CORE CRIMINAL LAW SUBJECTS: Defenses: Lack of Mental Responsibility

2012 (September Term)

United States v. Mott, 72 M.J. 319 (the affirmative defense of lack of mental responsibility requires the accused to prove, by clear and convincing evidence, that at the time of the offense, (1) the accused suffered from a severe mental disease or defect, and (2) as a result of that mental disease or defect, the accused was unable to appreciate either (a) the nature and quality of his acts, or (b) the wrongfulness of his acts). 

(the defense of mental responsibility turns on the accused’s ability to appreciate the nature and quality or wrongfulness of his actions; thus, while wrongfulness is determined objectively, the determination of the accused’s ability to appreciate that wrongfulness is necessarily specific to that accused). 

(within the meaning of the defense of lack of mental responsibility, an accused’s appreciation of the wrongfulness of his acts is subjective; appreciating wrongfulness is the accused’s ability to understand and grasp that his conduct violates society’s essential rules, and is supported by an accused’s understanding that his conduct violated the law, and is contradicted by evidence that, if the facts of the accused’s delusions were true, then his conduct would not violate the law). 

(an objective standard for determining wrongfulness is used in the context of Article 50a, UCMJ; wrongfulness is judged by societal standards, rather than the accused’s own personal moral code, and that the standard focuses on the accused’s ability to appreciate that his conduct would be contrary to public or societal standards). 

(a military judge did not err in providing an objective standard for wrongfulness in his instructions to the members regarding the affirmative defense of lack of mental responsibility).

2011 (September Term)

United States v. Fry, 70 M.J. 465 (if appellant met the mental competence requirement of Article 2(c)(2) (i.e., not insane under 10 USC § 504), then it is surely evidence that he had the requisite mental capacity to understand the significance of submitting to military authorities, i.e., it would tend to show that he acted voluntarily in that regard).

(section 504 of Title 10 (persons not qualified for enlistment) sets out the mental standard for enlistment in relevant part as no person who is insane may be enlisted in any armed force; the general definition section states that the word insane shall include every idiot, lunatic, insane person, and person non compos mentis; non compos mentis requires something more than merely suffering from a mental disease; the concept envisions someone who is incapable of handling her own affairs or unable to function in society). 

(the clear purpose of 10 USC § 504 (persons not qualified for enlistment) was to codify something approximating the common law concept of capacity to contract, in that only those people may enlist who have the ability to understand what it means to enlist).

(given that the concept codified in 10 USC § 504 (persons not qualified for enlistment) is akin to capacity to contract, the events that occurred before and after enlistment are relevant to determining the person’s mental condition on the date the enlistment was executed in determining the mental capacity to enlist). 

(the weight of authority seems to hold that mental capacity to contract depends upon whether the allegedly disabled person possessed sufficient reason to enable him to understand the nature and effect of the act in issue; even average intelligence is not essential to a valid bargain). 

(in this case, the military judge’s conclusion that jurisdiction existed pursuant to Article 2(c) because appellant was mentally competent to enlist was not clearly erroneous; the evidence of record fairly supported the conclusion that appellant had the capacity to understand the significance of his enlistment and acted voluntarily; although expert testimony conflicted as to whether appellant had the mental capacity to understand the significance of his enlistment, and a state court order entered prior to enlistment established a limited conservatorship over appellant, the military judge concluded that the surrounding circumstances did not sufficiently support appellant’s claim of impulsivity because he ultimately managed to conform his conduct to the requirements of the law, orders, and directives and complete recruit training). 
 
(when faced with conflicting evidence on whether a party is competent, the military judge does not err merely because some evidence points in the opposite direction of the military judge’s ultimate conclusion). 

2008 (September Term)

United States v. Riddle, 67 M.J. 335 (in military law, lack of mental responsibility is an affirmative defense that an accused must establish by clear and convincing evidence).

 

(if there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, the military judge and other officers of the court each has the independent responsibility to inquire into the accused’s mental condition). 

