(concurring in part and dissenting in part).
I concur in Judge Wright’s opinion except that I think the failure to charge the jury on defendant Smith’s mental responsibility was error requiring a new trial.
I agree that no affirmative evidence of mental disorder is derived from the failure of Dr. Platkin to “say unequivocally that the defendant Smith did not suffer from an acute or momentary psychotic episode in that store when that police officer advanced toward him firing this gun.” Nor is such evidence found in the testimony concerning the defendant’s unsettled background and his four knockouts, without proof of any resulting symptoms of a mental disease. But there was more before the jury. A 1946 psychiatric report — not further described in the record — had found that the defendant “shows no moral sense of any kind which is unusual with his intelligence. He can be classified as an immaterial [sic] adolescent with neurotic traits.” In addition, and more importantly, in connection with the pre-trial examination at Saint Elizabeths Hospital in the present case, a Hospital staff psychologist reported that the defendant “is likely to evolve a schizophrenic solution to his difficulties.”
Even if these reports are admissible as affirmative evidence, they would not be likely to create a reasonable doubt of responsibility in the minds of the jurors. However, as the majority states, “this * * * is beside the point.” “[I]n criminal cases the defendant is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.” 1 There must be “more than a scintilla [of evidence], yet, of course, the amount need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal.” 2 I do not understand the majority to disagree that, if the reports in question are affirmative evidence, an instruction on the issue of responsibility would clearly be required.3
But my brethren say that these reports are admissible only for the purpose of testing credibility. Their view is that our decision in Lyles v. United States, 103 U.S.App.D.C. 22, 28, 254 F.2d 725, 731 (1957) (en banc), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), *847precludes reliance on the reports as affirmative evidence. I cannot agree. I think this view unnecessarily and unwisely extends the holding of that case. Lyles, decided by a bare majority, placed this court in opposition to the “vast majority of courts [which] readily admit not only routine observations by medical personnel in a hospital record but also diagnoses of a patient’s physical and mental condition.” 4 Application of the decision often results in a disruption of hospital operation with no substantial gain for the trial process.5 It should be limited and not extended, as the court does today.
Lyles held only that neither a 10 nor a 20 year old psychiatric report could be admitted into evidence merely as a hospital record.6 The court reasoned that a presentation by a custodian did not provide a sufficient guarantee of the inherent reliability of the report, and that the absence of “any witness” to testify concerning the content of the report prevented any opportunity for challenging it.7 Applied to the present case, this reasoning might foreclose reliance on the 1946 report, but clearly does not affect the Saint Elizabeths psychologist’s report.
The defendant had been committed before trial to Saint Elizabeths for a mental examination. Sound and accepted standards of hospital practice require that a psychologist administer tests, examine the subject, and report his findings which are an essential consideration for diagnosis.8 Following this procedure here, the Hospital chose the psychologist who participated in the examination required by the court. Admission of his report was not sought solely because it was a Hospital record. The defendant claimed the report provided some evidence of insanity primarily because Dr. Platkin, a psychiatrist from Saint Elizabeths, was required to and did consider the report in reaching his conclusion on the question of mental capacity to which he testified. He was in a position to provide the information necessary to satisfy the reasonable needs of cross-examination concerning the qualifications of the psychologist, the manner in which such examinations are usually given, the data obtained, and the validity of the conclusions reached. Therefore, Lyles does not bar affirmative reliance on this report.
Furthermore, 1 think that extension of Lyles is inconsistent with the accepted principle that, since the issue of responsibility is ordinarily for the jury, it is free to weigh the evidence which an expert considered and to reach contrary conclusions thereon.9 Unless the expert witness informs the jury of the facts and material he considered, his testimony is of little value.10 In the present case, the jury should have been given the opportunity to weigh the expert witness’s opin*848ion in the light of all the material he considered, particularly that which would support a contrary opinion, and thereupon accept or reject his testimony. By taking the issue from the jury, however, the trial judge held the witness’s opinion correct as a matter of law and therefore binding on the jury. If Lyles does require this result, its reconsideration and abandonment are long overdue.
. Tatum v. United States, 88 U.S.App.D.C. 386, 391, 190 F.2d 612, 617 (1951).
. McDonald v. United States, 114 U.S.App.D.C. 120, 122, 312 F.2d 847, 849 (1962) (en banc); accord, Hawkins v. United States, 114 U.S.App.D.C. 44, 310 F.2d 849 (1962); Tatum v. United States, 88 U.S.App.D.C. 386, 390, 190 F.2d 612, 616 (1951).
. See, e.g., Hawkins v. United States, supra note 2; Goforth v. United States, 106 U.S.App.D.C. 111, 269 F.2d 778 (1959); Tatum v. United States, supra note 2.
. Note, 48 Col.L.Rev. 920, 929 (1948), quoted in Lyles v. United States, 103 U.S.App.D.C. 22, 33, 254 F.2d 725, 736 (1957) (en banc) (dissenting opinion), cert. denied, 356 U.S. 961, 78 S.Ct. 997 (1958).
. 6 Wigmore, Evidence § 1707 (3d ed. 1940).
. See Transcript, Vol. Ill, pp. 248-249, Vol. IV, p. 279, Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957) (en banc), cert. denied, 356 U.S. 961, 78 S.Ct. 997 (1958).
. Lyles v. United States, supra note 6, 103 U.S.App.D.C. at 28, 254 F.2d at 731.
. See Judicial Conference of the District of Columbia Circuit, Report of the Committee on Problems Connected With Mental Examination of the Accused in Criminal Cases, Before Trial 32 (March 1965); Graham, MeNaghten to Jenkins, 2 Insights: Quarterly Review of Religion and Mental Health 18-19 (1964); Sargent & Mayman, Clinical Psychology, in American Handbook of Psychiatry 1722 (1959).
. McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc); Hawkins v. United States, 114 U.S.App.D.C. 44, 310 F.2d 849 (1962); Blocker v. United States, 116 U.S.App.D.C. 78, 320 F.2d 800, cert. denied, 375 U.S. 923, 84 S.Ct. 269, 11 L.Ed.2d 167 (1963).
. See Carter v. United States, 102 U.S.App.D.C. 227, 236, 252 F.2d 608, 617 (1957); Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269, 271 (1964).