The Brawner Test

In 1972, the federal justice system of the United States rejected the Durham rule, which advocated that the criminal act was caused by a perpetrator's mental illness; if this could be proven beyond a reasonable doubt by the prosecutor, the defendant would not be held accountable for his or her actions. In its place, the federal justice system installed the 1972 Brawner Test, which was largely based on an insanity rule found in the model penal code (MPC) of 1962. This was used by approximately one half of the states but has been held in disfavor and restricted in its use since the trial of John Hinckley, the attempted assassin of former President Reagan.

The Brawner Test originated in the case law of United States v. Brawner, which states,

[Page 67]The Brawner Test requires the prosecutor to prove beyond a reasonable doubt that the defendant lacks the capacity to appreciate the wrongfulness of his or her conduct or the ability to control his or her behavior. It recognizes partial responsibility for criminal conduct including the possibility of an irresistible impulse beyond one's control. It also excludes from this definition any habitual or otherwise antisocial conduct. This is known as the caveat paragraph and is intended to exclude criminal psychopaths or those with antisocial personality disorder from using the insanity defense.

The test dominated federal and state practice until the Hinckley trial, but the adverse public reaction to the outcome of this trial relegated the Brawner Test to less use. Instead, a new standard resembling the original M'Naughten Rule was adopted, which once again places the burden of proof of insanity on the defendant. Some states still supplement M'Naughten with an irresistible impulse test when recognizing that the wrongfulness of the behavior is not in question but rather the power to resist the influences of uncontrollable impulses.