The Brawner Rule

By Stephanie Lee

The Brawner Rule came about in 1972 in the US v. Brawner trial in the D.C. Circuit Court of Appeals.  This rule overturned the short-lived Durham Rule (Garrison, 1998).

Archie W. Brawner and his friends had gotten into a few fights one night with a some acquaintances at a party.  When he left the party he was bleeding from his mouth and decided to return to the party with a gun and an intention “to kill or be killed”.  Brawner shot a couple of shots through the door of the apartment, these two shtos were fatal to a man named Billy Ford.  Brawner, when arrested a few minutes after the shots were fired, was recorded to have not seemed drunk or smelled of alcohol by the arresting officer.

The Court decided to make the jury uninvolved in the determination of whether the accused is suffering from a mental disease, defect, or disorder based on a Model Penal Code (ALI test) which tested for insanity by:

“A person is not responsible for criminal conduct if at the time of the 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.” (American Law Institute, 1985, Sec. 4.01)

This was another way for the courts to try and pull away from a “right-wrong” test for a more solid way to measure someone’s sanity (Garrison, 1998).

This test was created in 1955 and was adopted into the Court system in 1962 for wide use in cases involving insanity.  This test was set apart from other tests such as the irresistible impulse test for a number of reasons.  With this test, there were a few options for words to clearly define what it being measured and what is trying to be sought out of by the accused.  An example  of this being “appreciate” versus a more blocked out “know” or having “criminality” as well as “wrongfulness”.  This test also looks into “substantial capacity” of the accused that the M’Naghten rule completely disregarded.  And lastly, the phrase “to conform his conduct to the requirements of law” still has the end goal of having someone being able to differentiate from right and wrong and abiding or failing to abide like the irresistible impulse test did (Slovenko, 1994).

From the ALI test, more stringent rules came about such as having certain mental disorders. personality disorders, still accountable for their behaviors.  This was weeding out the fact that some mental disorders still involve being functional enough to not have clouded judgement (Insanity Defense Working Group, 1983).  It also made it a more stringent process for accused people to be found not guilty by reason of insanity depending if they got diagnosed and what they were diagnosed with (Halleck, 1987).


American Law Institute (1985). Model penal code and commentaries (official draft and revised comments) Sec. 4.01

Garrison, A. H. (1998). The history of the M’Naghten insanity defense and the use of posttraumatic stress disorder as a basis of insanity. American Journal of Forensic Psychology, 16, 39-88.

Halleck S. (1987). The mentally disordered offender. American Psychiatric Press, Inc.

Insanity Defense Working Group (1983). American psychiatric association statement on the insanity defense. American Journal of Psychiatry, 22, 2949 – 2950.

Slovenko, R. (1994). Psychiatry and criminal sulpability. John Wiley and Sons, Inc.

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