In United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986), the Court held that in addition to a sanity board, an accused is entitled 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. See also Ake v. Oklahoma, 470 U.S. 68 (1985).
Definition of “significant factor.”
In Cartwright v. Maynard, 802 F.2d 1203 (10th Cir. 1986), the Court stated that a “clear showing” by the defendant that sanity is in issue and a “close” question that might be decided either way is required.
The 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).
Defense use of statements of the accused to an RCM 706 Board
In United States v. Schap, 49 M.J. 317 (C.A.A.F. 1998) the Court held that the military judge did not err when he prevented a former sanity board psychiatrist from testifying for defense at trial as to defendant’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.
The sanity board report is not admissible under hearsay rules. United States v. Benedict, 27 M.J. 253 (C.M.A. 1988).
Extenuation and Mitigation. Evidence of the defendant’s mental condition can be used on sentencing but with caution. See United States v. Bono, 26 M.J. 240 (C.M.A. 1988).
Guilty Pleas and Sanity Issues.
United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005). The court 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.
United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007). 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.
United States v. Handy, 48 M.J. 590, 593 (A.F. Ct. Crim. App. 1998). If during a guilty plea, evidence of the defendant’s mental health arises, the judge should ask the defendant 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.”
United States v. Estes, 62 M.J. 544 (A. Ct. Crim. App. 2005). The Court held that the 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.
United States v. McGuire, 63 M.J. 678 (A. Ct. Crim. App. 2006). 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.
United States v. Riddle, 67 M.J. 335 (C.A.A.F. 2009). The CAAF held that the defendant’s guilty plea was not improvident since 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.
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).