2020 (October Term)
United States v. Navarette, 81 M.J. 400 (RCM 706 allows for an inquiry, by a board of one or more professionals, to evaluate whether the accused, at the time of the offense and as a result of severe mental disease or defect was thereby unable to appreciate the nature and quality or wrongfulness of his or her conduct and unable to understand the nature of the proceedings against him or her or to conduct or cooperate intelligently in the defense).
(during the appellate process, RCM 1203(c)(5) allows that an appellate authority may order a psychiatric evaluation in accordance with RCM 706 if a substantial question is raised as to the requisite mental capacity of the accused; to put into question his capacity under RCM 1203(c)(5), an appellant must show there is a substantial question regarding his ability to conduct and cooperate intelligently in the appellate proceedings; the rule requires that an appellant establish a nexus between his mental impairment and his ability to participate intelligently in the proceedings).
(a substantial question with regard to RCM 1203(c)(5) is one in which the appellant’s mental capacity to understand and to conduct or cooperate intelligently in the appellate proceedings is fairly debatable among jurists of reason; this is not a high bar).
(in this case, the CCA abused its discretion by denying appellant’s request for a post‑trial RCM 706 inquiry where appellant provided substantial evidence of his impaired mental health that shows his ability to participate in the proceedings was fairly debatable; this evidence included proof of his multiple mental illness diagnoses, manic episodes, hospitalizations, suicide attempts, and a major psychiatric relapse, as well as the concerns expressed by his counsel).
2018 (October Term)
United States v. Navarette, 79 M.J. 123 (RCM 706 governs trial level inquiries into the mental capacity of an accused; the rule offers guidelines for a mental health query by a board of one or more qualified professionals to determine whether the accused, at the time of the offense and as a result of severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his or her conduct and whether, at the time of the court-martial, the accused suffered from a mental disease or defect rendering the accused unable to understand the nature of the proceedings against the accused or to conduct or cooperate intelligently in the defense).
(RCM 1203(c)(5) allows that an appellate authority may order a psychiatric evaluation in accordance with RCM 706 if a substantial question is raised as to the requisite mental capacity of the accused; the requisite capacity contemplated by RCM 1203(c)(5) is the capacity to conduct and cooperate intelligently in the appellate proceedings; in the absence of substantial evidence to the contrary, the accused is presumed to have the capacity to understand and to conduct or cooperate intelligently in the appellate proceedings; thus, the rule requires that an appellant establish a nexus between his mental impairment and his ability to participate intelligently in the proceedings; if an appellate court orders an RCM 706 hearing under RCM 1203(c)(5), it is within that court’s discretion to determine the scope of the inquiry and whether to include an inquiry into an appellant’s mental capacity at the time of trial and/or at the time of the offense).
(in order to obtain an RCM 706 inquiry at the appellate level, an appellant must make a showing that there is a sufficient reason to question either his mental capacity or mental responsibility; thus, an appellant must, at a minimum, articulate how his mental condition prevents him from being able to understand or participate in the proceedings; without such a nexus, appellant does not raise a substantial question as to his mental capacity).
(in this case, appellant failed to articulate how his mental condition affected his ability to participate in his appellate proceedings, and it was not an abuse of discretion for the lower court to require him to do so).
(in this case, it was not clear that the lower court appropriately considered the degree to which appellant suffered from serious mental illness that may have impacted his decision-making capacity during the period of appellate representation where appellant was involuntarily hospitalized twice for mental health issues during the time that his appellate defense counsel was preparing his appellate brief and where a hospital discharge summary and letter from appellant’s treating psychiatrist reported appellant’s ongoing and long-term struggles with mental health; accordingly, the case was remanded to the lower court to (1) give appellate defense counsel the opportunity to make a showing of nexus between appellant’s significant and documented mental health issues and his capacity to participate in appellate proceedings; and (2) give the lower court the opportunity to more fully evaluate appellant’s RCM 1203 motion in light of counsel’s representations and all other evidence relating to appellant’s mental capacity, particularly in regard to the events that unfolded during the period of appellate representation).
2014 (September Term)
United States v. Torres, 74 M.J. 154 (in the military justice system, neither epilepsy nor automatism has been held to be a mental disease or defect; therefore, the affirmative defense of lack of mental responsibility under RCM 916(k)(1) is not applicable in those instances).
2013 (September Term)
United States v. MacDonald, 73 M.J. 426 (the defense of lack of mental responsibility requires demonstration that the accused suffered from a mental disease or defect and that as a result he was unable to appreciate the nature and quality or wrongfulness of his act).
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).
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).
(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).