Post-traumatic stress disorder on trial

Military Law Review

Volumn 190-191, Issue , 2006, Pages 67-110

  Hayes Jr , Timothy P ^a,b  

^a U S ARMY   (United States)

^b NONE

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EID: 39749152861     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (257)

1. Memorandum, General George S. Patton, to Seventh Army, (Aug. 5, 1943), quoted in Charles M. Province, The Unknown Patton, http://www.pattonhq.com/unknown/chap08.html (last visited Aug. 13, 2007).
2. Samuel P. Menefee, The "Vietnam Syndrome" Defense: A "G.I. Bill of Criminal Rights"?, ARMY LAW., Feb. 1985, at 1
3. (quoting THE CHARLIE DANIELS BAND, Still in Saigon, on WINDOWS (Epic Records 1982)).
4. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 424 (4th ed. 1994) [hereinafter DSM-IV].
5. See, e.g., National Defence and Canadian Forces [CF] Ombudsman, Systemic Treatment of CF Members with PTSD Complainant: Christian McEachern, http://www.ombudsman.forces.gc.ca/rep-rap/sr-rs/pts-ssp/rep-rap-02-eng.asp (last visited August 24, 2007), where reactions to PTSD are described under the heading "Resentment towards members with PTSD." For a more reasoned and thorough discussion, see CHRIS R. BREWIN, POSTTRAUMATIC STRESS DISORDER: MALADY OR MYTH? (2003).
6. See also GERALD ROSEN, POSTTRAUMATIC STRESS DISORDER: ISSUES AND CONTROVERSIES (2004).
7. Although the focus of this article is combat-related PTSD, there are, of course, several other stimuli that will trigger onset of the disorder, such as domestic violence, rape, or other violent crimes, and near death experiences in accidents or natural disasters. See, e.g., Edgar Garcia-Rill & Erica Beecher-Monas, Gatekeeping Stress: The Science and Admissibility of Post-Traumatic Stress Disorder, 24 U. ARK. LITTLE ROCK L. REV. 9 (2001).
8. MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 909 (2005) [hereinafter MCM].
9. Id. R.C.M. 916(K)(1).
10. Id. R.C.M. 916(k)(2).
11. Id. MIL. R. EVID. 104.
12. Id. R.C.M. 1001(c).
13. See, e.g., Psalms 22:14 (King James) (where King David, a renowned warrior who lived in the 11th century B.C.E., describes his emotions in the face of his enemies as being "poured out like water" with all his "bones out of joint," with a "heart . . . like wax . . . melted in the midst of [his] bowels"). See also Psalms 55:3-5 (King James) (where David relates that "[b]ecause of the voice of the enemy . . . [m]y heart is sore pained within me: and the terrors of death are fallen upon me. Fearfulness and trembling are come upon me, and horror hath overwhelmed me" (emphasis added)).
14. LAWRENCE A. TRITLE, FROM MELOS TO MY LAI: WAR AND SURVIVAL 56 (2000). Tritle's conclusion is suspect, in that he characterizes Xenophon's obituary as describing Clearchus as a victim of combat, when Xenophon's text actually seems to portray a heroic man fond of battle, rather than traumatized by it.
15. Steve Bentley, A Short History of PTSD: From Thermopylae to Hue, Soldiers Have Always Had a Disturbing Reaction to War, THE VVA VETERAN, 1991, at 11-16.
16. Id.
17. Id.
18. Jo Knox & David H. Price, Healing America's Warriors, Vet Centers and the Social Contract, http://www.vietnam.ttu.edu/vietnamcenter/events/ 1996_Symposium/96papers/healing.htm
19. (citing A. Perkal, War Related Posttraumatic Stress Disorder: A Historical Perspective, CLINICAL NEWSLETTER (National Center for Posttraumatic Stress Disorder), 1992, at 2, (2) 19) (last visited Aug. 13, 2007).
