United States v. English

Opinion of the Court

EFFRON, Judge:

Contrary to his pleas at a special court-martial, appellant was convicted of attempted malingering, failure to go to his appointed place of duty, and malingering, in violation of Articles 80, 86, and 115, Uniform Code of Military Justice, 10 USC §§ 880, 886, and 915, respectively. The military judge, sitting alone, sentenced him to a bad-conduct discharge, confinement for 60 days, forfeiture of $542 pay per month for 3 months, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Criminal Appeals affirmed the findings and sentence. 44 MJ 612 (1996).

On appellant’s petition, we granted review of the following issues:

I

WHETHER THE LOWER COURT INCORRECTLY HELD THAT APPELLANT’S CASE WAS A PROPER CASE FOR A “SUBSTITUTE” RCM 706 SANITY BOARD WHEN THE PRIOR EXAMINATIONS CONDUCTED UPON APPELLANT: (1) WERE NOT SUFFICIENT TO CONSTITUTE AN RCM 706 EXAMINATION, AND (2) FORMED THE BASIS OF CHARGE I, MALINGERING BY FEIGNING A MENTAL ILLNESS.

II

WHETHER THE LOWER COURT INCORRECTLY HELD THAT IT WAS PERMISSIBLE FOR APPELLANT’S RCM 706 DOCTORS TO TESTIFY AGAINST HIM DURING THE GOVERNMENT’S CASE IN CHIEF ON THE CHARGE OF MALINGERING, IN VIOLATION OF MiLR.Evid. 302.

We hold that, under the circumstances of this case, the military judge erred in concluding that the prior examinations of appellant constituted an adequate substitute for a mental responsibility board under RCM 706, Manual for Courts-Martial, United States (1995 ed.).¹

I

The pertinent charge against appellant, that he feigned mental illness to avoid military duties, grew out of his efforts to obtain mental health assistance to address what he described as feelings of depression and thoughts of suicide. On three separate occasions, he received treatment from a Navy psychiatrist. Between the second and third visits, he made a suicidal gesture by taking an overdose of non-prescription pain medication. The Navy psychiatrist concluded that appellant was malingering and reported that conclusion to appellant’s chain of command, along with a recommendation that appellant be separated from the Marine Corps.

Appellant subsequently was examined by a Navy clinical psychologist, who concluded that appellant was exaggerating his symptoms in an effort to obtain a discharge. Appellant then was charged with malingering by feigning a mental illness under Article 115. The primary evidence supporting this charge was provided by the two mental health professionals.

At the outset of the trial, defense counsel submitted a motion to the military judge requesting appointment of a board under RCM 706 in order to determine appellant’s mental responsibility and ability to stand trial. Defense counsel proffered facts to support the motion, explained why he believed the examination was necessary, and contended that there was a reasonable basis for the request.

The Government contested the need for such an examination and also argued that the equivalent of an RCM 706 board already had been conducted by the combined efforts of two Navy doctors. The military judge did not address the need for such an examination but denied the defense motion on the grounds that the examinations by the two Navy mental health professionals constituted an adequate substitute for an RCM 706 board.

Subsequently, for reasons unrelated to this appeal, a second military judge was detailed to preside. During his opening statement, trial counsel stated that he intended to prove the malingering charge through the testimony of the two mental health professionals. Defense counsel moved to preclude the Government from calling either mental health professional on the ground that statements made during an RCM 706 board were privileged and could not be disclosed over the objection of the person who had been examined. Although the Manual for Courts-Martial does not recognize a general doctor-patient or psychotherapist-patient privilege,² there is a limited privilege under Mil.R.Evid. 302, Manual, supra, covering statements made during an examination into the mental condition of the accused under RCM 706.

The military judge rejected the defense motion on the rationale that neither of the mental health professionals was functioning as an RCM 706 board at the time appellant’s statements were made and that the statements were not otherwise privileged.

II

A

The issues raised by appellant in this case do not call into question the propriety of using testimony from mental health professionals to prove a charge of malingering or challenge the sufficiency of the evidence provided by such testimony in this case. The question raised by the first granted issue is whether the testimony of a mental health professional, which provides the primary evidence against the accused on the merits of a charge, also can be used to fulfill the purposes of inquiry into the mental condition of the accused under RCM 706.

