The Sanity Board

Sanity Board Request

Who can request?

courtmartialdefenselawyers10.57.12 2According to R.C.M. 706(a), any commander, investigating officer, trial counsel, defense counsel, military judge, or member.

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

A sanity board should be granted if the 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). 

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).

 Failure to direct a sanity inquiry

A 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).

In United States v. Pattin, 50 M.J. 637, 639 (A. Ct. Crim. App. 1999), the Court found that the military judge’s refusal to order a sanity board was not error as it appeared the motion for a sanity board was merely a frivolous attempt to get a trial delay.

A Sanity Board Order asks the following questions:

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

What is the clinical psychiatric diagnosis?

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?

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

Composition of the sanity board

bestmilitarydefensedefenseattorneys10.04.44PMThe board must have one or more persons, a physician or clinical psychologist and at least one psychiatrist or clinical psychologist.   A provisional license may be enough to qualify a psychologist as a clinical psychologist. United States v. Boasmond, 48 M.J. 912 (N-M. Ct. Crim. App. 1998).

Conflict of interest

In United States v. Best, 61 M.J. 376 (C.A.A.F. 2005). In a case where two members of the accused’s RCM 706 sanity board had a preexisting psychotherapist-patient relationship with the accused, the Court held there was no evidence suggesting that the two members’ participation would be materially limited by their prior relationship.

Results of board – limited distribution.

Defense counsel gets full report.

Trial counsel initially only gets answers to the above questions.

The Sanity Inquiry

Compelled Examination. RCM 706.

Article 31, UCMJ, not applicable.

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

Privilege Concerning Mental Examination of an Accused. MRE 302

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

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.


bestmilitarydefenseucmjdefenselawyer19There 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).

Are there substitutes for a sanity board?

In United States v. Jancarek, 22 M.J. 600, 603 (A.C.M.R. 1986) , the Court held: “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.”

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) where the Court found 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). And United States v. James, 47 M.J. 641 (A. Ct. Crim. App. 1997), where the Court found that the that mental status evaluation done by a mental health counselor was not an adequate substitute.