20. Bentley, supra note 13.
21. Id.
22. Id.
23. Id.
24. Id.
25. See id. The author notes that while there were over 116,000 American deaths in Europe, there were 159,000 Soldiers out of action for psychiatric problems.
26. Id. Mr. Bentley alleges that five million individuals were rejected for service as a result of this psychiatric screening.
27. Id.
28. Id.
29. Id. Statistics from these wars will be examined in Section II.B of this article, The Prevalence of Post-Traumatic Stress-Disorder in the Military, as many of these veterans remain in the population today. See infra notes 50 to 72 and accompanying text.
30. Id. It is conceivable that this exacerbation is due to the Soldiers' inner conflicts about the justification of the war, or the unpopularity of the war could have encouraged Soldiers to come forward about their trauma, or both.
31. Menefee, supra note 2, at 3.
32. Jim Goodwin, The Etiology of Combat-Related Post-Traumatic Stress Disorder, in POST-TRAUMATIC STRESS DISORDERS: A HANDBOOK FOR CLINICIANS 1-18 (1987), available at http://home.earthlink.net/~dougyelmen/readjust.html (last visited Aug. 13, 2007).
33. Id.
34. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 236 (3d ed. 1980) [hereinafter DSM-III].
35. Goodwin, supra note 29.
36. DSM-IV, supra note 3, at 424.
37. See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 468 (4th ed. 2000 Text Revision) [hereinafter DSM-IV-TR].
38. Posttraumatic Stress Disorder, http://www.psychnet-uk.com/dsm_iv/ posttraumatic_stress_disorder.htm [hereinafter Posttraumatic Stress Disorder] (last visited Aug. 13, 2007).
39. DSM-IV-TR, supra note 34, at 468.
40. Id. at 465.
41. Id. at 467.
42. Id. at 465.
43. Id. at 466.
44. Id.
45. Treatment of PTSD - (National Center for PTSD), http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/fs_treatmentforptsd.html (last visited Aug, 13, 2007).
46. Id.
47. See Posttraumatic Stress Disorder, supra note 35.
48. Images found at Appendix B were reproduced from http://www.news-leader. com/apps/pbcs.dll/article?AID=/20050927/LIFE04/509270313 (last visited Nov. 1, 2005);
49. see also, e.g., Tamara v. Gurvits et al., Magnetic Resonance Imaging Study of Hippocampal Volume in Chronic, Combat-Related Posttraumatic Stress Disorder, 40 BIOL. PSYCHIATRY 1091 (1996).
50. PTSD, http://www.lawandpsychiatry.com/html/ptsd.html (citing N. Schuff et al., Reduced Hippocampal Volume and n-acetylaspartate in Post Traumatic Stress Disorder, 821 ANNALS N. Y. ACAD, SCI. SUPP. PSYCHOBIOLOGY OF POSTTRAUMATIC STRESS DISORDER 516 (1997)) [hereinafter PTSD] (last visited Aug, 13, 2007).
51. See also J. Douglas Bremner, Neuroimaging Studies in PTSD, NC-PTSD CLINICAL Q. (National Center for PTSD, White River Junction, Vt.), Fall 1997, at 70-71, 73, available at http://www.ncptsd.va,gov/ ncmain/nc_archives/clnc_qtly/V7N4.pdf?opm=1&rr=rr249&srt=d&echorr= true.
52. See PTSD, supra note 46.
53. Id.
54. For example, the accused is not likely to have a pre-PTSD MRI of his brain, so his PTSD MRI would have to be compared to a non-PTSD individual's MRI, or simply explained by an expert, or both. However, the previous statistics have shown the likelihood that the accused's MRI will not reveal any significant reduction in hippocampal size. Such an MRI, if introduced into evidence, may persuade some panel members not to accept other PTSD evidence presented through expert or lay testimony.
55. Garcia-Rill & Beecher-Monas, supra note 5, at 17
56. (citing Naomi Breslau & Glen Davis, Posttraumatic Stress Disorder in an Urban Population of Young Adults: Risk Factors for Chronicity, 149 ARCHIVES GEN, PSYCH. 671 (1992)).