In military law, as in civilian law, an accused may assert that he or she lacks the mental capacity to stand trial or lacked the requisite mental responsibility at the time the offense was committed. RCM 909 and 916(k). Although the standards for granting relief on these matters have changed over time, the underlying motions have been a traditional feature of military law. See, e.g., W. Winthrop, Military Law and Precedents 294-96 (2d ed. 1920 Reprint); para. 120, Manual for Courts-Martial, United States, 1951.

There is a six-step process for assessing questions regarding the mental health of an accused.

First, “[i]f it appears ... that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted ... to the officer authorized to order an inquiry into the mental condition of the accused.” RCM 706(a).

Second, based on such information, a mental examination may be ordered. The authority generally resides in the convening authority prior to referral of charges and in the military judge after referral. RCM 706(b).

Third:

When a mental examination is ordered ..., the matter shall be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist.

RCM 706(c)(1).

Fourth, the order referring the matter to the board “shall contain the reasons for doubting the mental capacity or mental responsibility, or both, of the accused, or other reasons for requesting the examination.” RCM 706(c)(2).

Fifth, the board must is.sue a “report as to the mental capacity or mental responsibility ... of the accused,” RCM 706(c)(1), addressing at a minimum four specified questions concerning mental capacity and mental responsibility. RCM 706(c)(2).

Sixth, the report must be in a two-part format. The first part, which consists only of the board’s conclusions, is provided to counsel for both sides, the military judge, and other personnel involved in processing the court-martial. The full report, which may include statements of the accused to the board, is released only to medical personnel and defense counsel. The accused’s commanding officer may request a copy of the full report, RCM 706(c)(3), but disclosure of the accused’s statements to the board to the trial counsel generally is prohibited, RCM 706(c)(5), in order to protect the accused’s privilege against self-incrimination. See Art. 31, UCMJ, 10 USC § 831; Mil.R.Evid. 302.

B

As noted above, the military judge did not determine whether there was an adequate basis for an RCM 706 board but proceeded on the basis that the examinations by the two mental health professionals was an adequate substitute. In these circumstances, the first two steps of the process (an adequate basis for raising the issue of mental capacity and the need for a mental examination) are not the focus of the granted issue in this case.³ The central issue here is whether the military judge erred when he ruled that the prior examinations of appellant complied with the third and succeeding steps concerning the role of a “board” in examining the mental capacity and responsibility of appellant.

The Government does not contest the fact that the proceedings in this case did not follow the specific provisions of RCM 706, which require the military judge to refer the issue of appellant’s mental responsibility to a “board” for issuance of a specific report under procedures that strictly control disclosure of privileged information. The Government relies on the conclusion of the court below that the earlier examinations of appellant constituted an adequate substitute for the requirements of RCM 706, citing the opinion of the Army Court of Military Review (now the Court of Criminal Appeals) in United States v. Jancarek, 22 MJ 600 (1986).

In Jancarek, defense counsel requested a sanity board to determine whether the accused had the capacity to stand trial. The Government opposed the motion on the ground that the accused “had already been evaluated by a psychiatrist who had determined that appellant had the mental capacity to stand trial.” 22 MJ 600. The military judge, after considering testimony from the psychiatrist, ruled that the accused did not lack capacity to stand trial. On appeal, the then-Court of Military Review stated that “in a proper case there can be a substitute for a sanity board and ... this is such a case.” 22 MJ at 608.

A key distinction between Jancarek and the case before us is that the accused in Jancarek “had already been evaluated by a psychiatrist who had determined that appellant had the mental capacity to stand trial,” not by a psychiatrist and clinical psychologist who had treated him for a purported suicidal gesture and were material witnesses against him at trial. 22 MJ 600; see id. at 604 & n. 7. The examination of appellant in the present case was solely for purposes of treatment, with no focus on the judicial standards of mental capacity or responsibility. The court in Jancarek also emphasized “the important task of limiting access to privileged information” disclosed during an RCM 706 examination. 22 MJ at 603. In the present case, however, the communications between appellant and the mental health professionals provided the foundation for the criminal charge against him. We hold that the after-the-fact efforts of the military judge to restrict future conversations between trial counsel and the mental health professionals provided an inadequate substitute for an RCM 706 board and the privilege accorded appellant through that board. Had there been a proper RCM 706 board examination, it is highly unlikely that the testimony of the mental health professionals, to the extent that they were based on the statements of appellant, would have been admissible against him. See Mil.R.Evid. 302.

