Military insanity defense – Part I

The military (insanity) lack of mental responsibility defense is set out in several places relevant to Major Hasan and the events at Fort Hood.  The first step that should be taken by a prudent convening authority in this case is to order a mental examination under R.C.M. 706, as soon as Major Hasan is medically fit.  Major Hasan and his counsel could arrange for a private examination at the major’s own expense.  But should they attempt to put on an insanity/lack of mental responsibility defense the prosecution will certainly persuade the military judge to order a government examination.


There are two reports: the first is a short form with the answers to the basic questions.  The short form is given to the commander at Fort Hood, his legal advisor, the prosecution, and the military judge.  A long and detailed report is given only to the defense.  Thus the examination and a large part of the work is privileged.  Mil. R. Evid. 302 sets out the privileged nature of the examination, and the exceptions.  The defense becomes the gatekeeper of the report.  Should the defense seek to put on a lack of mental responsibility (insanity) defense the report may well have to be disclosed.  Should the examination find the major currently incompetent, then he’s off to the federal confinement facility at Butner, NC, under Article 76b, UCMJ.  There is currently one service-member at Butner under Article 76b.


Stayed tuned for the defense.


2 responses to “Military insanity defense – Part I”

  1. […] He will be tried in a military court correct? Not guilty by reason of insanity………. Military insanity defense – Part I | Court-Martial Trial Practice Military insanity defense – Part II | Court-Martial Trial Practice Military insanity […]

  2. aaron says:

    The “lack of mental responsibility” to stand trial defense is not synonomous with an insanity defense. In fact, insanity is typically a legal term reserved to describe the excusable state of mind of the actor at the time of his commission of a criminal act – not his incapacity/incompetence to stand trial after the fact. That is – an “insane” (defintion below) person, who was so at the time of the crime, can still stand trial as long as he understands the nature of the proceedings and is able to cooperate towards his defense.
    All federal courts (I believe the UCMJ courts are included here-under) use the famous M’Naughton rule regarding the insanity defense: that defendant, due to a laboring under defect of reason, either (1) didn’t know the nature and quality of the act he was doing, or (2) if he did have such knowledge, did not know that what he was doing was wrong.
    Interestingly, one commonly employed insanity defense is the Deific Command defense. Here, roughly, the defendant would claim to have killed as a result of a godly command or duress. Were Major Hassan to use this nook of the insanity defense to excuse his actions (to wit, that “Allah” commanded him to kill) the judge and jury may find themselves in a position to determine whether or not jihad is “insane.”

Contact Information