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.