C

Nearly 30 years ago, this Court grappled with the thorny issue of whether an accused, after raising the issue of mental capacity or mental responsibility, may be compelled to submit to a mental health examination in light of Article 31(a)’s protection against compelled self-incrimination. Our Court concluded that the structure of board proceedings and the limitations on use of information obtained in those proceedings provided an adequate basis to reconcile the tension between the privilege against self-incrimination and the competing need for a mental health examination of an accused in such circumstances. See United States v. Ross, 19 USC-MA 51, 41 CMR 51 (1969); United States v. Wilson, 18 USCMA 400, 40 CMR 112 (1969); United States v. Babbidge, 18 USCMA 327, 40 CMR 39 (1969). In Babbidge, we emphasized that the privilege against self-incrimination was not violated because “ ‘the purpose of the examination is not to determine whether a defendant did or did not do the criminal acts charged, but whether he possessed the requisite mental capacity to be criminally responsible therefor, if other proof establishes that he did do them.’ ” 18 USC-MA at 331, 40 CMR at 43, quoting United States v. Albright, 388 F.2d 719, 725 (4th Cir.l968)(emphasis added).

In Ross, our Court noted that “[t]he significant .determinant is that the psychiatric examinations tended to prove not the commission of a crime but whether the accused should be held responsible for it.” 19 USC-MA at 54, 41 CMR at 54. In the present case, by contrast, the primary import of the testimony from the mental health professionals was to prove the commission of the crime. Such circumstances, involving reliance on the testimony of prosecution witnesses regarding the merits of charges against an accused, would undermine the delicate balance struck by Babbidge and its progeny, which is embodied in the procedures set forth in RCM 706 and the privilege provided in Mil.R.Evid. 302.

D

The assignment of responsibility for conducting an inquiry into the mental capacity or responsibility of an accused to a “board” of health care professionals is a longstanding feature of military law. See, e.g., para. 219 (“medical board”), Manual for Courts-Martial, U.S. Army, 1917. The current Manual, like its predecessors, contains unambiguous . requirements for referral of mental capacity and mental responsibility issues to a board, with no provision for reliance on a substitute board.

We need not decide today, however, whether an examination that fulfills the purposes of RCM 706 and Mil.R.Evid. 302 could be treated, in a proper case, as an adequate substitute; whether use of such a substitute would constitute harmless error; or whether no such substitute should be permitted. Under the circumstances of the ease before us, we hold that it was error for the military judge to rely on the witnesses, whose testimony formed the basis of the prosecution’s evidence on the merits of the charge, to serve also as a substitute for the carefully crafted procedures set forth in the Manual.

Ill

The military judge did not directly address the merits of appellant’s request for a sanity board and may have foreclosed appellant from a full opportunity to justify his request. Accordingly, if the court below does not otherwise set aside the findings and sentence, it may order a factfinding hearing to give appellant an opportunity to meet his burden of showing the need for a sanity board or give him the benefit of the doubt and order a sanity board. If there is a sanity board that makes findings favorable to appellant, the court may set aside the findings and sentence and authorize a rehearing.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further proceedings. Thereafter, Article 67(a), UCMJ, 10 USC § 867(a) (1994), will apply.

Chief Judge COX and Judges SULLIVAN and GIERKE concur.

1 . Issue II (regarding use of appellant’s statements to mental health professionals) is rendered moot as a result of our disposition of Issue I (holding that the mental examinations did not constitute a substitute RCM 706 board).

2 . See Mil.R.Evid. 501(d), Manual for Courts-Martial, United States (1995 ed.); but cf. Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996); 62 Fed.Reg. 24643 (May 6, 1997)(proposed change to Mil.R.Evid. regarding "Psychotherapist-Patient Privilege”). Appellant has not claimed that the information in this case was privileged under such a general rule.

3 . The dissent discusses cases that involve review of a ruling of the military judge as to the need for an RCM 706 board. If the military judge here had so ruled, the case before us would be in a different posture. The military judge, however, went directly to the question of whether the earlier examinations could serve as a substitute 706 board, without deciding whether defense counsel had made a satisfactory showing of the need for one. In this context, the cases cited by the dissent are not controlling.