Wright, Tamm and McCree,* Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
Effective February 1, 1971, Section 207(6) of the District of Columbia Court Reform and Criminal Procedure Act added the following sentence to subsection (j) of 24 D.C. CODE § 301: "No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his insanity, regardless of who raises the issue, is affirmatively established by a preponderance of the evidence." Prior to February 1, 1971 the prosecution had the burden in criminal cases of proving criminal responsibility beyond a reasonable doubt once the defendant had raised the insanity defense. Davis v. United States, 160 U.S. 469, 40 L. Ed. 499, 16 S. Ct. 353 (1895). Appellant here was charged with offenses committed on November 11, 1968. On trial appellant raised the insanity defense and, over objection, the trial court charged the jury, pursuant to Section 207(6), that appellant had the burden of establishing his insanity defense by a preponderance of the evidence. The only question we consider on appeal is whether this instruction violated the ex post facto clause *fn1 of the Constitution. We find that it did.
A long time ago the United States Supreme Court defined ex post facto laws to include "every law which alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798). (Emphasis in original.) That definition represents the law today just as it did in 1798. *fn2 The retroactive application given Section 207(6) by the trial court "alter[ed] the legal rules of evidence " so that appellant was convicted on "less, or different, testimony, than the law required at the time of the commission of the offence." *fn3 Certainly the court's charge, "'in its relation to the offence, or its consequences, alter[ed] the situation of the accused to his disadvantage.'" Thompson v. Utah, 170 U.S. 343, 351, 42 L. Ed. 1061, 18 S. Ct. 620 (1898), quoting United States v. Hall, 2 Wash. C.C. 366, 26 F. Cas. 84. Moreover, Congress, in enacting Section 207(6), specifically intended to alter the situation of the accused to his disadvantage. Congress was concerned that existing law ". . . permitt[ed] dangerous criminals, particularly psychopaths, to win acquittals of serious criminal charges on grounds of insanity by raising a mere reasonable doubt as to their sanity . . .." H.R. Rep. No. 91-907, 91st Cong., 1st Sess., 74 (1970). *fn4
Under the circumstances, appellant's conviction must be reversed on ex post facto grounds.
APPELLATE PANEL: FOOTNOTES
* Of the 6th Circuit, sitting by designation pursuant to 28 ...