Forensic in the United States Military

Raymond G. Lande, DO, COL, MC, USA, and David M. Benedek, MD, MAJ, MC, USA

Members of the U.S. military and their families represent a unique subsection of the American culture. The U.S. Constitution, federal , and military regulations establish guidance for the conduct of service members during peacetime and wartime. This same hierarchy of law and regulation sets forth the legal rights and directs the provision of medical care for service members and their families. The fact that the military population is concurrently subject to a body of military law, as well as to the broader guidelines of the civilian sector, creates distinct roles for the military forensic . An understanding of the medical and legal framework in which the military forensic psychiatrist operates will facilitate the interactions of the civilian with the military justice system. In this report, the legal issues most relevant to the practice of forensic psychiatry in the military are discussed. In addition, the roles and responsibilities for specifically trained in aspects of military medical and law are identified.

The U.S. military population-with ac- trist functions at the interface between the tive duty personnel, retirees, and depen- military legal and medical systems. Al- dent family members numbering in the though trained first and foremost as a millions-represents a significant subsec- physician and military officer, subsequent tion of American culture. One unique as- training in the principles of military and pect of this group is the fact that the U.S. federal law establishes a number of roles Constitution and Federal statutes have es- and responsibilities for which the military tablished legal and medical systems to forensic psychiatrist is particularly quali- provide for the military, which operate fied. separately from those of the civilian pop- This article will provide a brief sum- ulation.' The military forensic psychia- mary of the medical and legal framework in which the military forensic psychiatrist COL Lande is Director, Forensic Psychiatry Program, operates. The various duties performed Walter Reed Army Medical Center, Washington, DC. by the military forensic psychiatrist will MAJ Benedek is Forensic Psychiatry Fellow, Walter Reed Army Medical Center, Washington, DC. The be outlined. A comprehensive review of views and opinions expressed in this report are those of military law and medicine is beyond the the authors and do not necessarily reflect the views or opinions of the U.S. military or any of its agencies. scope of this article. It is hoped that a Address correspondence to: David M. Benedek, MD, summary of the major principles defining Department of Psychiatry, Walter Reed Army Medical Center, Washington, DC 20307-5001. the military medicolegal interface as it

J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 295 Landeand Benedek

relates to mental health issues, and the While there is generally a preference to roles this interface establishes for the ap- dispose of charges at the lowest possible propriately trained physician, will permit level, the level at which charges are tried an understanding of the scope of practice is a decision for the military commander. of the military forensic psychiatrist. Once a commander determines that there is probable cause to believe an offense Military Law was committed by an accused, the com- Military , in one form or mander may forward the charges through another, has existed as long as forces the chain of command to the court-martial have been organized to wage wars. The convening authority. That authority is the birth of American military law can be appropriate higher level of command with traced to the enactment of the first Amer- the right and power to institute a court- ican Articles of War on June 30, 1775.' martial; usually the Battalion Com- From the original 69 articles, significant mander for a summary court-martial, the expansion and evolution have resulted in Brigade Commander for a special court- today's Uniform Code of Military Justice martial, and the Division or Squadron (UCMJ).~The federally enacted UCMJ Commander for a general court-martial.3 establishes the three levels of courts- The terms of the Fifth Amendment of martial. General courts-martial can be the U.S. Constitution deny the right to compared to civilian felony , while grand jury indictment to military service special courts-martial are most similar to members. Instead, the RCM provides that misdemeanor trials. The summary court- a service member may not be tried by martial is a single-officer court with only general court-martial unless an Article 32 limited authority.3 investigation establishes sufficient evi- Although all of the armed forces grant dence to refer charges to . At this an accused person the right to retain legal open hearing, both the accused and coun- counsel at personal expense, the Rules for sel are present. The accused has the right Courts-Martial (RCM), established by ex- to cross-examine adverse witnesses and ecutive order, direct that any service to present a defense. This process pro- member accused of a military crime is vides the defense with pretrial discovery entitled to counsel free of charge for gen- of evidence that may be introduced by eral and special courts-martial.3 The U.S. either side at trial. The opportunity for Armed Services permit the accused to discovery, to confront adverse witnesses, consult with defense counsel before the and to present evidence distinguishes the determination is made whether to accept Article 32 investigation as a more protec- trial by summary court-martial. An ac- tive procedure than a grand jury affords. cused has the absolute right to refuse trial Another dissimilarity is that a grand ju- by summary court-martial, in which case ry's refusal to indict is final, subject only charges will be referred to a higher-level to a different decision by a subsequent court. This provision ensures free counsel grand jury. The recommendation of the by demanding a special court-martial. Article 32 investigating officer is advi-