57. See also Ronald C. Kessler, Posttraumatic Stress Disorder: The Burden to the Individual and to Society, 61 J. CLIN. PSYCHIATRY 4, 6 (2000) (citing a lifetime prevalence of only one to two percent).
58. Garcia-Rill & Beecher-Monas, supra note 5, at 17
59. (citing R.A. KULKA ET AL., TRAUMA AND THE VIETNAM WAR GENERATION 53 (1990)).
60. Matthew J. Friedman et al., Post-Traumatic Stress Disorder in the Military Veteran, 17-2 PSYCH. CLIN, OF N. AM. 265, 267 (1994)
61. (citing D. Blake et al., Prevalence of PTSD Symptoms in Combat Veterans Seeking Medical Treatment, J. TRAUM. STRESS 315 (1990)).
62. Friedman et al., supra note 52, at 267
63. (citing J. Rosen et al., Concurrent Posttraumatic Stress Disorder in Psychogeriatric Patients, 2 J. GERIATRIC PSYCH. NEUROL. 65 (1989)).
64. Bentley, supra note 13. The author notes that the chances of being a psychiatric casualty in Korea was 143 percent greater than the chances of being killed in combat.
65. Id.
66. Id. (citing R. A. KULKA, TRAUMA & THE VIETNAM WAR GENERATION: REPORT OF FINDINGS FROM THE NATIONAL VIETNAM VETERANS READJUSTMENT STUDY (1990)). "Partial" PTSD is undefined.
67. Id. (data on claims and adjudications through July 1990).
68. Michael J. Davidson, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War, 29 WM. & MARY L. REV. 415 (1988)
69. (citing John Wilson & Sheldon Zigelbaum, The Vietnam Veteran on Trial: The Relation of Post-Traumatic Stress Disorder to Criminal Behavior, 1 BEHAV. SCI. & L. 70 (1983)).
70. Friedman et al., supra note 52, at 266
71. (citing KULKA, supra note 56).
72. Id.
73. Id.
74. Id. at 268.
75. Id. These astounding figures were culled from the National Vietnam Veterans' Readjustment Study which was ordered by Congress in 1983, supra note 56. See also http://www.ncptsd.va.gov/ncmain/ncdocs/ fact_shts/fs_nvvrs.html?opm=1&rr=rr45&srt=d&echorr=true (last visited Aug. 14, 2007).
76. Id. at 267 (citing unpublished data from 1993).
77. Charles W. Hoge et al., Combat Duty in Iraq and Afghanistan, Mental Health Problems, and Barriers to Care, 351 NEW ENG. J. MED. 13 (2004).
78. Id.
79. Friedman et al., supra note 52, at 268-270.
80. One study conducted by the Center for the Study of Traumatic Stress, an arm of the Uniformed Services University of Health Sciences, has found that a severely wounded veteran is not more likely to suffer from PTSD than a combat veteran who was not severely wounded. See Deborah Funk, Study: PTSD Not More Likely in Severely Wounded Vets, ARMY TIMES, Feb. 20, 2006, at 28.
81. Shankar Vedantam, A Political Debate on Stress Disorder, WASH. POST, Dec. 27, 2005, at A01.
82. Id.
83. Shankar Vedantam, Veterans Report Mental Distress, WASH. POST, Mar. 1, 2006, at AOl (quoting Colonel Charles W. Hoge, Walter Reed Army Institute of Research).
84. Id. (quoting Harvard University psychologist Richard J. McNally).
85. Id. (quoting Michael J. Kussman, Principal Deputy Undersecretary for Health, Department of Veterans Affairs).
86. 70 F.3d 706 (1st Cir. 1995).
87. Id. at 709 (Mr. Lopez was one of three co-defendants in this case).
88. Id. at 712.
89. Id.
90. 18 U.S.C. § 17 (2000).
91. See also Part IV.A.1, infra notes 129 to 173 and accompanying text, for a closer study of the "severity" requirement.
