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Forensic Psychiatry in the United States Military

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Forensic Psychiatry in the United States Military Forensic Psychiatry 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 law, 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 psychiatrist. An understanding of the medical and legal framework in which the military forensic psychiatrist operates will facilitate the interactions of the civilian expert witness 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 psychiatrists specifically trained in aspects of military medical and mental health 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 criminal law, 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 trials, 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 trial. 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 ultimate issue 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.
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