296 J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 Forensic Psychiatry in the U.S. Military sory only and may be ignored by the weighed by the danger of unfair preju- court-martial convening authority.3 dice, confusion of the issues, or mislead- Although the constitutional terms of ing the members, or by considerations of the Fifth Amendment limit its application undue delay, waste of time or needless to service members with regard to grand presentation of cumulative evidence," per jury investigations, other rights and pro- MRE 403.8 Unlike the FRE, an expert tections are furnished through a hierarchy may testify freely as to the of sources. The hierarchical sources of of the presence of a mental disease. The military law include the U.S. Constitu- expert may testify in terms of opinion or tion, federal statutes, the UCMJ, Execu- inference and give reasons without first tive Orders (which include the Military testifying to the underlying facts or data, Rules of Evidence (MRE)), service direc- unless the court requires otherwise. tives, and common law.4 The U.S. Con- Both the RCM and military case law stitution applies to service members ab- address the boundary at which the ac- sent military or operational necessity. The cused person's right to withhold informa- MRE cover relevancy, privilege, wit- tion and the government's interest in nesses, and opinion testimony, among compelling disclosure compete. The so- other things. The military adopted the lution balances the two interests and es- Federal Rules of Evidence (FRE) verba- tablishes safeguards. As an example of tim as they apply to relevance and much one such compromise, the written foren- of expert testimony. A recent presidential sic opinion is subject to strict submission addition is MRE 707, which imposes a requirements. The full report with de- per se ban on the admission of polygraph tailed data and analysis is presented to reports as evidence. The U.S. Supreme defense counsel and not to the prosecu- Court granted certiorari on this issue in tion. The prosecutor receives only the an- 1997, but has yet to render an opinion.5 swers to specific written questions con- MRE 702 provides that a witness may tained in the original order for inquiry be qualified as an expert by reason of into the mental state of the accu~ed.~ "knowledge, skill, experience, training, or Prior to trial. either defense counsel, ed~cation."~~x~ert testimony is admissi- prosecutor, judge, or commander who be- ble when "scientific, technical, or other lieves the accused may lack mental re- specialized knowledge will assist the trier sponsibility or competence to stand trial of fact to understand the evidence or to must transmit their concern to the court- determine a fact in i~sue."~MRE 703 martial convening authority. This results provides that an expert's opinion may be in the order for mental examination. The based upon personal knowledge, assumed examination is conducted by a sanity facts, documents supplied by other ex- board, which is directed by the RCM to perts, or by listening to other testimony at include one or more physicians or a clin- triaL7 Logically relevant and reliable ex- ical psychologist.9 Normally, at least one pert testimony "may be exclu'ded if its member of the board is a psychiatrist or a probative value is substantially out- clinical psychologist. RCM 707 provides