92. Cartagena, 70 F.3d. at 710.
93. Id. at 712.
94. United States v. Garwood, 16 M.J. 863 (N.M.C.M.R. 1983).
95. UCMJ art. 104 (2005).
96. Garwood, 16 M.J. at 867.
97. Id.
98. Id.
99. United States v. Garwood, 20 M.J. 148 (C.M.A. 1985).
100. 21 M.J. 719 (C.M.R. 1985).
101. Id. at 719-20.
102. Id. at 720.
103. Id. (quoting United States v. Frederick, 3 M.J. 230, 234 (C.M.A. 1977)).
104. See infra note 238 for a discussion of the due diligence exception to this rule;
105. see also Thompson v. United States, 60 M.J. 880 (N-M. Ct. Crim. App. 2005) (appellant became mentally incompetent while on appellate leave; court ordered proceeding stayed until appellant could competently assist in his appeal).
106. MCM, supra note 6, R.C.M. 909(a).
107. Id. R.C.M. 909(b).
108. Id. R.C.M. 909(e)(2).
109. 37 M.J. 330 (C.M.A. 1993).
110. Id. at 334.
111. There is a dearth of case law examining the sufficiency of a mental disease or defect as it affects mental capacity as opposed to mental responsibility, but the Proctor court did approve the trial judge's expansive definition of mental disease or defect regarding capacity as analogous to their holding in United States v. Benedict, 27 M.J. 253, 259 (C.M.A. 1988), that psychosis was not required to assert an affirmative defense based on lack of mental responsibility. See Proctor, 37 M.J. at 336.
112. United States v. Williams, 17 C.M.R. 197, 204 (C.M.A. 1954).
113. Dusky v. United States, 362 U.S. 402, 402 (1960).
114. MCM, supra note 6, R.C.M. 706(a).
115. See United States v. Kish, 20 M.J. 652, 654-55 (A.C.M.R. 1985).
116. See United States v. Nix, 36 C.M.R. 76, 79-80 (C.M.A. 1965).
117. MCM, supra note 6, R.C.M. 706(b).
118. Id. R.C.M. 706(a).
119. See United States v. Jancarek, 22 M.J. 600 (C.M.A. 1986) (holding that a prior mental evaluation was an adequate substitute for a sanity board where the substance of the evaluation included a forensic mental evaluation by a professional).
120. See United States v. Collins, 41 M.J. 610 (Army Ct. Crim. App. 1994) (holding that a prior mental evaluation does not equate to a sanity board per se. The substance of the evaluation must be assessed. Here, the evaluation was not administered with a view towards court-martial, so it was not a satisfying forensic examination).
121. The convening authority orders a sanity board before referral. After referral, the military judge will order the inquiry; however, the convening authority may order the inquiry before any hearing commences, if the judge is not reasonably available. See MCM, supra note 6, R.C.M. 706(b).
122. Id. R.C.M. 706(c)(1).
123. Id.
124. Id. See also United States v. Best, 61 M.J. 376, 387 (2005). (There is not a per se conflict if a member of the sanity board has treated or diagnosed the accused on a prior occasion, as long as his prior contact does not materially limit his ability to "objectively participate" in the sanity board.)
125. See MCM, supra note 6, R.C.M. 706(c)(2).
126. Id. (listing the four questions the board must answer at a minimum).
127. Id. At this point, it is important to note that sanity boards can also be directed to address the accused's mental responsibility, instead of, or in addition to, their mental capacity. The procedure is the same for both, although the findings will be different. Further discussion of mental responsibility is reserved for Part IV of this article.
128. Id. R.C.M. 707(c)(1) discussion.
129. Id. R.C.M. 706(c)(3)(A). The defense counsel will receive the full report, while the trial counsel will receive a sanitized version that serves to protect the accused's Article 31, UCMJ rights.