 

(in this case, even though the record of trial reflected a diagnosis of bipolar disorder for which appellant was being treated at the time of trial and she arrived at the court-martial from a mental health facility and would return there at its conclusion, the military judge was not required to explain or discuss the defense of lack of mental responsibility with appellant where he was aware of appellant’s mental health history and made sure that her mental condition, current treatment, and competency to stand trial did not put the providence of her plea at issue, where appellant appeared competent and responsible before the military judge, where she claimed she was competent and responsible at the time of the offenses and her counsel agreed that she was competent and responsible at that time, where the mental status evaluation stated that she was responsible, and where no evidence existed to suggest that appellant did not understand the nature and quality or the wrongfulness of her actions when committing the offenses; the evidence before the military judge presented only the mere possibility of conflict with appellant’s guilty pleas and did not raise a substantial basis in law or fact for questioning the providence of those pleas). 

 

2008 (Transition)


United States v. Glenn, 66 M.J. 64 (an accused is presumed to be sane). 

 
United States v. Mackie, 66 M.J. 198 (a military judge has the authority to order a sanity board after referral under RCM 706 if it appears there is reason to believe the accused lacked mental responsibility at the time of a charged offense or lacks the capacity to stand trial; a motion for a sanity board should normally be granted if it is made in good faith and is not frivolous). 

 

(the military judge abused his discretion in this case by denying the defense request for a sanity board, where the trial defense counsel detailed concerns that because of the accused’s memory loss, he might not be able to assist in his own defense, might not be fit to stand trial, and that similar memory loss may have occurred during the alleged misconduct, where the accused submitted an affidavit detailing specific instances of blackouts and memory loss over a six-month period, and where the opinions of the accused’s treating clinical psychologist in the form of a stipulation of expected testimony were not an adequate substitute for a sanity board; this psychologist had seen the accused twice by appointment and once for a brief walk-in conversation, never conducted a forensic examination or participated in a sanity board, and was unaware of the accused’s claimed memory losses and blackouts). 

 

(the plain text of RCM 706 outlines specific substantive findings that a sanity board is required to make; the sanity board must address not only the accused’s capacity to stand trial, but also his mental responsibility at the time of the act in question; those requirements were not met in this case, where the accused’s treating clinical psychologist admitted in a stipulation of expected testimony that he had not conducted a forensic examination of the accused or spent much time with him, that he was unfamiliar with RCM 706 rules and standards, and that although he was able to say that the accused was capable of standing trial, he could not give an opinion as to  whether the accused understood the nature and quality of his actions at the time the alleged criminal conduct occurred, as required by RCM 706(c)).

 

(where the issues of mental responsibility and competency were raised by the accused’s motion for a sanity board and with no indication that the motion was made in bad faith or was frivolous, the military judge should have granted the motion; even assuming a medical examination by a qualified physician could take the place of a sanity board, the stipulation in this case, which failed to provide the specific substantive information required under RCM 706(c), was a legally erroneous basis upon which to deny the motion). 

 

2007


United States v. Shaw, 64 M.J. 460 (in military law, given that lack of mental responsibility is an affirmative defense, mental health issues bear special status; this is reflected in RCM 706 and MRE 302; this status in part reflects the recognition that combat and other operational conditions may generate or aggravate certain mental health conditions, such as post-traumatic stress disorder; as a result, military judges should take particular care to make sure that considerations of mental health do not put the providence of a guilty plea at issue).

 

(RCM 706(a) imposes an obligation not only on defense counsel but also on any commander, investigating officer, trial counsel, military judge, or member to notify the officer authorized to order a mental exam when there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial; MRE 302(a) provides a limited privilege to the accused who participates in an RCM 706 examination even if a rights warning has been provided under Article 31(b), UCMJ; these two examples distinguish mental responsibility from other affirmative defenses). 

 

(the accused is presumed to be mentally responsible at the time of the alleged offense). 

 

(at trial, the military judge may reasonably rely on both a presumption that the accused is sane and the long-standing principle that counsel is presumed to be competent; moreover, the President has assigned the burden of proving lack of mental responsibility to the accused; thus, when the accused is presenting his sentencing statement through or with the assistance of counsel, the military judge may properly presume, in the absence of any indication to the contrary, that counsel has conducted a reasonable investigation into the existence of the lack of mental responsibility defense; this is particularly so when a matter raised during sentencing does not in and of itself present an apparent or possible defense). 

 

(bipolar disorder, like other disorders, may exist with enough severity to raise a substantial question regarding the issue of the accused’s mental responsibility; however, the disorder does not negate responsibility in all cases). 

 

(it may be prudent for a military judge to conduct further inquiry when a significant mental health condition is raised during a guilty plea inquiry in light of military law and practice regarding mental health issues and to obviate such issues on appeal; whether further inquiry is required as a matter of law is a contextual determination). 

