In addition to a sanity board, an accused is entitled to 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. United States v. Mustafa , 22 M.J. 165 (C.M.A. 1986); see Ake v. Oklahoma , 470 U.S. 68 (1985). Significant factor defined:
- Mere assertion of insanity by accused or counsel is insufficient. Volson v. Blackburn ,794 F.2d 173 (5th Cir. 1986).
- A “clear showing” by the accused that sanity is in issue and a “close” question thatmight be decided either way is required. Cartwright v. Maynard , 802 F.2d 1203 (10th Cir. 1986).
- Expert must be made part of the “defense team” under MRE 502 to be covered by theattorney-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). A physician, psychotherapist who assists the defense in preparation of a defense may fall within the scope of the attorney-client privilege.
- United States v. Collins , 60 M.J. 261 (C.A.A.F. 2004). The MJ must act when issues ofmental responsibility and capacity arise during trial. In this case, the lone member of a sanity board testified in a manner apparently inconsistent with his conclusion in the report that the accused was mentally responsible for his actions. During trial, COL Richmond testified that the accused’s actions were consistent with his delusional disorder and that the accused did not understand the nature and quality or wrongfulness of his conduct. The MJ did not order further inquiry under RCM 706 and the CAAF held that he should have.