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23. Mental Responsibility and Competence


Mental Responsibility And Competence

  1.       Introduction

  2.       Mental Responsibility

  3.       Partial Mental Responsibility

  4.       Defenses Which Are Not Mental Responsibility

  5.       Competency to Stand Trial

  6.       The Sanity Board

  7.       Trial Considerations

  8.       References


I. Introduction

A. Mental Responsibility.  Refers to the criminal culpability of the accused based on his mental state at the time of the offense and includes the complete defense commonly known as the “insanity defense” and the more limited defense of “partial mental responsibility.” 

B. Competency to Stand Trial.  Refers to the present ability of the accused to stand trial.  An accused may not be tried unless mentally competent.  Godinez v. Moran, 509 U.S. 389, 396 (1993).  To try a mentally incompetent accused is a violation of due process.  Medina v. California, 505 U.S. 437, 453 (1992).

C. Sanity Boards.  Provision under Rule for Courts-Martial (RCM) 706 governing the process inquiring into the mental capacity or mental responsibility of an accused.


A. The Old Standard.  Court of Military Appeals adopted the ALI test for insanity in United States v. Frederick, 3 M.J. 230 (C.M.A. 1977).  “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”  Frederick, 3 M.J. at 234.

B. The Current Standard.  Codified in Article 50a, UCMJ.

1. Definition.  It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts.  Mental disease or defect does not otherwise constitute a defense.  RCM 916(k)(1).  Article 50a was modeled on 18 U.S.C. § 17.

2. Taken from Insanity Defense Reform Act, Pub. L. No. 98-473, § 402(a), 98 Stat. 2057 (1984).

C. Significant aspects of the current standard.

1. Threshold Requirements.

a) Severe mental disease or defect.  The affirmative defense requires a “severe” mental disease or defect.  United States v. Martin, 56 M.J. 97, 103 (C.A.A.F. 2001).

(1) The MCM defines “severe mental disease or defect” negatively.  A severe mental disease or defect “does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.”  RCM 706(c)(2)(A) (emphasis added).

(2) However, case law indicates that a nonpsychotic disorder may constitute a severe mental disease or defect.  See United States v. Benedict, 27 M.J. 253 (C.M.A. 1988) (discussing pedophilia).

(3) Compare with Benchbook Instruction 6-4:  “[A] severe mental disease or defect does not, in the legal sense, include an abnormality manifested only by repeated criminal or otherwise antisocial conduct or by nonpsychotic behavior disorders and personality disorders.”

(4) Ultimate Opinion Testimony.  In 1986, the President rescinded adoption of Fed. R. Evid. 704(b), which prohibits expert testimony offering an opinion on the issue of a defendant’s mental state or condition where such constituted an element or defense to a charged offense.  Ultimate opinion testimony is admissible.  See, e.g., United States v. Combs, 39 M.J. 288 (C.M.A. 1994).  Testimony as to the ultimate opinion (diagnosis of severe mental disease or defect) does not, however, always equate to lack of mental responsibility.  United States. v. Jones, 46 M.J. 535 (N-M. Ct. Crim. App. 1997), rev’d on other grounds, 50 M.J. 46 (C.A.A.F. 1998) (summary disposition), on remand, 1999 WL 356311 (N-M. Ct. Crim. App. May 7, 1999) (unpublished).

b) As a result of severe mental disease or defect, accused unable to appreciate nature and quality or wrongfulness of the act.  Martin, 56 M.J. at 103.

D. Procedure.

1. The defense must give notice of the defense of lack of mental responsibility before the beginning of trial on the merits.  RCM 701(b)(2).  Reciprocal discovery may apply.  RCM 701(b)(3) and (4).

2. Burden and standard of proof.

a) Burden on the accused by clear and convincing evidenceMartin, 56 M.J. at 103.  A career Army Judge Advocate convicted, inter alia, of 29 specifications of larceny, alleged at trial and on appeal that he was not mentally responsible for his criminal misconduct because he suffered from bipolar disorder.  Though the defense presented over 20 expert and lay witnesses (the accused did not testify), none of these witnesses described unusual or bizarre behavior on the dates of the alleged offenses.

b) The constitutionality of shifting the burden to the defense to prove lack of mental responsibility by clear and convincing evidence.  See United States v. Martin, 48 M.J. 818, 825 (A. Ct. Crim. App. 1998); United States v. Freeman, 804 F.2d 1574 (11th Cir. 1986), citing Leland v. Oregon, 343 U.S. 790 (1952).

3. Instructions on mental responsibility.  The military judge has a sua sponte duty to instruct upon mental responsibility during final instructions if the defense is raised by the evidence.  RCM 920(e)(3).  Chapter 6, DA PAM 27-9.  The defense can get a preliminary instruction (6-3) when some evidence has been adduced which tends to show insanity of accused.  The MJ is not required to instruct the panel regarding the consequences to the accused of a not guilty only by reason of lack of mental responsibility verdict.  See Shannon v. United States, 512 U.S. 573 (1994).

