364, 373-374; Weston v State, 682 P2d 1119, 1121 [Alaska]).

The defense contends that our memorandum in Collice is inconsistent with our prior opinion in People v Miller (39 N.Y.2d 543). In Miller, we held that a defendant charged with homicide could introduce, in support of a claim of self-defense, evidence of prior acts of violence committed by the deceased of which the defendant had knowledge. The defense, as well as the plurality below, place great emphasis on the statement in Miller that "the crucial fact at issue [is] the state of mind of the defendant" (id., at p 551). This language, however, in no way indicates that a wholly subjective test is appropriate. To begin, it is undisputed that section 35.15 does contain a subjective element, namely that the defendant believed that deadly force was necessary to avert the imminent use of deadly force or the commission of certain felonies. Evidence that the defendant knew of prior acts of violence by the deceased could help establish his requisite beliefs. Moreover, such knowledge would also be relevant on the issue of reasonableness, as the jury must consider the circumstances a defendant found himself in, which would include any relevant knowledge of the nature of persons confronting him (see, e.g., People v Taylor, 177 N.Y. 237, 245; Communication Relating to Homicide, op. cit., at 816). Finally, in Miller, we specifically recognized that there had to be "reasonable grounds" for the defendant's belief.

Goetz's reliance on People v Rodawald (177 N.Y. 408) is [114] similarly misplaced. In Rodawald, decided under the 1881 Penal Code, we held that a defendant who claimed that he had acted in self-defense could introduce evidence as to the general reputation of the deceased as a violent person if this reputation was known to the defendant when he acted. We stated, as emphasized by Goetz, that such evidence, "when known to the accused, enables him to judge of the danger and aids the jury in deciding whether he acted in good faith and upon the honest belief that his life was in peril. It shows the state of his mind as to the necessity of defending himself" (177 NY, at p 423). Again, such language is explained by the fact that the threshold question, before the reasonableness issue is addressed, is the subjective beliefs of the defendant. Nowhere in Rodawald did we hold that the only test, as urged by Goetz, is whether the defendant honestly and in good faith believed himself to be in danger. Rather, we recognized that there was also the separate question of whether the accused had "reasonable ground" for his belief, and we upheld the trial court's refusal to charge the jury that the defendant's honest belief was sufficient to establish self-defense (177 NY, at pp 423, 426-427).

Goetz also argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus, require it to make a determination of "reasonableness" without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the "circumstances" facing a defendant or his "situation" (see, e.g., People v Ligouri, 284 N.Y. 309, 316, supra; People v Lumsden, 201 N.Y. 264, 268, supra). Such terms encompass more than the physical movements of the potential assailant. As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant's circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person's intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances.

Accordingly, a jury should be instructed to consider this [115] type of evidence in weighing the defendant's actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances", as explicated above, if a reasonable person could have had these beliefs.

The prosecutor's instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz's conduct was that of a reasonable man in his situation was thus essentially an accurate charge. It is true that the prosecutor did not elaborate on the meaning of "circumstances" or "situation" and inform the grand jurors that they could consider, for example, the prior experiences Goetz related in his statement to the police. We have held, however, that a Grand Jury need not be instructed on the law with the same degree of precision as the petit jury (see, People v Valles, 62 N.Y.2d 36, 38; People v Calbud, Inc., 49 N.Y.2d 389, 394; compare, CPL 190.25 [6], with CPL 300.10 [2]). This lesser standard is premised upon the different functions of the Grand Jury and the petit jury: the former determines whether sufficient evidence exists to accuse a person of a crime and thereby subject him to criminal prosecution; the latter ultimately determines the guilt or innocence of the accused, and may convict only where the People have proven his guilt beyond a reasonable doubt (see, People v Calbud, Inc., 49 NY2d, at p 394, supra).

In People v Calbud, Inc. (supra, at pp 394-395), we stated that the prosecutor simply had to "provid[e] the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime". Of course, as noted above, where the evidence suggests that a complete defense such as justification may be present, the prosecutor must charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should preclude the criminal prosecution. The prosecutor more than adequately fulfilled this obligation here. His instructions were not as complete as the court's charge on justification should be, but they sufficiently apprised the [116] Grand Jury of the existence and requirements of that defense to allow it to intelligently decide that there is sufficient evidence tending to disprove justification and necessitating a trial. The Grand Jury has indicted Goetz. It will now be for the petit jury to decide whether the prosecutor can prove beyond a reasonable doubt that Goetz's reactions were unreasonable and therefore excessive.

IV.

Criminal Term's second ground for dismissal of the charges, premised upon the Daily News column and the police officer's statement to the prosecutor, can be rejected more summarily. The court relied upon People v Pelchat (62 N.Y.2d 97, supra), the facts of which, however, are markedly different from those here. In Pelchat, the defendant was one of 21 persons arrested in a house to which police officers had seen marihuana delivered. The only evidence before the Grand Jury showing that defendant had anything to do with the marihuana was the testimony of a police officer listing defendant as one of 21 persons he had observed transporting the drug. After defendant was indicted, this same police officer told the prosecutor that he had misunderstood his question when testifying before the Grand Jury and that he had not seen defendant engage in any criminal activity. Although the prosecutor knew that there was no other evidence before the Grand Jury to establish the defendant's guilt, he did not disclose the police officer's admission, and instead, accepted a guilty plea from the defendant. We reversed the conviction and dismissed the indictment, holding that the prosecutor should not have allowed the proceedings against defendant to continue when he knew that the only evidence against him before the Grand Jury was false, and thus, knew that there was not legally sufficient evidence to support the indictment.

Here, in contrast, Canty and Ramseur have not recanted any of their Grand Jury testimony or told the prosecutor that they misunderstood any questions. Instead, all that has come to light is hearsay evidence that conflicts with part of Canty's testimony. There is no statute or controlling case law requiring dismissal of an indictment merely because, months later, the prosecutor becomes aware of some information which may lead to the defendant's acquittal. There was no basis for the Criminal Term Justice to speculate as to whether Canty's and Ramseur's testimony was perjurious (see, CPL 190.25 [5]), and [117] his conclusion that the testimony "strongly appeared" to be perjured is particularly inappropriate given the nature of the "evidence" he relied upon to reach such a conclusion and that he was not in the Grand Jury room when the two youths testified.

Moreover, unlike Pelchat, the testimony of Canty and Ramseur was not the only evidence before the Grand Jury establishing that the offenses submitted to that body were committed by Goetz. Goetz's own statements, together with the testimony of the passengers, clearly support the elements of the crimes charged, and provide ample basis for concluding that a trial of this matter is needed to determine whether Goetz could have reasonably believed that he was about to be robbed or seriously injured and whether it was reasonably necessary for him to shoot four youths to avert any such threat.

Accordingly, the order of the Appellate Division should be reversed, and the dismissed counts of the indictment reinstated.

Order reversed, etc.

[1] On May 14, 1985, Goetz commenced an article 78 proceeding in the Appellate Division seeking to prohibit a trial on the charges contained in the second indictment on the ground that the order allowing resubmission of the charges was an abuse of discretion. The Appellate Division dismissed the proceeding on the ground that prohibition did not lie to review the type of error alleged by Goetz (111 AD2d 729, 730), and this court denied a motion for leave to appeal from the Appellate Division order (65 N.Y.2d 609). The propriety of the resubmission order is not before us on this appeal.

[2] The court did not dismiss the reckless endangerment charge because, relying on the Appellate Division decision in People v McManus (108 AD2d 474), it held that justification was not a defense to a crime containing, as an element, "depraved indifference to human life." As our reversal of the Appellate Division in McManus holds, justification is a defense to such a crime (People v McManus, 67 N.Y.2d 541). Accordingly, had the prosecutor's instructions on justification actually rendered the Grand Jury proceedings defective, dismissal of the reckless endangerment count would have been required as well.

[3] Subdivision (1) contains certain exceptions to this general authorization to use force, such as where the actor himself was the initial aggressor.

[4] Section 35.15 (2) (a) further provides, however, that even under these circumstances a person ordinarily must retreat "if he knows that he can with complete safety as to himself and others avoid the necessity of [using deadly physical force] by retreating".

[5] While the portion of section 35.15 (2) (b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate "retreat" requirement, it is clear from reading subdivisions (1) and (2) of section 35.15 together, as the statute requires, that the general "necessity" requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2) (b).

[6] The 1881 provision expanded the class of third persons for whose defense an actor could employ deadly force from certain specified persons to any other person in the actor's presence.

[186] Sheri Woliver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph H. Rodriguez, Public Defender, attorney).

[187] Hilary L. Brunell, Assistant Prosecutor, argued the cause for respondent (George L. Schneider, Essex County Prosecutor, attorney).

Elizabeth M. Schneider, a member of the New York bar, argued the cause for amici curiae American Civil Liberties Union of New Jersey and New Jersey Coalition for Battered Women (Frank Askin and Stephen M. Latimer, attorneys).

Nadine Taub submitted a brief on behalf of amicus curiae American Psychological Association (Nadine Taub, attorney; Kit Kinports and Bruce J. Ennis, members of the District of Columbia bar, and Donald N. Bersoff, a member of the Maryland bar, of counsel).

The opinion of the Court was delivered by WILENTZ, C.J.

The central issue before us is whether expert testimony about the battered-woman's syndrome is admissible to help establish a claim of self-defense in a homicide case. The question is one of first impression in this state. We hold, based on the limited record before us (the State not having had a full opportunity to prove the contrary), that the battered-woman's syndrome is an appropriate subject for expert testimony; that the experts' conclusions, despite the relative newness of the field, are sufficiently reliable under New Jersey's standards for scientific testimony; and that defendant's expert was sufficiently qualified. Accordingly, we reverse and remand for a new trial. If on retrial after a full examination of these issues the evidence continues to support these conclusions, the expert's testimony on the battered-woman's syndrome shall be admitted as relevant to the honesty and reasonableness of defendant's belief that deadly force was necessary to protect her against death or serious bodily harm.

I.

On May 24, 1980, defendant, Gladys Kelly, stabbed her husband, Ernest, with a pair of scissors. He died shortly thereafter at a nearby hospital. The couple had been married [188] for seven years, during which time Ernest had periodically attacked Gladys. According to Ms. Kelly, he assaulted her that afternoon, and she stabbed him in self-defense, fearing that he would kill her if she did not act.

Ms. Kelly was indicted for murder. At trial, she did not deny stabbing her husband, but asserted that her action was in self-defense. To establish the requisite state of mind for her self-defense claim, Ms. Kelly called Dr. Lois Veronen as an expert witness to testify about the battered-woman's syndrome. After hearing a lengthy voir dire examination of Dr. Veronen, the trial court ruled that expert testimony concerning the syndrome was inadmissible on the self-defense issue under State v. Bess, 53 N.J. 10 (1968). Apparently the court believed that the sole purpose of this testimony was to explain and justify defendant's perception of the danger rather than to show the objective reasonableness of that perception.

Ms. Kelly was convicted of reckless manslaughter. In an unreported decision relying in part on Bess, the Appellate Division affirmed the conviction. We granted certification, 91 N.J. 539 (1983), and now reverse.

Defendant raises six issues on appeal. She claims: (1) that the trial court erred in excluding expert testimony on the battered-woman's syndrome; (2) that the trial court's charge on provocation was erroneous; (3) that the trial court erred in excluding testimony that Mr. Kelly had sexually assaulted one of Ms. Kelly's daughters; (4) that improper prosecutorial conduct caused her to be denied a fair trial; (5) that the trial court erred in admitting testimony about her earlier conspiracy conviction; and (6) that her sentence was excessive.

II.

The Kellys had a stormy marriage. Some of the details of their relationship, especially the stabbing, are disputed. The following is Ms. Kelly's version of what happened — a version that the jury could have accepted and, if they had, a version [189] that would make the proffered expert testimony not only relevant, but critical.

The day after the marriage, Mr. Kelly got drunk and knocked Ms. Kelly down. Although a period of calm followed the initial attack, the next seven years were accompanied by periodic and frequent beatings, sometimes as often as once a week. During the attacks, which generally occurred when Mr. Kelly was drunk, he threatened to kill Ms. Kelly and to cut off parts of her body if she tried to leave him. Mr. Kelly often moved out of the house after an attack, later returning with a promise that he would change his ways. Until the day of the homicide, only one of the attacks had taken place in public.

The day before the stabbing, Gladys and Ernest went shopping. They did not have enough money to buy food for the entire week, so Ernest said he would give his wife more money the next day.

The following morning he left for work. Ms. Kelly next saw her husband late that afternoon at a friend's house. She had gone there with her daughter, Annette, to ask Ernest for money to buy food. He told her to wait until they got home, and shortly thereafter the Kellys left. After walking past several houses, Mr. Kelly, who was drunk, angrily asked "What the hell did you come around here for?" He then grabbed the collar of her dress, and the two fell to the ground. He choked her by pushing his fingers against her throat, punched or hit her face, and bit her leg.

A crowd gathered on the street. Two men from the crowd separated them, just as Gladys felt that she was "passing out" from being choked. Fearing that Annette had been pushed around in the crowd, Gladys then left to look for her. Upon finding Annette, defendant noticed that Annette had defendant's pocketbook. Gladys had dropped it during the fight. Annette had retrieved it and gave her mother the pocketbook.

After finding her daughter, Ms. Kelly then observed Mr. Kelly running toward her with his hands raised. Within seconds [190] he was right next to her. Unsure of whether he had armed himself while she was looking for their daughter, and thinking that he had come back to kill her, she grabbed a pair of scissors from her pocketbook. She tried to scare him away, but instead stabbed him.^[1]

III.

The central question in this case is whether the trial court erred in its exclusion of expert testimony on the battered-woman's syndrome. That testimony was intended to explain defendant's state of mind and bolster her claim of self-defense. We shall first examine the nature of the battered-woman's syndrome and then consider the expert testimony proffered in this case and its relevancy.

In the past decade social scientists and the legal community began to examine the forces that generate and perpetuate wife beating and violence in the family.^[2] What has been revealed is [191] that the problem affects many more people than had been thought and that the victims of the violence are not only the battered family members (almost always either the wife or the children). There are also many other strangers to the family who feel the devastating impact, often in the form of violence, of the psychological damage suffered by the victims.

Due to the high incidence of unreported abuse (the FBI and other law enforcement experts believe that wife abuse is the most unreported crime in the United States), estimates vary of the number of American women who are beaten regularly by their husband, boyfriend, or the dominant male figure in their lives. One recent estimate puts the number of women beaten yearly at over one million. See California Advisory Comm'n on Family Law, Domestic Violence app. F at 119 (1st report 1978). The state police statistics show more than 18,000 reported cases of domestic violence in New Jersey during the first nine months of 1983, in 83% of which the victim was female. It is clear that the American home, once assumed to be the cornerstone of our society, is often a violent place.^[3]

While common law notions that assigned an inferior status to women, and to wives in particular, no longer represent the state [192] of the law as reflected in statutes and cases, many commentators assert that a bias against battered women still exists, institutionalized in the attitudes of law enforcement agencies unwilling to pursue or uninterested in pursuing wife beating cases.^[4] See Comment, The Battered Wife's Dilemma: Kill or be Killed, 32 Hastings L.J., 895, 897-911 (1981).

Another problem is the currency enjoyed by stereotypes and myths concerning the characteristics of battered women and their reasons for staying in battering relationships. Some popular misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands into violent behavior, and, most critically, as we shall soon see, that women who remain in battering relationships are free to leave their abusers at any time. See L. Walker, The Battered Woman at 19-31 (1979).

As these cases so tragically suggest, not only do many women suffer physical abuse at the hands of their mates, but a significant number of women kill (or are killed by) their husbands. In 1978, murders between husband and wife or girlfriend and boyfriend constituted 13% of all murders committed in the United States. Undoubtedly some of these arose from battering incidents. Federal Bureau of Investigation, Crime in the United States 1978 (1978). Men were the victims in 48% of these killings. Id.

As the problem of battered women has begun to receive more attention, sociologists and psychologists have begun to focus on the effects a sustained pattern of physical and psychological [193] abuse can have on a woman. The effects of such abuse are what some scientific observers have termed "the battered-woman's syndrome," a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives. Dr. Lenore Walker, a prominent writer on the battered-woman's syndrome, defines the battered woman as one

who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. [L. Walker, supra, at xv].

According to Dr. Walker, relationships characterized by physical abuse tend to develop battering cycles. Violent behavior directed at the woman occurs in three distinct and repetitive stages that vary both in duration and intensity depending on the individuals involved. L. Walker, supra, at 55-70.

Phase one of the battering cycle is referred to as the "tension-building stage," during which the battering male engages in minor battering incidents and verbal abuse while the woman, beset by fear and tension, attempts to be as placating and passive as possible in order to stave off more serious violence. Id. at 56-59.

Phase two of the battering cycle is the "acute battering incident." At some point during phase one, the tension between the battered woman and the batterer becomes intolerable and more serious violence inevitable. The triggering event that initiates phase two is most often an internal or external event in the life of the battering male, but provocation for more severe violence is sometimes provided by the woman who can no longer tolerate or control her phase-one anger and anxiety. Id. at 59-65.

Phase three of the battering cycle is characterized by extreme contrition and loving behavior on the part of the battering [194] male. During this period the man will often mix his pleas for forgiveness and protestations of devotion with promises to seek professional help, to stop drinking,^[5] and to refrain from further violence. For some couples, this period of relative calm may last as long as several months, but in a battering relationship the affection and contrition of the man will eventually fade and phase one of the cycle will start anew. Id. at 65-70.

The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers. The loving behavior demonstrated by the batterer during phase three reinforces whatever hopes these women might have for their mate's reform and keeps them bound to the relationship. R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977).

Some women may even perceive the battering cycle as normal, especially if they grew up in a violent household. Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); D. Martin, Battered Wives, 60 (1981). Or they may simply not wish to acknowledge the reality of their situation. T. Davidson, Conjugal Crime, at 50 (1978) ("The middle-class battered wife's response to her situation tends to be withdrawal, silence and denial ...").

Other women, however, become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation. There is a tendency in battered women to believe in the omnipotence [195] or strength of their battering husbands and thus to feel that any attempt to resist them is hopeless. L. Walker, supra, at 75.

In addition to these psychological impacts, external social and economic factors often make it difficult for some women to extricate themselves from battering relationships. A woman without independent financial resources who wishes to leave her husband often finds it difficult to do so because of a lack of material and social resources.

Even with the progress of the last decade, women typically make less money and hold less prestigious jobs than men, and are more responsible for child care. Thus, in a violent confrontation where the first reaction might be to flee, women realize soon that there may be no place to go. Moreover, the stigma that attaches to a woman who leaves the family unit without her children undoubtedly acts as a further deterrent to moving out.

In addition, battered women, when they want to leave the relationship, are typically unwilling to reach out and confide in their friends, family, or the police, either out of shame and humiliation, fear of reprisal by their husband, or the feeling they will not be believed.

Dr. Walker and other commentators have identified several common personality traits of the battered woman: low self-esteem, traditional beliefs about the home, the family, and the female sex role, tremendous feelings of guilt that their marriages are failing, and the tendency to accept responsibility for the batterer's actions. L. Walker, supra, at 35-36.

Finally, battered women are often hesitant to leave a battering relationship because, in addition to their hope of reform on the part of their spouse, they harbor a deep concern about the possible response leaving might provoke in their mates. They literally become trapped by their own fear. Case histories are replete with instances in which a battered wife left her husband [196] only to have him pursue her and subject her to an even more brutal attack. D. Martin, supra, at 76-79.

The combination of all these symptoms — resulting from sustained psychological and physical trauma compounded by aggravating social and economic factors — constitutes the battered-woman's syndrome. Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's state of mind be accurately and fairly understood.

The voir dire testimony of Dr. Veronen, sought to be introduced by defendant Gladys Kelly, conformed essentially to this outline of the battered-woman's syndrome. Dr. Vernonen, after establishing her credentials, described in general terms the component parts of the battered-woman's syndrome and its effects on a woman's physical and mental health. The witness then documented, based on her own considerable experience in counseling, treating, and studying battered women, and her familiarity with the work of others in the field, the feelings of anxiety, self-blame, isolation, and, above all, fear that plagues these women and leaves them prey to a psychological paralysis that hinders their ability to break free or seek help.

Dr. Veronen stated that the problems of battered women are aggravated by a lack of understanding among the general public concerning both the prevalence of violence against women and the nature of battering relationships. She cited several myths concerning battered women that enjoy popular acceptance — primarily that such women are masochistic and enjoy the abuse they receive and that they are free to leave their husbands but choose not to.

Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research. These tests and their methodology, including their interpretation, are, according to Dr. Veronen, widely [197] accepted by clinical psychologists. Applying this methodology to defendant (who was subjected to all of the tests, including a five-hour interview), Dr. Veronen concluded that defendant was a battered woman and subject to the battered-woman's syndrome.

In addition, Dr. Veronen was prepared to testify as to how, as a battered woman, Gladys Kelly perceived her situation at the time of the stabbing, and why, in her opinion, defendant did not leave her husband despite the constant beatings she endured.

IV.

Whether expert testimony on the battered-woman's syndrome should be admitted in this case depends on whether it is relevant to defendant's claim of self-defense, and, in any event, on whether the proffer meets the standards for admission of expert testimony in this state. We examine first the law of self-defense and consider whether the expert testimony is relevant.

The present rules governing the use of force in self-defense are set out in the justification section of the Code of Criminal Justice. The use of force against another in self-defense is justifiable "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). Further limitations exist when deadly force is used in self-defense. The use of such deadly force is not justifiable

unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.... [N.J.S.A. 2C:3-4(b)(2)].

These principles codify decades of prior case law development of the elements of self-defense.^[6] We focus here on the critical [198] requirement that the actor reasonably believe deadly force to be necessary to prevent death or serious bodily harm, for the proffer of expert testimony was argued to be relevant on this point.

Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though this belief was later proven mistaken. "Detached reflection cannot be demanded in the presence of an uplifted knife," Justice Holmes aptly said, Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not necessarily a correct, judgment. See State v. Hipplewith, 33 N.J. 300, 316-17 (1960); State v. Mount, 73 N.J.L. 582, 583 (E. & A. 1905); State v. Lionetti, 93 N.J.L. 24 (Sup.Ct. 1919).

While it is not imperative that actual necessity exist, a valid plea of self-defense will not lie absent an actual (that is, honest) belief on the part of the defendant in the necessity of using force. While no case in New Jersey has addressed the point directly, the privilege of self-defense does not exist where the defendant's action is not prompted by a belief in its necessity: "He has no defense when he intentionally kills his enemy in complete ignorance of the fact that his enemy, when killed, was about to launch a deadly attack upon him." W. LaFave & A. Scott, Criminal Law § 53, at 394 (1972).^[7] The intent of the [199] drafters of the present Code was that a necessity to act should not give rise to a meritorious plea of self-defense where the defendant was unaware of that necessity. Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary, at 83 (1971) [hereinafter cited as Commission Report]. Ultimately, of course, it is for the jury to determine if the defendant actually did believe in the necessity of acting with deadly force to prevent an imminent, grave attack. See, e.g., State v. Fair, 45 N.J. 77, 93 (1965).

Honesty alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that her belief in the necessity to use force was reasonable. See, e.g., State v. Mellillo, 77 N.J.L. 505 (E. & A. 1908); State v. Mark Len, 108 N.J.L. 439, 440 (Sup.Ct. 1932). As originally proposed, the new Code of Criminal Justice would have eliminated the reasonableness requirement, allowing self-defense whenever the defendant honestly believed in the imminent need to act. See Commission Report, supra, Vol. I, at 26-27 (proposed Section 2C:3-4), and Vol. II: Commentary, at 82-83. This proposed change in the law was not accepted by the Legislature. N.J.S.A. 2C:3-4 as finally enacted retains the requirement that the defendant's belief be reasonable.^[8]

Thus, even when the defendant's belief in the need to kill in self-defense is conceded to be sincere, if it is found to have been unreasonable under the circumstances, such a belief cannot be held to constitute complete justification for a homicide.^[9] As [200] with the determination of the existence of the defendant's belief, the question of the reasonableness of this belief "is to be determined by the jury, not the defendant, in light of the circumstances existing at the time of the homicide." State v. Hipplewith, supra, 33 N.J. at 316; see State v. Bess, supra, 53 N.J. at 16; State v. Fair, supra, 45 N.J. at 93; State v. Jayson, 94 N.J.L. 467, 471 (E. & A. 1920). It is perhaps worth emphasizing here that for defendant to prevail, the jury need not find beyond a reasonable doubt that the defendant's belief was honest and reasonable. Rather, if any evidence raising the issue of self-defense is adduced, either in the State's or the defendant's case, then the jury must be instructed that the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts; acquittal is required if there remains a reasonable doubt whether the defendant acted in self-defense. State v. Abbott, 36 N.J. 63, 72 (1961). See generally State v. Chiarello, 69 N.J. Super. 479 (App.Div. 1961).

With the foregoing standards in mind, we turn to an examination of the relevance of the proffered expert testimony to Gladys Kelly's claim of self-defense.

V.

Gladys Kelly claims that she stabbed her husband in self-defense, believing he was about to kill her. The gist of the State's case was that Gladys Kelly was the aggressor, that she consciously intended to kill her husband, and that she certainly was not acting in self-defense.

The credibility of Gladys Kelly is a critical issue in this case. If the jury does not believe Gladys Kelly's account, it [201] cannot find she acted in self-defense. The expert testimony offered was directly relevant to one of the critical elements of that account, namely, what Gladys Kelly believed at the time of the stabbing, and was thus material to establish the honesty of her stated belief that she was in imminent danger of death.^[10]

The State argues that there is no need to bolster defendant's credibility with expert testimony concerning the battering because the State did not attempt to undermine defendant's testimony concerning her prior mistreatment at the hands of her husband. The State's claim is simply untrue. In her summation, the prosecutor suggested that had Ernest Kelly lived, he might have told a different story from the one Gladys told. (In its brief, the State argues that evidence in the case suggests that Gladys Kelly's claims of abuse could have been contradicted by her husband.) This is obviously a direct attempt to undermine defendant's testimony about her prior mistreatment.

Moreover, defendant's credibility was also attacked in other ways. Gladys Kelly's prior conviction for conspiracy to commit robbery was admitted into evidence for the express purpose of impeachment, even though this conviction had occurred nine years before the stabbing. Other questions, about Gladys Kelly's use of alcohol and drugs and about her premarital sexual conduct, were clearly efforts to impeach credibility.

As can be seen from our discussion of the expert testimony, Dr. Veronen would have bolstered Gladys Kelly's credibility. [202] Specifically, by showing that her experience, although concededly difficult to comprehend, was common to that of other women who had been in similarly abusive relationships, Dr. Veronen would have helped the jury understand that Gladys Kelly could have honestly feared that she would suffer serious bodily harm from her husband's attacks, yet still remain with him. This, in turn, would support Ms. Kelly's testimony about her state of mind (that is, that she honestly feared serious bodily harm) at the time of the stabbing.

On the facts in this case, we find that the expert testimony was relevant to Gladys Kelly's state of mind, namely, it was admissible to show she honestly believed she was in imminent danger of death. Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979) (on remand, trial court excluded expert testimony on battered-woman's syndrome; the Court of Appeals affirmed the exclusion of the testimony, holding that the trial court was not compelled to admit the evidence; 455 A.2d 893 (D.C. 1983)); Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Anaya, 438 A.2d 892 (Me. 1981); State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (Wash.Sup.Ct. 1984); see also People v. Minnis, 118 Ill. App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983) (expert testimony on battered-woman's syndrome admissible to explain reasons why defendant dismembered body of victim/husband where prosecution introduced fact of dismemberment as substantive evidence of guilt). But see State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981).^[11] Moreover, we [203] find that because this testimony was central to the defendant's claim of self-defense, its exclusion, if otherwise admissible, cannot be held to be harmless error.^[12]

[204] We also find the expert testimony relevant to the reasonableness of defendant's belief that she was in imminent danger of death or serious injury. We do not mean that the expert's testimony could be used to show that it was understandable that a battered woman might believe that her life was in danger when indeed it was not and when a reasonable person would not have so believed, for admission for that purpose would clearly violate the rule set forth in State v. Bess, supra, 53 N.J. 10. Expert testimony in that direction would be relevant solely to the honesty of defendant's belief, not its objective reasonableness. Rather, our conclusion is that the expert's testimony, if accepted by the jury, would have aided it in determining whether, under the circumstances, a reasonable person would have believed there was imminent danger to her life.

At the heart of the claim of self-defense was defendant's story that she had been repeatedly subjected to "beatings" over the course of her marriage. While defendant's testimony was somewhat lacking in detail, a juror could infer from the use of the word "beatings," as well as the detail given concerning some of these events (the choking, the biting, the use of fists), [205] that these physical assaults posed a risk of serious injury or death. When that regular pattern of serious physical abuse is combined with defendant's claim that the decedent sometimes threatened to kill her, defendant's statement that on this occasion she thought she might be killed when she saw Mr. Kelly running toward her could be found to reflect a reasonable fear; that is, it could so be found if the jury believed Gladys Kelly's story of the prior beatings, if it believed her story of the prior threats, and, of course, if it believed her story of the events of that particular day.

The crucial issue of fact on which this expert's testimony would bear is why, given such allegedly severe and constant beatings, combined with threats to kill, defendant had not long ago left decedent. Whether raised by the prosecutor as a factual issue or not, our own common knowledge tells us that most of us, including the ordinary juror, would ask himself or herself just such a question. And our knowledge is bolstered by the experts' knowledge, for the experts point out that one of the common myths, apparently believed by most people, is that battered wives are free to leave. To some, this misconception is followed by the observation that the battered wife is masochistic, proven by her refusal to leave despite the severe beatings; to others, however, the fact that the battered wife stays on unquestionably suggests that the "beatings" could not have been too bad for if they had been, she certainly would have left. The expert could clear up these myths, by explaining that one of the common characteristics of a battered wife is her inability to leave despite such constant beatings; her "learned helplessness"; her lack of anywhere to go; her feeling that if she tried to leave, she would be subjected to even more merciless treatment; her belief in the omnipotence of her battering husband; and sometimes her hope that her husband will change his ways.

Unfortunately, in this case the State reinforced the myths about battered women. On cross-examination, when discussing an occasion when Mr. Kelly temporarily moved out of the [206] house, the State repeatedly asked Ms. Kelly: "You wanted him back, didn't you?" The implication was clear: domestic life could not have been too bad if she wanted him back. In its closing argument, the State trivialized the severity of the beatings, saying:

I'm not going to say they happened or they didn't happen, but life isn't pretty. Life is not a bowl of cherries. We each and every person who takes a breath has problems. Defense counsel says bruised and battered. Is there any one of us who hasn't been battered by life in some manner or means?

Even had the State not taken this approach, however, expert testimony would be essential to rebut the general misconceptions regarding battered women.

The difficulty with the expert's testimony is that it sounds as if an expert is giving knowledge to a jury about something the jury knows as well as anyone else, namely, the reasonableness of a person's fear of imminent serious danger. That is not at all, however, what this testimony is directly aimed at. It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge. After hearing the expert, instead of saying Gladys Kelly could not have been beaten up so badly for if she had, she certainly would have left, the jury could conclude that her failure to leave was very much part and parcel of her life as a battered wife. The jury could conclude that instead of casting doubt on the accuracy of her testimony about the severity and frequency of prior beatings, her failure to leave actually reinforced her credibility.

Since a retrial is necessary, we think it advisable to indicate the limit of the expert's testimony on this issue of reasonableness. It would not be proper for the expert to express the opinion that defendant's belief on that day was reasonable, not because this is the ultimate issue, but because the area of expert knowledge relates, in this regard, to the reasons for [207] defendant's failure to leave her husband. Either the jury accepts or rejects that explanation and, based on that, credits defendant's stories about the beatings she suffered. No expert is needed, however, once the jury has made up its mind on those issues, to tell the jury the logical conclusion, namely, that a person who has in fact been severely and continuously beaten might very well reasonably fear that the imminent beating she was about to suffer could be either life-threatening or pose a risk of serious injury. What the expert could state was that defendant had the battered-woman's syndrome, and could explain that syndrome in detail, relating its characteristics to defendant, but only to enable the jury better to determine the honesty and reasonableness of defendant's belief. Depending on its content, the expert's testimony might also enable the jury to find that the battered wife, because of the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to the day he died, is particularly able to predict accurately the likely extent of violence in any attack on her. That conclusion could significantly affect the jury's evaluation of the reasonableness of defendant's fear for her life.^[13]

[208]

VI.

Having determined that testimony about the battered-woman's syndrome is relevant, we now consider whether Dr. Veronen's testimony satisfies the limitations placed on expert testimony by Evidence Rule 56(2) and by applicable case law. See State v. Cavallo, 88 N.J. 508, 516 (1982). Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this Rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56.^[14]

[209] The primary justification for permitting expert testimony is that the average juror is relatively helpless in dealing with a subject that is not a matter of common knowledge. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961). Thus, the proponent of expert testimony must demonstrate that testimony would "enhance the knowledge and understanding of lay jurors with respect to other testimony of a special nature normally outside of the usual lay sphere." State v. Griffin, 120 N.J. Super. 13, 20 (App.Div. 1972).

As previously discussed, a battering relationship embodies psychological and societal features that are not well understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of the average juror and thus is suitable for explanation through expert testimony.^[15]

The second requirement that must be met before expert testimony is permitted is a showing that the proposed expert's testimony would be reliable. The rationale for this requirement is that expert testimony seeks to assist the trier of fact. An expert opinion that is not reliable is of no assistance to anyone.

To meet the requirement that the expert's testimony be sufficiently reliable, defense counsel must show that the testimony satisfies New Jersey's standard of acceptability for scientific [210] evidence. State v. Cavallo, supra, 88 N.J. at 516-17 (citing State v. Hurd, 86 N.J. 525, 536 (1981)). The technique or mode of analysis used by the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth. Id. 88 N.J. at 517 (citing State v. Cary, 49 N.J. 343, 352 (1967)); State v. Hurd, supra, 86 N.J. at 536.

In a relatively new field of research, such as that of the battered-woman's syndrome, there are three ways a proponent of scientific evidence can prove its general acceptance and thereby its reliability: (1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance. State v. Cavallo, 88 N.J. at 521. Applying those methods to the case at bar, we note that judicial opinions thus far have been split concerning the scientific acceptability of the syndrome and the methodology used by the researchers in this area.^[16] On the other hand, Dr. Veronen, the proffered expert, testified that the battered-woman's syndrome is acknowledged and accepted by practitioners and professors in the fields of psychology and psychiatry. Dr. Veronen also brought to the court's attention the findings of several researchers who have published reports confirming the presence of the battered-woman's syndrome. She further noted that the battered-woman's syndrome has [211] been discussed at several symposia since 1977, sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association.^[17] Briefs submitted to this Court indicate that there are at least five books and almost seventy scientific articles and papers about the battered-woman's syndrome.

Thus, the record before us reveals that the battered woman's syndrome has a sufficient scientific basis to produce uniform and reasonably reliable results as required by State v. Cavallo, and Evid.R. 56(2). The numerous books, articles and papers referred to earlier indicate the presence of a growing field of study and research about the battered woman's syndrome and recognition of the syndrome in the scientific field. However, while the record before us could require such a ruling, we refrain from conclusively ruling that Dr. Veronen's proffered testimony about the battered-woman's syndrome would satisfy New Jersey's standard of acceptability for scientific evidence. This is because the State was not given a full opportunity in the trial court to question Dr. Veronen's methodology in studying battered women or her implicit assertion that the battered-woman's syndrome has been accepted by the relevant scientific community.

Finally, before expert testimony may be presented, there must be a showing that the proffered expert witness has sufficient expertise to offer the intended testimony. State v. Cavallo, supra, 88 N.J. at 516. In this case, it appears that Dr. Veronen is qualified to testify as an expert. She has a Ph.D. in clinical psychology, as well as an M.A. from North Texas State. She is a member of four professional associations. As of 1980, when she was offered as a witness at Ms. Kelly's trial, Dr. [212] Veronen had been an assistant professor at the medical school at the University of South Carolina for three years. Twenty percent of her time at the Universty was spent teaching, some of it on topics related to the battered-woman's syndrome, and 80% of her time was spent conducting research, most of it on the psychological reaction of women who are victims of violent assaults. She had spent two years studying the battered-woman's syndrome, with the goal of changing the patterns of fear and anxiety of battered women. Dr. Veronen is a clinical psychologist, licensed to practice in two states, and in that capacity had, by 1980, treated approximately thirty battered women and seen seventy others. Because these thirty women have several important characteristics in common with Ms. Kelly (the thirty women had all been in battering relationships for more than two years, were beaten more than six times, and were within the same age group as Ms. Kelly), Dr. Veronen is familiar with battered women who share Ms. Kelly's background.^[18]

We have concluded that the appropriate disposal of this appeal is to reverse and remand for a new trial. On the record before us, although the trial court did not rule on the matter, it appears that Dr. Veronen qualified as an expert, and that the degree of reliability of the conclusions in this field of expertise was sufficient to allow their admission. Alternatively we could retain jurisdiction and remand, solely for the purpose of allowing the prosecutor to continue cross-examination of Dr. [213] Veronen as well as to introduce such contrary testimony as the prosecutor sees fit. The transcript discloses that the prosecutor had concluded her cross-examination on Dr. Veronen's qualifications but had never been given the opportunity fully to cross-examine the expert on the reliability of this developing field of scientific knowledge. The possibility of such further cross-examination was foreclosed by the trial court when it ruled evidence of the syndrome was inadmissible because irrelevant. Furthermore, as noted above, the trial court never actually ruled whether Dr. Veronen qualified as an expert, finding this unnecessary because of his holding that the testimony would not be admissible under State v. Bess, supra, 53 N.J. 10, even if she was an expert.^[19]

[214] Our conclusion, reversing and ordering a new trial, is based on the apparent unfairness in this case of the kind of limited remand that we ordered in State v. Sikora, supra, 44 N.J. at 465-66, 474 (Weintraub, C.J., concurring). Here a limited remand would be to the trial court to exercise its discretion, a very broad discretion, on the issue of the expert's qualifications and the reliability of the knowledge proffered. We do not know what conflicting expert testimony the prosecution would offer, but the entire scenario of a limited remand when the defendant has already been convicted and when the court whose discretion will largely determine the outcome of the limited remand has already excluded the evidence, with prosecution experts who might not have been called at the original trial, seems an artificial trial setting, and significantly less favorable to defendant than what might have occurred if the trial court had had the benefit of the views expressed herein at the time. Obviously there is no way to recreate the precise situation of the trial, but all things considered, we think fairness requires a new trial where all of these matters may be reconsidered.

VII.

Apart from her claims concerning the exclusion of the expert testimony, the defendant raises five additional issues on appeal. Although our disposition of this case makes it unnecessary to [215] consider these issues, we dispose of them briefly to assist the trial court in the event they surface again at the new trial.

A.

During trial, defendant sought to introduce testimony from Edith Cannon, defendant's 17-year-old daughter by another marriage, to the effect that shortly before the fatal encounter she had told her mother that Ernest Kelly had been subjecting her to physical and sexual abuse since age 13. The defense asserted that this evidence of Glady Kelly's knowledge of the victim's prior aggressive behavior demonstrated that her fear of the decedent was justifiable and that her subsequent behavior was reasonable. See McCormick on Evidence § 249, at 588-89 (E. Cleary ed., 2d Ed. 1972); VI J. Wigmore Evidence § 1789, at 314 (Chad.Rev.Ed. 1972).

The trial court, however, excluded this evidence in reliance upon Evidence Rule 4,^[20] stating:

We will get involved with trials within trials — trying cases of sexual aggression. That daughter was not present at the time of the alleged stabbing by her mother of her stepfather. There has been no evidence indicating that the safety of the daughter was threatened on May 24.

Whether the probative value of a particular piece of evidence is outweighed by its potential prejudice is a decision normally left to the discretion of the trial court; and this "discretion is a broad one." State v. Sands, 76 N.J. 127 (1978); see also Evid.R. 4, Comment 1.

If the only relevance of this testimony was to reinforce the proof that defendant feared the decedent for good reason, its limited added force might very well be outweighed [216] by the obvious prejudice injected into the case in the form of proof that decedent sexually abused his daughter. The testimony, however, has further relevance in that it very strongly supports the conclusion that the Kelly household was the scene of the batterings that would produce the battered-woman's syndrome. As our Legislature noted in its findings included in the Prevention of Domestic Violence Act, "there is a positive correlation between spouse abuse and child abuse...." N.J.S.A. 2C:25-2. Given the critical importance of the proof of the battered-woman's syndrome in this case, we are inclined to believe that, on balance, such testimony should have been admitted. We are aware that in the context of an appellate review, a decision of a trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted. State v. Carter, 91 N.J. 86, 106 (1982); State v. Boratto, 80 N.J. 506 (1979); State v. Rogers, 19 N.J. 218 (1955); Hill v. Newman, 126 N.J. Super. 557 (App.Div. 1973), certif. den., 64 N.J. 508 (1974); Evid.R. 4, Comment 2. Nevertheless, absent any significant new factor bearing on this issue, the trial court on remand should allow the testimony, giving such appropriate instruction to the jury as will minimize the possibility of its prejudicial impact.

