2008 edition - Fort Sam Houston - U.S. Army

App. 22, M.R.E. 302 APPENDIX 22
the greatest of caution being always concerned that what may be
an innocent question may be considered to be an “open sesame.”
Under the 1969 Manual interpretation of Babbidge, supra, the
accused could refuse to submit to a Government examination
until after the actual presentation of defense expert testimony on
the insanity issue. Thus, trial might have to be adjourned for a
substantial period in the midst of the defense case. This was
conducive to neither justice nor efficiency.
A twofold solution to these problems was developed. Rule 302
provides a form of testimonial immunity intended to protect an
accused from use of anything he might say during a mental
examination ordered pursuant to Para. 121, MCM, 1969 (Rev.)
(now R.C.M. 706, MCM, 1984). Paragraph 121 was modified to
sharply limit actual disclosure of information obtained from the
accused during the examination. Together, these provisions would
adequately protect the accused from disclosure of any statements
made during the examination. This would encourage the accused
to cooperate fully in the examination while protecting the Fifth
Amendment and Article 31 rights of the accused.
Paragraph 121 was retitled to eliminate “Before Trial” and was
thus made applicable before and during trial. Pursuant to paragraph
121, an individual’s belief or observations, reflecting possible
need for a mental examination of the accused, should have
been submitted to the convening authority with immediate responsibility
for the disposition of the charges or, after referral, to
the military judge or president of a special court-martial without a
military judge. The submission could, but needed not, be accompanied
by a formal application for a mental examination. While
the convening authority could act on a submission under paragraph
121 after referral, he or she might do so only when a
military judge was not reasonably available.
Paragraph 121 was revised to reflect the new test for insanity
set forth in United States v. Frederick, 3 M.J. 230 (C.M.A. 1977),
and to require sufficient information for the fact finder to be able
to make an intelligent decision rather than necessarily relying
solely upon an expert’s conclusion. Further questions, tailored to
the individual case, could also be propounded. Thus, in an appropriate
case, the following might be asked:
Did the accused, at the time of the alleged offense and as a
result of such mental disease or defect, lack substantial capacity
to (possess actual knowledge), (entertain a specific intent), (premeditate
a design to kill)?
What is the accused’s intelligence level?
Was the accused under the influence of alcohol or other drugs
at the time of the offense? If so, what was the degree of intoxication
and was it voluntary? Does the diagnosis of alcoholism,
alcohol or drug induced organic brain syndrome, or pathologic
intoxication apply?
As the purpose of the revision of paragraph 121 and the creation
of Rule 302 was purely to protect the privilege against selfincrimination
of an accused undergoing a mental examination
related to a criminal case, both paragraph 121 and Rule 302 were
inapplicable to proceedings not involving criminal consequences.
The order to the sanity board required by paragraph 121 affects
only members of the board and other medical personnel. Upon
request by a commanding officer of the accused, that officer shall
be furnished a copy of the board’s full report. The commander
may then make such use of the report as may be appropriate
(including consultation with a judge advocate) subject only to the
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restriction on release to the trial counsel and to Rule 302. The
restriction is fully applicable to all persons subject to the Uniform
Code of Military Justice. Thus, it is intended that the trial counsel
receive only the board’s conclusions unless the defense should
choose to disclose specific matter. The report itself shall be released
to the trial counsel, minus any statements made by the
accused, when the defense raises a sanity issue at trial and utilizes
an expert witness in its presentation. Rule 302(c).
Although Rule 302(c) does not apply to determinations of the
competency of the accused to stand trial, paragraph 121 did prohibit
access to the sanity board report by the trial counsel except
as specifically authorized. In the event that the competency of an
accused to stand trial was at issue, the trial counsel could request,
pursuant to paragraph 121, that the military judge disclose the
sanity board report to the prosecution. In such a case, the trial
counsel who had read the report would be disqualified from
prosecuting the case in chief if Rule 302(a) were applicable.
As indicated above, paragraph 121 required that the sanity
board report be kept within medical channels except insofar as it
would be released to the defense and, upon request, to the commanding
officer of the accused. The paragraph expressly prohibited
any person from supplying the trial counsel with information
relating to the contents of the report. Care should be taken not to
misconstrue the intent of the provision. The trial counsel is dealt
with specifically because in the normal case it is only the trial
counsel who is involved in the preparation of the case at the stage
at which a sanity inquiry is likely to take place. Exclusion of
evidence will result, however, even if the information is provided
to persons other than trial counsel if such information is the
source of derivative evidence. Rule 302 explicitly allows suppression
of any evidence resulting from the accused’s statement to the
sanity board, and evidence derivative thereof, with limited exceptions
as found in Rule 302. This is consistent with the theory
behind the revisions which treats the accused’s communication to
the sanity board as a form of coerced statement required under a
form of testimonial immunity. For example, a commander who
has obtained the sanity board’s report may obtain legal advice
from a judge advocate, including the staff judge advocate, concerning
the content of the sanity board’s report. If the judge
advocate uses the information in order to obtain evidence against
the accused or provides it to another person who used it to obtain
evidence to be used in the case, Rule 302 authorizes exclusion.
Commanders must take great care when discussing the sanity
board report with others, and judge advocates exposed to the
report must also take great care to operate within the Rule.
(a) General Rule. Rule 302(a) provides that, absent defense offer,
neither a statement made by the accused at a mental examination
ordered under paragraph 121 nor derivative evidence thereof shall
be received into evidence against the accused at trial on the
merits or during sentencing when the Rule is applicable. This
should be treated as a question of testimonial immunity for the
purpose of determining the applicability of the exclusionary rule
in the area. The Committee does not express an opinion as to
whether statements made at such a mental examination or derivative
evidence thereof may be used in making an adverse determination
as to the disposition of the charges against the accused.
Subject to Rule 302(b), Rule 302(a) makes statements made by
a n a c c u s e d a t a p a r a g r a p h 1 2 1 e x a m i n a t i o n ( n o w i n R . C . M .
706(c), MCM 1984) inadmissible even if Article 31 (b) and counsel
warnings have been given. This is intended to resolve prob-