4. Bifurcated voting procedures.  RCM 921(c)(4).  See also DA PAM 27-9, 6-4 and 6-7 (procedural instructions on findings).  Because of their complexity, the voting instructions should be given in writing.

a) First vote on whether accused is guilty (3/4 vote required).

b) If accused found guilty, the second vote is on mental responsibility (Majority vote).

5. RCM 1105.  Not guilty only by reason of lack of mental responsibility.  Within 40 days of verdict, court-martial must conduct a hearing.  UCMJ art. 76b.  RCM 1105(c) sets out the procedural guidelines for the hearing.

a) Before the hearing, the judge or convening authority shall order a new psychiatric or psychological examination of the accused, with the resulting psychiatric or psychological report transmitted to the military judge for use in the post-trial hearing.  RCM 1105(b). See also 18 U.S.C. § 4243 (post-trial psychiatric examination).

b) The convening authority shall commit the accused to a suitable facility until person is eligible for release IAW UCMJ, art. 76b(b).  UCMJ, art. 76b(b)(1).  The UCMJ provides no guidance as to a “suitable facility,” but it is almost certainly not a confinement facility.  Rather, the accused should be committed to a mental health facility, which will require a court order by the military judge.

c) Accused must prove that his release would not create a substantial risk of bodily injury or serious damage to property of another due to a mental disease or defect.  If he fails to meet that burden, the GCMCA may commit the accused to the Attorney General, who turns the person over to a state or monitors the person until his release would not create a substantial risk of bodily injury or serious damage to another’s property.

(1) If the accused is found not guilty by reason of lack of mental responsibility for an offense involving bodily injury to another or serious damage to property of another, or substantial risk of such property or injury, the standard is clear and convincing evidence.

(2) Any other offense, standard is preponderance of the evidence.

d) Right to Counsel.  RCM 1105(c)(1) provides that an accused shall be represented by counsel.

e) Practical Considerations

(1) The accused’s status does not change even if jurisdiction under Article 2, UCMJ, terminates during the time the accused is in the custody of the Attorney General, hospitalized, or on conditional release.  UCMJ, Art. 76b(d)(2)

(2) If the GCMCA determines to remit the accused to the custody of the Attorney General after a hearing, the Attorney General is statutorily required to “take action in accordance with subsection (e) of section 4243 of title 18.”  UCMJ, Art. 76b(b)(4)(B)

6. Discovery of Evidence Post-Trial indicating Lack of Mental Responsibility.  See United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005).  Good discussion of issues surrounding discovery, post-trial, of evidence of lack of mental responsibility.


A. The Old (pre-2004 Amendment) Manual Standard.  A mental condition not amounting to a general lack of mental responsibility under subsection RCM 916(k)(1) is not a defense, nor is evidence of such a mental condition admissible as to whether the accused entertained a state of mind necessary to be proven as an element of the offense.  RCM 916(k)(2).  The old standard tried to prohibit a partial mental responsibility defense.  

1. The CMA rejected the old RCM 916(k)(2) because it doubted the rule’s constitutionality and found that the legislative history of the federal model lacked any Congressional intent to preclude defendants from attacking mens rea with contrary evidence.

2. Psychiatric testimony or evidence that serves to negate a specific intent is admissible.  Ellis v. Jacob, 26 M.J. 90 (C.M.A. 1988); see United States v. Berri, 33 M.J. 337 (C.M.A. 1991); United States v. Mansfield, 38 M.J. 415, 419 n.5 (C.M.A. 1993); see also United States v. Cameron, 907 F.2d 1051 (11th Cir. 1990); United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987); United States v. Gold, 661 F. Supp. 1127 (D.D.C. 1987); United States v. Frisbee, 623 F. Supp. 1217 (N.D. Cal. 1985).

B. The Current (post-2004 Amendment) Manual Standard.  A mental condition not amounting to a lack of mental responsibility (i.e., a finding of not guilty only by reason of lack of mental responsibility) is not an affirmative defense, but may be admissible to determine whether the accused entertained the state of mind necessary to prove an element of the offense.  In other words, partial mental responsibility is not an affirmative defense, but it is a deficiency of the government proof of a necessary element (e.g., specific intent).

1. Instruction on Partial Mental Responsibility.  DA PAM 27-9, instruction 6-5.  The affirmative defense of insanity and the defense of partial mental responsibility are separate defenses, but the panel members may consider the same evidence with respect to both defenses.  With regard to partial mental responsibility, the burden never shifts from the government to prove, beyond a reasonable doubt, that the accused entertained the mental state necessary for the charged offense.

2. However, not all psychiatric evidence is now admissible.  The evidence still must be relevant and permitted by UCMJ art. 50a.

a) General intent crime.  The psychiatric evidence must still rise to the level of a “severe mental disease or defect.”  The insanity defense cannot be resurrected under another guise.  UCMJ art. 50a.

b) Specific intent crime.  The psychiatric evidence must be relevant to the mens rea element.