130. Id. R.C.M. 706(c)(3) discussion.
131. Id. R.C.M. 909(d).
132. Id. R.C.M. 909(e)(1).
133. Id. R.C.M. 909(e)(2).
134. Id.
135. Id. R.C.M. 909(e)(3).
136. Id. R.C.M. 909(d).
137. Id. R.C.M. 909(e)(3).
138. Id. R.C.M. 909(f).
139. 18 U.S.C. § 4241(d) (2000), See also UCMJ art. 76b (2005).
140. MCM, supra note 6, R.C.M. 909(f).
141. The discussion accompanying RCM 909(f) notes that the initial period of hospitalization should not exceed four months under 18 U.S.C. § 4241(d). If, however, there is a substantial probability that the accused will regain capacity to stand trial in the near future, hospitalization may be continued for an additional reasonable period of time.
142. 18 U.S.C. § 4246, part of the Insanity Defense Reform Act of 1984, directs that a person hospitalized for lack of mental capacity to stand trial may not be released, even if charges have subsequently been dismissed due to incapacity, if he or she continues to suffer from a mental disease or defect that would create a substantial risk of bodily injury to another person or serious damage to property if the person was released. This risk is determined via a hearing following a psychiatric or psychological examination. If the court finds clear and convincing evidence of such a substantial risk, custody should be remanded to the Attorney General, who shall release the accused to his or her state of domicile or trial provided that state will accept responsibility for the person. In any event, hospitalization will continue until such time as a periodic reevaluation determines that there is no longer a substantial risk of bodily harm to others or serious damage to property if the person is released. There is also a provision for conditional release under prescribed medical, psychiatric, or psychological care or treatment. See 18 U.S.C. § 4246(e)(2).
143. MCM, supra note 6, R.C.M. 916(k)(1).
144. U.S. DEP'T OF ARMY, PAM 27-9, MILITARY JUDGES' BENCHBOOK ( 15 Sept. 2002).
145. Id. at 820.
146. See, e.g., United States v. Freeman, 357 F.2d 606, 625 (2d Cir. 1966) (holding that repeated criminal behavior "cannot be the sole ground for a finding of mental disorder"); United States v. Cartagena- Carrasquillo, 70 F.3d 706, 712 (1st Cir. 1995) (stating that even "significant" cases of PTSD and schizophrenia did not rise to the level of severe mental disease or defect).
147. At lease one commentator has argued that the definition of "severe mental disease or defect" found in RCM 706 and in DA Pam. 27-9 is unsupported by statute and case law and is thus invalid. See Major Jeremy A. Ball, Solving the Mystery of Insanity Law: Zealous Representation of Mentally III Servicemembers, ARMY LAW., Dec. 2005, at 1, 17-19. I have chosen to limit my focus to a discussion of how a case of PTSD may meet the RCM 916(k)(1) criteria as it is currently interpreted in order to best assist today's military justice practitioner, despite the sound arguments presented by Major Ball in his article. Nevertheless, I commend Major Ball's article to an attorney involved in a PTSD case, as it provides insightful practical advice in such areas as requests for instruction and eliciting expert testimony. See Ball, supra, at 19. Further, although sparingly but appropriately cited, I have consulted Major Ball's article frequently and with appreciation as a resource to help refine or expand the analysis contained in this article.
148. 37 F.3d 1319 (8th Cir. 1994).
149. Id. at 1321.
150. Id. at 1322.
151. Id.
152. Id.
153. Id.
154. Id.
155. See Part IV.A.3, infra notes 198 to 224 and accompanying text, for further discussion on the burden of proof.
156. Long Crow, 37 F.3d at 1322.
157. Id. at 1323.
158. Id. at 1324.
159. 918 F. Supp. 463 (D.D.C. 1996).
160. United States v. Rezaq, 134 F.3d 1121, 1126 (3d Cir. 1998), cert. denied, 525 U.S. 834 (1998). The underlying facts of the case are best presented in this appeal. However, Rezaq appealed on grounds unrelated to the insanity defense, so, although the case was affirmed, the appellate decision is not important to this discussion.