B.

Defense counsel also contends that the trial court erred in allowing the State to question defendant about her earlier conviction. Counsel asserts that the trial court "lost sight" of the grounds for admitting defendant's prior record. This claim is without merit.

Ms. Kelly was convicted of conspiracy to commit robbery in 1971, and over defense counsel's objection the trial court ruled that evidence of the earlier conviction was admissible. During cross-examination, the prosecution questioned Ms. Kelly about her earlier conviction:

[217] Q. Mrs. Kelly, have you ever been convicted of a crime?

A. Yes, once.

Q. What were you convicted of?

A. Conspiracy to robbery with some — two other peoples was involved —

Q. You were convicted of conspiracy to commit robbery?

A. Yes.

Q. When was that?

A. Nine years ago, I think.

Q. 1971?

A. Something like that. I was given three years probation....

That was the only time during the two week trial that evidence as to Ms. Kelly's prior conviction was elicited or referred to.

Prior convictions ordinarily may be used to impeach the defendant's credibility. State v. Sands, 76 N.J. 127, 146 (1978); N.J.S.A. 2A:81-12. The trial court, recognizing that, instructed the jury as to the limited purpose for which it could consider Ms. Kelly's conspiracy conviction:

The only reason you heard that testimony was not because if you find that she committed a crime in 1971, therefore she must have committed this crime with which she is charged. The only reason you may use that if you wish to is to affect her believability as a witness. That is the sole and exclusive purpose of hearing that and using that evidence.

There was no error on this point.^[21]

C.

We reject defendant's contention that the prosecutor's conduct denied the defendant her right to receive a fair trial. The defense claims that the prosecutor improperly used closing arguments to glorify her function as a prosecutor and make an inflammatory appeal to the jury, and used her opening statement [218] to suggest that Ms. Kelly's indictment was evidence of guilt. These complaints were not raised at trial, and thus need not be dealt with in the same way as those raised by a timely challenge. State v. Macon, 57 N.J. 325, 333 (1971). We note, however, that the trial court properly instructed the jury that the indictment is not proof of guilt, and our review of the closing statement does not reveal plain error. R.2:10-2. The prosecutor neither exalted her role at length, nor disparaged the role of defense counsel. See State v. Thornton, 38 N.J. 380 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed.2d 1039 (1963). Nor did the prosecutor's closing remarks exceed the wide latitude permitted counsel during summation. See State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969).

Defendant also claims that the prosecutor was too aggressive, asked improper questions about Ms. Kelly's personal life in an attempt to cast aspersions on defendant's moral character, and made too many objections, most of which were overruled. While not condoning all aspects of the prosecutor's conduct, we conclude that, in the context of the entire trial, it did not cause defendant to be denied a fair trial. See State v. Tirone, 64 N.J. 222, 229 (1974). There were sufficient facts on which the jury could base its finding of guilt on the reckless manslaughter charge. In light of the entire record, any impropriety that did occur was harmless and incapable of producing an unjust result. See State v. LaPorte, 62 N.J. 312 (1973); R. 2:10-2.

D.

The defendant argues that the charge to the jury regarding provocation as an element of manslaughter was in error because it did not state that reasonable and sufficient provocation may arise from a course of ill treatment. We agree that the instructions on provocation were deficient. It is well settled that when there is evidence of prior physical abuse [219] of defendant by the decedent, the jury must be told that a finding of provocation may be premised on "a course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused reasonably believes is likely to continue." State v. Guido, 40 N.J. 191, 211 (1963). The jury must be instructed "to consider not only decedent's conduct and threats that night, but also his prior mistreatment of defendant." State v. Lamb, 71 N.J. 545, 551 (1976). On retrial, this aspect of the trial court's instruction should be changed.^[22]

E.

Ms. Kelly also contends that the sentence imposed — five years in state prison — was excessive. She asserts that imprisonment would result in a serious injustice that overrides the need to deter such conduct by others, N.J.S.A. 2C:44-1(d), and that she should instead be granted probation or entry into a release program. She cites several mitigating factors, including her abuse at the hands of Mr. Kelly and her children's need to have their mother at home.

The presumptive sentence for a second degree crime is seven years. N.J.S.A. 2C:44-1(f)(1). In ordering a sentence of five years, the trial court agreed with defendant that there was a preponderance of mitigating factors, allowing it to sentence [220] her to a minimum term for a second degree crime. N.J.S.A. 2C:43-6(a)(2); 2C:44-1(f)(1). See State v. Roth, 95 N.J. 334, 359, 471 A.2d 370 (1984). Although we appreciate the hardship that would result from defendant's incarceration, she is not the truly extraordinary defendant whose imprisonment would represent the "serious injustice" envisioned by the Criminal Code. Roth, supra, 95 N.J. at 358.^[23]

HANDLER, J., concurring in part and dissenting in part.

The record in this case persuasively establishes the professional acceptance and scientific reliability of the clinical psychological condition referred to as the "battered women's syndrome." Therefore, I would rule that expert evidence of the battered women's syndrome is both competent and relevant as related to the defense of self-defense. Consequently, no further expert testimony or evidence concerning the admissibility [221] of this doctrine should be required on a retrial of this case. I would also allow into evidence on the retrial the testimony of defendant's expert that defendant was suffering battered women's syndrome when she killed her husband. That testimony was unquestionably relevant to defendant's claim of self-defense. In addition, the evidence in this case indicates that repeated sexual and physical victimization of a woman's children may, in conjunction with her own abused treatment, contribute to the development of battered women's syndrome. I therefore concur in the majority's determination to allow on a retrial evidence of the decedent's sexual assaults upon defendant's daughter as related to the issue of the battered women's syndrome and defendant's defense of self-defense.

The Court in this case takes a major stride in recognizing the scientific authenticity of the battered women's syndrome and its legal and factual significance in the trial of certain criminal cases. My difference with the Court is quite narrow. I believe that defendant Gladys Kelly has demonstrated at her trial by sufficient expert evidence her entitlement to the use of the battered women's syndrome in connection with her defense of self-defense. I would therefore not require this issue — the admissibility of the battered women's syndrome — to be tried again.

I

This Court's opinion presents a cogent and thorough explanation of the perplexing and tragic condition of the battered women's syndrome. This condition refers to a congeries of common traits in women who are subjected to prolonged physical and psychological abuse by their mates. Women suffering battered women's syndrome have low self-esteem, strong feelings of personal guilt over their failing marriages, and self-blame for the violence that their mates inflict upon them. Ante at 195-196, citing L. Walker, The Battered Woman 35-36 (1979) (Walker). Typically, such battered women are dominated [222] by unshakeable fear, which often traps them into remaining with their battering mates. Id., citing D. Martin, Battered Wives 76-79 (1981) (Martin). Victims of battered women's syndrome frequently become so demoralized and degraded that they lapse into a psychological torpor, a state of "learned helplessness." Ante at 194-195, citing Walker, supra, at 75.

The relationships that typify the syndrome usually involve cyclical behavior. One recurrent phase of the cycle includes a period of contrite behavior by the batterer, which reinforces the illusion of these victimized women that their mates will change and reform, further binding them to the relationship. Ante at 193, citing Walker, supra, at 55-70; R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977). Many battered women perceive the battering cycle as commonplace, and refuse to acknowledge the abnormality of their plight. Ante at 194, citing T. Davidson, Conjugal Crime (1978); Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); Martin, supra, at 60.

The Court's opinion explains that the abusive pattern that characterizes this syndrome is a phenomenon that puzzles and confuses the untutored lay person. The violence common to the syndrome is the subject of widespread ignorance and misinformation. It has spawned myths as to its causes and distorted stereotypes of its victims. Ante at 192. Some common misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their physical and psychological suffering, that they purposely provoke their mates into violent behavior and, most critically, that women who remain in battering relationships are free to leave their abusers at any time. Id., citing Walker, supra, at 19-31.

This Court's enlightened exposition of the battered women's syndrome, drawn from the record in this case lays a firm foundation for a determination of the admissibility of expert testimony relating to the syndrome in the trial of particular [223] criminal causes under the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., and our rules of evidence.

II

Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56; State v. Cavallo, 88 N.J. 508 (1982); State v. Hurd, 86 N.J. 525 (1981).

The first criterion for the admission of expert testimony under Evidence Rule 56(2) is that the subject matter is fully comprehended primarily by experts, persons who have special training and education in the particular field. Correlatively, the subject matter ordinarily falls beyond the common understanding of persons of average intelligence and education. In this case, it has been firmly established that the battered women's syndrome is a subject that is properly within the special comprehension of experts. Also, as the record abundantly demonstrates, the battered women's syndrome is a subject that is not fully understood by the average person. Consequently, it is an appropriate matter for elucidation through expert testimony. State v. Griffin, 120 N.J. Super. 13, 29 (App. Div. 1972), certif. den. 62 N.J. 73 (1972); Nesta v. Meyer, 100 N.J. Super. 434 (App.Div. 1968), cited in State v. Cavallo, supra, 88 N.J. at 518; Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961).

The second requirement of Evidence Rule 56(2) that must be met before expert testimony on a particular subject is permitted [224] is a showing that the proposed testimony would be reliable. State v. Cavallo, supra, 88 N.J. at 516-17 (1982). There must be a sufficient scientific basis for the expert testimony. The asserted scientific body of knowledge must be considered reliable by those who have professional training and responsibility in the field. Romano v. Kimmelman, 96 N.J. 66, 80 (1984); State v. Hurd, supra, 86 N.J. at 536; State v. Cary, 49 N.J. 343, 352 (1967).

There are generally three ways a proponent of expert testimony can prove its reliability in terms of its general acceptance within the professional community. First, such general acceptance can be established by the testimony of knowledgeable experts. Second, authoritative scientific literature can be used to establish professional acceptance. Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be followed. State v. Cavallo, supra, 88 N.J. at 521.

These criteria for the admissibility of expert testimony relative to the battered women's syndrome have been met in this case. Because the battered women's syndrome is a relatively new field of research, only a few courts have had the opportunity to consider its evidential admissibility. Some courts have already acknowledged the scientific acceptability of the syndrome and the reliability of the methodology used by practitioners and researchers in this field. See, e.g., State v. Allery, 101 Wash.2d 591, 596, 682 P.2d 312, 315 (1984) (en banc) (battered women's syndrome sufficiently accepted in scientific community and sufficiently outside lay competence so as to be appropriate subject of expert testimony in criminal trial); State v. Anaya, 438 A.2d 892 (Me. 1981); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981). Other courts have not yet done so. Compare Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982) and Ibn-Tamas v. United States, 407 A.2d 626 (D.C.Ct.App. 1979) (remanding to trial court for further consideration of scientific acceptability) with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981) [225] and State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981) (holding that subject was not sufficiently established as a matter of scientific expertise). In light of the compelling record that has been established in this case, I am persuaded of the soundness of those decisions that have concluded that the battered women's syndrome constitutes a valid subject of expert testimony. I am satisfied that these decisions are correct and will emerge as the authoritative position on this issue.

The record before us, based on expert testimony, including scientific writings, further reveals that the battered women's syndrome has gained general acceptance as a scientific doctrine within the professional community. Dr. Lois Veronen, a highly qualified expert in the field, testified that the battered woman's syndrome is acknowledged and accepted by practitioners and researchers in the fields of psychology and psychiatry. In addition, Dr. Veronen testified to the existence of numerous authoritative books, articles and papers evidencing the scientifically recognized, expanding field of study and research about the battered woman's syndrome. See Buckelew v. Grossbard, 87 N.J. 512 (1981); Calabrese v. Trenton State College, 82 N.J. 321 (1980). The abundance of this authoritative literature was also made evident on this appeal — over 70 scientific articles and several books have been published on the subject. Dr. Veronen further testified that, since 1977, the battered women's syndrome has been recognized at several symposiums sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197 (1980) (under appropriate circumstances, speeches, addresses, and other non-written sources may be used to demonstrate the acceptance of a premise by the scientific community).

Public policy considerations complement these traditional modes for determining whether a particular subject matter is reliable and within the purview of expert knowledge. An [226] emerging public policy acknowledges the battered women's syndrome. Psychiatrists, psychologists, and social scientists, as well as the legal and law enforcement community, have begun to come to grips with the forces that generate and perpetuate familial and domestic violence. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); Martin, supra; Walker, supra; R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy, ed. 1977). The New Jersey Legislature has recognized the pervasiveness and gravity of domestic violence, which in so many cases forms the backdrop against which the battered women's syndrome appears. See Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16; Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to -17; New Jersey Supreme Court Task Force on Women in the Courts, Summary Report at 5-6 (Nov. 21, 1983). The Legislature was presumably aware of the burgeoning expert opinion and literature that recognized the battered women's syndrome as both a contributing cause and devastating consequence of domestic and familial violence. This growing awareness extends to the national level as well, as evidenced, for example, by the U.S. Attorney General's formation, in September 1983, of a task force on family violence "to review [the] basic assumptions that underpin the handling of [domestic] violence cases." Statement of Attorney General William French Smith, September 19, 1983.

The final requirement of Evidence Rule 56(2) for the admission of expert testimony is the showing that the proffered expert witness has sufficient expertise to testify. State v. Cavallo, supra, 88 N.J. at 516. In this case, as recognized by the Court, Dr. Veronen was clearly highly qualified to testify as an expert with respect to the psychological condition of battered women's syndrome. Ante at 211. Furthermore, her proffered testimony fully met the standards for the receipt of expert testimony concerning the battered women's syndrome.

[227] In addition to her general knowledge of the battered women's syndrome, Dr. Veronen was familiar with the facts in this case and competent to testify in that regard. Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research and the application of this methodology to defendant. Dr. Veronen was prepared to express her professional opinion that Gladys Kelly was an abused woman suffering from battered women's syndrome when she fatally stabbed her husband.

In sum, the record fashioned in this case convincingly demonstrates, through the testimony of an eminently qualified expert witness, that expert testimony concerning the battered women's syndrome is now generally accepted and regarded as reliable within the professional community. Its competence and relevance as evidence in the trial of particular criminal cases has been shown. The battered women's syndrome is sufficiently reliable to authorize its admissibility as a proper subject of expert testimony. In my view, this evidence should have been allowed in the trial of this case.

III

I concur in the majority's determination that the testimony of defendant's seventeen-year-old daughter, Edith Cannon, concerning the decedent's beatings of Gladys and her children, should have been admitted into evidence at the trial. Ante at 215-216. Defendant's daughter was also prepared to testify that she had been sexually abused by decedent since she was 12 years of age and had related this to her mother. However, the trial judge, on the basis of Evidence Rule 4, excluded Edith's testimony that she had told her mother about the decedent's sexual assaults upon her.

The expert evidence fairly shows that such circumstances — the physical and sexual abuse of battered women's children — cannot be separated from all of the factors that contribute to the syndrome. Such child abuse occurs in 75% of the battering [228] relationships that eventuate in homicide, and frequently constitutes a "critical factor in the tension * * * before some lethal incidents." Walker, supra, at 11. Consequently, such evidence of child abuse is relevant in a case in which the battered women's syndrome is a material issue.

To reiterate, expert testimony on the battered women's syndrome and the applicability of this syndrome to the defendant's claim of self-defense should be allowed on the retrial of this case. Evidence of the victim's abuse of the defendant's children, including sexual assaults on her daughter, are part of the dismal composite that constitutes the battered women's syndrome. Such evidence is highly probative of the issue of self-defense in the context of the battered women's syndrome and its evidential worth clearly outweighs its potential for prejudice or confusion.

IV

In sum, I believe the Court acts without sufficient warrant in remanding this case to permit the issue of the general admissibility of expert testimony on the battered women's syndrome to be tried anew. The record reveals that the issue of admissibility was fairly presented at trial. That record has generated an evidential base sufficiently solid to permit, if not mandate, our acceptance of the battered women's syndrome as expert doctrine. While it is arguable that the State did not fully challenge the evidence below, its position on appeal is essentially that the evidence proffered at the trial was not adequate to establish the scientific reliability of the battered women's syndrome. The Court now unanimously rejects that position. I think it pointless and unfair to encourage the State to renew its attacks upon the authenticity of the battered women's syndrome doctrine.

For the reasons expressed, I dissent in part from the Court's decision.

[229] For reversal — Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O'HERN and GARIBALDI — 6.

Concurring in part and dissenting in part — Justice HANDLER — 1.

[1] This version of the homicide — with a drunk Mr. Kelly as the aggresor both in pushing Ms. Kelly to the ground and again in rushing at her with his hands in a threatening position after the two had been separated — is sharply disputed by the State. The prosecution presented testimony intended to show that the initial scuffle was started by Gladys; that upon disentanglement, while she was restrained by bystanders, she stated that she intended to kill Ernest; that she then chased after him, and upon catching up with him stabbed him with a pair of scissors taken from her pocketbook.

[2] The works that comprise the basic study of the problem of battered women are all relatively recent. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); D. Martin, Battered Wives (1976); L. Walker, The Battered Woman (1979); R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy ed. 1977).

Similarly, legislative activity in this field is relatively new; for example, New Jersey's Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16 and the Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to-17.

In enacting the Prevention of Domestic Violence Act, the New Jersey Legislature recognized the pervasiveness and seriousness of domestic violence:

The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all societal and economic backgrounds and ethnic groups; that there is a positive correlation between spouse abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide. [N.J.S.A. 2C:25-2].

[3] In her book, The Battered Woman, Dr. Lenore Walker cites research by sociologists Straus, Gelles, and Steinmetz finding that in 1976 at least one assault between family members occurred in 28% of all American homes. Id. at 70.

[4] In 1976, for example, battered women in California and New York instituted class actions alleging that the police customarily denied women legal protection by refusing to assist battered women or arrest their abusing husbands. The cases were settled by consent judgment. Scott v. Hart, No. C-76-2395 (N.D.Cal., filed Oct. 28, 1976); Bruno v. Codd, 90 Misc.2d 1047, 396 N.Y.S.2d 974 (Sup.Ct. 1977), aff'd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d 901 (1979).

[5] Alcohol is often an important component of violence toward women. Evidence points to a correlation between alcohol and violent acts between family members. In one British study, 44 of 100 cases of wife abuse occurred when the husband was drunk. Gayford, "Wife Battering: A Preliminary Survey of 100 Cases," British Medical Journal 1:194-197 (1975). Gelles, in The Violent Home: A Study of Physical Aggression between Husbands and Wives (1979), found that in 44 families where violence had occurred, drinking accompanied the violence in 21 of the cases. He also posited that alcohol and family violence are more closely related than alcohol and other types of violence.

[6] Prior to the enactment of the Code, former N.J.S.A. 2A:113-6 provided a statutory basis for self-defense claims specifically and justification defenses generally. However, as noted by the New Jersey Criminal Law Revision Commission, the law concerning justification was that found in the cases, since the literal wording of 2A:113-6 was not followed. Final Report of the New Jersey Criminal Law Revision Commission Vol. II: Commentary, at 78-79 (1971).

[7] See also Restatement of Torts 2d § 63 (1965) at 101. Under principles of self-defense as a justification for the torts of assault and battery — which closely parallel criminal self-defense principles — no privilege of self-defense exists for one acting in ignorance of another's intent to inflict harm on him. Cf. Perkins, "Self-Defense Re-examined," 1 U.C.L.A.L.Rev. 133, 134 (1954).

[8] The rejected form of § 2C:3-4 was patterned after § 3.04 of the Model Penal Code. The purpose of the proposed Code and M.P.C. provisions was to prevent one who killed in the honest but mistaken and unreasonable belief in the necessity of the action from being convicted of a crime like murder, which is premised on an act motivated by unlawful purpose. See Model Penal Code § 3.04 commentary at 14-15 (Tent. Draft No. 8 1958); Commission Report, supra, Vol. II: Commentary, at 83-84.

[9] In State v. Powell, 84 N.J. 305 (1980), we explicitly recognized that before enactment of the Code the doctrine of imperfect self-defense could reduce murder to manslaughter when the defendant honestly but unreasonably perceived himself in such danger as to require the use of deadly force. However, we expressed no opinion on whether imperfect self-defense was available under the new Code for the purpose of reducing murder to manslaughter. The resolution of that issue is immaterial to the case at bar.

[10] The factual contentions of the parties eliminated any issue concerning the duty to retreat. If the State's version is accepted, defendant is the aggressor; if defendant's version is accepted, the possibility of retreat is excluded by virtue of the nature of the attack that defendant claims took place. We do not understand that the State claims defendant breached that duty under any version of the facts. If, however, the duty becomes an issue on retrial, the trial court will have to determine the relevancy of the battered-woman's syndrome to that issue. Without passing on that question, it appears to us to be a different question from whether the syndrome is relevant to defendant's failure to leave her husband in the past.

