Document Type

Article

Publication Date

1986

Abstract

Due to the intense pressures of warfare, and the more common stress related demands placed on the peacetime service member, the mental nonresponsibility defense should be more often legitimately asserted in a military criminal trial. Further, those who place demands on service members have an obligation to ensure that the nonresponsibility defense is substantively and procedurally fair. This article analyzes the nonresponsibility defense, beginning with the procedural aspects and later examining significant substantive issues and how they are resolved by the United States Court of Military Appeals. The procedural section will discuss how the nonresponsibility issue is raised, the defendant's discovery obligations, the psychiatric evaluation and the appellate procedures. The substantive issues discussed include the initial presumption of mental responsibility, the allocation of the burden of proof, the evolution of the test of nonresponsibility, and the role which mental health professionals play in the entire process. Finally, the article addresses the current hostile attitude toward the nonresponsibility defense. The article shows that hostility has existed for some time in the civilian community but is a recent phenomenon in the military. The proposal to adopt Michigan's "Guilty But Mentally Ill" system in the military is but one indication of this hostility. The article concludes by pointing out a continual need to monitor all aspects of the mental nonresponsibility defense as it is applied in the military.

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