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.
The Current Standard
Codified in Article 50a, UCMJ. 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.
Significant aspects of the current standard
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). According to the MCM 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 non-psychotic behavior disorders and personality defects.” RCM 706(c)(2)(A). 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).
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 non-psychotic behavior disorders and personality disorders.”
Ultimate Opinion Testimony
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 May 7, 1999) (unpublished).
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.
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).
Burden and standard of proof
Burden on the accused by clear and convincing evidence. In United States v. Martin, 56 M.J. 97, 103 (C.A.A.F. 2001), 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. However, he defendant presented over 20 expert and lay witnesses, none of whom described unusual or bizarre behavior on the dates of the alleged offenses.
The constitutionality of shifting the burden. See United States v. Martin, 48 M.J. 820, 825 n.9 (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).
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. However, according to Shannon v. United States, 512 U.S. 573 (1994), the military judge 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.
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:
First vote on whether the defendant is guilty.
If found guilty, the second vote is on mental responsibility.
RCM 1102A. 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 1102A sets out the procedural guidelines for the hearing.
RCM 1102A(b). Before the hearing, the judge or convening authority shall order a 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. See also 18 U.S.C. § 4243 (post-trial psychiatric examination).
The convening authority shall commit the defendant to a suitable facility until person is eligible for release IAW UCMJ, art. 76b(b). UCMJ, art. 76b(b)(1).
Before the defendant can released from the facility, the defendant must show 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 defendant 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. If the defendant 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. For any other offense, standard is preponderance of the evidence.
Right to Counsel
RCM 1102A(c)(1) provides that the defendant shall be represented by counsel.
Discovery of Evidence Post-Trial indicating Lack of Mental Responsibility. See United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005).