A. Voluntary Intoxication.  RCM 916(l)(2).  Voluntary intoxication from alcohol or drugs may negate the elements of premeditation, specific intent, knowledge, or willfulness.  Voluntary intoxication, by itself, will not reduce unpremeditated murder to a lesser offense.  United States v. Morgan, 37 M.J. 407 (C.M.A. 1993).  Voluntary intoxication not amounting to legal insanity is not a defense to general intent crimes. See generally Major Eugene Milhizer, Weapons Systems Warranties:  Voluntary Intoxication as a Defense Under Military Law, 127 Mil. L. Rev. 131 (1990).

B. Involuntary Intoxication.  Generally, involuntary intoxication is a defense to a general or specific intent crime.  See United States v. Hensler, 44 M.J. 184 (C.A.A.F. 1996). 

1. The defense of involuntary intoxication has been analogized to that of mental responsibility.  See United Stated v. Hensler, 40 M.J. 892, 895-96 (N.M.C.M.R. 1994), aff'd, 44 M.J. 184 (C.A.A.F. 1996).  The two defenses, however, are distinct.  Both defenses’ success depends on a finding that the accused was unable to appreciate the nature and quality or wrongfulness of his acts.  However, a mental responsibility defense requires a finding that the inability was due to a severe mental disease or defect.  Involuntary intoxication, however, requires a finding that the inability was due to involuntary ingestion of an intoxicant.  See United States v. McDonald, 73 M.J. 426 (C.A.A.F. 2014).

2. Whether the ingestion was involuntary is a question of fact.  See United States v. Ward, 14 M.J. 950 (A.C.M.R. 1982) (involuntary intoxication not available when accused knowingly used marijuana, but did not know it also contained PCP).  However, if the government does not present evidence that the ingestion was voluntary, it is error not to instruct when the defense has first presented some evidence of this affirmative defense.  See United States v. McDonald, 73 M.J. 426 (C.A.A.F. 2014).

C. Automatism.  Automatism (more fully discussed in Chapter 6 of this Deskbook) is an affirmative defense in the military.  See United States v. Torres, 74 MJ 154 (C.A.A.F. 2015).  Practitioners must take care to distinguish between an automatism defense and a mental responsibility defense.


A. Current Standard.  “No person may be brought to trial by court-martial if that person is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against them [sic] or to conduct or cooperate intelligently in the defense of the case.”  RCM 909(a).  See also 18 U.S.C. § 4241(d).  The accused is presumed to have capacity to stand trial.  RCM 909(b).

B. Cases.

1. The real issue is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him.  It is not enough that he is oriented to time and place and has some recollection of events.  United States v. Proctor, 37 M.J. 330, 336 (C.M.A. 1993) (quoting Dusky v. United States, 362 U.S. 402 (1960) (per curiam)).

2. “The question is whether the accused is possessed of sufficient mental power, and has such understanding of his situation, such coherency of ideas, control of his mental facilities, and the requisite power of memory, as will enable him to testify in his own behalf, if he so desires, and otherwise to properly and intelligently aid his counsel in making a rational defense.”  United States v. Lee, 22 M.J. 767, 769 (A.F.C.M.R. 1986).

3. United States v. Schlarb, 46 M.J. 708 (N-M. Ct. Crim. App. 1997).  The accused did not establish a lack of mental capacity to stand trial where she testified clearly and at length on four occasions, showing a clear understanding of the proceedings.

4. Indiana v. Edwards, 554 U.S. 164 (2008).  The Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.  Therefore, a defendant who is mentally competent to stand trial may still be denied the right to represent themselves, depending on the vagaries of the mental disease or illness.

5. United States v. Schwisow, No. ARMY MISC 20150720, 2016 WL 1179130 (A. Ct. Crim. App. Mar. 22, 2016):  MJ dismissed case for a speedy trial violation, finding the time taken for the second RCM 706 board could not be excluded as the board was unnecessary; defendant was found competent by the previous board.  ACCA held the MJ abused his discretion by conflating the concepts of competency and mental responsibility.  The first 706 board only dealt with competency, and did not address whether Defendant suffered from a severe mental disease or defect, which was a separate question. 

C. Compared to Amnesia. 

1. Amnesia is not equivalent to a lack of capacity.  “An inability to remember about the crime itself does not necessarily make a person incompetent to stand trial.”  Lee, 22 M.J. at 769; see also United States v. Barreto, 57 M.J. 127 (C.A.A.F. 2002).  The ability of an accused to function is absolutely critical to the fairness of a criminal trial.  In deciding whether an accused can function, a military judge can apply factors set out in Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968):  (1) the extent to which the amnesia affects the accused’s ability to consult and assist his lawyer; (2) the extent to which the amnesia affects the accused’s ability to testify on his own behalf; (3) the extent to which the evidence could be extrinsically reconstructed, in view of the accused’s amnesia; (4) the extent to which the Government assisted the accused and defense counsel in reconstruction; (5) the strength of the Government case; and, (6) any other facts and circumstances that would indicate whether the accused had a fair trial.