J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 297 Landeand Benedek

for specific questions that must be an- establishes a check on the potential for swered by the board with regard to the abuse within the military justice system. military standard for lack of mental re- sponsibility. RCM 916(b) explains that Military Medicine and Mental "the accused has the burden of proving Health Care the defense of lack of mental responsibil- The same Continental Congress that ity by clear and convincing evidence,""' enacted the original American Articles of and Article 50a of the UCMJ states that War issued an order establishing a mili- "it is an affirmative defense in a trial by tary hospital on July 17. 1775.' This order court-martial that, at the time of the com- created the Army Medical Department, mission of the acts constituting the of- which like its legal cousin has undergone fense, the accused, as a result of severe substantial revision and expansion since mental disease or defect, was unable to its inception at the birth of the nation. appreciate the nature and quality or the Over the years the military has recog- wrongfulness of the acts. Mental disease nized the importance of prevention, early or defect does not otherwise constitute a recognition, and treatment of mental dis- defense." There is no volitional prong to orders in the preservation of the fighting the military test. force and military readiness. Psychiatrists RCM 909(a) directs that a person "suf- near combat zones are assigned to spe- fering from a mental disease or defect cific units called combat stress detach- rendering him or her mentally incompe- ments. The military psychiatrist is re- tent to the extent that he or she is unable sponsible for establishing preventive to understand the nature of the proceed- mental health programs, assessing mental ings" may not be brought to trial." Lack preparedness of combat units, providing of competency may be established by the stress management. and directing suicide preponderance of evidence at pretrial, prevention programs.13 Psychiatrists in trial, or posttrial proceedings and may this capacity have participated in military result in a suspension of proceedings until operations in the Persian Gulf, Somalia. competency can be restored.'* Haiti, and most recently, in the former UCMJ Article 67 directs the U.S. Yugoslavia. Complex administrative and Court of Appeals for the Armed Forces forensic issues tax the psychiatrist's cre- (USCAAF) to oversee the military court ativity in these environments. ~ystem.~This court, composed of civilian Establishing medical qualifications for judges nominated by the U.S. President various duties, as well as determining dis- and confirmed by the Senate, has recently ability when injury intervenes, is a corn- been expanded from three to five mem- mon task. The military has established bers. Also established by the UCMJ is an provisions for the medical retirement of intermediate appellate court within each persons with medically disqualifying branch of the armed forces. These courts mental health conditions. Army Regula- are subordinate to the USCAAF.~This tion (AR) 40-501 codifies medical condi- appellate system enhances fairness and tions. including psychiatric disorders, that

298 J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 Forensic Psychiatry in the U.S. Military are not compatible with further military does not necessitate that determination of service and establishes provisions for de- competency and mental responsibility re- termining medical disability payments quire the presence of a forensic psychia- should these conditions have been ac- trist on the sanity board, the military fo- quired in the line of duty.14 The clinical rensic psychiatrist is best qualified to assessment of military disability bears fulfill this role. Military forensic psychi- strong resemblance to similar activities atrists-particularly those located at conducted in the civilian work force. teaching hospitals-can take advantage The military also recognizes the need of the full range of medical diagnostic for administrative separation of personnel tools. In a recent case, for example. the with patterns of repeated misconduct or authors obtained specific neurotransmit- personality disorders and other conditions ter levels to evaluate the biological com- or circumstances that render separation a ponent of a violent. seemingly impulsive convenience for the government, the ser- act. The unfettered freedom of the sanity vice member, or both. AR 635-200, board from either economic constraints or Chapter 5-13. establishes the procedures administrative interference substantially for administrative separation due to per- promotes objective opinions. Military sonality di~order,'~and a recently added lawyers have recognized the special qual- Chapter 5-18 provides guidelines for the ifications that the forensic psychiatrist administrative separation of active duty brings to assessments of competency and personnel with other medical or mental mental responsibility and have increas- conditions such as sornnambu~ism.'~ ingly requested that military judges name These conditions do not necessitate med- such specialists to sanity boards. ical retirement but nonetheless preclude Court-Martial Consultarzt If a sanity further military duty. Similar provisions board provides an opinion deemed favor- are included in Navy and Air Force reg- able to the prosecution, the defense may ulations. request a second opinion, perhaps to es- tablish mitigating factors. In the impor- The Military Forensic tant case United States v. oled do,'^ the Psychiatrist U.S. Court of Military Appeals upheld a At present. the Army, Navy, and Air conviction that was partially established Force all count among their ranks physi- on the basis of incriminating testimony cians specifically trained in forensic psy- from the defense's expert witness. The chiatry. Like other military medical sub- court held that the defense did not request specialists, their practice is rarely limited a confidential expert consultant; conse- to the scope of their subspecialty training. quently. this expert's testimony was not However, there are a number of military protected by either the attorney-client settings in which training in forensic psy- privilege or the qualified privilege af- chiatry can be utilized. forded to the product of the sanity board Assessment of Competency and Men- e~aluation.'~Subsequent to this decision, tal Responsibility Although RCM 706 military lawyers have increasingly re-

