Five years ago, in United States v. Torres, 74 M.J. 154 (C.A.A.F. May 12, 2015) (CAAFlog case page), CAAF grappled with the defense of automatism, which it defined as:

“[a]ction or conduct occurring without will, purpose, or reasoned intention,” “behavior carried out in a state of unconsciousness or mental dissociation without full awareness,” and “[t]he physical and mental state of a person who, though capable of action, is not conscious of his or her actions.” Black’s Law Dictionary 160 (10th ed. 2014). “Automatism” is sometimes referred to as an “‘unconsciousness defense.'” United States v. Axelson, 65 M.J. 501, 515 (A. Ct. Crim. App. 2007) (quoting Eunice A. Eichelberger, Annotation, Automatism or Unconsciousness as Defense to Criminal Charge, 27 A.L.R.4th 1067, § 2 (1984)).

74 M.J. at 156 n.3. Distinguishing that defense from a defense of lack of mental responsibility (where the accused has the burden to prove that he was suffering from a metal disease or defect), CAAF found error in a military judge’s failure to give a tailored automatism instruction to the members that would have forced the prosecution to disprove the defense (and thereby prove that the appellant’s conduct was voluntary). The court also adopted the acus reus approach to automatism, holding that in future cases “where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense.” 74 M.J. 158.

An article published last year in the Military Law Review titled Automatism: A complete yet imperfect defense, by Marine Corps Captain Brendan J. McKenna, 227 Mil. L. Rev. 46 (2019) (available here), reviews CAAF’s decision in Torres and the results of a Marine court-martial in which the defense of automatism was employed (unsuccessfully) shortly after the Torres opinion was issued. The article also considers limits to the automatism defense, including the possibility that raising the defense might lead to an unprivileged R.C.M. 706 inquiry into the accused’s mental capacity or responsibility, and to a charge of fraudulent enlistment.

The author observes that if the defense requests Government funding for an expert consultant or witness to assist in presenting an automatism defense, that request “must provide some evidence indicating that [the accused] may have an automatism disorder.” 227 Mil. L. Rev. at 59 (discussing R.C.M. 703(d)). Once the defense does that, the author claims that the prosecution will then “have a non-frivolous, good faith basis to request an RCM 706 inquiry.” Id. The author then suggests four “benefits” to the prosecution in making such a request:

First, the military judge may prohibit the defense from introducing automatism if the accused refuses to comply with an RCM 706 order.

Second, if the defense offers expert testimony concerning the accused’s automatism, the government must receive the full contents of the evaluation, absent statements made by the accused.

Third, the judge may compel disclosure of the accused’s statements if introduced into evidence by the defense.

Finally, assuming the board diagnoses automatism, trial counsel will possess the documents necessary to render a disposition recommendation to the convening authority.

227 Mil. L. Rev. at 59-60 (paragraphing added). The author then reviews how the prosecution was able to use the R.C.M. 706 evaluation in United States v. Savage, 67 M.J. 656 (A. Ct. Crim. App. 2009) (link to slip op.), as an example for future cases.

The analysis seems triply flawed to me.

First, as CAAF explained in Torres, the defense of automatism involves the actus reus (the guilty act) of the offense, not the mens rea (the actor’s mental state). CAAF’s analysis turned on the involuntariness of the conduct at issue, not on any intent or knowledge on the part of the accused, and CAAF explicitly recognized that both the Model Penal Code and common law “required criminal acts to be voluntary.” Torres, 74 M.J. at 158. In contrast, R.C.M. 706 does not implicate vountariness. Rather, the rule addresses whether “the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial.” R.C.M. 706(a). See also United States v. Collins, 60 M.J. 261, 266 (C.A.A.F. 2004) (“The purpose of the R.C.M. 706 sanity board is to determine if an accused lacks capacity to stand trial or lacked mental responsibility for any offense charged.”). Bootstrapping such an inquiry into a discovery tool for the prosecution (that may pierce privileges applicable to an accused’s incriminating statements, mental examinations, and statements to psychotherapists) is not only a bad-faith basis to seek the examination, but it reeks of prosecutorial overreach and abuse of process.

Second, automatism isn’t a diagnosis that can be discovered by a R.C.M. 706 sanity board. Rather, it is a legal defense that – under military law as clarified by Torres – merely denies culpability for the objective acts constituting the charged offense. Sure, the defense might arise from an underlying medical condition, but such a condition does not necessarily implicate the accused’s mental responsibility or capacity to stand trial. For example, I recently won reversal of a conviction of assault consummated by a battery in an Army case because the military judge failed to give an instruction on automatism where the evidence suggested that the accused was asleep when he committed the charged acts. United States v. Solomon, No. ARMY 20160456, slip op. at 18-22, 2019 CCA LEXIS 149, at *28-34 (A. Ct. Crim. App. Apr. 3, 2019) (link to slip op.). Not only did the circumstances of that case not implicate questions of mental responsibility or capacity, but they actually excluded such questions because the appellant apologized and so was clearly able to “appreciate the nature and quality or wrongfulness of his [] conduct.” R.C.M. 70(c)(2)(C).