2. United States v. Axelson, 65 M.J. 501 (A. Ct. Crim. App. 2007).  A failure to recall facts pertaining to an offense does not preclude an accused from pleading guilty so long as, after assessing the Government’s evidence against him, he is convinced of his own guilt.

D. Procedure.  UCMJ art. 76b and RCM 909.

1. Interlocutory question of fact.  After referral, military judge may conduct an incompetence determination hearing either sua sponte or on request of either party.  RCM 909(d).

2. Defense has the burden of proof by a preponderance of the evidence.

3. Military judge shall conduct the hearing if sanity board completed IAW RCM 706 before or after referral concluded the accused is not competent.

4. Military judge determines whether the accused is competent to stand trial. United States v. Proctor, 37 M.J. 330 (C.M.A. 1993); Short v. Chambers, 33 M.J. 49 (C.M.A. 1991).

5. Once a sanity board is requested, the military judge must consider the sanity board report before ruling on the accused’s capacity to stand trial.  United States v. Collins, 41 M.J. 610 (A. Ct. Crim. App. 1994).

E. Hospitalization of the accusedAn accused who is found incompetent to stand trial shall be hospitalized by the Attorney General for a reasonable period of time, not to exceed 4 months, to determine whether his condition will improve in foreseeable future, and for an additional reasonable period of time.  The additional period of time ends when:  the mental condition improves so that trial may proceed, or charges are dismissed.

1. Upon a finding of incompetence, if the convening authority agrees, there is no discretion regarding commitment.  United States. v. Salahuddin, 54 M.J. 918 (A.F. Ct. Crim. App. 2001); see also RCM 909(e)(3) and 18 U.S.C. § 4241(d).

2. The four-month time period may be extended.  To justify extended commitment, the Government must prove by clear and convincing evidence that “a substantial probability exists that the continued administration of antipsychotic medication will result in a defendant attaining the capacity to permit the trial to proceed in the foreseeable future.”  United States v. Weston, 260 F. Supp. 2d 147, 154 (D.D.C. 2003) (approving a year-long extension from the case below in (3)(a)).

3. Involuntary Medication.

a) United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001).  Defendant indicted for the murders and attempted murder of federal law enforcement officers.  A court-appointed forensic psychiatrist diagnosed defendant with paranoid schizophrenia, the severity of which rendered him incompetent to stand trial.  Because he refused treatment with antipsychotic medication, he was simply placed in solitary confinement under constant supervision.  The government sought a court order authorizing the involuntary administration of medication to render him competent to stand trial.  The Circuit Court held that there was no basis to believe that defendant’s worsening condition rendered him more dangerous, given his near-total incapacitation.  However, the court affirmed the District Court’s decision that the government’s interest in administering antipsychotic drugs overrode his liberty interest and that restoring his competence in this way did not violate his right to a fair trial.

b) Sell v. United States, 539 U.S. 166 (2003).  Defendant was charged with fraud.  A federal magistrate found him incompetent to stand trial and ordered his hospitalization to determine whether he would attain capacity to allow his trial to proceed.  Sell refused to take antipsychotic drugs.  The magistrate found involuntary medication appropriate because Sell was a danger to himself and others, that medication was the only way to render him less dangerous, that any serious side effects could be ameliorated, that the benefits to him outweighed the risks, and that the drugs were substantially likely to return Sell to competence.  The District Court, although determining that the Magistrate’s conclusion regarding Sell’s dangerousness was clearly erroneous, nonetheless affirmed the decision because it found that the medication was the only viable hope of rendering Sell competent and was necessary to serve the government’s interest in adjudicating his guilt or innocence.  The Circuit Court affirmed, finding that the government had an essential interest in bringing Sell to trial, that treatment was medically appropriate, and that the medical evidence indicated a reasonably probability that Sell would fairly be able to participate in his defense.  The Supreme Court vacated and remanded the case.  Determining that forced medication solely for trial competency purposes may be rare, the Court held that the Constitution permits involuntary medication to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary to significantly further important governmental trial-related interests.

c) United States v. Bush, 585 F.3d 806 (4th Cir. 2009).  The court finds that the government must establish all of the Sell factors by clear and convincing evidence.  The court also held that even where a defendant has been in an institution longer than the maximum punishment for the underlying offense, the government still has an important interest in bringing the defendant to trial.  Certain consequences that convictions bring (such as firearms restrictions) are important governmental interests justifying continued prosecution and potential involuntary medication.

4. Recovery.  If the accused has recovered and is competent to stand trial, the director of the facility notifies the GCMCA and sends a copy of the notice to accused’s counsel.  GCMCA must take prompt custody of the accused if the accused is still in a military status.  The director of the facility may retain custody of the person for not more than 30 days after transmitting the required notifications.

a) No Recovery.  If person does not improve (18 U.S.C. § 4246).  If the director of the facility where the accused is confined certifies that the accused is presently suffering from a mental disease or defect and his release would create a substantial risk of bodily injury to another person or serious damage to property, the director notifies the GCMCA.  The district court then conducts further hearings.