J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 299 Landeand Benedek quested appointment of confidential ex- chiatrist in the courtroom is not limited to perts to the defense team. Such requests expert witness testimony regarding eval- are not routinely granted; instead, they uation of the accused. Either the prosecu- are often subject to intense pretrial argu- tion or defense may request an expert to ments. The defense can also request ex- assist in framing questions for cross- pert testimony regarding mitigating fac- examination of the other side's expert. tors in the sentencing phase of a court- This is an effective technique when the martial. The defense of partial mental other side employs civilian experts. often responsibility acknowledges misconduct, embarrassingly unfamiliar with military but seeks to establish that the accused did procedures. The military forensic psychi- not possess mental state required for con- atrist may be asked by the court to deter- viction of a specific intent crime. Expert mine the competence of a witness to tes- psychiatric testimony regarding mental tify. He may be asked to explain a state at the time of an offense is thus psychiatric principle or theory, such as sought to mitigate specific intent of- the effects of sleep deprivation on judg- fenses. The military forensic psychiatrist ment, or to provide explanations of ap- is trained to understand the limitations of parently inconsistent behavior. such as privilege and the implications of partici- delayed reporting after an alleged rape. pation as an expert if appointment to the Military courts have permitted expert defense team is not granted. testimony regarding rape trauma, child If the sanity board reaches a conclusion abuse accommodation, battered spouse, that is not favorable to the prosecution, and Vietnam and Gulf War Syndromes in the prosecution may request expert con- military proceedings." sultation. In some situations, trial counsel Disability Evaluations Medical re- may effectively challenge a sanity tirement of military members requires board's opinion based on thoroughness, evaluation of the nature, extent, and an- timeliness, or misapplication of proper ticipated duration of symptoms of the ill- legal standards. In rare cases, the prose- ness for the purpose of determining dis- cution may request expert testimony re- ability payments. Such evaluations are garding aggravating factors at sentencing. termed Medical Evaluation Boards Because there is no requirement for an (MEBs). Specialists in the medical field accused to submit to psychiatric evalua- most closely related to the disabling ill- tion beyond that of the sanity board, such ness or injuries perform these evalua- testimony would likely be limited to con- tions. For example, a cardiologist would clusions gathered by review of available be responsible for generating an MEB for documents and observation during the a soldier being medically retired for hy- court-martial. The weakness of conclu- pertensive cardiomyopathy if this condi- sions not based on direct evaluations is tion prevented the soldier from exerting evident, and for this reason such testi- the amount of physical strain required for mony is infrequently requested. routine military duty. Although there is The role of the military forensic psy- clearly a role for forensic psychiatrists

300 J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 Forensic Psychiatry in the U.S. Military being retired due to psychiatric disorders, tion may assist the government in other medical services may require foren- preventing future claims or provide data sic psychiatric input. The cardiologist in that will lead to a more equitable settle- the example cited above might request a ment. In addition, the authors have been psychiatric addendum addressing the ex- consulted on many occasions by military tent, nature, and duration of impairment occupational health physicians to evalu- that might be associated with the comor- ate potentially dangerous workers. On bid anxiety accompanying forced early other occasions. consultation has been military retirement because of this cardiac sought and provided on interventions de- condition. After closed head injuries or in signed to prevent workplace violence and cases in which the service member's con- promote workplace safety. dition appears to be impaired by his re- Security Clearance Evaluations One fusal to follow treatment recommenda- aspect of military service or military- tions, the forensic psychiatrist may be related contractual service is the likeli- consulted with regard to the medicolegal hood of handling sensitive equipment, in- question of the patient's competence to formation. or documents. The capacity to make treatment decisions. Forensic psy- exercise appropriate judgment with re- chiatric consultation has been requested gard to sensitive material, with implica- to determine whether a medically retired tions for national security. is an obvious service member is competent to manage concern to military and government lead- his finances. ers. Service members and government Independent Medical Evaluations and contractors applying for positions requir- Occupational Health Consultation The ing security clearance are subjected to military, in recent years, has hired many extensive background investigatiom20 If civilian contractors in administrative and security clearance investigators discover technical roles. Such employees are enti- evidence of a psychiatric illness that may tled to compensation under the Federal render a person's judgment suspect, psy- Employees Compensation Act (FECA) chiatric evaluation will become integral for job-related medical or mental health to the clearance determination. Forensic disability. Under the provisions of FECA, psychiatrists frequently conduct these claims of medical disability must be eval- evaluations of judgment, reliability, and uated by an independent medical exami- stability. They may also act as consultants nation.'"he military forensic psychia- to security clearance adjudicators in de- trist may provide a second opinion as to termining whether information from the the nature, extent, and expected duration background investigation necessitates a of psychic injury. He may also provide comprehensive medicopsychiatric evalu- information regarding the extent to which ation. Finally, forensic psychiatrists may the injury represents an exacerbation or a be called upon to offer an opinion as to preexisting condition or may have re- the thoroughness or the extent to which sulted from causes other than unreason- another psychiatric evaluator's opinions able work-related stresses. Such informa- are supported by the report submitted to

