790 Opinion of the Court. Oregon. But "[i]ts procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar." Snyder v. Massachusetts, supra, at 105. "The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment. . . . An important safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review." MR. JUSTICE FRANKFURTER, concurring in Malinski v. New York, 324 U. S. 401, 417 (1945). We are therefore reluctant to interfere with Oregon's determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice. Nothing said in Tot v. United States, 319 U. S. 463 (1943), suggests a different conclusion. That decision struck down a specific presumption created by congressional enactment. This Court found that the fact thus required to be presumed had no rational connection with the fact which, when proven, set the presumption in operation, and that the statute resulted in a presumption of guilt based only upon proof of a fact neither criminal in itself nor an element of the crime charged. We have seen that, here, Oregon required the prosecutor to prove beyond a reasonable doubt every element of the offense charged. Only on the issue of insanity as an absolute bar to the charge was the burden placed upon appellant. In all English-speaking courts, the accused is obliged to introduce proof if he would overcome the presumption of sanity.19 19 Weihofen, Insanity as a Defense in Criminal Law (1933), 161; 9 Wigmore, Evidence (3d ed. 1940), § 2501. It is contended that the instructions may have confused the jury as to the distinction between the State's burden of proving premeditation and the other elements of the charge and appellant's burden of proving insanity. We think the charge to the jury was as clear as instructions to juries ordinarily are or reasonably can be, and, with respect to the State's burden of proof upon all the elements of the crime, the charge was particularly emphatic. Juries have for centuries made the basic decisions between guilt and innocence and between criminal responsibility and legal insanity upon the basis of the facts, as revealed by all the evidence, and the law, as explained by instructions detailing the legal distinctions, the placement and weight of the burden of proof, the effect of presumptions, the meaning of intent, etc. We think that to condemn the operation of this system here would be to condemn the system generally. We are not prepared to do so. Much we have said applies also to appellant's contention that due process is violated by the Oregon statute providing that a "morbid propensity to commit prohibited acts, existing in the mind of a person, who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor." 20 That statute amounts to no more than a legislative adoption of the "right and wrong" test of legal insanity in preference to the "irresistible impulse" test." Knowledge of right and wrong is the exclusive test of criminal responsibility in a majority of American jurisdictions.22 The science of psychiatry has made tremendous strides 20 Ore. Comp. Laws, 1940, § 23-122. 21 State v. Garver, 190 Ore. 291, 225 P. 2d 771 (1950); State v. Wallace, 170 Ore. 60, 131 P. 2d 222 (1942); State v. Hassing, 60 Ore. 81, 118 P. 195 (1911). 22 Weihofen, Insanity as a Defense in Criminal Law (1933), 15, 6468, 109-147. 790 Opinion of the Court. since that test was laid down in M'Naghten's Case,23 but the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law.24 Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility.25 This whole problem has evoked wide disagreement among those who have studied it. In these circumstances it is clear that adoption of the irresistible impulse test is not "implicit in the concept of ordered liberty." 99 26 Appellant also contends that the trial court's refusal to require the district attorney to make one of appellant's confessions available to his counsel before trial was contrary to due process. We think there is no substance in this argument. This conclusion is buttressed by the absence of any assignment of error on this ground in appellant's motion for a new trial. Compare Avery v. Alabama, 308 U. S. 444, 452 (1940). While it may be the better practice for the prosecution thus to exhibit a confession, failure to do so in this case in no way denied appellant a fair trial. The record shows that the confession was produced in court five days before appellant rested his case. There was ample time both for counsel and expert witnesses to study the confession. In addition the trial judge offered further time for that purpose but it 23 10 Cl. & Fin. 200 (H. L., 1843). 24 Compare Fisher v. United States, 328 U. S. 463, 475-476 (1946). 25 See Holloway v. United States, 80 U. S. App. D. C. 3, 148 F. 2d 665 (1945); Glueck, Mental Disorder and the Criminal Law (1925); Hall, Mental Disease and Criminal Responsibility, 45 Col. L. Rev. 677 (1945); Keedy, Insanity and Criminal Responsibility, 30 Harv. L. Rev. 535, 724 (1917). 26 Palko v. Connecticut, 302 U. S. 319, 325 (1937). MR. JUSTICE FI BLACK, dissenting. However much ( 1905, when William pressed his disturbin tion of the criminal (there may be one or civilization" (Taft, Law, 15 Yale L. J. 1. other than unhappy al day American criminal that failure to bring the which deeply stirs popu lature of a State, in one on occasion sweep over after an indictment for rape, should be presumpt the defendant the burden doubt that he did not do doubt that such a statute of the States, under the Di teenth Amendment, to fa and their own procedures : that so? Because from the have inherited has emerged the conception of justice wh inal law has refused to put : punishment if he fails to ren of his innocence in the mind of the Government to establ FRANKFURTER, J., dissenting. his muscular contraction. Like every other State, ch has been the law of Oregon since 1864. That atever tentative and intermediate steps experience › permissible for aiding the State in establishing the ate issues in a prosecution for crime, the State can› relieved, on a final show-down, from proving its tion. To prove the accusation it must prove each items which in combination constitute the offense. must make such proof beyond a reasonable doubt. uty of the State of establishing every fact of the on which adds up to a crime, and of establishing e satisfaction of a jury beyond a reasonable doubt lecisive difference between criminal culpability and ability. The only exception is that very limited f cases variously characterized as mala prohibita lic torts or enforcement of regulatory measures. ited States v. Dotterweich, 320 U. S. 277; Morv. United States, 342 U. S. 246. Murder is not a prohibitum or a public tort or the object of reguegislation. To suggest that the legal oddity by 0-52-55 |