The Role of the Psychiatrist in Military Justice

• Author: By major James J. Gibbs
• Pages: 02

1. AS AN EXPERT IN THE FIELD OF XENTAL DISEASE

The rumbles and eruptions of discontent heard in recent years about forensic psychiatry have come to the attention of those individuals interested in and responsible for military justice. However, before voicing new ideas and possible changes to the military code pertaining to insanity, it would first be wiae to look critically at the psychiatrist's role in military justice under the present syatem to determine if an alteration in our way of doing things is really necessary. Change in and of itself has no virtue unless it corrects errors and would in this instance enhance the value of the paychiatrist to the court.

The test for mental responsibility mast widely used in the United States is the right and wrong test imbodied in the M'Naghten Rules formulated in England over one hundred years ago. For an accused to be abaalved of responsibility for his act, it is necessary to prove that the accused "was laboring under such a defect of reason from diseaae of the mind as not to know the nature and quality of the act he wais doing: or if he did know it, that he did not know he wa8 doing what was wrong."'

In 1886, in the case of Parsons v. State,l Judge Somerville of Alabama wrote the decision which established the "irresistible impulse" defense in which it was recognized that though a person knew he was committing an act which was wrong, he nevertheless was not criminally responsible if he lacked the power to resist the impulse.8

From a re\,iew of Winthrop it is indicated that the WNaghten Rules and irresistible impulse defense were adopted by military law soon after their inception.4 Thus, the psychiatrist today in a military court of law is asked, "Was the accused at the time of the offense so far free from mental disease, defect and derangement as to be able to distinguish right from wrong, and adhere to the

'Assistant Chief Psychistry and Neurology Consultant, Office of The

1 Mae Donald, Psychiatry and the Criminal 26 (1958).

a Weihafen. Insamty 8s a Defense in Criminal Law 44 (1933).

'Ninthrap, Militam Law and Precedents 29P296 (Zd Ed., 1920 reprint).

It

Surgeon General, United States Amy.

right? If 80. is he now so far free from mental disease, defect or

derangement as to be able to cooperate intelligently in his own defense?' Furthermore, according to the present military code the psychiatrist must testify that the mental disorder completely impaired the accused's ability to distinguish right fvom wrong or adhere to the right.5

TM 8-240 "Psychiatry in Xilitary Law" was written in September 1950, and later revised in Xay 1963, to assist the psychiatrist. It enables him to more properly understand military justice and to effectively discharge his responsibilities as a psychiatric examiner and expert witness before a court-martial. The psychiatrist must realize that his function in forensic matters is to offer advice

&9 an expert in the field of mental disease, He first must determine the presence or absence of mental disease. If he determines that no mental disease exists, any further opinions that he might express regarding matters of intent, premeditation and the like can-not be regarded as those of an expert. The psychiatrist would then in effect invade the domain where others are the experts, or unknowingly aet himself up as the judge and jury.B TM a240 has enjoyed more prestige than its writers ever imagined, and for a time was given Ule status of a legal document comparable to the MCM, 1951.7,8

However, in the COMA ruling in U. S. v. Schick, it was stated that TM a240 could not be introduced in evidence but merely occupies the same place in law as a text or treatise.8 It has also been attacked as the responsible agent for structuring and restricting psychiatric testimony in a court-martial to the detriment of the accused and the miscarriage of justice.'Q

In actual practice the military psychiatrist appears infrequently as an expert witness in a court-martial, and when he do- appear, he is usually called by the prosecution. As a rule when the defendant 88 the result of pretrial psychiatric examination is found to have a mental disease, defect or derangement that renders him unable to distinguish right from wrong, adhere to the right, or to cooperate in his own defense, he is not brought to trial, and he is released to the medical authorities for treatment and ultimate disposition. The illness in question is invariably of psychotic proportions and not the result of misconduct, such as alcoholic over-indulgence.

Armed

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THE ROLE OF PSYCHIATRIST IN MILITARY JUSTICE

Most of the criticisms of military forensic psychiatry have come from our civilian colleagues in the legal and medical professions and are based on their dissatisfaction with the X'Naghten Rules. The point of view adhered to by these individuals is best illustrated by the praise they have given to the "Durham Decision" rendered in 1964 by the United States Court of Appeals for the District of Columbia.11 Thia decision in effect adapted...