See Commonwealth v. McHoul, 352 Mass. 544, 546 (1967). See also Commonwealth v. Goudreau, 422 Mass. 731, 737 (1996) (Appendix) (providing model jury instruction on criminal responsibility). The first prong requires proof that the defendant understood the difference between right and wrong, i.e., cognition.

Moreover, the court must review the entire record in every capital case regardless of whether the defendant has specifically requested such review. See, e.g., Commonwealth v. Goudreau, 422 Mass. 731, 735, 666 N.E.2d 112 (1996) ; Commonwealth v. Johnson, 422 Mass. 420, 429-430, 663 N.E.2d 559 (1996). See also Commonwealth v. Wade, 428 Mass. 147, 148, 697 N.E.2d 541 (1998), S.C., 467 Mass. 496, 5 N.E.3d 816 (2014) and 475 Mass. 54, 55 N.E.3d 409 (2016).

However, even though criminal responsibility is not an “element” of a crime, once the defense of lack of criminal responsibility is proffered and some evidence is offered in support, a jury must be instructed that they must find the defendant not guilty by reason of lack of criminal responsibility if the Commonwealth has failed to meet its burden of proving criminal responsibility. See Commonwealth v. Goudreau, 422 Mass. 731, 735–737, 666 N.E.2d 112 (1996) ; id. at 737–739, 666 N.E.2d 112 (Appendix). See also Model Jury Instructions on Homicide 1–2 (2013).

We note, moreover, that it is not clear that conduct violating a probation condition — such as a failure to attend a meeting with a probation officer — always could or should be appreciated to be criminal or wrongful within the meaning of the standard for lack of criminal responsibility. See Commonwealth v. Goudreau, 422 Mass. 731, 738 (1996) (Appendix) (model jury instruction on lack of criminal responsibility providing that “ ‘[c]riminality’ means the legal import of conduct” while “ ‘wrongfulness’ means the moral import”). While the juvenile here was alleged to have violated his probation by violating criminal laws, his argument in favor of recognizing this affirmative defense appears to sweep more broadly, urging us to recognize the defense to any probation violation.

In light of this testimony, the motion judge did not abuse his discretion in concluding that the antisocial personality disorder diagnosed here does not constitute a mental disease or defect. See Commonwealth v. Goudreau, 422 Mass. 731, 737, 666 N.E.2d 112 (1996) (Appendix) (mental disease or defect "does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct"). See also Model Jury Instructions on Homicide 2 (2018).

It was not error for the judge to rely upon this well-established formulation. We since have moved away from the formulation "by reason of insanity," see Commonwealth v. Goudreau, 422 Mass. 731, 738, 666 N.E.2d 112 (1996) (Appendix), in favor of "by reason of a lack of criminal responsibility." See Model Jury Instructions on Homicide 10-11 (2018).

Although not raised by the defendant, we consider whether a medical examiner's testimony at trial regarding the victim's autopsy violated the defendant's rights of confrontation guaranteed by the Sixth Amendment and art. 12 because the autopsy had been undertaken by a different examiner. See Commonwealth v. Nardi, 452 Mass. 379, 387-396 (2008) (concerning testimony by medical examiner who did not perform autopsy); Commonwealth v. Goudreau, 422 Mass. 731, 732 (1996) (considering issues that defendant did not argue on appeal, but which require "our attention pursuant to our duty under G.L. c. 278, § 33E"). At trial, Dr. Mark Flomenbaum testified as to his opinion of the cause of death of the victim based on his review of the findings of an autopsy report conducted by Dr. James Weiner, as well as on Dr. Flomenbaum's own education and his experience as a medical examiner.

Pena also argues that this testimony violated his right to confrontation, see Crawford v. Washington, 541 U.S. 36, 53-54 (2004) ( Crawford) (confrontation clause prohibits admission of testimonial out-of-court statements unless declarant unavailable and defendant had prior opportunity to cross-examine declarant about statements), and the Massachusetts law of evidence, see Commonwealth v. Markvart, 437 Mass. 331, 338 (2002) ("expert's direct examination may not be used to put before the jury facts that are not [and will not be] properly in evidence"). Pena relies on Commonwealth v. Goudreau, 422 Mass. 731 (1996), to argue that Dr. Flomenbaum's testimony in reliance on a report prepared by someone else was improper under Massachusetts law. In that case, the court upheld a ruling of the trial judge excluding the testimony of two expert witnesses about the contents of specific records, in the absence of any showing that the records were themselves admissible.

Nevertheless, it is our duty to review the entire record pursuant to G.L.c. 278, § 33E, even absent a request by the defendant that we do so. See Commonwealth v Goudreau, 422 Mass. 731, 735 (1996).So ordered

To meet this burden, the Commonwealth was required to show beyond a reasonable doubt either that McLaughlin had no mental disease or defect or that he had the substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. See Commonwealth v. Goudreau, 422 Mass. 731, 735 (1996), citing Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). McLaughlin argues that the jury's verdict of not guilty by reason of insanity on the murder in the first degree charges requires the same verdict on the other charges.