 

United States v. Gutierrez, 64 M.J. 374 (the affirmative defense of mistake of fact is a required instruction under RCM 920(e)(3); when this defense is reasonably raised by the evidence, the military judge is duty-bound to give an instruction, unless it is affirmatively waived). 

 

(an accused does not waive his right to a mistake of fact instruction by failure to request it or by failure to object to its omission). 

 

(the defense counsel affirmatively waived an instruction on the affirmative defense of mistake of fact with respect to the lesser-included offense of assault consummated by a battery, where during an Article 39(a) session, the military judge raised a possible mistake of fact instruction for that offense and specifically asked the defense counsel if he was requesting one, and the defense counsel replied that he simply did not want to request one for battery; the defense counsel was presented with the opportunity to request or decline the mistake of fact instruction; he chose to decline it, and in doing so he affirmatively waived his right to the instruction; in the context of the whole record, there is no doubt that defense counsel’s statement was a purposeful decision to forego the defense instruction as to assault consummated by battery).


2005


United States v. Kreutzer
, 61 M.J. 293 (this Court has not limited military justice jurisprudence to a narrow use of mental health evidence; indeed, in Ellis v. Jacob, this Court dispelled any construction of Article 50a(a), UCMJ, 10 USC § 850a(a), that would eliminate evidence of mental conditions relevant to premeditation, specific intent, knowledge, or willfulness, i.e., elements of offenses).

United States v. Best, 61 M.J. 376 (RCM 706 sanity board proceedings are not judicial in nature, purpose, or effect; they are entirely administrative; as an administrative board, whose members are typically appointed by a medical commander and not by the convening authority, and whose findings do not bind the court-martial in its determination of either competence or mental responsibility, such a board cannot be analogized to a court of members). 


(RCM 706 does not address professional conflicts of interest for sanity board members).


(RCM 706 does not contain a per se exclusion of mental health practitioners who may have previously diagnosed or treated an accused from participating on that accused’s sanity board).   


(an actual conflict of interest exists if a psychotherapist’s prior participation materially limits his or her ability to objectively participate in and evaluate the subject of an RCM 706 sanity board).


(prior involvement between the accused and a psychologist and a psychiatrist who served as members of the accused’s RCM 706 sanity board did not give rise to an actual conflict of interest where neither was the accused’s psychotherapist and neither did more than a brief assessment, followed in some cases by referral to those who could diagnose the accused offer him treatment). 


2004

 

United States v. Collins, 60 MJ 261 (RCM 909 provides that no person may be brought to trial by court-martial if that person is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature of the proceedings against him or to conduct or cooperate intelligently in the defense of the case; mental capacity is a question of fact and will be presumed unless the contrary is established by a preponderance of the evidence). 

 

(lack of mental responsibility is an affirmative defense that must be raised and proven by an accused by clear and convincing evidence; an accused is presumed to be mentally responsible at the time of the alleged offenses until the accused establishes by clear and convincing evidence that he was not mentally responsible at the time of the alleged offenses). 

 

(RCM 706(a) provides that if it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that an accused lacks mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused; the submission may be accompanied by an application for a mental examination under RCM 706).

 

(the purpose of the RCM 706 sanity board is to determine if an accused lacks capacity to stand trial or lacks mental responsibility for any offense charged).

 

(a military judge may order a mental examination of the accused regardless of any earlier determination by the convening authority). 

 

(the Rules for Courts-Martial permit additional mental health inquiry at any point during a court-martial proceeding; when questions regarding an accused’s mental responsibility arise during trial, a military judge has a responsibility to order additional inquiry to address those questions).

 

(mental competence and responsibility are the duty of all trial principals; in the courtroom, however, the military judge is ultimately responsible for ensuring that RCM 706 is followed). 

 

(in this case, the military judge abused his discretion by not ordering further inquiry into the accused’s mental responsibility at the point in the trial when the doctor who conducted the RCM 706 sanity board evaluation of the accused before trial and who was the only doctor to testify at trial concerning the accused’s mental capacity and mental responsibility appeared to change in his trial testimony his sanity board conclusion that the accused understood the wrongfulness of his actions; as a result, the accused was prejudiced when his trial proceeded to conclusion without further and complete inquiry into his mental responsibility).