[11] The State may not bar the introduction of expert testimony about the battered-woman's syndrome by stipulating that the defendant's fear of serious bodily harm was honestly held. In State v. Laws, 50 N.J. 159 (1967), we rejected the suggestion that the State should be compelled to stipulate to — and not introduce evidence on — those facts that the defendant did not dispute. We held that subject to the trial court's overriding control of the proceedings, the State "should have the right to make a full showing before the jury whenever it considers such course necessary for the proper presentation of its case." Id. at 184. Similar considerations compel the same result here, should the defendant seek to introduce testimony on a fact — the honesty of defendant's fear of serious bodily harm — that the State does not contest. This holding protects the defendant's due process rights by allowing her to offer testimony to establish a defense. See Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330, 333 (1972) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). Without the introduction of expert testimony to dispel common misconceptions about battered women, a jury might well question the stipulation of honesty.

[12] The State contends that even if the expert testimony is held admissible, its exclusion should be considered harmless error because of defendant's conviction for reckless manslaughter. The State's position is that under N.J.S.A. 2C:3-9(b) as it existed at the time of Gladys Kelly's conviction, self-defense was not available as a defense for any offense for which recklessness or negligence suffices to establish culpability, including, presumably, offenses where the defendant was reckless or negligent in believing the use of force to be necessary, or in acquiring or failing to acquire any knowledge that is material to the justifiability of the use of force. The argument, therefore, is that the expert testimony could not have saved defendant from the reckless manslaughter verdict.

N.J.S.A. 2C:3-9(b) was never intended to serve the function ascribed to it by the State. In fact, inclusion of the provision in the Code appears to have been an error, which has since been corrected by its repeal. See L. 1981, c. 290. The reasons for the inclusion and repeal of this provision are concisely stated in the legislative history of the repealer:

As originally drafted, justification defenses (i.e. self-defense) under the code were available to a defendant if his belief in the necessity of the use of force was honestly held. In conjunction with this provision, the code also provided in 2C:3-9b that if the defendant was reckless or negligent in forming that belief, he could be convicted of a crime for which recklessness or negligence was the required mental element. As enacted, however, the code requires not only that a defendant's belief be honestly held but also that his belief in the necessity to use force be reasonable. This requirement that a defendant's belief be both honest and reasonable vis a vis a justification defense obviates the necessity for the provision in 2C:3-9b that the reckless or negligent use of force can establish criminal liability. Therefore, the amendment in section 7 would delete this provision. [Senate Judiciary Committee, Statement to Committee Substitute for S. 2537 at 2 (1982)].

In other words, when the original draft of the Code provided that an honest belief in the need for deadly force sufficed to establish self-defense, the Code had to deal with the situation in which that belief, though honest, had been recklessly formed. The subsequently repealed section, N.J.S.A. 2C:3-9(b), performed that function by providing that such an honest belief, recklessly formed, was no justification for offenses when culpability was based on that very same recklessness. The Code as passed, however, defined self-defense as requiring a reasonable belief, thereby rendering section 9(b) unnecessary since, under that definition, self-defense could not be established as a justification for any offense if the actor's belief in the need for force, though honest, was recklessly formed, i.e., was unreasonable. The repealer simply clarified the legislative intent that existed when the Code first became law, which was that self-defense based on a reasonable belief in the need for deadly force would constitute justification — a complete defense — to the charge of reckless manslaughter. If the jury here found defendant's belief was both honest and reasonable, it would be required to acquit her of all charges.

[13] At least two other courts agree that expert testimony about the battered-woman's syndrome is relevant to show the reasonableness as well as the honesty of defendant's fear of serious bodily harm. Ibn-Tamas v. United States, 407 A.2d 626, 634-35 (D.C. 1979) (expert testimony "would have enhanced Mrs. Ibn-Tamas' general credibility in responding to cross-examination designed to show that the testimony about the relationship with her husband was implausible," and also "would have supplied an interpretation of the facts which differed from the ordinary lay perception"); Hawthorne v. State, 408 So.2d 801, 806-07 (Fla. Dist. Ct. App. 1982) (expert testimony would "aid the jury in interpreting the surrounding circumstances as they affected the reasonableness of [defendant's] belief," because "a jury would not understand why [defendant] would remain [with her husband]"); State v. Allery, 101 Wash.2d 591, 682 P.2d 312, 316 (Wash.Sup.Ct. 1984) (court approved use of expert testimony "[t]o effectively present the situation as perceived by the defendant, and the reasonableness of her fear ... to enable the jury to overcome stereotyped impressions about women who remain in abusive relationships"). But see Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974) (psychiatric testimony held to be of no help in determining whether a fear of serious bodily harm was reasonable).

Defendant's counsel at oral argument made it clear that defendant's basic contention was that her belief in the immediate need to use deadly force was both honest and reasonable; and that the evidence concerning the battered-woman's syndrome was being offered solely on that issue. We therefore are not faced with any claim that a battered woman's honest belief in the need to use deadly force, even if objectively unreasonable, constitutes justification so long as its unreasonableness results from the psychological impact of the beatings. The effect of cases like State v. Sikora, 44 N.J. (1965) (opinion of psychiatrist that acts of defendant, admittedly sane, were predetermined by interaction of events and his abnormal character held inadmissible on issue of premeditation), and State v. Bess, 53 N.J. 10 (1968) (reasonableness of belief in need for deadly force not measured by what would appear "reasonable" to abnormal defendant) is not before us. Nor is there any claim that the battering provocation might have some legal effect beyond the potential reduction of defendant's culpability to manslaughter, or something other than an "immediate" need for deadly force will suffice. See State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983), (battered wife stabs sleeping husband).

[14] Of course, expert testimony that meets these three criteria is still subject to other rules of evidence. For example, the probative value of the testimony must not be substantially outweighed by the risk that its admission would necessitate undue consumption of time or create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. Evid. R. 4. The danger of undue prejudice would be only slightly greater if expert testimony on the battered-woman's syndrome is introduced than without it, however, because the jury, even without it, will certainly hear about the past beatings from lay witnesses.

[15] The following courts agree that the battered-woman's syndrome is beyond the understanding of the average person: Ibn Tamas v. United States, supra, 407 A.2d 626; Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678; Hawthorne v. State, supra, 408 So.2d 801; State v. Anaya, supra, 438 A.2d 892. But see State v. Thomas, supra, 66 Ohio St.2d 518, 423 N.E.2d 137.

[16] Compare State v. Anaya, supra, 438 A.2d 892, and Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678 (both cases accepting expert testimony without reservation), with Hawthorne v. State, supra, 408 So.2d 801, and Ibn-Tamas v. United States, supra, 407 A.2d 626 (both cases remanding to trial court for further consideration of scientific acceptability), and with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981), and State v. Thomas, supra, 66 Ohio St.2d 518, 423 N.E.2d 137 (both cases holding that subject was not sufficiently established as a matter of scientific expertise).

[17] Under appropriate circumstances, speeches, addresses, and other similar sources may be used to demonstrate the acceptance of a premise by the scientific community. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197, 1217 (1980).

[18] In addition to her general knowledge of the battered-woman's syndrome, Dr. Veronen is quite familiar with the facts in this case. Dr. Veronen interviewed Ms. Kelly for approximately five hours, during which time the two spoke about Ms. Kelly's background, Ms. Kelly's first meeting with Mr. Kelly, Ms. Kelly's relationship with her children and Mr. Kelly, the history of the physical abuse she suffered, and her stabbing of Mr. Kelly. Dr. Veronen also reviewed several psychological tests that were administered to Ms. Kelly, and from those concluded that Ms. Kelly was a battered woman. In addition, Dr. Veronen reviewed statements of eyewitnesses to the stabbing, police reports, and Ms. Kelly's hospital reports following the stabbing.

[19] It is not contended by anyone that the battered woman's syndrome has been so well established in the scientific community and is so well known by the public as to authorize the Court to take judicial notice of it. Therefore, unlike some expert evidence (radar, for example, State v. Dantonio, 18 N.J. 570 (1955)) where all that is required is to show that the accepted body of scientific knowledge is being correctly applied, here the very existence and reliability of such scientific knowledge has to be established. As a matter of fact, the literature suggests that while there is a growing body of research concerning the syndrome, it is still in a relatively uncertain stage, there remaining some doubt about its validity. It is, therefore, necessary for this Court to be sure that on remand the State has an adequate opportunity to present such proofs as might persuade the trial court that the syndrome has not yet achieved sufficient acceptance in the scientific community to warrant its admissibility. While our dissenting colleague is apparently convinced both from the record and his own research that as a matter of law the syndrome has achieved that level of acceptability to warrant its admission, that procedure, leading to that conclusion, seems to us manifestly unfair to the State. Even if we were inclined to agree with our dissenting colleague on this issue, that would be beside the point, for what is involved here is not the correctness of the conclusion concerning the general acceptability within the scientific community of the battered-woman's syndrome, but the fundamental fairness of the proceedings in the trial court that might lead to such a conclusion. It is absolutely clear that the only proceedings concerning the syndrome before the trial court was the voir dire testimony of Dr. Veronen, that the State was permitted cross-examination only as to her qualifications, and that the court repeatedly assured the assistant prosecutor that "ample time" would be given on all issues concerning the syndrome. Not only was "ample time" not given, but no time was allowed, for the trial court, apparently believing that the proposed use of this testimony had been made clear, decided that the testimony would be inadmissible as a matter of law even if the witness were ruled to be an expert and even if the body of knowledge were ruled to be beyond the ken of jurors and generally accepted within the scientific community. The court's ruling that the expert's testimony was inadmissible was prefaced by the following statement: "I fully appreciate you have not had another opportunity to examine the Witness, Mrs. Cooper," the remark of the court being addressed to the assistant prosecutor. Throughout the transcript there were repeated references by the court and Mrs. Cooper to the fact that her role, up to that point, had been confined to cross-examination only on the witness's qualifications.

[20] Evidence Rule 4 provides:

The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.

[21] The trial court has discretion to bar the admission of prior convictions if it finds that their probative value is outweighed by their prejudice to the defendant. State v. Sands, supra, 78 N.J. at 146. The burden of proving that the prior convictions should be excluded, however, falls on the defendant. Ibid. We do not find that the trial court abused its discretion in allowing the limited testimony cited earlier, even though the remoteness of Ms. Kelly's earlier conviction would also have supported a ruling that her conspiracy conviction could not be brought out.

[22] We note that given defendant's conviction for reckless manslaughter under N.J.S.A. 2C:11-4(b)(1), these instructions would not constitute harmful error. Both reckless homicide and homicide committed in the heat of passion resulting from a reasonable provocation constitute manslaughter, and both are crimes of the second degree. N.J.S.A. 2C:11-4(b), (c). Defendant's conviction for reckless manslaughter instead of manslaughter by provocation, therefore, did not prejudice her in terms of sentencing. Neither did it produce a compromise verdict of the type referred to in State v. Christener, 71 N.J. 55 (1976) where the concern was with the prejudicial effect of overcharging the jury by giving instructions on first degree murder that were not sufficiently supported by the evidence. This is easily distinguishable from the problem here, which involves only a deficient instruction for an alternate theory of the offense for which the defendant actually was convicted.

[23] We note that under the Code even if it is certain that the actor's life will soon be threatened, the actor may not use deadly defensive force until that threat is imminent. If he or she does, the crime in most cases would presumably be murder or manslaughter (see N.J.S.A. 2C:3-4a & 4b(2); 2C:11-3; 2C:11-4b), the last exposing the actor to a sentence of ten years in prison with a five-year discretionary parole ineligibility term or, if a firearm is used, a three-year mandatory parole ineligibility term. N.J.S.A. 2C:43-6a, b & c. The requirement that the use of deadly force, in order to be justifiable, must be immediately necessary, has as its purpose the preservation of life by preventing the use of deadly force except when its need is beyond debate. The rule's presumed effect on an actor who reasonably fears that her life will soon be endangered by an imminent threat is to cause her to leave the danger zone, especially if, because of the circumstances, she knows she will be defenseless when that threat becomes imminent. The rule, in effect, tends to protect the life of both the potential aggressor and victim. If, however, the actor is unable to remove herself from the zone of danger (a psychological phenomenon common to battered women, according to the literature), the effect of the rule may be to prevent her from exercising the right of self-defense at the only time it would be effective. Instead she is required by the rule to wait until the threat against her life is imminent before she responds, at which time she may be completely defenseless.

There is, of course, some danger that any attempt to mitigate what may be undeserved punishment in these cases (by some further statutory differentiation of criminal responsibility) might weaken the general deterrent effect of our homicide laws. That is a matter the Legislature might wish to examine.

[66] Mr. Charles Handler argued the cause for defendant-appellant (Mr. Joel F. Handler, on the brief).

Mr. Martin L. Greenberg, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Brendan T. Byrne, Essex County Prosecutor, attorney).

The opinion of the court was delivered by WEINTRAUB, C.J.

Frank Abbott was convicted of atrocious assault and battery. The Appellate Division affirmed, 64 N.J. Super. 191 (1960), and we granted certification, 34 N.J. 176 (1961).

Abbott shared a common driveway with his neighbors, Michael and Mary Scarano. The Scaranos engaged a contractor to pave their portion. Abbott obtained some asphalt from the contractor and made a doorstop to keep his garage door from swinging onto the Scaranos' property. Nicholas Scarano, who was visiting with the Scaranos, his parents, objected to Abbott's innovation. After some words between them a fist fight ensued.

Although Abbott managed to land the first punch, with which he sent Nicholas to the ground, a jury could find Nicholas was the aggressor. At this point Michael Scarano came at Abbott with a hatchet. Michael said the tool had just been returned to him by the contractor, and denied he [67] meant to use it as a weapon. According to Abbott, Mary Scarano followed, armed with a carving knife and large fork. The actors gave varying versions of what happened, but the end result was that all of the Scaranos were hit by the hatchet. Nicholas received severe head injuries. Abbott claimed he too suffered a laceration.

Abbott admitted he finally wrested the hatchet from Michael but denied he wielded it at all. Rather he insisted that the Scaranos were injured during a common struggle for the instrument. A jury could, however, find Abbott intentionally inflicted the blows.

Abbott was separately indicted for atrocious assault and battery upon each of the Scaranos. There was a common trial of these indictments. The jury acquitted Abbott of the charges relating to Michael and Mary, but found him guilty as to Nicholas.

I.

The principal question is whether the trial court properly instructed the jury upon the issue of self-defense. The trial court charged upon the subject of excessive force, as to which Abbott does not complain. It charged also upon the subject of retreat, and it is here that error is alleged. Although the jury could have found Abbott used excessive force, we cannot know whether the jury found for him on that subject and convicted because he had failed to retreat in accordance with the trial court's instruction.

As to retreat, the trial court charged upon two hypotheses. One was that the critical events occurred upon Abbott's property. Upon that basis, the court said Abbott could stand his ground, and, of course, of this Abbott does not complain. The second hypothesis was that the alleged offense occurred upon the common driveway. Presumably on the authority of State v. Pontery, 19 N.J. 457, 475 (1955), the trial court held that since all the principals were equally entitled to be on the driveway, Abbott could not claim immunity [68] from the ordinary retreat rule. Abbott does not question that thesis, but disputes the court's statement of the conditions under which an obligation to retreat would arise.

A.

We have the preliminary question whether defendant must demonstrate "plain error" to question the instruction. As the Appellate Division noted, defendant did not record a protest to the charge as given. But he had requested a charge and did note his objection to the trial court's refusal to grant it. His request was erroneous, but nonetheless it is plain he did not acquiesce in the trial court's version. The important fact is that the trial court was alerted to the basic problem and charged in a manner different from the request made. In such circumstances, especially when the controlling principles are complex or unsettled, it would be unreasonable to deny a review merely because a defendant failed to project a formula which squares with our concept of the true doctrine. We would never deny relief merely because a litigant's position on appeal went beyond the point we found to be correct. We should not demand a greater capacity for prediction during the trial itself. We accordingly reach the meritorious issue.

B.

The subject of retreat usually arises in homicide matters. We will first discuss it in that context, and then consider whether the principles apply to a charge of atrocious assault and battery, and if they do, whether the trial court correctly guided the jury in this difficult area.

We should make it clear that we are discussing the doctrine of retreat and not the subject of the use of excessive force. If the force used was unnecessary in its intensity, the claim of self-defense may fall for that reason. In the discussion which follows we assume a defendant used no more force [69] than he believed necessary to protect himself in the circumstances as they reasonably appeared to him, and consider only whether the claim of self-defense should be denied because he could have avoided the use of that force by retreating.

The question whether one who is neither the aggressor nor a party to a mutual combat must retreat has divided the authorities. Self-defense is measured against necessity. Brown v. State, 62 N.J.L. 666, 708 (E. & A.), affirmed, 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119 (1899); State v. Hipplewith, 33 N.J. 300, 316-318 (1960). From that premise one could readily say there was no necessity to kill in self-defense if the use of deadly force could have been avoided by retreat. The critics of the retreat rule do not quarrel with the theoretical validity of this conclusion, but rather condemn it as unrealistic. The law of course should not denounce conduct as criminal when it accords with the behavior of reasonable men. Upon this level, the advocates of no-retreat say the manly thing is to hold one's ground, and hence society should not demand what smacks of cowardice. Adherents of the retreat rule reply it is better that the assailed shall retreat than that the life of another be needlessly spent. They add that not only do right-thinking men agree, but further a rule so requiring may well induce others to adhere to that worthy standard of behavior. There is much dispute as to which view commands the support of ancient precedents, a question we think it would be profitless to explore.

Other jurisdictions are closely divided upon the retreat doctrine. It is said that the preponderant view rejects it. Perkins, Criminal Law 899 (1957); 1 Warren, Homicide § 157, at pp. 767-68 (perm. ed. 1938); Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958). For additional discussions of the contending views see 1 Wharton, Criminal Law and Procedure § 235 (Anderson 1957); Annotation, 2 L.R.A. (N.S.) 49 (1906); Annotation, 18 A.L.R. 1279 (1922). Our Court of Errors and [70] Appeals deliberately adopted the retreat rule with an awareness of the contending views, State v. Di Maria, 88 N.J.L. 416 (Sup. Ct. 1916), affirmed o.b., 90 N.J.L. 341 (E. & A. 1917), and the doctrine has since been invoked. State v. Centalonza, 18 N.J. Super. 154 (App. Div. 1952); cf. State v. Goldberg, 12 N.J. Super. 293 (App. Div. 1951). The Model Penal Code embraces the retreat rule while acknowledging that on numerical balance a majority of the precedents oppose it. Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958).

We are not persuaded to depart from the principle of retreat. We think it salutary if reasonably limited. Much of the criticism goes not to its inherent validity but rather to unwarranted applications of the rule. For example, it is correctly observed that one can hardly retreat from a rifle shot at close range. But if the weapon were a knife, a lead of a city block might well be enough. Again, the rule cannot be stated baldly, with indifference to the excitement of the occasion. As Mr. Justice Holmes cryptically put it, "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961, 963 (1921). Such considerations, however, do not demand that a man should have the absolute right to stand his ground and kill in any and all situations. Rather they call for a fair and guarded statement of appropriate principles.

In Brown, supra, the United States Supreme Court said (256 U.S., at p. 343, 41 S.Ct., at p. 502, 65 L.Ed., at p. 963):

"* * * Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt."

The comment to § 3.04 of the Model Penal Code (at p. 24) says the passage just quoted "seems to be a median position" and "would apparently remit the issue to the jury, without [71] a legal mandate on the point." We are not sure we correctly understand these observations. We think it clear that Brown accepted the retreat doctrine, but we do not read the opinion of Mr. Justice Holmes to mean that the subject should be submitted without guidance, thus permitting each jury to decide whether the subject of retreat should be considered, and if so, what the ingredients of the doctrine should be. We know of no jurisdiction which leaves to a jury the task of devising the legal principles. Rather we read Brown to hold only that the particular "formula laid down by the [trial] court" was not "adequate to the protection of the defendant's rights" (256 U.S., at pp. 342-343, 41 S.Ct., at p. 502, 65 L.Ed., at pp. 962-63) in the factual pattern which the defendant there asserted.

We believe the following principles are sound:

1. The issue of retreat arises only if the defendant resorted to a deadly force. It is deadly force which is not justifiable when an opportunity to retreat is at hand. Model Penal Code § 3.04(2)(b)(iii). As defined in § 3.12(2) a deadly force means "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm."