F. WaiverMoore v. Campbell, 344 F.3d. 1313 (11th Cir. 2003).  The Eleventh Circuit Court of Appeals looked at whether a defendant in a capital case can forfeit his right to competency – a case of first impression.  Moore attempted suicide during his capital murder trial.  After treatment at a hospital and subsequent examination by a psychiatrist, Moore appeared at trial, which resumed on 31 August.  From 27 August until the evening of 1 September, Moore had refused anything to eat or drink, resulting in dehydration.  The state court found Moore was competent to stand trial and that he took a “calculated and concerted effort to disrupt his murder trial.”  The state court also found Moore’s asserted incompetence similar to a defendant whose behavior results in exclusion from a trial.  Reviewing the state court proceedings during a federal habeas petition, the Court of Appeals determined that the “state court’s determination that a capital defendant in Alabama can forfeit his right to be competent – that is mentally present – at trial” was not contrary to or an unreasonable application of clearly established Supreme Court precedent, if only because the issue has not been yet decided by the Supreme Court.

G. Post-trial.  The convening authority may not approve a sentence while the accused lacks the mental capacity to cooperate and understand post-trial proceedings.  Likewise, an appellate authority may not affirm the findings when the accused lacks the ability to understand and cooperate in appellate proceedings.  RCM 1203(e)(5).  See Thompson v. United States, 60 M.J. 880 (N-M. Ct. Crim. App. 2005) (holding that appellant demonstrated lack of mental capacity to assist in appeal; appeal stayed).


A. Sanity Board Request.

1. Who can request?  Any commander, preliminary hearing officer, trial counsel, defense counsel, military judge, or member.  RCM 706(a).

a) Request goes to CA (before referral) and MJ (after referral).

b) A sanity board should be granted if request is not frivolous and is made in good faith.  United States v. Nix, 36 C.M.R. 76, 80-81 (C.M.A. 1965); United States v. Kish, 20 M.J. 652 (A.C.M.R. 1985).

c) It may be prudent for trial counsel to join in the motion.  See United States v. James, 47 M.J. 641 (A. Ct. Crim. App. 1997) (finding that a mental status evaluation was not an adequate substitute for a sanity board).

2. Failure to direct a sanity inquiry.

a) Though ultimate result may be “favorable” to the government, failure to timely direct a sanity board can result in lengthy appellate review.  United States v. Breese, 47 M.J. 5 (C.A.A.F. 1997).

b) “A low threshold is nonetheless a threshold which the proponent must cross.”  United States v. Pattin, 50 M.J. 637, 639 (A. Ct. Crim. App. 1999) (finding that the military judge’s refusal to order a sanity board was not error where it appeared the motion for a sanity board was merely a frivolous attempt to get a trial delay).

3. Sanity Board Order asks the following questions:

a) At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect?

b) What is the clinical psychiatric diagnosis?

c) Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his conduct?

d) Does the accused have sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense?

4. Composition of the sanity board.

a) One or more persons.

b) Physician or clinical psychologist.

c) At least one psychiatrist or clinical psychologist.

d) A provisional license may be enough to qualify a psychologist as a clinical psychologist.  United States v. Boasmond, 48 M.J. 910 (N-M. Ct. Crim. App. 1998).

5. Conflict of interest.  United States v. Best, 61 M.J. 376 (C.A.A.F. 2005).  Two members of the accused’s RCM 706 sanity board had a preexisting psychotherapist-patient relationship with the accused.  In a case of first impression, the Army court stated that an actual conflict of interest would exist when prior participation that materially limits his or her ability to objectively participate in and evaluate the subject of an RCM 706 sanity board.  The CAAF declined to adopt a presumptive rule that there would be an actual conflict of interest if a mental health provider, who has established a psychotherapist-patient relationship with an accused, also serves as a member in an RCM 706 sanity board.  In this case, the CAAF held there was no evidence suggesting that the two members’ participation would be materially limited by their prior relationship.

6. The accused’s right to a speedy trial is not violated when the government delays the case for a time reasonably necessary to complete a thorough mental evaluation.  United States v. Colon-Angueira, 16 M.J. 20 (C.M.A. 1983) (fifty-one days reasonable); United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993) (the government’s negligence or bad faith can be considered in determining whether the sanity board was completed within a reasonable time); United States v. Pettaway, 24 M.J. 589 (N.M.C.M.R. 1987) (thirty-six days was reasonable time for a second sanity board); United States. v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 2001) (140 days was not unreasonable, where the record reflected due diligence by the government).

7. Results of board - limited distribution.

a) Defense counsel gets full report.

b) Trial counsel initially only gets answers to the above questions.

B. The Sanity Inquiry.

1. Compelled Examination.  RCM 706.

a) Article 31, UCMJ, not applicable.

b) Failure to cooperate in an examination can result in the exclusion of defense expert evidence.