Third, Savage is a remarkably poor exemplar – especially for prosecutors – because the defense contention on which the decision is based is contrary to CAAF’s decision in Torres (issued six years after the Army CCA’s decision in Savage). The defense in Savage was that the “appellant had a parasomniac [sleep disorder] condition and could not have formed the specific intent necessary to support a conviction for attempted premeditated murder.” Savage, 67 M.J. at 659 (emphasis added). That’s a mens rea defense, while CAAF’s decision in Torres explains that automatism is an actus rea defense. But the facts of Savage are also unique and a bad model for future cases, as the defense initially gave notice of its intent to raise the defense of lack of mental responsibility and the defense counsel sent an unredacted copy of the R.C.M. 706 report to the prosecution. 67 M.J. at 658. Then, after a change in defense counsel, the defense abandoned the insanity defense and the military judge explicitly prohibited the prosecution from using the accused’s statements from the 706 report in its case-in-chief. 67 M.J. at 659. The military judge did not, however, prohibit the prosecution from using the accused’s statements to rebut matters raised by the defense, and a defense expert’s testimony later opened the door to just that:

When a defense expert witness introduces an accused’s statement from a sanity board report, the accused has no privilege with respect to that statement. Mil. R. Evid. 302(b). In this case, the government referred to one of appellant’s statements made during the sanity board after defense counsel purposefully elicited appellant’s statement from their own defense expert, Dr. Southwell. Dr. Southwell testified that a history of sleepwalking is an important indicator of parasomnia and then explicitly stated that “Private Savage didn’t have any recollection” of prior parasomniac episodes. This reference to appellant’s statement opened the door for questions concerning appellant’s sleep history. There is no evidence in the record of trial that the government used any other statement made by appellant during the sanity board.

67 M.J. at 663 (emphases added).

Nevertheless, defense employment of an expert witness to establish an automatism defense may well lead to damaging disclosures to the prosecution.

R.C.M. 701(b)(4) requires the defense to disclose (in discovery) the results of tests and examinations that the defense intends to use at trial or that were prepared by a witness and relate to that witness’ testimony, and other rules contain exceptions to applicable privileges when the defense offers the accused’s own statements (or evidence derivative of those statements, such as a diagnosis or expert opinion) into evidence. Those provisions mean that the defense not only can’t hide behind an expert witness, but that the use of an expert may force disclosure of defense information that would otherwise stay hidden. Were the defense to refuse to disclose such information, that could lead to exclusion of defense witnesses or evidence. See United States v. Pomarleau, 57 M.J. 351, 362 (C.A.A.F. 2002). So the author is right that an automatism defense may lead to significant disclosures.

The article also considers prosecution for fraudulent enlistment as a collateral consequence of an automatism defense. The article explains:

Prior to joining the military, individuals must complete DD Form 2807-2, Medical Prescreen of Medical History Report, in accordance with Department of Defense Instruction (DoDI) 6130.03. Department of Defense Instruction 6130.03 is to be used as guidance “for appointment, enlistment, or induction of personnel into the Military Services.” Department of Defense Instruction 6130.03 prohibits individuals from joining the military if they currently exhibit or have a history of parasomnias, including, but not limited to sleepwalking. Also prohibited are individuals suffering seizures beyond six years of age, “unless the applicant has been free of seizures for a period of [five] years while taking no medication for seizure control.”

Department of Defense Form 2807-2 provides a conspicuous warning to applicants indicating that information “given constitutes an official statement . . . . If you are selected . . . based on a false statement, you can be tried by military courts-martial or meet an administrative board for discharge. . . .” Thereafter, applicants must indicate current and past medical history pertaining to sleepwalking, epilepsy, seizures, or convulsions. As the Department of Defense relies upon the standards set forth by DoDI 6130.03 in accepting able-bodied applicants, failure to report the above is punishable under Article 104a, Fraudulent Enlistment, Appointment, or Separation.

at 61-63. A footnote illustrates the likelihood of such a prosecution:

In a case tried by the author, defense counsel submitted an affidavit from a former girlfriend swearing (1) the accused suffered from sexsomnia, (2) they openly discussed his condition during their relationship, and (3) the relationship took place years before his enlistment. As the accused failed to disclose the medical condition on his enlistment paperwork, defense counsel unwittingly exposed his client to an additional charge for violating Article 83, Fraudulent Enlistment. After explaining to the military judge that the government intended to withdraw the original charges in order to prefer the additional offense, defense counsel submitted a favorable pretrial agreement. This assertion is based on the author’s recent professional experience as Trial Counsel for Legal Services Support Section East, Camp Lejeune, North Carolina, from 2013 to 2015.

227 Mil. L. Rev. at 61 n.145.

Finally, the article discusses the role of forseeability of harm in an automatism defense, which is the accused’s knowledge of a condition that could cause dangerous involuntary acts (such as a person with an active seizure disorder operating a motor vehicle). The author writes:

Once trial counsel learns the accused seeks to use the automatism defense, he must determine whether the accused knew of his condition prior to the charged offense. This is not just accomplished by evaluating contracting documents against matters submitted in support of expert assistance. Trial counsel must personally interview the accused’s family and friends. Close family likely possess firsthand accounts of the accused’s automatic behavior. Furthermore, the defense may seek to introduce such evidence through the family rather than place the accused on the stand. Prior episodes are critical to experts in diagnosing parasomnia. Such episodes are equally important to the trial counsel in explaining how the prior episodes render the charged offense and resulting harm foreseeable.

227 Mil. L. Rev. at 63-64.


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