Hence it is not the nature of the force defended against which raises the issue of retreat, but rather the nature of the force which the accused employed in his defense. If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet, as the comment in the Model Penal Code observes (at p. 23), "The logic of this position never has been accepted when moderate force is used in self-defense; here all agree that the actor may stand his ground and estimate necessity upon that basis." Cf. Prosser, Torts § 19, at p. 90 (2d ed. 1955); Restatement, Torts § 63 (1934). Hence, in a case like the present one, the jury should be instructed that Abbott could hold his ground when Nicholas [72] came at him with his fists, and also when Michael and Mary came at him with the several instruments mentioned, and that the question of retreat could arise only if Abbott intended to use a deadly force.

2. What constitutes an opportunity to retreat which will defeat the right of self-defense? As § 3.04(2)(b)(iii) of the Model Penal Code states, deadly force is not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating * * *." We emphasize "knows" and "with complete safety." One who is wrongfully attacked need not risk injury by retreating, even though he could escape with something less than serious bodily injury. It would be unreal to require nice calculations as to the amount of hurt, or to ask him to endure any at all. And the issue is not whether in retrospect it can be found the defendant could have retreated unharmed. Rather the question is whether he knew the opportunity was there, and of course in that inquiry the total circumstances including the attendant excitement must be considered. We add that upon a retrial the facts as developed in the light of this principle may be such that Abbott would be entitled to an instruction that if his version of the approach by Michael and Mary is accepted, the issue of retreat must be resolved in Abbott's favor.

3. There has been some uncertainty in the language of our cases upon the burden of proof with respect to self-defense. The decisions are treated in State v. Chiarello, 69 N.J. Super. 479 (1961), where the Appellate Division correctly said that although the burden is upon a defendant to adduce evidence to support the defense, yet if such evidence appears either in the State's case or upon the defendant's case, the issue must be left to the jury with this instruction: that the burden is upon the State to prove beyond a reasonable doubt that the defense is untrue, and hence there must be an acquittal if there is a reasonable doubt as to whether defendant did act in self-defense within the definition of that defense. Accordingly, if the issue of [73] retreat is raised in connection with the defense of self-defense, the jury should be instructed that the burden is also the State's to prove beyond a reasonable doubt that defendant knew he could have retreated with complete safety, and that if a reasonable doubt upon that question should exist, the issue of retreat must be resolved in defendant's favor.

C.

As we have said, the subject of retreat arises most often in homicide cases. It is equally pertinent if the charge is assault with intent to kill (N.J.S. 2A:90-2). State v. Centalonza, supra (18 N.J. Super. 154). Here the charge is atrocious assault and battery (N.J.S. 2A:90-1), a crime which involves vicious or brutal conduct. State v. Riley, 28 N.J. 188, 197-198 (1958), appeal dismissed and cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959). An intent to kill is not an ingredient of that offense, but an intent to do serious bodily harm would seem to be implicit. The doctrine of retreat reflects a policy with respect to the use of deadly force, and the same policy considerations equally obtain if the end result is something less than murder. The Appellate Division held the doctrine applicable to atrocious assault and battery. The comment to Article 3 of the Model Penal Code (at p. 3) expresses the same view, saying, "If the particular force, for example, would be unjustifiable in a prosecution for homicide it should be equally unjustifiable if the victim survives and what is charged is an assault." This seems sound, and hence an instruction upon the subject is appropriate in a trial for atrocious assault and battery, but the instruction should be expressly centered about the use of deadly force.

D.

We turn to the instruction of the trial court. It reads:

"* * * If you find the charges involved or either of them happened on the joint or common driveway and that the defendant [74] had an available opportunity to retreat and you also find that he was or appeared to be threatened by assault and battery with imminent danger of life or serious bodily harm, again there is no duty to retreat. On the other hand, under the latter circumstances, if you find that he did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm, he had a duty to retreat and if he failed to retreat the defense of self-defense would not avail him and would not constitute a defense to these charges or any of these charges if you find that he had a duty to retreat."

It is at once apparent that the charge consists of abstract propositions, unanchored to the factual setting. It will be recalled the encounter had two phases, although one quickly followed the other. The first phase was an unarmed attack by Nicholas which Abbott met in kind; the second involved, as the jury could find, an attack or apparent attack by hatchet in the hands of Michael and by kitchen utensils allegedly wielded by Mary, both aided by Nicholas who had arisen from the initial punch. We have no way of knowing whether the jury understood Abbott was required to retreat when first assailed by Nicholas alone. The jury may well have so gathered since the instruction excluded self-defense "if you find that he [Abbott] did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm," and of course Nicholas's attack with his fists readily fitted within those terms.

The State asks us to assume the jury understood an unarticulated premise, i.e., that the court was referring solely to the hatchet affair. If we could so assume, still under the instruction the obligation to retreat would depend upon the nature of the attack upon Abbott rather than the amount of force Abbott intended to employ. In short, there was no reference to the use of a deadly force by Abbott. And if we should read the charge in still another way, to wit, that the court was merely defining its prior reference to "an available opportunity" to retreat and hence meant that the opportunity was not "available" if retreat would have subjected Abbott to imminent danger to his life or of great bodily harm but was "available" if he could get away with [75] a hurt of lesser character, still the charge would be incorrect. This is so because there is no obligation to retreat unless retreat can be effected "with complete safety," and indeed with knowledge that retreat can be so effected. Further, upon that interpretation, the instruction would be devoid of any statement of the facts prerequisite for consideration of the subject, i.e., an intent by the defendant to use a deadly force.

We have said enough to indicate the insufficiency of the charge. Even upon study and restudy we are not sure we can extract the thesis the trial court held. A jury which listens to a single reading of an instruction cannot be expected to debate its meaning and reach a correct view of it. A charge should be a clear, unambiguous guide related to the evidence in the case. The conviction must be reversed.

II.

The record of Abbott's direct examination reads in part:

"Q. How much do you weigh, Mr. Abbott? A. At the present time?

Q. At the present time. A. Just close to 200 pounds, right now.

Q. Now, on July 15, 1957 [the date of the alleged crime] do you know how much you weighed? About July 15, not necessarily on that day, say within a few pounds either way. A. About 135, 140 pounds, I guess.

Q. Why was your weight so low at that time?

Mr. Loftus: I object on the ground it is irrelevant. I don't see any relevancy to this situation.

The Court: I will sustain the objection."

Defendant complains he was thereby barred from showing serious medical conditions, pertinent to his ability to defend with lesser force or to retreat with safety. The Appellate Division held defendant failed to comply with R.R. 1:5-1(a) in that he did not object to the ruling, and further held there was no manifest wrong or injury.

The cited rule reads in part:

"* * * Error in the admission or rejection of testimony, or in the charge of the court, or in the refusal to charge as requested by [76] the defendant, or in the denial by the court of any matter resting in discretion, or in any other ruling or order made during the course of the trial, shall be cause for reversal if specific objection thereto was made and it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury." (Emphasis added)

Read literally, this rule would seem to require a specific objection to be stated after an offer of proof has been rejected, and some casual statements might be read to support that theme. State v. Gibson, 15 N.J. 384, 391 (1954); State v. Huff, 14 N.J. 240, 248 (1954); State v. Hogan, 20 N.J. Super. 1, 9 (App. Div. 1952). Thus understood, the rule could be thought to continue the discredited practice of former days under which error could not be asserted on appeal unless at the trial counsel had intoned "exception."

Our rules do not perpetuate mere ritual. Rather the purpose is to require a litigant to make known his position to the end that the trial court may consciously rule upon it. When that has happened, it would be pure ceremony to require some further protest. This view is embodied in R.R. 3:7-8, which reads as follows and in the light of which R.R. 1:5-1(a), quoted above, must be understood:

"Exceptions to rulings or orders of the court or instructions to the jury are not required in order to reserve the questions involved for review on appeal; and for all purposes for which an exception has heretofore been necessary it suffices that the defendant, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection shall not thereafter prejudice him."

Actually in the Tentative Draft (1948) of our rules, the provisions of this rule appeared in Rule 1:2-14(a), the forerunner of R.R. 1:5-1(a).

Applied to the admission and exclusion of evidence, these rules have this effect: If a litigant complains of the admission of evidence, he must show he objected to its receipt and stated the reasons for his opposition. If he did, no more is required to preserve his right to appellate [77] review. If the litigant complains of an exclusion of evidence, it is enough that his adversary's objection was upheld unless he refused an opportunity to tell the court why he thought the evidence should be admitted. Here Abbott complains of the exclusion of proof. The State objected to the offer as "irrelevant." If the trial court wished Abbott to explain his thesis, an opportunity to do so should have been given. The trial court did not, but rather, apparently satisfied it fully appreciated what was involved, upheld the State. We see no reason to require Abbott to utter "I object" or to attempt to argue against a ruling already announced. He made known the ruling he wished, i.e., admission of the evidence he offered. He did not decline an opportunity to enlighten the court. We are satisfied the alleged error is presented without recourse to the doctrine of "plain error."

There is a different question with which the one just discussed should not be confused. That question is whether a litigant must spread on the record the essence of what he would have proved but for the adverse ruling. R.R. 4:44-3 provides "the examining attorney may make a specific offer of what he expects to prove by the answer of the witness." The rule in terms applies to civil matters but is merely declaratory of prior good practice and should be observed as well in criminal proceedings. Without such disclosure, an appellate court cannot readily evaluate whether the exclusion, although erroneous, resulted in manifest wrong or injury. State v. Micci, 46 N.J. Super. 454, 458 (App. Div. 1957); see State v. Gambutti, 36 N.J. Super. 219, 233 (App. Div. 1955); New Jersey Highway Authority v. Rudd, 36 N.J. Super. 1, 5 (App. Div. 1955).

Of course the details of the proffered proof ultimately depend upon the integrity of counsel, and that being so, a representation first made on appeal might be argued to be no less meaningful. But the proffer should be made at trial, for at least the reason that the statement may well induce the trial judge to reconsider and perhaps to reverse his ruling.

[78] Our experience indicates widespread failure to place such offers upon the trial record. Indeed, frequently we receive our first glimpse in response to questions at oral argument. In the present case the disclosure first appeared in the brief on appeal, wherein we are told defendant wanted to prove serious injuries and illness from which he was in the process of recovery at the time of the alleged offense. The admissibility of such proof on the issues of excessive force and of retreat is too evident to require discussion. The question disallowed was on its face suggestive of proof of that kind. Since the judgment must be reversed for other reasons already given, we need not speak further of the sufficiency of the record. But we take this opportunity to remind the bar that a failure to spread the offer on the trial record may lead the appellate court to conclude that it cannot find the error was harmful.

III.

Abbott further urges the State could not move the indictment against him because prior thereto it had brought Michael Scarano to trial for assault with intent to kill him, which trial resulted in an acquittal. We think the Appellate Division correctly rejected this contention.

IV.

Since the case must be remanded, we refer to a ruling of which Abbott does not here complain, lest it be repeated at a retrial. During direct examination Abbott was asked, "At any time did you intentionally strike anybody with this ax?" The State objected "on the ground it is leading," and was sustained. Curiously, a question essentially the same had already been asked and answered. After that question was answered, the State objected without specifying any ground. The trial court replied, "I think it is admissible and is answered anyway. I will permit it to stand."

The objection that the question was "leading" was unsound. In a sense every question is "leading." If [79] interrogation did not lead, a trial would get nowhere. Indeed one vice of a question such as, "What is your position in this case?," is that it does not lead enough, and thus would deny the opposing party an opportunity to guard against the rankest kind of improper proof. A question must invite the witness's attention to something. No formula can be stated with confidence that it will embrace all situations. But it may be said that ordinarily a question is not improperly leading unless it suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness. See generally McCormick, Evidence § 6 (1954); 3 Wigmore, Evidence §§ 769-72 (3d ed. 1940). The question whether Abbott intentionally struck any of the Scaranos with the ax was perfectly proper; we do not see how else it could be phrased. Cf. State v. Len, 108 N.J.L. 439, 440 (Sup. Ct. 1932).

Since the objection to the earlier question was not particularized, it is appropriate to add that questions addressed to the mental operations of a defendant are thoroughly proper when such operations are an ingredient of the State's case or of a defense. See State v. Myers, 7 N.J. 465, 483 (1951); State v. Len, supra (108 N.J.L. 439). Relevancy and materiality are obvious. And a defendant's competency to testify thereto is equally plain. Indeed no one knows better than he. Of course, he may not be believed, but his self-interest is not a bar, and has not been since the demise of the common-law rule which denied the stand to a party to a controversy. See 2 Wigmore, Evidence § 579, at p. 701 (3d ed. 1940).

The judgment is reversed and the matter remanded for further proceedings not inconsistent herewith.

For reversal and remandment — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.

For affirmance — None.

[334] [335] William J. Scott, Attorney General, of Springfield, and Martin Rudman, State's Attorney, of Joliet (James B. Zagel, Jayne A. Carr, and Steven J. Rosenberg, Assistant Attorneys General, of counsel), for the People.

Robert Agostinelli, Deputy Defender, and G. Joseph Weller, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.

Affirmed and remanded.

MR. JUSTICE RYAN delivered the opinion of the court:

Defendant, Francis Unger, was charged with the crime [336] of escape (Ill. Rev. Stat. 1971, ch. 108, par. 121), and was convicted following a jury trial before the circuit court of Will County. Defendant was sentenced to a term of three to nine years to be served consecutively to the remainder of the sentence for which he was imprisoned at the time of the escape. The conviction was reversed upon appeal and the cause was remanded for a new trial over the dissent of one justice. (33 Ill. App.3d 770.) We granted leave to appeal and now affirm the judgment of the appellate court.

At the time of the present offense, the defendant was confined at the Illinois State Penitentiary in Joliet, Illinois. Defendant was serving a one- to three-year term as a consequence of a conviction for auto theft in Ogle County. Defendant began serving this sentence in December of 1971. On February 23, 1972, the defendant was transferred to the prison's minimum security, honor farm. It is undisputed that on March 7, 1972, the defendant walked off the honor farm. Defendant was apprehended two days later in a motel room in St. Charles, Illinois.

At trial, defendant testified that prior to his transfer to the honor farm he had been threatened by a fellow inmate. This inmate allegedly brandished a six-inch knife in an attempt to force defendant to engage in homosexual activities. Defendant was 22 years old and weighed approximately 155 pounds. He testified that he did not report the incident to the proper authorities due to fear of retaliation. Defendant also testified that he is not a particularly good fighter.

Defendant stated that after his transfer to the honor farm he was assaulted and sexually molested by three inmates, and he named the assailants at trial. The attack allegedly occurred on March 2, 1972, and from that date until his escape defendant received additional threats from inmates he did not know. On March 7, 1972, the date of the escape, defendant testified that he received a call on an institution telephone. Defendant testified that the caller, [337] whose voice he did not recognize, threatened him with death because the caller had heard that defendant had reported the assault to prison authorities. Defendant said that he left the honor farm to save his life and that he planned to return once he found someone who could help him. None of these incidents were reported to the prison officials. As mentioned, defendant was apprehended two days later still dressed in his prison clothes.

The State introduced prior statements made by the defendant which cast some doubt on his true reasons for leaving the prison farm. In these statements, defendant indicated that he was motivated by a desire for publicity concerning the sentence on his original conviction, which he deemed to be unfair, as well as fear of physical abuse and death.

Defendant's first trial for escape resulted in a hung jury. The jury in the second trial returned its verdict after a five-hour deliberation. The following instruction (People's Instruction No. 9) was given by the trial court over defendant's objection.

"The reasons, if any, given for the alleged escape are immaterial and not to be considered by you as in any way justifying or excusing, if there were in fact such reasons."

The appellate court majority found that the giving of People's Instruction No. 9 was reversible error. (33 Ill. App.3d 770, 777.) Two instructions which were tendered by defendant but refused by the trial court are also germane to this appeal. Defendant's instructions Nos. 1 and 3 were predicated upon the affirmative defenses of compulsion and necessity. (Ill. Rev. Stat. 1971, ch. 38, pars. 7-11 (compulsion), 7-13 (necessity).) Defendant's instructions Nos. 1 and 3 read as follows:

"It is a defense to the charge made against the Defendant that he left the Honor Farm of the Illinois State Penitentiary by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than [338] the injury which might reasonably result from his own conduct."

"It is a defense to the charge made against the Defendant that he acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believed death or great bodily harm would be inflicted upon him if he did not perform the conduct with which he is charged."

The principal issue in the present appeal is whether it was error for the court to instruct the jury that it must disregard the reasons given for defendant's escape and to conversely refuse to instruct the jury on the statutory defenses of compulsion and necessity. In the appellate court the defendant successfully asserted that the giving of People's Instruction No. 9 was tantamount to directing a verdict against the defendant. The State contends that, under the facts and circumstances of this case, the defenses of compulsion and necessity are, as a matter of law, unavailable to defendant.

Both the People and the defendant are entitled to appropriate instructions which present their theories of the case to the jury when and if such theories are supported by the evidence. (City of Chicago v. Mayer (1974), 56 Ill.2d 366, 370; People v. Kalpak (1957), 10 Ill.2d 411, 425; People v. Khamis (1951), 411 Ill. 46, 53.) Section 3-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 3-2) provides that a defendant, to raise the issue of an affirmative defense, must present "some evidence" thereon. Therefore, if the defenses asserted were available to the defendant, he was entitled to an instruction on these theories if "some evidence" was introduced to support them. Conversely, it was error to give People's Instruction No. 9, which required the jury to disregard the reasons for the escape.

Proper resolution of this appeal requires some preliminary remarks concerning the law of compulsion and necessity as applied to prison escape situations. Traditionally, the courts have been reluctant to permit the defenses [339] of compulsion and necessity to be relied upon by escapees. (See 1975 U. Ill. L.F. 271, 274-75 & n. 23, and the cases cited therein.) This reluctance appears to have been primarily grounded upon considerations of public policy. Several recent decisions, however, have recognized the applicability of the compulsion and necessity defenses to prison escapes. In People v. Harmon (1974), 53 Mich. App. 482, 220 N.W.2d 212, the defense of duress was held to apply in a case where the defendant alleged that he escaped in order to avoid repeated homosexual attacks from fellow inmates. In People v. Lovercamp (1974), 43 Cal. App.3d 823, 118 Cal. Rptr. 110, a limited defense of necessity was held to be available to two defendants whose escapes were allegedly motivated by fear of homosexual attacks.

As illustrated by Harmon and Lovercamp, different courts have reached similar results in escape cases involving sexual abuse, though the question was analyzed under different defense theories. A certain degree of confusion has resulted from the recurring practice on the part of the courts to use the terms "compulsion" (duress) and "necessity" interchangeably, though the defenses are theoretically distinct. (Gardner, The Defense of Necessity and the Right to Escape from Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S. Cal. L. Rev. 110, 115 (1975); Note, Duress — Defense to Escape, 3 Am. J. Crim. L. 331, 332 (1975).) It has been suggested that the major distinction between the two defenses is that the source of the coercive power in cases of compulsion is from human beings, whereas in situations of necessity the pressure on the defendant arises from the forces of nature. (LaFave and Scott, Handbook on Criminal Law 381 (1972).) Also, as noted in the dissenting opinion in the appellate court, the defense of compulsion generally requires an impending, imminent threat of great bodily harm together with a demand that the person perform the specific criminal act for which he is eventually charged. [340] (33 Ill. App.3d 770, 777 (Stengel, J., dissenting); People v. Terry (1975), 30 Ill. App.3d 713; People v. Davis (1974), 16 Ill. App.3d 846.) Additionally, where the defense of compulsion is successfully asserted the coercing party is guilty of the crime. LaFave and Scott, Handbook on Criminal Law 380 (1972).

It is readily discernible that prison escapes induced by fear of homosexual assaults and accompanying physical reprisals do not conveniently fit within the traditional ambits of either the compulsion or the necessity defense. However, it has been suggested that such cases could best be analyzed in terms of necessity. (LaFave and Scott, Handbook on Criminal Law 381-82 n. 2 (1972).) One commentator has stated that the relevant consideration should be whether the defendant chose the lesser of two evils, in which case the defense of necessity would apply, or whether he was unable to exercise a free choice at all, in which event compulsion would be the appropriate defense. Gardner, The Defense of Necessity and the Right to Escape from Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S. Cal. L. Rev. 110, 133 (1975).

In our view, the defense of necessity, as defined by our statute (Ill. Rev. Stat. 1971, ch. 38, par. 7-13), is the appropriate defense in the present case. In a very real sense, the defendant here was not deprived of his free will by the threat of imminent physical harm which, according to the Committee Comments, appears to be the intended interpretation of the defense of compulsion as set out in section 7-11 of the Criminal Code. (Ill. Ann. Stat., ch. 38, par. 7-11, Committee Comments, at 423-33 (Smith-Hurd 1972).) Rather, if defendant's testimony is believed, he was forced to choose between two admitted evils by the situation which arose from actual and threatened homosexual assaults and fears of reprisal. Though the defense of compulsion would be applicable in the unlikely event that a prisoner was coerced by the threat of imminent physical harm to perform the specific act of escape, no such [341] situation is involved in the present appeal. We, therefore, turn to a consideration of whether the evidence presented by the defendant justified the giving of an instruction on the defense of necessity.