2. Privilege Concerning Mental Examination of an Accused.  MRE 302.

a) The general rule:  Anything the accused says (and any derivative evidence) to the sanity board is privileged and cannot be used against him.  

b) This privilege may be claimed by the accused notwithstanding the fact that the accused may have been warned of the rights provided by MRE 305.

c) Waiver.  There is no privilege under this rule when the accused first introduces into evidence such statements or derivative evidence.  Privilege applies only to examinations ordered under RCM 706.  See United States v. Toledo, 25 M.J. 270 (C.M.A. 1987), aff’d on reconsid., 26 M.J. 104 (C.M.A. 1988).

3. Derivative Evidence.  In United States v. Clark, 62 M.J. 195 (C.A.A.F. 2005), the accused was charged, inter alia, with breaking restriction.  Dr. Petersen treated the accused for almost a month after his command referred him to mental health.  She concluded that the accused suffered a manic episode during the charged time period.  Prior to trial, the defense requested a sanity board.  Dr. Marrero was the lone member of the board, and he agreed with Dr. Petersen’s diagnosis, but concluded that the accused was mentally responsible.  At trial, Dr. Petersen, testifying for the defense, opined that there was a “high likelihood” that the accused suffered from a severe mental disease or defect during the relevant time period and that, as a result of that severe mental disease or defect, would have had a difficult time appreciating the nature and quality or wrongfulness of his conduct.  During her testimony, Dr. Petersen acknowledged that she reviewed the sanity board report.  The trial counsel renewed his motion to obtain a copy of the report (the MJ earlier denied the same request), which was granted.  The CAAF held that it was error to release the statements of accused to Dr. Marrero as the derivative evidence provisions of MRE 302 had not been triggered.  As a nonconstitutional error, the government would have to demonstrate that the error did not have a substantial influence on the findings.   Given that the government relied heavily upon the testimony of Dr. Marrero, the court was left to conclude that the insanity defense may have succeeded had the military judge not erred in releasing the appellant’s privileged statements to the government.

C. Are there substitutes for a sanity board?

1. Yes.  “The point is that we do not believe that the drafters selected the sanity board format because they had determined that no other procedure was capable of detecting mental disorders or determining an accused person’s mental capacity or responsibility.  That being the case, we believe we should look to the substance of the evaluation performed on the accused rather than on its form.”  United States v. Jancarek, 22 M.J. 600, 603 (A.C.M.R. 1986) (emphasis added).

2. But see United States v. Mackie, 65 M.J. 762 (A.F. Ct. Crim. App. 2007), aff’d, 66 M.J. 198 (C.A.A.F. 2008) (finding that the mental health evaluation performed by a staff psychologist as a result of a pretrial suicide gesture was not an adequate substitute because of her inexperience in performing sanity boards);  United States v. James, 47 M.J. 641 (A. Ct. Crim. App. 1997) (finding that mental status evaluation done by a mental health counselor was not an adequate substitute); United States v. English, 47 M.J. 215 (C.A.A.F. 1997) (finding that an examination by doctors for purposes of treatment of the accused was not an adequate substitute because the examination did not address the judicial standards for mental capacity or responsibility).


A. In addition to a sanity board, an accused is entitled to access to a qualified psychiatrist or psychologist for the purpose of presenting an insanity defense if he establishes that his sanity will be a “significant factor” at the trial.  United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986); see Ake v. Oklahoma, 470 U.S. 68 (1985).  Significant factor defined:

1. Mere assertion of insanity by accused or counsel is insufficient.  Volson v. Blackburn, 794 F.2d 173 (5th Cir. 1986).

2. A “clear showing” by the accused that sanity is in issue and a “close” question that might be decided either way is required.  Cartwright v. Maynard, 802 F.2d 1203 (10th Cir. 1986).

3. Expert must be made part of the “defense team” under MRE 502 to be covered by the attorney-client privilege.  United States v. Toledo, 25 M.J. 270 (C.M.A. 1987), aff’d on reconsid., 26 M.J. 104 (C.M.A. 1988).  United States v. Mansfield, 38 M.J. 415 (C.M.A. 1993).  A physician, psychotherapist who assists the defense in preparation of a defense may fall within the scope of the attorney-client privilege.

B. United States v. Collins, 60 M.J. 261 (C.A.A.F. 2004).  The MJ must act when issues of mental responsibility and capacity arise during trial.  In this case, the lone member of a sanity board testified in a manner apparently inconsistent with his conclusion in the report that the accused was mentally responsible for his actions.  During trial, COL Richmond testified that the accused’s actions were consistent with his delusional disorder and that the accused did not understand the nature and quality or wrongfulness of his conduct.  The MJ did not order further inquiry under RCM 706 and the CAAF held that he should have.

C. Defense use of statements of the accused to an RCM 706 Board.  United States v. Schap, 49 M.J. 317 (C.A.A.F. 1998).  The judge did not err when he sustained trial counsel's objection and prevented former sanity board psychiatrist from testifying for defense at trial as to accused's statements and emotions at the time of the offense.  The defense was attempting to smuggle the accused's statements in without subjecting him to cross-examination.