161. MCM, supra note 6, R.C.M. 1001(b)(4).
162. Rezaq, 134 F.3d at 1126.
163. Id.
164. Rezaq, 918 F. Supp. at 463.
165. Rezaq, 134 F.3d at 1126.
166. Id.
167. Id.
168. Id. at 1127.
169. Id.
170. Id.
171. Id.
172. United States v. Rezaq, 918 F. Supp. 463, 466 (D.D.C. 1996).
173. Id. at 467 (citing 18 U.S.C. § 17(a) (2000), which is identical in all substantive portions to RCM 916(k)(1), supra note 128).
174. Rezaq, 918 F. Supp. at 467.
175. Id. at n.6.
176. Id. at 467 (citing several cases, most notably United States v. Smith, 507 F.2d 710, 711 (4th Cir. 1974), holding that "[A] trial judge should permit 'an unrestricted inquiry into the whole personality of defendant' and should 'be free in his admission of all possibly relevant evidence'").
177. Id.
178. Id.
179. Id.
180. Id. at 468.
181. Id.
182. Id.
183. Id.
184. Id.
185. Id. at n.8.
186. Id. See infra Part IV.A.2 for a discussion of how this evidentiary rule is relaxed in courts-martial. See infra notes 193-197 and accompanying text.
187. Rezaq, 134 F.3d at 1126.
188. Rezaq was affirmed on appeal by the Third Circuit on unrelated grounds. See United States v. Rezaq, 134 F.3d 1126 (3d Cir. 1998), cert. denied, 525 U.S. 834 (1998).
189. Ball, supra note 132, at 20.
190. 56 M.J. 97 (2001).
191. Major Martin did not have PTSD, but bipolar disorder. Id. at 100.
192. See, e.g., BLACK'S LAW DICTIONARY 97 (17th ed. 1999).
193. Martin, 56 M.J. at 108.
194. Id.
195. See Ball, supra note 132, at 21.
196. WHARTON'S CRIMINAL LAW § 101, at 17 (15th ed. 1993).
197. Martin, 56 M.J. at 109.
198. See Ball, supra note 132, at 22 (citing United States v. Danser, 110 F. Supp. 807, 826 (S.D. Ind. 1999) and United States v, Segna, 555 F.2d 226 (9th Cir. 1977), for the proposition that wrongfulness could include the subjective belief that the act did not violate the accused's own conscience).
199. 56 M.J. 523 (N-M. Ct. Crim. App. 2001).
200. Id. at 525.
201. Id.
202. Id. at 526 (citing Prosecution Exhibit 1 at 8-9).
203. SWAT is an acronym for Special Weapons and Tactics. RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1920 (2d ed. 1998).
204. Thomas, 56 M.J. at 526-28 (the accused stated that he killed his son to mercifully spare him the pain of being shot to death by the perceived law enforcement personnel).
205. Id. at 531.
206. Id. at 532.
207. Id.
208. The expert could testify that the accused suffered from a severe mental disease or defect, but would not be able to conclude in his or her testimony that, because of that disease or defect, the accused did not subjectively appreciate his actions, or that they were wrong. See United States v. Rezaq, 918 F. Supp. 463, 468 n.8 (D.D.C. 1996).
209. MCM, supra note 6, MIL R. EVID. 704.
210. 39 M.J. 288 (C.M.A. 1994).
211. Id. at 292.
212. United States v. Meeks, 35 M.J. 64, 68 (C.M.A. 1992).
213. MCM, supra note 6, R.C.M. 916(b).
214. Id. The defense of mistake of fact as to age in a prosecution for carnal knowledge requires the accused to prove the defense by a preponderance of the evidence.
215. 343 U.S. 790 (1952).
216. OR. COMP. LAWS § 26-929 (1940). The defendant's current burden of proof in Oregon is a preponderance of the evidence. See OR. REV. STAT. § 161.055(2) (2003).
217. Leland, 343 U.S. at 799.
218. Id. at 798 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
219. 47 M.J. 386 (1998).