The defendant's testimony was clearly sufficient to raise the affirmative defense of necessity. That defense is defined by statute (Ill. Rev. Stat. 1971, ch. 38, par. 7-13):

"Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct."

Defendant testified that he was subjected to threats of forced homosexual activity and that, on one occasion, the threatened abuse was carried out. He also testified that he was physically incapable of defending himself and that he feared greater harm would result from a report to the authorities. Defendant further testified that just prior to his escape he was told that he was going to be killed, and that he therefore fled the honor farm in order to save his life. Though the State's evidence cast a doubt upon the defendant's motives for escape and upon the reasonableness of defendant's assertion that such conduct was necessary, the defendant was entitled to have the jury consider the defense on the basis of his testimony. It is clear that defendant introduced some evidence to support the defense of necessity. As previously mentioned, that is sufficient to justify the giving of an appropriate instruction.

The State, however, would have us apply a more stringent test to prison escape situations. The State refers to the Lovercamp decision, where only a limited necessity defense was recognized. In Lovercamp, it was held that the defense of necessity need be submitted to the jury only where five conditions had been met. (43 Cal. App.3d 823, 831, 118 Cal. Rptr. 110, 115.) Those conditions are:

[342] "(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;

(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;

(3) There is no time or opportunity to resort to the courts;

(4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and

(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." 43 Cal. App. 823, 831-32, 118 Cal. Rptr. 110, 115.

The State correctly points out that the defendant never informed the authorities of his situation and failed to report immediately after securing a position of safety. Therefore, it is contended that, under the authority of Lovercamp, defendant is not entitled to a necessity instruction. We agree with the State and with the court in Lovercamp that the above conditions are relevant factors to be used in assessing claims of necessity. We cannot say, however, that the existence of each condition is, as a matter of law, necessary to establish a meritorious necessity defense.

The preconditions set forth in Lovercamp are, in our view, matters which go to the weight and credibility of the defendant's testimony. The rule is well settled that a court will not weigh the evidence where the question is whether an instruction is justified. (People v. Kalpak (1957), 10 Ill.2d 411, 425.) The absence of one or more of the elements listed in Lovercamp would not necessarily mandate a finding that the defendant could not assert the defense of necessity.

By way of example, in the present case defendant did [343] not report to the authorities immediately after securing his safety. In fact, defendant never voluntarily turned himself in to the proper officials. However, defendant testified that he intended to return to the prison upon obtaining legal advice from an attorney and claimed that he was attempting to get money from friends to pay for such counsel. Regardless of our opinion as to the believability of defendant's tale, this testimony, if accepted by the jury, would have negated any negative inference which would arise from defendant's failure to report to proper authorities after the escape. The absence of one of the Lovercamp preconditions does not alone disprove the claim of necessity and should not, therefore, automatically preclude an instruction on the defense. We therefore reject the contention that the availability of the necessity defense be expressly conditioned upon the elements set forth in Lovercamp.

In conclusion, we hold that under the facts and circumstances of the present case the defendant was entitled to submit his defense of necessity to the jury. It was, therefore, reversible error to give People's Instruction No. 9 to the jury and to refuse to give an appropriate instruction defining the defense of necessity, such as the instruction tendered by the defendant. In light of our disposition of this appeal, we need not consider contentions raised by defendant as to the propriety of his sentence.

Therefore, the judgment of the appellate court is affirmed, and the cause is remanded to the circuit court of Will County for further proceedings in accordance with the views expressed herein.

Affirmed and remanded.

MR. JUSTICE UNDERWOOD, dissenting:

My disagreement with my colleagues stems from an uneasy feeling that their unconditional recognition of [344] necessity as a defense to the charge of escape carries with it the seeds of future troubles. Unless narrowly circumscribed, the availability of that defense could encourage potential escapees, disrupt prison discipline, and could even result in injury to prison guards, police or private citizens. (People v. Whipple (1929), 100 Cal. App. 261, 279 P. 1008.) For these reasons courts have been quite reluctant to honor the defenses of duress, necessity or compulsion in prison escapes, and, until recent years, they were uniformly held insufficient to justify escapes. As Mr. Justice Stengel noted in his dissenting opinion in the appellate court: "`Until [People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (1974)], no reviewing court had ever upheld a defense of necessity in ordinary adverse situations such as threats from fellow inmates.' 1975 U. Ill. L.F. 271, 275." 33 Ill. App.3d 770, 777.

Lovercamp, however, imposed well-defined conditions which must be met before a defendant is entitled to have the defense of necessity submitted to the jury:

"* * * (1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;

(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;

(3) There is no time or opportunity to resort to the courts;

(4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and

(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110, 115.

I am not totally insensitive to the sometimes brutal and unwholesome problems faced by prison inmates, and [345] the frequency of sexually motivated assaults. Prisoner complaints to unconcerned or understaffed prison administrations may produce little real help to a prisoner or may actually increase the hazard from fellow inmates of whose conduct complaint has been made. Consequently, and until adequate prison personnel and facilities are realities, I agree that a necessity defense should be recognized. The interests of society are better served, however, if the use of that defense in prison-escape cases is confined within well-defined boundaries such as those in Lovercamp. In that form it will be available, but with limitations precluding its wholesale use.

It is undisputed that defendant here did not meet those conditions. He did not complain to the authorities on this occasion even though, following an earlier threat and demand by a fellow inmate that defendant submit to homosexual activity, defendant had requested and been granted a transfer to the minimum security honor farm. Nor did he immediately report to the authorities when he had reached a place of safety. Rather, he stole a truck some nine hours after his escape, drove to Chicago, and later drove to St. Charles, using the telephone to call friends in Canada. This conduct, coupled with his admitted intent to leave in order to gain publicity for what he considered an unfair sentence, severely strain the credibility of his testimony regarding his intention to return to the prison.

Since defendant's conduct does not comply with conditions such as those in Lovercamp which, in my judgment, should be required before a necessity defense may be considered by a jury, I believe the trial court did not err in its instructions.

I would accordingly reverse the appellate court and affirm the judgment of the trial court.

[909] Gaines C. Granade, Atlanta, Ga., for appellant.

William H. Hamilton, Jr., Joseph W. Hatchett, Asst. U. S. Attys., Jacksonville, Fla., Jerome M. Feit, Theodore George Gilinsky, Attys., Crim. Div., Dept. of Justice, Washington, D. C., for appellee.

Before JOHN R. BROWN, Chief Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, and MORGAN, Circuit Judges, En Banc.

BELL, Circuit Judge:

The significant assignments of error presented on this appeal center on the defense of insanity and the legal standards which are applicable thereto in a criminal trial in the federal courts. Because of the importance of the questions in light of developing medico-legal concepts in the field of behavioral science, this court, sua sponte, ordered en banc consideration of the case. We reverse for retrial on a definition of insanity more nearly attuned to present day concepts of psychiatry.

Blake was charged with bank robbery, 18 U.S.C.A. § 2113. He was arrested on the day following the robbery and his trial began some six months later. The evidence that he committed the robbery was overwhelming; his principal defense was insanity at the time of the commission of the offense. He was convicted and his motion for new trial denied. He was thereafter sentenced and this appeal followed.

[910]

I.

There are several assignments of error which have nothing to do with the insanity defense. Decision on these, with the exception of one, will be pretermitted in view of our reversal for new trial on one of the questions arising out of the insanity defense and the fact that the claimed errors are not likely to recur on subsequent trial.

The one non-insanity defense assignment of error to be considered is that Blake was denied due process of law because of the conditions of his pretrial incarceration. This assignment, too, is related to his mental condition but not to the insanity defense. He was unable to make bond and claims that he suffered physical discomforts to the extent that he was unable to assist his counsel in preparing a defense. This question was considered by the district court prior to the commencement of the trial. It appeared that counsel had complete access to Blake at all times. But, it was urged, this was of no avail since Blake's mental processes were diminished by the baneful conditions of his confinement. The facts were that Blake was examined by psychiatrists, pursuant to 18 U.S.C.A. § 4244, following his indictment and again shortly before trial and they were of the opinion that he was competent, able to understand the proceedings against him, and able to assist in his own defense. The court twice found that appellant was able to understand the proceedings against him and to cooperate in his own defense. These findings were supported in fact and law. Dusky v. United States, 1960, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824. Merrill v. United States, 5 Cir., 1964, 338 F.2d 763. The court in Dusky stated the test as "* * * whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." 362 U.S. at p. 402, 80 S.Ct. at p. 789.

There is no direct attack on Blake's competency to stand trial; rather we perceive that he seeks the same end. The indirect approach also fails. This assignment of error is without merit.

II.

The remaining assignments of error are three in number. One, appellant urges that the evidence created a reasonable doubt as to his sanity at the time of the commission of the offense and that the court thus erred in having failed to grant a judgment of aquittal. Two, it is alleged that the instructions to the jury as to the burden of proof on the issue of insanity were confusing and erroneous. Three, it is also asserted that the definition of insanity given the jury in charge for determining the issue of not guilty by reason of insanity was outmoded and prejudicial.

The contention that the evidence created a reasonable doubt requires a statement of the law as to the proof required on the issue of insanity and this discussion answers as well the assignment of error based on the charge on burden of proof. In Davis v. United States, 1895, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499, the court said:

"Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime. Giving to the prosecution, where the defence is insanity, the benefit in the way of proof of the presumption in favor of sanity, the vital question, from the time a plea of not guilty is entered until the return of the verdict, is whether, upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt. If the whole evidence, including that supplied by the presumption [911] of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offence charged." 160 U.S. at pp. 487-88, 16 S.Ct. at p. 358.

It follows that if there is some evidence supporting the claim of insanity, a conceded fact here, the issue must be submitted to the jury. Brock v. United States, 5 Cir., 1967, 387 F.2d 254, 257; Mims v. United States, 5 Cir., 1967, 375 F.2d 135, 140. This means only slight evidence. Lee v. United States, 5 Cir., 1937, 91 F.2d 326-330; Howard v. United States, 5 Cir., 1956, 232 F.2d 274, 276. It is true also, as Blake states, that the question of sufficiency of the evidence necessary to make an issue for the jury on the defense of insanity as well as whether the evidence establishes as a matter of law a reasonable doubt as to a defendant's sanity is for the court. Nagell v. United States, 5 Cir., 1968, 392 F.2d 934, 937; Bishop v. United States, 5 Cir., 1968, 394 F.2d 500, 501; United States v. Westerhausen, 7 Cir., 1960, 283 F.2d 844, 852; Fitts v. United States, 10 Cir., 1960, 284 F.2d 108.

The instructions given the jury by the district court here on the burden of proof accorded with the teaching of Davis, supra, and are free of error.

We come then to the sufficiency of evidence question. The district court followed the salutary principle, applicable in cases involving the defense of insanity, of admitting all evidence, both lay and expert, in any wise relevant or pertinent, to the issue of insanity. This is in keeping with the philosophy of letting in all facts which might be helpful to the jury in making the final determination of the criminal responsibility of the accused. See Mims v. United States, supra, 375 F.2d, at p. 143, where the court pointed to the sound rule that the issue of insanity should be determined by the jury from all of the evidence rather than from the opinion of experts alone.^[1]

This approach resulted in a wealth of raw material for the jury. In summary, the evidence respecting Blake's mental condition disclosed a well-to-do background, two years of college, and active duty with the Navy. In 1944, at the age of 21, and while in the Navy, he suffered an epileptic seizure and was thereafter given a medical discharge. He suffered disciplinary problems while in the Navy. He received electro-shock treatment in 1945, and following further mental difficulties in 1945 and 1946, entered a Veterans Administration hospital for a stay of two to three months in 1946. He taught school and coached for a time in 1946. He married in 1947 and three children were born in the ensuing years of that marriage. He was employed by his father in the construction business. Meanwhile, he became a heavy drinker.

In 1948 he was admitted to a private psychiatric institution in Connecticut where he remained for some two months and then returned to Miami to again work for his father. He thereafter received private outpatient care from psychiatrists, and between 1948 and 1954 spent time in at least three private psychiatric institutions and received further electro-shock treatment.

By 1954 he had left his father's business. From 1955 to 1960, his behavior was characterized by heavy drinking and irrational acts. He began the use of stimulants and drugs. In 1955 he received eight electro-shock treatments. He was adjudged incompetent in 1956 and placed under his father's guardianship to be placed in a private institution in lieu of commitment. He was discharged from the private institution [912] some six months later. He followed his psychiatrist to Indiana and was treated on an outpatient basis for about a year.

He was divorced from his first wife in 1958 and married again shortly afterwards. He was arrested in December 1959 for shooting his second wife. After spending a few days in jail, he was placed in a state mental hospital for several months and was finally placed on probation for the shooting offense. He continued to receive private psychiatric treatment, in and out of hospitals while on probation up to the spring of 1963. In fact, he spent six months in 1962 in a Florida state mental hospital after being declared incompetent and certified for treatment.

Having received a probated sentence in the shooting incident, and still being on probation, Blake in 1963 was sentenced to the Florida state penitentiary after being called up for violation of probation on a charge of aggravated assault. He was released from prison on September 14, 1965. While in prison he was hospitalized three or four times; saw the prison psychiatrist, and complained of blackouts. During this period of confinement he was divorced by his third wife. He married his fourth wife on December 2, 1965. The robbery in question occurred on December 6, 1965. To this point Blake's adult life had been one long round of confinement for mental problems and drinking when not confined.

The facts of the robbery are rather bizarre. Blake committed the robbery within a matter of two or three hours after making an attempt to obtain a legal hearing before the United States District Court for the Middle District of Florida in Jacksonville. Although not clear in the record, he was apparently seeking a writ of habeas corpus to relieve him of certain state prison release restrictions which kept him from going to the Miami area. He was registered at a Jacksonville hotel. He obtained a hotel employee as a chauffeur for the purpose of driving him about town. He stopped by a bar en route to the robbery, had several drinks and told a waitress that he would be back later with a large sum of money. The waitress jokingly asked him if he planned to rob a bank. He said, "That's possible."

The bank which was robbed was one of two under consideration. Each was a member of the bank group which he claimed had mishandled a trust which was established either by or for him several years earlier. His quarrel with the bank over the trust had gone on for some years and was bitter. He did not case the bank. He selected the bank, ordered his driver to take him to the bank and wait, walked in during rush hour, demanded the money, obtained it, and walked out. He had no trouble getting away immediately to Tampa in the same car and with the same driver. He returned from Tampa to Jacksonville the very next day with an attorney to press his petition for the writ in the district court and was arrested for the robbery.

There was psychiatric testimony that Blake was suffering from the mental disease of schizophrenia, marked with psychotic episodes, and that his behavior on the occasion of the robbery indicated that appellant was in a psychotic episode. This was described as a form of severe mental illness. There was testimony that in such a period his actions would not be subject to his will. On the other hand, there was psychiatric testimony that he had a sociopathic personality and was not suffering from a mental disease.

As stated, the burden was on the prosecution, once the hypothesis of insanity was established, to prove beyond a reasonable doubt that Blake was sane at the time of the commission of the crime, and was thus possessed of the requisite criminal intent. The question posed is whether the evidence adduced was sufficient to make a jury question. We hold that it was. Reasonable men would not necessarily possess a reasonable doubt as to his sanity at the time of the robbery when considered in the context of the facts. It can hardly be [913] doubted that he was less than normal mentally, whether his problem be termed a disease or disorder or a sociopathic personality. In any event, under these facts, one issue for the jury was whether Blake had a mental disease or defect; if so, another was whether it met the legal test of insanity. Still another was the relationship of such mental defect to the crime, a question of causation. Cf. Mims v. United States, supra, 375 F.2d, at p. 142; Birdsell v. United States, 5 Cir., 1965, 346 F.2d 775, 781. We reiterate that the government had the burden of establishing the requisite mental capacity beyond a reasonable doubt; conversely, Blake was not entitled to a directed verdict of acquittal.

III.

We come then to the definition of insanity given in charge. The district court charge was based on the dictum in Davis v. United States, on the second appearance of the case in the Supreme Court, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750 (1897). This is the standard which this circuit has followed. Howard v. United States, supra, 232 F. 2d 274, 275 (en banc), affirming 229 F. 2d 602. See also Carter v. United States, 5 Cir., 1963, 325 F.2d 697 (en banc), cert. den., 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed.2d 308, where the propriety of the Davis standard was affirmed by an equally divided court. For factual reasons we declined to revisit the issue in Birdsell v. United States, supra, 346 F.2d at p. 781, fn. 8.

We are asked once again to review the Davis definition to the end of holding that the district court committed reversible error in giving it in charge. Blake urges that such a charge is unduly restrictive and that it was prejudicial to him. The government denies that the charge was prejudicial but states that the Davis definition could be improved by converting it into more up-to-date language. This overlooks the fact that the district court here updated the language. The real issue is the government's opposition to the substitution of a standard or measure of substantiality for the complete lack of mental capacity measure of Davis. It urges that "substantial" is an imprecise and phantomlike term. The other side of the coin is that rarely if ever is one completely lacking in mental capacity. The government insists on the absolutes of Davis. The district court, following our decisions, charged the absolutes.

These positions point up the difference between the Davis standard and that of the Model Penal Code as adopted by the American Law Institute. The Davis standard is as follows:

"The term `insanity' as used in this defence means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it and able to distinguish between right and wrong and know that the act is wrong, yet his will, by which I mean the governing power of his mind, has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control." 165 U.S. at 378, 17 S.Ct. at 362.

Section 4.01 of the ALI Model Penal Code is as follows:

"(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

"(2) As used in this Article, the terms `mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."

[914] The federal courts of appeals have given extensive consideration to the problem of adapting the definition of insanity as it is to be applied in administering the defense of insanity to the expanding knowledge available from medical science. One prime question has been that of a test couched in terms of substantial lack of mental capacity as distinguished from a complete lack of capacity. The dissenting opinions in our Carter case, supra, 325 F.2d 697, and the decisions of other circuits contain elaborate discussions of the problem of definition beginning with McNaghten's Rule, 1843, 10 Cl. and F. 200, 210, 8 Eng.Rep. 718, 722. They are filled with references to the applicable treatises, both of law and medicine.

The upshot is that the Second, Fourth, Sixth, Seventh and Tenth Circuits have adopted the substantiality test of the Model Penal Code. United States v. Freeman, 2 Cir., 1966, 357 F.2d 606; United States v. Chandler, 4 Cir., 1968, 393 F.2d 920 (en banc); United States v. Smith, 6 Cir., 1968, 404 F.2d 720 United States v. Shapiro, 7 Cir., 1967, 383 F.2d 680 (en banc); Wion v. United States, 10 Cir., 1963, 325 F.2d 420 (en banc). The District of Columbia Circuit has adopted a substantiality test although not stated in Model Penal Code terms. Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, as modified by McDonald v. United States, 1962, 114 U.S.App.D.C. 120, 312 F.2d 847 (en banc): "* * * the jury should be told that a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls." 312 F.2d at p. 851. The same is true of the Third Circuit. United States v. Currens, 3 Cir., 1961, 290 F.2d 751:

"* * * The jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated." 290 F.2d at 774.

The First and Ninth Circuits have open minds on the question. Amador Beltran v. United States, 1 Cir., 1962, 302 F.2d 48; Ramer v. United States, 9 Cir., 1968, 390 F.2d 564. On the other hand, the Eighth Circuit in Pope v. United States, 8 Cir., 1967, 372 F.2d 710 (en banc), reversed on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), discussed all of the current standards and concluded that the possibility of gradations in capacity would be met by the following standard:

We hold * * * that if the trial court freely admits all evidence which appears to be relevant and if the charge appropriately embraces and requires positive conclusions by the jury as to the defendant's cognition, his volition, and his capacity to control his behavior, and if these three elements of knowledge, will and choice are emphasized in the charge as essential and critical constituents of legal sanity, we shall usually regard the charge as legally sufficient. 372 F.2d at 736.

The facts of this case point up the difference in the standards. Here the facts are such, read favorably to the government as they must be, Glasser v. United States, 1942, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680, as not to show complete mental disorientation under the absolutes of Davis. The record does show evidence which, if believed, would indicate that Blake suffered from a severe mental disease which the jury might have found impaired his control over the conduct in question. He could not prevail under a Davis charge. He might have prevailed under a substantial lack of capacity type charge.