D. Once defense offers expert testimony of accused’s mental condition, a prosecution expert may testify as to the reasons for the expert’s conclusions concerning accused’s mental state (may not extend to accused’s statements unless the accused first introduces his own statement or derivative evidence).  MRE 302.

E. Disclosure of full sanity board report.  United States v. Cole, 54 M.J. 572 (A. Ct. Crim. App. 2000), aff’d, 55 M.J. 466 (C.A.A.F. 2001) (summary disposition).  At trial, the Government moved to compel defense disclosure of entire report under MRE 302(c) because defense was requesting two experts to testify about accused’s belief that his actions were necessary to protect his family (as opposed to lack of mental responsibility).  The military judge’s decision to defer ruling on the government motion, because it was unclear in advance of the testimony whether the experts would testify on the issue of mental responsibility and not just on the second prong of defense of another, was not an abuse of discretion.

1. United States v. Savage, 67 M.J. 656 (A. Ct. Crim. App. 2009).  The appellant claimed that he was asleep when he stabbed his victim due to a disorder called parasomnia.  An RCM 706 inquiry concluded that the appellant was competent to stand trial, that there was a reasonable possibility that the appellant suffered from “parasomnia, or somnambulism that produced an automatism or sleep-related behavior at the time of the assault,” and that the appellant may not have been unable to appreciate the wrongfulness of his conduct.  The defense provided the government with notice of intent to rely on the defense of lack of mental responsibility.  Approximately six weeks later, the defense e-mailed the full RCM 706 report to the trial counsel without an order from the military judge.  Six weeks after that, the appellant hired civilian counsel and excused the counsel who e-mailed the report.  Eventually the civilian counsel notified the government that the defense would not pursue the defense of lack of mental responsibility, and instead would rely upon partial mental responsibility to negate mens rea.  Some of those statements were eventually used in cross-examination of the appellant’s expert.  The ACCA held that MRE 302(c) was violated, but the error was harmless.  The defense case-in-chief involved statements from an expert that revealed specific statements made by the appellant captured in the RCM 706 inquiry.  The defense could have avoided the government using any portion of the report by not calling experts who authored the report.  See United States v. Clark, 62 M.J. 195 (C.A.A.F. 2005).

F. Although the rule seems to condition the use of expert testimony by the prosecution on prior use of experts by the defense, the Court of Military Appeals rejected such an interpretation, finding that lay testimony can permit the government to use its experts.  United States v. Bledsoe, 26 M.J. 97 (C.M.A. 1988); see also United States v. Matthews, 14 M.J. 656 (A.C.M.R. 1982).

G. The sanity board report is not admissible under hearsay rules.  United States v. Benedict, 27 M.J. 253 (C.M.A. 1988).

H. Sentencing Considerations.  Extenuation and Mitigation.  Evidence of the accused’s mental condition can be used on sentencing but with caution.  See United States v. Bono, 26 M.J. 240 (C.M.A. 1988).

I. Guilty Pleas and Sanity Issues.

1. United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005).  After acceptance of the accused’s pleas and announcement of sentence, but before the convening authority took action, the accused was diagnosed with bipolar disorder.  At a post-trial Article 39(a) session, the military judge listened to expert testimony from mental health experts who disagreed as to whether the accused suffered from any mental illness.  The accused did not testify at this hearing.  In his findings of fact and conclusions of law, the military judge stated that the accused “suffered from a bipolar disorder that would equate to a severe mental disease or defect,” but that he appreciated the wrongfulness of his actions and was subsequently competent to stand trial.  The CAAF disagreed, the majority saying that they did not see how an accused can make an informed plea without knowledge that he suffers from a severe mental disease or defect at the time of the offense.  The court also stated that it was not possible for a military judge to conduct the necessary Care inquiry without exploring with the accused the impact of any mental health issues on those pleas.

2. United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007).  The accused pled guilty to offenses during a guilty plea and findings were entered.  During the accused’s unsworn statement, he said that prior to the charged offenses he was assaulted by a man wielding a lead pipe and suffered severe injuries to his head and brain.  The accused also said that he spent almost a month in the hospital and that he was diagnosed with bipolar syndrome.  The CAAF determined that the military judge did not err when he failed to inquire into the accused mental condition because his statements were unsupported by other evidence entered into the record or his behavior during his providence inquiry or unsworn statement.  A military judge is only required to inquire into circumstances or statements that raise a possible defense, not circumstances or statements that raise the “mere possibility” of defense.  NOTE:  The majority opinion recommended that a prudent military judge conduct an inquiry when a significant mental health condition is raised during the plea inquiry; see also United States v. Falcon, 65 M.J. 386 (C.A.A.F. 2008) (noting that “[the accused] has provided no authority that a diagnosis of pathological gambling can constitute a defense of lack of mental responsibility.”); United States v. Glenn, 66 M.J. 64 (C.A.A.F. 2008) (stating that the accused’s expert mitigation evidence that he suffered from a mood disorder and his unsworn and unsubstantiated statements that he suffered from bipolar disorder did not raise a substantial basis in law for questioning his guilty plea); United States v. Torgensen, No. ARMY 20150356, 2016 WL 3545494, (A. Ct. Crim. App. June 22, 2016) (MJ erred in failing to inquire into lack of mental responsibility during providence inquiry where sentencing included evidence of mental health diagnoses and treatment).

