Significant aspects of the current standard.

  1. bestmilitarydefenseucmjdefenselawyer261Threshold Requirements.
    1. The affirmative defense requires a “severe” mental disease or defect. United States v. Martin , 56 M.J. 97, 103 (C.A.A.F. 2001).
      1. The MCM defines “severe mental disease or defect” negatively. 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 nonpsychotic behavior disorders and personality defects.” RCM 706(c)(2)(A) (emphasis added).
      2. 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) (discussing pedophilia).
      3. 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 nonpsychotic behavior disorders and personality disorders.”
      4. In 1986, the President rescinded adoption of Fed. R. Evid. 704(b), which prohibits expert testimony offering an opinion on the issue of a defendant’s mental state or condition where such constituted an element or defense to a charged offense. 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 May 7, 1999) (unpublished).
    2. 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.