J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 301 Landeand Benedek the security clearance adjudicating au- residents, this assignment comes prior to thority. The forensic psychiatric consul- formal education or training in relevant tant may assist the adjudicators in fram- forensic psychiatric principles. Although ing more specific questions to general inpatient attending staff have likely con- psychiatrists tasked with conducting se- ducted sanity boards during previous duty curity clearance evaluations. assignments and can provide assistance, The Military Forensic Psychiatrist as forensic psychiatrists serve as objective Educator All psychiatrist in the mili- consultants, who unlike inpatient attend- tary must have knowledge of the regula- ing staff, are not primarily concerned tions and legal principles that guide their with treatment responsibility and clinical practice. Currently. Senior Residents in outcome. the National Capital Region's Tri-Service The military forensic psychiatrist also Psychiatric Program are re- serves as educator to allied mental health quired to attend on a weekly basis a year- services. occupational health services, long course that introduces forensic med- and legal services. Military forensic psy- ical and psychiatric principles such as chiatrists provide in-service training to informed consent, medical competency. these agencies on subjects ranging from practice standards, malpractice, and tort prevention and intervention in workplace law. Residents in other military psychiat- violence, to the role of the comprehensive ric training programs receive varying de- medicopsychiatric evaluation in security grees of training in these principles. clearance, to psychiatric expert testi- Without such training. military graduates mony. would be ill prepared for their first duty assignments. Frequently. first duty as- signments are to relatively remote loca- Conclusion tions where the recent graduate serves as The Government of the United States. the sole psychiatrist for a military post. In from its colonial beginnings to the present this capacity, he may be expected to per- day, has provided structure and guidance form security clearance evaluations, write for legal proceedings and medical prac- recommendations for administrative sep- tice in the military. The U.S. Constitution arations, or conduct sanity boards. The and federal statutes established broad military forensic psychiatrist is responsi- guidelines and principles. These have ble for establishing and updating the fo- subsequently been interpreted in imple- rensic psychiatry curriculum in residency menting regulations and through court training programs and coordinating the opinions. The result is a system of justice involvement of appropsiate guest lecturers. similar to, but separate from, that of the Currently, psychiatric residents are as- civilian community. A medical system signed primary responsibility for coordi- also has evolved designed specifically to nating and conducting sanity boards if provide care for the military population. such an evaluation is ordered for one of This system overlaps with its civilian their inpatients. For most second-year counterparts in nature, extent, and scope