220. Id. at 387.
221. Id.
222. Id.
223. United States v. Dubose, 44 M.J. 782, 784 (N-M. Ct. Crim. App. 1996).
224. Dubose, 47 M.J. at 388.
225. Id. at 389.
226. United States v. Long Crow, 37 F.3d 1319 (8th Cir. 1994); see supra notes 133 to 143 and accompanying text.
227. Long Crow, 37 F.3d at 1323 (quoting Closs v. Leapley, 18 F.3d 574, 580 (8th Cir. 1994)).
228. Id. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986) ("a higher burden of proof should have a corresponding effect on the judge when deciding to send the case to the jury").
229. Long Crow, 37 F.3d at 1324.
230. MCM, supra note 6, R.C.M. 916(k)(2).
231. Id. R.C.M. 916(k)(2) discussion.
232. 26 M.J. 90 (C.M.A. 1988).
233. Premeditated murder requires a specific intent to kill a person. See MCM, supra note 6, pt.IV, ¶ 143c(2)(a).
234. Ellis, 26 M.J. at 93-94.
235. MANUAL FOR COURTS-MARTIAL, UNITED STATES (1984).
236. Id. R.C.M. 916(k)(2) ("A mental condition not amounting to a lack of mental responsibility under subsection (k)(1) of this rule is not a defense, nor is evidence of such a mental condition admissible as to whether the accused entertained a state of mind necessary to be proven as an element of the offense.").
237. See, e.g., United States v. Berri, 33 M.J. 337, 344 (C.M.A, 1991) (holding that the trial judge erred by not instructing the panel to consider expert evidence possibly negating specific intent).
238. See United States v. Frederick, 3 M.J. 230 (C.M.A. 1977) (holding that partial mental responsibility was an affirmative defense).
239. There was some debate on that point. See Ball, supra note 132, at 29 n.306 (noting that some scholars saw this line of cases as resurrecting partial mental responsibility as an affirmative defense). However, the change to RCM 916(k)(2) effectively extinguished that debate.
240. For a fuller treatment of partial mental responsibility, see Ball, supra note 132, at 27-32.
241. MCM, supra note 6, R.C.M. 921(c)(4).
242. See 18 U.S.C. § 4246(e)(2) (2000).
243. MCM, supra note 6, MIL. R. EVID. 601-615.
244. Id. MIL. R. EVID. 602.
245. Id. MIL. R. EVID. 607.
246. For example, when questioning a witness about a horrific and unjustified killing he witnessed in a combat zone, the witness could conceivably become so distraught that he is unable to appreciate his current surroundings or understand the nature of the proceedings. For the legal standard for competency, see MCM, supra note 6, MIL R. EVID. sec. VI.
247. Id. R.CM. 1001(c)(1)(A).
248. Id.
249. Yet another possibility is that the counsel was successful in proving a lack of specific intent, but his client was convicted of a lesser included offense.
250. Id. R.C.M. 1001(c)(1) (allowing extenuation evidence to be presented even if the evidence was not offered prior to findings).
251. 34 M.J. 745 (N-M. Ct. Crim. App. 1991).
252. Id. at 752.
253. Id. at 750
254. (citing MCM, supra note 6, R.C.M. 701(b)(2)).
255. Id. (citing MCM, supra note 6, R.C.M. 905(e)). Of course it may be true that, despite due diligence on the part of the defense counsel, the accused's insanity did not become readily apparent, or was not firmly established, until after the conclusion of the trial. In such a case, it may be possible to raise the issue after trial. See United States v. Harris, 61 M.J. 391 (2005) (holding that newly discovered evidence after trial which established that the accused was bipolar justified a new trial).
256. See MCM, supra note 6, R.C.M. 1001(c)(1)(A)-(B).
257. Testimony from the accused may also have the unintended effect of demonstrating the need for a sanity board. See, e.g., United States v. Estes, 62 M.J. 544 (Anny Ct. Crim. App. 2005) (stating that appellant's unsworn testimony led the Army Court of Criminal Appeals to grant his request for an additional sanity board).