We think that a substantiality type standard is called for in light of current knowledge regarding mental illness. A person, as Blake here, may be a schizophrenic or may merely have a sociopathic personality. The evidence could go either way. He may or may not have [915] been in a psychotic episode at the time of the robbery. But, he was not unconscious, incapable of distinguishing right and wrong nor was his will completely destroyed in the terms of Davis definition. Modifying the lack of mental capacity by the adjective "substantial", still leaves the matter for the jury under the evidence, lay and expert, to determine mental defect vel non and its relationship to the conduct in question. Mims v. United States, supra.

We have concluded that this is an appropriate case for adopting a definition of insanity which will serve as a vehicle to enable the court and jury to give effect to the defense of insanity in terms of what is now known about diseases of the mind. We conclude also that such a definition must be in less than the absolute terms of Davis. A substantial lack of capacity is a more nearly adequate standard. We treat the Davis test as a dictum and in no event is it a stricture on our supervisory power to adopt a new standard. On supervisory power, see La Buy v. Howes Leather Co., 1957, 352 U. S. 249, 254-260, 77 S.Ct. 309, 1 L.Ed.2d 290: Thomas v. United States, 5 Cir., 1966, 368 F.2d 941, 946-947.^[2]

The question remains as to the specifics of the standard. The federal courts of appeals as well as the state courts serve as separate laboratories in the development of the law, and it is at once apparent that we are somewhat late in this field. Much can be gained from what has been developed in the other laboratories. As noted, the ALI Model Penal Code standard in varying forms has been adopted in five of the federal circuits. Moreover, that same substantiality standard has been adopted in five states.^[3]

We have carefully considered the approach taken by the Eighth Circuit in Pope v. United States, supra, of requiring a charge on the basics of cognition, volition, and capacity to control behavior, with the body of the charge to be left to the district court. There is much merit in not requiring a straitjacket charge but there is also merit in the idea of uniformity. We have concluded to adopt the Model Penal Code standard and to require it or an approximation of it as a matter of uniformity in this circuit. We think it lends itself as a uniform standard.

At the same time, we must notice that the circuits adopting the Model Penal Code standard have varied it in some degree. For example, the Sixth Circuit expressly refused to adopt the second paragraph of the Model Penal Code standard, § 401(2), Smith v. United States, supra, fn. 8, while the Second, Fourth, and Seventh Circuits did adopt the contents of the paragraph as a part of the standard. United States v. Freeman, supra; United States v. Chandler, supra; United States v. Shapiro, supra. The Tenth Circuit did not address itself to the question. Wion v. United States, supra. We have determined to follow the Second, Fourth, and Seventh Circuit opinions in this regard.

We follow the Second and Seventh Circuits, in the same opinions, in substituting the alternative term "wrongfulness" [916] as used in the first paragraph of the Model Penal Code for "criminality". The Second Circuit concluded that it was a broader term in that it would include the case where the perpetrator appreciated that his conduct was criminal but, because of a delusion, believed it to be morally justified. United States v. Freeman, supra, 357 F.2d at p. 622, fn. 52.

In sum, we adopt the following standard as a definition for use in defining insanity in this circuit where the defense of insanity is in issue:

"(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

"(2) As used in this Article, the terms `mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."

This leaves two questions: First, shall Blake have the benefit of the new standard? We hold that he should. More than the power to avoid rendering an advisory opinion is involved. Stovall v. Denno, 1967, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Here we think that Blake was prejudiced by the Davis definition of insanity given in charge to the extent of being entitled to a new trial under the new definition.

Second, is the new standard to apply retroactively? The Second and Sixth Circuits have concluded that the new standard would apply prospectively only except as to those cases involving the defense of insanity which were then on appeal. United States v. Tarrago, 2 Cir., 1968, 398 F.2d 621; United States v. Smith, supra. We adopt the same rule. The new definition of insanity is to apply prospectively only, i. e., from the date of this decision, except as to those cases now on appeal.

Reversed and remanded for further proceedings not inconsistent herewith.

[1] The court did not denigrate the experts or their conclusions; rather the court noted the value of their testimony in explaining "* * * the disease and its dynamics, that is, how it occurred, developed, and affected the mental and emotional processes of the defendant," citing Carter v. United States, 102 U.S. App.D.C., 227, 1957, 252 F.2d 608 at p. 617.

[2] We make this change in spite of the government's argument that there are no confinement procedures, save in the District of Columbia, for federal court use when a defendant is acquitted on the defense of insanity. To make matters worse, there is no specific defense of insanity. The Congress is aware of this fact. United States v. Freeman, supra, 357 F.2d 606, 626-627, fn. 61; Tydings, A Federal Verdict of Not Guilty by Reason of Insanity and a Subsequent Commitment Procedure, 27 Md.L.Rev. 133 (1967). The Separation of Powers doctrine requires that a court act within its scope; indeed, it is in keeping with the doctrine that courts may assume that the Executive and Congress will do whatever they deem necessary in the interest of society, and that the views of all three branches on that interest will coincide.

[3] Ill.Crim.Code, ch. 38, § 6-2 (1961); Md. Annot.Code, Art. 59, § 9(a) (1968); Vt. St.Ann. Tit. 13, § 4801 (1959); N.Y. Penal L., § 30.05 (McKinney's Consol. Laws, c. 40, 1967); Commonwealth v. McHoul, 1967, 352 Mass. 544, 226 N.E.2d 556.

[244] Julian R. Murray, Jr., New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., Patrick J. Fanning, Harry W. McSherry, Asst. U.S. Attys., New Orleans, La., Sidney Glazer, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Donald N. Bersoff, Washington, D.C., for American Psychological Assoc., amicus curiae.

Richard P. Lynch, Director, American Bar Ass'n, Washington, D.C., Wallace D. Riley, President, American Bar Ass'n, Chicago, Ill., for American Bar Ass'n, amicus curiae.

Frank Maloney, Austin, Tex., for Nat. Assoc. of Crim. Defense Lawyers, amicus curiae.

Before CLARK, Chief Judge, BROWN, GEE, RUBIN, GARZA, REAVLEY, POLITZ, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges^[*].

GEE, Circuit Judge:

Defendant Robert Lyons was indicted on twelve counts of knowingly and intentionally securing controlled narcotics by misrepresentation, fraud, deception and subterfuge in violation of 21 U.S.C. § 843(a)(3) (1976) and 18 U.S.C. § 2 (1976). Before trial Lyons informed the Assistant United States Attorney that he intended to rely on a defense of insanity: that he had lacked substantial capacity to conform his conduct to the requirements of the law because of drug addiction. See Fed.R.Crim.P. 12.2(a). Lyons proffered evidence^[1] that in 1978 he began to suffer from several painful ailments, that various narcotics were prescribed to be taken as needed for his pain, and that he became addicted to these drugs. He also offered to present expert witnesses who would testify that his drug addiction affected his brain both physiologically and psychologically and that as a result he lacked substantial capacity to conform his conduct to the requirements of the law.

In response to the government's motion in limine, the district court excluded any evidence of Lyon's drug addiction, apparently on the ground that such an addiction could not constitute a mental disease or defect sufficient to support an insanity defense. A panel of this Court reversed, holding that it was the jury's responsibility [245] to decide whether involuntary drug addiction could constitute a mental disease or defect depriving Lyons of substantial capacity to conform his conduct to the requirements of the law. United States v. Lyons, 704 F.2d 743 (5th Cir.1983). We agreed to rehear the case en banc. Id. at 748.^[2]

I.

For the greater part of two decades our Circuit has followed the rule that a defendant is not to be held criminally responsible for conduct if, at the time of that conduct and as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Blake v. United States, 407 F.2d 908, 916 (5th Cir.1969) (en banc).

Today the great weight of legal authority clearly supports the view that evidence of mere narcotics addiction, standing alone and without other physiological or psychological involvement, raises no issue of such a mental defect or disease as can serve as a basis for the insanity defense. Bailey v. United States, 386 F.2d 1, 3-4 (5th Cir.1967), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (1968). Accord, United States v. Coffman, 567 F.2d 960, 963 (10th Cir.1977); United States v. Moore, 486 F.2d 1139, 1181 (D.C.Cir.) (en banc), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Stevens, 461 F.2d 317, 321 (7th Cir.1972); Gaskins v. United States, 410 F.2d 987, 989 (D.C.Cir.1967); Green v. United States, 383 F.2d 199, 201 (D.C.Cir.1967), cert. denied, 390 U.S. 961, 88 S.Ct. 1061, 19 L.Ed.2d 1158 (1968); United States v. Freeman, 357 F.2d 606, 625 (2d Cir.1966); Berry v. United States, 286 F.Supp. 816, 820 (E.D.Pa.1968), rev'd on other grounds, 412 F.2d 189 (3d Cir.1969). Cf. United States v. Romano, 482 F.2d 1183, 1196 (5th Cir.1973), cert. denied sub nom. Yassen v. United States, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753 (1974) (being involuntarily under the influence of drugs at the time of the crime is not a legal equivalent of insanity). See also Fingarette, Addiction and Criminal Responsibility, 84 Yale L.J. 413, 424-25 (1975) ("there is no consensus in the medical profession that addiction is a mental disease").^[3]

There are a number of reasons why. In the first place, there is an element of reasoned choice when an addict knowingly acquires and uses drugs; he could instead have participated in an addiction treatment program. Moore, 486 F.2d at 1183 (opinion of Leventhal, J.). A person is not to be excused for offending "simply because he wanted to very, very badly." Bailey, 386 F.2d at 4. Second, since the defense of insanity is "essentially an acknowledgement on the part of society that because of mental disease or defect certain classes of wrongdoers are not properly the subjects of criminal punishment," Freeman, 357 F.2d at 625, it seems anomalous to immunize narcotics addicts from other criminal sanctions when Congress has decreed severe penalties for mere possession and sale of narcotics. Id. In addition, Congress has dealt with the problem of responsibility of narcotics addicts for their crimes by providing for civil commitment and treatment of addicts in lieu of prosecution or sentencing. Bailey, 386 F.2d at 4. See, [246] e.g., 18 U.S.C. §§ 4251-4255 (1976); 28 U.S.C. §§ 2901-2906 (1976).

Finally, what definition of "mental disease or defect" is to be employed by courts enforcing the criminal law is, in the final analysis, a question of legal, moral and policy — not of medical — judgment.^[4] Among the most basic purposes of the criminal law is that of preventing a person from injuring others or, perhaps to a lesser degree, himself. This purpose and others appropriate to law enforcement are not necessarily served by an uncritical application of definitions developed with medical considerations of diagnosis and treatment foremost in mind. Cf. Powell v. Texas, 392 U.S. at 540-41, 88 S.Ct. at 2158-59 (Black, J., concurring). Indeed, it would be coincidental indeed should concepts deriving from such disparate sources correspond closely, one to the other. Thus it is, for example, that the law has not greatly concerned itself with medical opinion about such mental states as accompany the commission of crimes of passion or of those done while voluntarily intoxicated; whatever that opinion may be, policy considerations have been thought to forbid its cutting much of a figure in court.

Contravening the broad thrust of the authorities cited above, the panel opinion appears to suggest that "involuntary" drug addiction can constitute a "mental disease or defect" bearing on the defendant's criminal responsibility. 704 F.2d at 747. The panel believed itself bound to that rule by such a holding in United States v. Bass, 490 F.2d 846 (5th Cir.1974). In so concluding the panel acted with obvious reluctance but with fidelity to the principle that one panel of our court does not overrule another. Today, sitting en banc, we overrule Bass insofar as it may be read to hold that mere drug addiction, voluntary or involuntary, can be a mental disease for legal purposes. Insofar, however, as it countenanced the receipt of evidence of drug addiction in connection with Bass's genuine mental disease — chronic anxiety — to which it contributed, we find no fault with the opinion.

Although mere narcotics addiction is not itself to be acknowledged as a mental disease or defect, evidence of narcotics addiction has been received by some courts as evidence of such an underlying condition. Green v. United States, 383 F.2d 199, 201 (D.C.Cir.1967), cert. denied, 390 U.S. 961, 88 S.Ct. 1061, 19 L.Ed.2d 1158 (1968). In addition, if addiction has caused actual physical damage to the structures of a defendant's body, evidence of that addiction has been admitted to show any mental defect resulting from that damage. Cf. Brinkley v. United States, 498 F.2d 505, 511-12 (8th Cir.1974) (remanding to explore possible physiological and psychological effects of long term LSD use on appellant and whether these effects might amount to insanity).

We view the reasoning of such rulings as Green with profound misgivings. To us it seems to rest on the proposition that, assuming drug addiction itself is neither a mental disease nor a defect, yet the two are often to be found in association, so that an addicted person is more likely to suffer from some mental disorder than is one who [247] is not addicted.^[5] By a parity of reasoning, since combat veterans as a group are self-evidently more likely to have suffered the loss of a physical member than is the populace at large, evidence of whether a party is a combat veteran should be received on the issue whether he has lost a leg. Or, to take a less extreme example, since because of light skin pigmentation persons of Scandinavian ancestry are more subject to skin cancer than are others, the family tree of a suitor should be received in evidence when his skin cancer is at legal issue. The flaw in both illustrations seems evident: where evidence bearing directly on a legal question is available, that involving tangential matters, even though perhaps logically relevant in theory, is of small practical value.^[6]

Our review of numerous records over the course of years has revealed no dearth of experts ready and willing to testify squarely on the issue of insanity in criminal trials: direct evidence on the issue seems all but too readily available. Since this is so, receiving evidence of drug addiction in addition seems to us an exercise seldom likely to prove more probative than prejudicial in practice. See Rule 403, Federal Rules of Evidence.^[7]

Nor do we see how matters are clarified by reference to the condition of addiction as one involving "psychological damage" to the addict, e.g., Brinkley v. United States, supra. As nearly as we can determine, the psychological condition so described is simply one of drug addiction to one degree or another, a condition that we have already declined to view as a mental disease or defect for legal purposes. An actual drug-induced or drug-aggravated psychosis, or physical damage to the brain or nervous system would, however, be another matter.

We do not doubt that actual physical damage to the brain itself falls within the ambit of "mental disease or defect." To refuse to recognize that a congenital microcephalic, or one who has suffered, say, extensive brain damage from a gunshot wound or other physical trauma, may be thereby rendered unable to appreciate the character of his conduct as wrongful would be presumptuous. Here, within the limits of appropriate legal and policy considerations, the medical model must have its day. The same is true of the question whether such organic brain pathology or psychosis can be caused by drugs.

Lyons asserted by his proffer of evidence that his drug addiction caused physiological damage to his brain and that this damage caused him to lack substantial capacity to conform his conduct to the requirements of the law. 704 F.2d at 746. Since he did so, he should — under our subsisting Blake test — have been allowed to introduce evidence of any physical brain damage and consequent mental disease or defect. Because the proffer offers evidence tending to suggest such damage, that evidence should have been submitted to the jury. Blake, 407 F.2d at 911. And although we today withdraw our recognition of the volitional prong of Blake — that as to which such evidence has usually been advanced — we also conclude that should Lyons wish to offer such evidence in an attempt to satisfy the remaining cognitive prong, fairness demands that we afford him an opportunity to do so.

II.

Because the concept of criminal responsibility in the federal courts is a congeries of judicially-made rules of decision based on common law concepts, it is usually [248] appropriate for us to reexamine and reappraise these rules in the light of new policy considerations. Wion v. United States, 325 F.2d 420, 425 (10th Cir.1963). We last examined the insanity defense in Blake v. United States, 407 F.2d 908 (5th Cir.1969) (en banc), where we adopted the ALI Model Penal Code definition of insanity: that a person is not responsible for criminal conduct if, at the time of such conduct and as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Id. at 916. Following the example of sister circuits, we embraced this standard in lieu of our former one, defined in Howard v. United States, 232 F.2d 274, 275 (5th Cir.1956) (en banc),^[8] because we concluded that then current knowledge in the field of behavioral science supported such a result. 407 F.2d at 909, 914-15. Unfortunately, it now appears our conclusion was premature — that the brave new world that we foresaw has not arrived.

Reexamining the Blake standard today, we conclude that the volitional prong of the insanity defense — a lack of capacity to conform one's conduct to the requirements of the law — does not comport with current medical and scientific knowledge, which has retreated from its earlier, sanguine expectations. Consequently, we now hold that a person is not responsible for criminal conduct on the grounds of insanity only if at the time of that conduct, as a result of a mental disease or defect, he is unable to appreciate the wrongfulness of that conduct.^[9]

We do so for several reasons. First, as we have mentioned, a majority of psychiatrists now believe that they do not possess sufficient accurate scientific bases for measuring a person's capacity for self-control or for calibrating the impairment of that capacity. Bonnie, The Moral Basis of the Insanity Defense, 69 ABA J. 194, 196 (1983).^[10] "The line between an irresistible impulse and an impulse not resisted is probably no sharper than between twilight and dusk." American Psychiatric Association Statement on the Insanity Defense, 11 (1982) [APA Statement]. Indeed, Professor Bonnie states:

There is, in short, no objective basis for distinguishing between offenders who were undeterrable and those who were merely undeterred, between the impulse that was irresistible and the impulse not resisted, or between substantial impairment of capacity and some lesser impairment.

Bonnie, supra, at 196.^[11]

[249] In addition, the risks of fabrication and "moral mistakes" in administering the insanity defense are greatest "when the experts and the jury are asked to speculate whether the defendant had the capacity to `control' himself or whether he could have `resisted' the criminal impulse." Bonnie, supra, at 196. Moreover, psychiatric testimony about volition is more likely to produce confusion for jurors than is psychiatric testimony concerning a defendant's appreciation of the wrongfulness of his act. APA Statement at 12. It appears, moreover, that there is considerable overlap between a psychotic person's inability to understand and his ability to control his behavior. Most psychotic persons who fail a volitional test would also fail a cognitive test, thus rendering the volitional test superfluous for them. Id.^[12] Finally, Supreme Court authority requires that such proof be made by the federal prosecutor beyond a reasonable doubt, an all but impossible task in view of the present murky state of medical knowledge. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895).^[13]

One need not disbelieve in the existence of Angels in order to conclude that the present state of our knowledge regarding them is not such as to support confident conclusions about how many can dance on the head of a pin.^[14] In like vein, it may be that some day tools will be discovered with which reliable conclusions about human volition can be fashioned. It appears to be all but a certainty, however, that despite earlier hopes they do not lie in our hands today. When and if they do, it will be time to consider again to what degree the law should adopt the sort of conclusions that they produce. But until then, we see no prudent course for the law to follow but to treat all criminal impulses — including those not resisted — as resistible. To do otherwise in the present state of medical knowledge would be to cast the insanity defense adrift upon a sea of unfounded scientific speculation, with the palm awarded case by case to the most convincing advocate of that which is presently unknown — and may remain so, because unknowable.

III.

Thus, Lyons' claim that he lacked substantial capacity to conform his conduct to the requirements of the law will not raise the insanity defense. It would be unfair, however, to remit him retroactively [250] to our newly restricted insanity defense without allowing him the opportunity to plan a defense bearing its contours in mind. Consequently, we vacate his conviction and remand for a new trial in accordance with our new insanity standard. As for other cases, today's holding shall have prospective application only, commencing thirty days from the date of its publication.

VACATED and REMANDED.

ALVIN B. RUBIN and JERRE S. WILLIAMS, Circuit Judges, with whom POLITZ, TATE, and HIGGINBOTHAM, Circuit Judges, join, concurring in part and dissenting in part:

The sole issue raised by the appellant, Lyons, and by the appellee, the United States, is whether iatrogenic narcotics addiction alone may constitute a mental disease or defect sufficient to support the defense of insanity in a criminal prosecution. The court ranges far beyond this narrow issue. It uses this case as a vehicle to reconsider and to redefine the scope of the insanity defense, although such a reconsideration and redefinition was not asked for in the district court or in this court by either of the parties. We are constrained to dissent from this serious misadventure in the judicial process.

We agree with the conclusion the court reaches in Part I of its opinion that drug addiction alone is insufficient to support an insanity defense. We reach that conclusion, however, through a different route, which does not require the overruling of United States v. Bass, 490 F.2d 846 (5th Cir.1974).