302 J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 Forensic Psychiatry in the U.S. Military of provided services, but is governed by forensic psychiatrist insures the appropri- regulations unique to the military. ate updating of training manuals and in- The military forensic psychiatrist. like structs military regulators such that new his civilian counterpart, operates at the regulations reflect the guidance afforded interface of medicine and the law. Civil- by court opinions. ian psychiatrists must have an under- Training in the principles and practice standing of both broad principles of fo- of forensic psychiatry is available to psy- rensic psychiatry and issues and standards chiatrists of all military service affilia- unique to their jurisdiction of practice. tions through the Military Forensic Psy- The military forensic psychiatrist is chiatry Program at Walter Reed Army trained in the same broad principles as his Medical Center, Washington, DC. Active civilian peers. In addition, he becomes duty Army, Navy, and Air Force psychi- experienced in the principles and stan- atrists have received training through this dards of military law and the regulations program and presently perform the roles governing general medical and psychiat- and duties outlined above. ric practice in the military. Persons unfamiliar with the military Such training qualifies the military fo- mistakenly assume that the service cul- rensic psychiatrist for a number of roles ture is totally alienated from the broader within the military. The military forensic civilian world. The military recognizes psychiatrist is best qualified to conduct similar legal authorities, and within pa- assessments of competency and mental rameters dictated by a unique social role. responsibility as defined in military law. has responded by respecting both civilian Like his civilian counterpart, he may interests and military necessities. This serve as courtroom consultant to the de- creates a dynamic military law, ever sen- fense, prosecution, or trier of fact in sitive to a balance of interests. Psychia- courts-martial. Participation in security trists are trained to study, understand. and clearance evaluations, disability evalua- appreciate cultural diversity. Thoughtful tions, and competency evaluations in pretrial preparation by civilian expert wit- noncriminal proceedings are also appro- nesses mindful of military traditions can priate and frequent taskings for the mili- only enhance personal credibility. The tary forensic psychiatrist. Experience and military legal system also benefits in the training also qualify the military forensic pursuit of justice. psychiatrist as a consultant to military and civilian law enforcement agencies in pro- References viding assistance in behavioral profiling assessments and analysis. 1. Lande RG: The history of forcnsic psychiatry The military forensic psychiatrist must in the US. military, in Principles and Practice of Military Forensic Psychiatry. Edited by serve as educator and advisor to military Lande RG and Arrnitage DT. Springfield, IL: psychiatric trainees, to ancillary medical Charles C. Thomas, 1997, pp 3-23 2. 10 U.S.C.A. 39 801-946 (West 1995 and and mental health services, and to mili- Supp. 1998) tary legal authorities. Finally, the military 3. Gilligan FA: Military law, in Principles and

J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998 303 Landeand Benedek

Practice of Military Forensic Psychiatry. Ed- in Textbook of Military Medicine: Part I. War ited by Lande RG and Armitage DT. Spring- Psychiatry. Edited by Jones FD. Falls Church, field, IL: Charles C. Thomas, 1997, pp 28-56 VA: Office of the Surgeon General, 1995, pp 4. U.S. v. Mamie, 43 MJ 35, 37 (C.A.A.F. 1995) 149-75 5. U.S. v. Scheffer, 117 S. Ct. 1817 (1997) 14. Army Reg. 40-501 6. Mil. R. Evid. 702 15. Army Reg. 635-200, 5-13 (1990) 7. Mil. R. Evid. 703 16. Army Reg. 635-200, 5-18 (1996) 8. Mil. R. Evid. 403 17. U.S. v. Toledo, 25 MJ 270 (1987) 9. Rule for Courts-Martial 706, Manual for 18. Filbert BG: Disorder and syndrome evidence, Courts-Martial (1 995) in Principles and Practice of Military Forensic 10. Rule for Courts-Martial 916(b), Manual for Psychiatry. Edited by Lande RG and Armit- Courts-Martial (1 995) age DT. Springfield, IL: Charles C. Thomas, 1 1. Rule for Courts-Martial 909, Manual for 1997, pp 187-214 Courts-Martial (1995) 19. 5 U.S.C.A. $3 8101-3 (West 1995 and Supp. 12. Reynolds JB: The clinical assessment of mil- 1998) itary criminal behavior, in Principles and 20. Diebold CJ: Military administrative psychia- Practice of Military Forensic Psychiatry. Ed- try, in Principles and Practice of Military Fo- ited by Lande RG and Armitage DT. Spring- rensic Psychiatry. Edited by Lande RG and field, IL: Charles C. Thomas, 1997, pp 57-94 Armitage DT. Springfield, IL: Charles C. 13. Rock NL, et al: U.S. Army combat psychiatry, Thomas, 1997, pp 291-6

J Am Acad Psychiatry Law, Vol. 26, No. 2, 1998