3. United States v. Handy, 48 M.J. 590, 593 (A.F. Ct. Crim. App. 1998).  During a guilty plea, “[w]hen evidence of an accused’s mental health rears its head, the judge should question defense counsel on whether he or she has explored the mental responsibility angle of the case, including whether evidence exists to negate an intent or knowledge element of the offense.  The judge should ask the accused if defense counsel has discussed that issue and how it may apply to the particular case.  The judge should accept the guilty plea only if the mental issues are resolved for the record and the accused disclaims any potential mental ‘defense,’ full or partial.” 

4. United States v. Estes, 62 M.J. 544 (A. Ct. Crim. App. 2005).  Appellant argued that remarks made during his unsworn, indicating a hyper-religiosity, should have triggered further inquiry from the Military Judge regarding his lack of mental responsibility and competency.  Appellant further argued that the inquiry, together with evidence of appellant’s cannabis addiction, would have demonstrated significant issues of lack of mental responsibility.  The Army court, in a carefully reasoned opinion, held appellant failed to show that a different verdict might reasonably have resulted if the trier of fact had evidence of a lack of mental responsibility that was not available for consideration at trial.

5. United States v. McGuire, 63 M.J. 678 (A. Ct. Crim. App. 2006).  Appellant’s providence inquiry referenced psychiatric treatment and he otherwise acted strangely during his colloquy with the military judge.  A previous mental evaluation pursuant to RCM 706 determined that the accused possessed the requisite mental capacity to stand trial and that he did not lack the necessary mental responsibility at the time of the offense.  The Army court determined that the military judge was not required sua sponte to order further evaluation of the appellant.  With regard to the providence of the appellant’s plea, the court, citing to Estes, reaffirmed that not every reference to psychiatric treatment or problems, no matter how vague or oblique, is sufficient to create a substantial basis for questioning a guilty plea.

6. United States v. Riddle, 67 M.J. 335 (C.A.A.F. 2009).  In a stipulation of fact, the parties agreed that the appellant had a chronic alcohol and marijuana dependence, as well as a bipolar and borderline personality disorder.  The military judge was aware of these conditions.  The judge knew that before her absence, she was receiving mental health treatment at an “off-post installation that specializes in mental issues, mental and behavioral issues.”  The judge also knew that she arrived at the trial from the facility and would return there after trial.  During the trial, the military judge asked the appellant if she was feeling OK when she referred to “getting the fishes high” by throwing a marijuana cigarette into a lake.  The military judge also asked the appellant a series of questions regarding her mental health and competency at trial.  A report of mental health status evaluation was admitted into evidence on sentencing, stating that appellant had attempted suicide twice, but was mentally responsible.  Finally, the military judge noted before sentencing that he observed the appellant at trial, and that she was alert, articulate, and cognizant.  The CAAF held that her guilty plea was not improvident.  A military judge can presume, in the absence of contrary circumstances, that the accused is sane.  See United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007).  If the appellant’s statement or facts in the record indicate a mental disease or defect, the military judge must determine if that information raises a conflict with the plea or merely a possibility of conflict with the plea.  The former requires further inquiry, the latter does not.  The CAAF finds that the facts of this case merely raised the possibility of conflict with the plea and the military judge was not required to inquire further.  Moreover, the military judge appropriately inquired into her status, and captured his observations in the record. 

7. Like other affirmative defenses, lack of mental responsibility is subject to the rule of waiver.  United States v. Boasmond, 48 M.J. 912 (N-M. Ct. Crim. App. 1998).

VIII. References

A. Manual for Courts-Martial, United States.

B. TM 8-240, Military Mental Health Law (29 Sept. 1992).

C. Major Timothy P. Hayes, Jr., Post-Traumatic Stress Disorder on Trial, 190-191 Mil L. Rev. 67 (2007).

D. Major Jeremy Ball, Solving the Mystery of Insanity Law:  Zealous Representation of Mentally Ill Servicemembers, Army Law., Dec. 2005,  at 1.

E. Captain Charles Trant, The American Military Insanity Defense:  A Moral, Philosophical, and Legal Dilemma, 99 Mil. L. Rev. 1 (1983).

F. Major Rita Caroll, Insanity Defense Reform, 114 Mil. L. Rev. 183 (1986).

G. Lieutenant Colonel Donna M. Wright, “Though this be madness, yet there is some method in it”:  A Practitioners Guide to Mental Responsibility and Competency to Stand Trial, Army Law., Sep. 1997, at 18.

H. Major Jeff Bovarnick and Captain Jackie Thompson, Trying to Remain Sane Trying an Insanity Case: United States v. Captain Thomas S. Payne, Army Law., June 2002 at 13.


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