A review of the precedents in this circuit concerning narcotics addiction and the insanity defense must begin with Bailey v. United States, 386 F.2d 1 (5th Cir.1967), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (1968). In Bailey, the defendants were charged with various crimes relating to the purchase and possession of narcotics. As in Lyons' case, their theory was that addiction is itself a disease or defect that creates a compulsion to procure and to use narcotics, and that one acting under such a compulsion should not be held criminally responsible. Id. at 3. Their proffer consisted of their testimony that they were "addicted to narcotics, had been unable to cure [their] addiction, and could not resist the daily use of the [narcotics]." 386 F.2d at 3. At that time this Circuit was still applying the earlier insanity rule, as articulated by the Supreme Court in Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 362, 41 L.Ed. 750 (1897), derived from M'Naghten's Case, 8 Eng.Rep. 718 (1843). That test, in essence, exculpates a defendant who, because of mental disability, is incapable of distinguishing between right and wrong, or is unable to control his conduct. See Blake v. United States, 407 F.2d 908, 913 (5th Cir.1969) (en banc). While the Bailey defendants urged us to adopt the American Law Institute's Model Penal Code standard, we held that the case was not "a proper vehicle for reexamination of [the appropriate insanity standard] for the reason that the issue of criminal responsibility was not raised by the evidence." 386 F.2d at 3.

Our opinion in Bailey recognized that, according to the weight of authority, "a mere showing of narcotics addiction, without more, does not constitute `some evidence' of mental disease or insanity so as to raise the issue of criminal responsibility." Id. at 4 (quoting Heard v. United States, 348 F.2d 43, 44 (D.C.Cir.1965)). Moreover, we expressed doubt that addiction to narcotics actually deprived the addict of the ability to obey the law: "It would appear that an element of reasoned choice yet exists when an addict knowingly violates the law in acquiring and using drugs. One is not excused for offending simply because he wanted to very, very badly." 386 F.2d at 4. Finally, we noted in Bailey that Congress had passed laws designed to assist the criminal offender addicted to narcotics. The Narcotic Addict Rehabilitation Act of 1966,^[1] provides for civil commitments of addicts or for sentences [251] requiring treatment. Because Congress had thus acted specifically to define the proper treatment of narcotics addicts convicted of crime, we were reluctant in Bailey to fashion a different remedy through the insanity defense. Bailey, therefore, stands for the proposition that narcotics addiction alone is insufficient evidence of a mental disease or defect to raise the issue of criminal responsibility. Cf. Doughty v. Beto, 396 F.2d 128, 130 (5th Cir.1968) (evidence of alcoholism, without more, does not create constitutional defense for one convicted of theft).

The majority opinion suggests that Bailey may have been limited or overruled by our later decisions in Blake v. United States, 407 F.2d 908 (5th Cir.1969) (en banc), and United States v. Bass, 490 F.2d 846 (5th Cir.1974). The members of the panel that initially heard this case shared that view, thought the interpretation undesirable, and suggested en banc review to modify or to clarify the holdings of Blake and Bass. We need not here discuss the exact reach of those two decisions because, sitting en banc, we are not bound by them. Whatever might be their scope as applied to other contentions, however, neither Blake nor Bass is inconsistent with the Bailey court's conclusion that addiction alone is not enough to raise the insanity defense. And that is the sole issue pressed before us: that evidence of iatrogenic addiction suffices to require presentation of the issue of criminal responsibility to a jury.

In Blake we adopted the Model Penal Code definition of the insanity defense. We did not, of course, discuss whether proof of narcotics addiction of itself would suffice under our newly adopted test. But Blake did not qualify Bailey. In Bailey we had expressly refused to consider adopting the Model Penal Code standard, not because we disapproved of it in any way, but because we concluded that under any test narcotics addiction alone was insufficient to constitute insanity and to negate criminal responsibility. 386 F.2d at 3.

Moreover, in United States v. Tsoi Kwan Sang, 416 F.2d 306 (5th Cir.1969), decided after Blake, we reaffirmed our holding in Bailey. We held that the defendant had produced evidence sufficient to warrant submitting the issue of insanity to the jury. We stated specifically that "the opinion of the court ... did not conflict with [Bailey because] ... the evidence of insanity [went] well beyond mere addiction." Id. at 310 (on petition for rehearing and rehearing en banc).

United States v. Bass, supra, overruled at least in part by the majority opinion, did not involve a claim of an insanity defense based upon narcotics addiction alone. The defendant suffered from an acutely painful and incurable disease. Around the time of the indictment, Bass had suffered several fevers that, in the opinion of one doctor, had inflicted temporary brain damage. Bass suffered from "chronic anxiety," and had discussed suicide. We held that he had made an initial showing of insanity sufficient to shift the burden of proof to the government. But we did not rest our holding on narcotics addiction alone. Indeed, we did not even rely primarily on narcotics addiction:

Both treating doctors testified that Bass' chronic anxiety, which was caused by an awareness that his disease was incurable and that he would forever be dependent on Demerol for relief from pain, constituted a `mental disease or defect' as required by the Blake test.

Id. at 850 (emphasis added). Our holding in Bass, therefore, is not inconsistent with Bailey. As in Tsoi Kwan Sang, the evidence of insanity went "well beyond mere addiction."

These cases establish a relatively clear standard. Bailey holds that narcotic addiction alone is insufficient to raise the insanity defense. Tsoi Kwan Sang and Bass make it clear that addiction, when accompanied by evidence of mental disease or defect, may suffice for an initial showing of insanity.

It thus is well-established in this Circuit, as well as elsewhere, that narcotics addiction [252] alone does not constitute a mental disease or defect for purposes of the insanity defense. If this were not already clearly the law of the circuit, we would join in an unequivocal clarification en banc. But that would not alter the result as to Lyons. The contention he presents is that iatrogenic addiction stands on a different footing from voluntary addiction. Our opinion in Bass did not rely on the involuntariness of the defendant's addiction. Because the extent of the mental incapacity represented by narcotics addiction is exactly the same whether voluntarily or involuntarily induced, we see no reason to create a distinction on that basis. As we said in Bailey, "[i]t would appear that an element of reasoned choice yet exists when an addict knowingly violates the law in acquiring and using drugs." 386 F.2d at 4.

We do not, therefore, dissent from the basic conclusion reached by the majority in Part I of its opinion that evidence of narcotics addiction standing alone is not sufficient to warrant a trial court's submitting an insanity defense to the jury. Nor, had the argument been made on appeal that the proffer's purpose was to show the existence of a mental disease or defect, to be evaluated under the Bass standard, would we dissent from a reversal for the purpose of receiving that evidence. But these statements establish the grounds for our dissent: Having decided the question that disposes of this case, the majority undertakes to examine an issue neither raised in the trial court, tendered by the parties on appeal, nor suggested by the panel.

This case simply does not require redefinition of the insanity defense. The proffer did submit that Lyons' drug usage might have affected his brain "both physiologically as well as psychologically," and this, conceivably, might be read to suggest the existence of a disease or defect. But Lyons did not make this contention on appeal, and the government did not choose to focus its reply to Lyons' appeal on the impropriety of the existing standard; it chose instead to argue that he had failed to offer evidence sufficient to meet that standard.^[2] The government's position was surely correct. Lyons' proffer did no more than state the undisputed conclusion that drug consumption has an impact on the brain's physiology. Were the presence of some effects on the central nervous system dispositive, then every addict would be able to establish an insanity defense. Cf. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (DSM III) 163 (3d ed. 1980) (individuals who have substance use disorder will, at times, manifest direct acute or chronic effects of substances on the central nervous system). The majority's affirmation of the rule that addiction alone does not invoke the insanity defense therefore disposes of Lyons' appeal.

The majority's strained reading of the record and caselaw hardly justifies its self-appointed mission of redefining the insanity defense. That mission is as unwise as it is unnecessary. As the government's lawyer observed during oral argument to the en banc court, this is an inappropriate case and an inopportune time for such an exercise.

There is now substantial ferment concerning the insanity defense. See the summary in Dutile & Singer, What Now for the Insanity Defense?, 58 Notre Dame L.Rev. 1104 (1983). Congress is evaluating proposals for change as it considers comprehensive legislation to revise the United States Criminal Code. See, e.g., 41 Cong. Quarterly 633 (1983) (administration proposals). The American Bar Association House of Delegates, at its meeting in February 1983, established an official American Bar Association policy recommending a change in the standards and burden of proof with respect to the insanity defense. [253] 69 A.B.A.J. 426 (1983). A further change in American Bar Association policy is anticipated to be on the House of Delegates agenda at the annual meeting of the Association in August 1984. This proposal would revise or define the words "mental disease or defect". Part II of the opinion for the Court adequately demonstrates additional controversy as to possible modifications of the insanity defense. Considering all of these circumstances, including the possibility of Congressional action, the court's eagerness to depart from the standards that have been adopted in every federal court over almost two decades^[3] is especially inappropriate.

When the evidence in a case squarely raises a question concerning the continued applicability of the volitional test to the definition of insanity, it will be our duty to consider that issue. But the policies embodied in the prerequisites to the insanity defense are too fundamental and too critical to be resolved in the abstract. Considering it sua sponte en banc, the majority demonstrates a complete lack of appropriate judicial self-restraint. Concurring in Part I of the opinion, we would affirm the result reached by the district court. We dissent from all of the obiter dicta that constitutes the rest of the opinion.

Because the majority opinion does redefine the standards that determine criminal responsibility, Judge Rubin will hereafter file a dissent from the adoption of a test that would permit the criminal law to be used to punish persons who lack any ability to conform their conduct to the law, and would thus by judicial redefinition convert our criminal legal system into one of punishment without fault.

JOHNSON, Circuit Judge, dissenting.

This dissent is necessitated by the mischaracterization of the panel opinion by both the majority and the dissenting opinion of Judges Rubin and Williams; by the mischaracterization of Lyons' contentions on appeal by both opinions; and because of the sincere belief that the Court is here choosing a particularly inopportune time to delve into the quagmire of the insanity defense.

The issue on appeal in the Lyons case was quite clear; it was not whether Lyons was indeed insane. The issue was simply whether Lyons should have been permitted to submit his insanity argument and defense to the jury. The jury, of course, was fully entitled to reject or accept his contentions. The panel concluded that Lyons should have been permitted to submit his argument and defense to the jury under existing precedent and I continue to believe that the existing precedent of this circuit requires such a result.

It is noted at the outset that Lyons' proffer goes far beyond a mere allegation of iatrogenic drug addiction. The majority's and Judge Rubin's and Judge Williams' characterization of Lyons' contentions as alleging mere drug addiction is, in my judgment, inaccurate. An examination of Lyons' proffer demonstrates that Lyons' addiction became so extreme that he lost over forty pounds and suffered from drastic malnutrition. The proffer notes that "[h]is decalcified bones had become so brittle that during the course of [a] convulsion, he broke three [3] ribs, three [3] vertebrae, and his left hip was completely torn from the socket." Moreover, Lyons offered to present two expert witnesses, indeed medical witnesses, that would testify that [254] Lyons' addiction had damaged his brain, both physiologically and psychologically.^[1]

When Lyons' proffer is viewed in its true form, it becomes clear that he was entitled to submit his insanity defense to the jury under existing precedent.^[2] The reasons for this conclusion were set forth in the panel opinion:

United States v. Lyons, 704 F.2d 743, 747 (5th Cir.1983). For these reasons, the reasons which are more fully explained in the panel opinion, it is my belief that Lyons should be permitted to present his insanity defense to the jury under the law of this Circuit.

Having explained why Lyons should have been permitted to submit his case to the jury under the existing precedent of this Circuit, I pause to note my agreement with many of the concerns stated by Judge [255] Gee concerning the existing insanity defense. Even though the present insanity test may be too broad, even though the abolition of the volitional prong might more properly limit the insanity inquiry, and even though this Court's action might align the insanity defense of this Circuit with the current views of the psychiatric school of thought, the timing of this action seems particularly inappropriate. In light of the very real possibility of congressional action on this issue and in view of the undisputed preference for the will of the public to be expressed by that body, it seems particularly inappropriate for this Court to take this action by en banc intervention at this time.

[*] Judges Randall and Davis did not participate in the consideration or decision of this case.

[1] Lyons' proffer of evidence is reproduced in its entirety in the panel opinion. 704 F.2d at 744-47. We merely summarize it here.

[2] For the en banc hearing we invited interested groups to submit amicus briefs. Several were received, including briefs from the American Bar Association, American Psychological Association, and the National Association of Criminal Defense Lawyers, for all of which we are obliged.

[3] This rule is consistent with holdings that use of narcotics does not per se render a defendant incompetent to stand trial, Lewis v. United States, 542 F.2d 50, 51 (8th Cir.), cert. denied, 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1976); United States v. Williams, 468 F.2d 819, 820 (5th Cir.1972); Grennett v. United States, 403 F.2d 928, 931 (D.C.Cir.1968), and that mere alcoholism does not constitute a mental disease or defect warranting an insanity instruction, Powell v. Texas, 392 U.S. 514, 535, 88 S.Ct. 2145, 2155, 20 L.Ed.2d 1254 (1968); United States v. Shuckahosee, 609 F.2d 1351, 1355 (10th Cir.1979), cert. denied, 445 U.S. 919, 100 S.Ct. 1283, 63 L.Ed.2d 605 (1980); United States v. Malafronte, 357 F.2d 629, 632 n. 8 (2d Cir.1966).

[4] Speaking of the recent American Psychiatric Association Statement on the Insanity Defense, Professor Phillip E. Johnson notes:

The APA has not adopted the extreme views of Thomas Szasz, but it has definitely repudiated the ideology of Karl Menninger. The psychiatrists no longer want the criminal law to change to conform to deterministic psychiatric concepts; instead, they regard it as vital to the integrity of their own discipline that "legal or moral constructs such as free will" be understood as outside the domain of psychiatry. They emphatically affirm that most people, including those with sociopathic personality disorders, should be held accountable for what they do. They are not washing their hands of the legal problems, and they believe that the law still needs them, but they understand that legal and moral decisions are ultimately to be made by citizens, not experts. I regard this newly found modesty as evidence of the profession's increasing maturity, not as a sign of its failure.

Johnson, Book Review, 50 U.Chi.L.Rev. 1534, 1548 (1983) (reviewing N. Morris, Madness and the Criminal Law (1982)).

[5] See, e.g., Gerard & Kornetsky, Adolescent Opiate Addiction: A Study of Control and Addict Subjects, 29 Psychiatric Q. 457 (1955); Sutker, Personality Differences and Sociopathy in Heroin Addicts and Nonaddict Prisoners, 78 J. Abnormal Psychology, 247 (1971).

[6] Indeed, it may be counter-productive. One might well view with suspicion a claim to have lost a leg made by one who supported it only with evidence that he had served in combat, rather than by lifting his trouser cuff.

[7] We do not suggest that references in testimony to drug use as the cause of or as aggravating particular brain pathology should be viewed as taboo, only that attempts to characterize addiction as itself a mental disease or defect are not to be countenanced.

[8] The Howard standard provided that insanity constituted either the "incapacity from some mental disease or defect to distinguish between right and wrong with respect to the act, or the inability from such disease or defect to refrain from doing wrong in the commission of the act." 232 F.2d at 275.

[9] We employ the phrase "is unable" in preference to our earlier formulation "lacks substantial capacity" for reasons well stated in the Commentary of the American Bar Association Standing Committee:

Finally, it should be pointed out that the standard employs the term "unable" in lieu of the "substantial capacity" language of the ALI test. This approach has been taken both to simplify the formulation and to reduce the risk that juries will interpret the test too loosely. By using the "substantial capacity" language, the drafters of the ALI standard were trying to avoid the rigidity implicit in the M'Naughten formulation. They correctly recognize that it is rarely possible to say that a mentally disordered person was totally unable to "know" what he was doing or to "know" that it was wrong; even a psychotic person typically retains some grasp of reality. However, the phrase "substantial capacity" is not essential to take into account these clinical realities. Sufficient flexibility is provided by the term "appreciate."

Commentary (revised November, 1983) to Standards 7-6.1(a) and 7-6.9(b), ABA Standing Committee on Association Standards for Criminal Justice (to be published).

[10]See also H. Fingarette, The Meaning of Insanity 166 (1972); Wootton, Book Review, 77 Yale L.J. 1019, 1026-27 (1968); Statement of David Robinson, Jr., The Insanity Defense, Hearings Before the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 72-73 (1982); Testimony of Stephen Morse, Insanity Defense in Federal Courts, Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 97th Cong., 2d Sess. 211 (1982).

[11] One commentator has noted that no one has ever observed the process of a person losing the capacity for self-control, and "that no one can." Fingarette, supra, at 160.

[12]See also Statement of Stephen Morse, Insanity Defense in Federal Courts, Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 97th Cong., 2d Sess. 231 (1982).

[13] Hinckley is the young man who attempted to assassinate President Reagan in order to attract attention to himself and to impress a movie actress whom he admired from a distance. The subsequent proceedings called into question not only the insanity defense but the rationality of our adversarial jury-trial system. After more than a year of expensive pretrial maneuvering and psychiatric examinations, the lawyers jousted for eight weeks of trial, examining and cross-examining expert witnesses who naturally gave conflicting and confusing testimony on whether Hinckley's obviously warped mentality amounted to legal insanity. The judge instructed the jury to return a verdict of not guilty unless they could agree "beyond a reasonable doubt" that Hinckley was sane. If taken literally, the instruction amounted to a directed verdict of not guilty, considering the deadlock of expert opinion and the difficulty of certifying the sanity of a young man who shot the President to impress a movie star. Juries usually ignore such unpopular legal standards, but the Hinckley jury surprised everybody by taking the law seriously and finding him not guilty. Hinckley will now be confined to a mental hospital indefinitely because he is "dangerous," although there is no reliable way to predict what he would do if released and no reliable test to determine if he has been "cured."

Johnson, Book Review, 50 U.Chi.L.Rev. 1534, 1536 (1983) (reviewing N. Morris, Madness and the Criminal Law (1982)).

[14] "What Song the Syrens sang, or what name Achilles assumed when he hid himself among women, though puzzling questions, are not beyond all conjecture." Sir Thomas Browne, URN BURIAL, v.

[1] 28 U.S.C. §§ 2901-2906, 18 U.S.C. §§ 4251-4255.

[2] The government initially confined its arguments to those described above. Once the court's questions and solicitation of amici briefs indicated which way the wind was blowing, however, the government of course reset its sails accordingly and filed a second supplemental brief advocating abolition of the volitional prong. It is also suggesting legislation to accomplish that end. See text, post. Given a way to achieve its objective, it will tread either path.

[3]See United States v. Currens, 290 F.2d 751 (3d Cir.1961); Wion v. United States, 325 F.2d 420 (10th Cir.1963), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309 (1964); United States v. Shapiro, 383 F.2d 680 (7th Cir.1967) (en banc); United States v. Chandler, 393 F.2d 920 (4th Cir.1968) (en banc); United States v. Smith, 404 F.2d 720 (6th Cir.1968); Blake v. United States, 407 F.2d 908 (5th Cir.1969) (en banc); Wade v. United States, 426 F.2d 64 (9th Cir.1970) (en banc); United States v. Frazier, 458 F.2d 911 (8th Cir.1972); United States v. Brawner, 471 F.2d 969 (D.C.Cir.1972) (en banc); United States v. Figueroa, 666 F.2d 1375 (11th Cir.1982) (following Blake v. United States). Although the First Circuit has not explicitly taken a position, that court has suggested its approval of the ALI test. See Beltran v. United States, 302 F.2d 48, 52 (1st Cir.1962) (citing United States v. Currens, supra).

[1] Judges Rubin and Williams concede that Lyons' proffer alleging physiological and psychological brain damage could "conceivably" be read to suggest the existence of a disease or defect. It is submitted that is precisely what the proffer states.

[2] It should be remembered that the law of this Circuit requires a defendant only to produce slight evidence of insanity to put the defendant's mental condition at issue. See, Blake v. United States, 407 F.2d 908, 911 (5th Cir.1969) (en banc). The en banc Court stated in Blake: "It follows that if there is some evidence supporting the claim of insanity ... the issue must be submitted to the jury. [citations omitted] This means only slight evidence." Id.

[3] It is suggested that Judges Rubin's and Williams' attempt to distinguish Bass from this case is unpersuasive. Attempting to glean distinguishing factors in Bass, Judges Rubin's and Williams' dissent states: "The defendant suffered from an acutely painful and incurable disease. Around the time of the indictment, Bass had suffered several fevers that, in the opinion of one doctor, had inflicted temporary brain damage." In the instant case, Lyons' proffer demonstrates that during the period of his iatrogenic addiction he suffered from and was treated for the following painful disorders: (1) stomach ulcer; (2) internal hemorrhoids; (3) perforated appendix; (4) gunshot wound; and (5) deviated septum. Additionally, Lyons' proffer indicates that he suffered high fevers. Lyons alleged that these facts could be attested to by his wife, employees, his original treating physician, as well as by the hospital and prescription records. Certainly this, in conjunction with the expert testimony indicating brain damage, constitutes slight evidence of a mental disease or defect. Lyons should have been permitted to submit his case to a properly charged jury.