 

2002

United States v. Martin, 56 MJ 97 (the affirmative defense of lack of mental responsibility requires proof that at the time of the offense(s), the accused: (1) suffered from a "severe mental disease or defect" and (2) as a result, was "unable to appreciate the nature and quality or the wrongfulness of the acts." Art. 50a(a), UCMJ).

(an accused bears the burden of showing both elements of the affirmative defense of lack of mental responsibility by clear and convincing evidence).

(clear and convincing evidence with respect to the affirmative defense of lack of mental responsibility is that weight of proof which produces in the mind of the factfinder a "firm belief or conviction" that the allegations in question are true).

(the insanity defense is unusual among affirmative defenses: it is currently one of only two defenses under the UCMJ for which the accused, not the Government, bears the burden of proof at trial; the burden never shifts back to the Government to prove sanity beyond a reasonable doubt; and it is the only affirmative defense for which the jury is instructed to vote on a finding of fact distinct from its finding of guilt).

(shifting the burden of proof on mental responsibility to the accused does not change the standard of review or the tests for either factual or legal sufficiency).

(the distinction between findings of guilt and non-guilt findings of fact as to whether a defendant has proven lack of mental responsibility is clear from RCM 921(c)(4) – there are separate votes where the members first determine whether the prosecution proved the elements of the offense beyond a reasonable doubt and then decide, as a factual matter, whether the accused proved his affirmative defense of lack of mental responsibility by clear and convincing evidence).

(the review of non-guilt, factual findings on the defense of lack of mental responsibility has been approached by applying either the "clearly erroneous" or "reasonableness" standard of review, the difference in the approaches devolving from the difference in the deference accorded to review of non-guilt findings of fact made by judges and those made by juries).

(in reviewing non-guilt findings of fact made by judges, including those on lack of mental responsibility/insanity, federal courts apply the "clearly erroneous" standard – a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).

(in the case of a non-guilt finding of fact by members on the question of mental responsibility, an appellate court should reject the finding on insanity only if no reasonable trier of fact could have failed to find that the defendant’s criminal insanity at the time of the offense was established by clear and convincing evidence – such a determination depends on whether there is substantial evidence in the record supporting the jury’s finding of fact).

(regarding the second prong of the test for lack of mental responsibility, the second prong can be established alternatively by clear and convincing evidence of an inability to (1) appreciate the nature and quality of the criminal act, or (2) appreciate the wrongfulness of the criminal act).

(regarding the second prong of the test for lack of mental responsibility, "nature and quality" have been explained to mean that the accused simply did not know what he was doing – the accused did not have mens rea because he cannot comprehend his crimes, including their consequences).

(regarding the second prong of the test for lack of mental responsibility, "wrongfulness" has been explained to mean that, although the accused may have known what he was doing, he did not know that what he was doing was wrong).

(regarding the second prong of the test for lack of mental responsibility, "wrongfulness" may be legal or moral, and the jury should be instructed on the distinction only where evidence at trial suggests that this is a meaningful distinction in the circumstances of the case; however, evidence of concealment can rebut claims of legal and moral justification, negating the need to address legal and moral justification separately).

(where the evidence at trial consisted of conflicting testimony by expert witnesses concerning the severity of appellant’s bipolar disorder, and where the members had the benefit of assessing the statements and testimony of numerous lay witnesses revealing that appellant attempted to conceal his acts, applying the "reasonableness" standard of review, and interpreting the facts in the manner most favorable to the prevailing party below, Court concluded that a reasonable jury could have found that appellant failed to meet his burden of proving by clear and convincing evidence that he suffered a complete break between reality and fantasy, or was unable to appreciate either the nature and quality of his acts or the wrongfulness of his acts, on either a legal or moral plane).

(appellant’s all-or-nothing defense with respect to lack of mental responsibility can be legally and logically relevant in proving that an accused did not appreciate the nature and quality or wrongfulness of his actions at the time of an offense; but it is up to the members to determine whether the affirmative defense of lack of mental responsibility applied to all, some, or none of the charged offenses).

1999

United States v. Gray, 51 MJ 1 (in reviewing petition for new trial on the basis of newly discovered evidence relating to a capital accused’s mental condition and state, the reviewing authority must also determine beyond a reasonable doubt whether a reasonable factfinder, considering the totality of the evidence, would be convinced by clear and convincing evidence that petitioner lacked mental responsibility for his crimes or should not get the death penalty for them).

United States v. Gray, 51 MJ 1 (normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered).


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