Thereupon the court will open and the president will announce the holding and the punishment, if any, adjudged.

The action thus taken is properly summary, a formal trial not being required and no appeal or review being authorized except for the automatic review by the convening authority.

Before resuming the original proceedings, a record will be made in and as a part of the regular record of the case before the court, showing the facts concerning the contempt and the proceedings with reference to it; or the court may, upon the accomplishment of the record of the contempt proceedings, forthwith transmit the record to the convening authority, appropriate entries concerning this action being entered in and as a part of the regular record. For an example of proceedings in contempt, see appendix 86.

In order to be effective, a punishment for contempt requires approval of the convening authority. Upon notification of the action of the court and pending formal review of the record of the contempt proceedings, the convening authority may require the person to undergo any confinement adjudged (21d; Art. 57(b)). The person held in contempt shall be advised, in writing, of the holding and punishment of the court and also of the action of the convening authority upon the proceedings for contempt. Copies of this communication shall be furnished to such other persons as may be concerned with the execution of the punishment, and a copy shall also be included with the record of trial proper.

The court, instead of proceeding as stated above, may cause the removal of the offender and, in a proper case, initiate his prosecution before a civil or military court.

A person held in contempt may be allowed to continue to testify or to perform his functions before the court.

c. Place of confinement of person held in contempt. The place of confinement for a civilian or military person who is held in contempt and is to be punished by confinement shall, upon approval of the punishment by the convening authority, be designated by that officer.

119. EXPENSES OF COURTS-MARTIAL. See appropriate regulations of the Secretary of a Department.

Chapter XXIV

INSANITY

GENERAL CONSIDERATION-INQUIRY BEFORE TRIAL-INQUIRY AND DETERMINATION BY COURT-EFFECT OF MENTAL IMPAIRMENT OR DEFICIENCY UPON SENTENCE-ACTION BY CONVENING OR HIGHER AUTHORITY

120. GENERAL CONSIDERATION. a. Insanity. A person is insane within the meaning of this chapter either if he lacked mental repsonibility at the time of the offense as defined in 1206, or if he lacks the requisite mental capacity at the time of trial as stated in 120d.

b. General lack of mental responsibility. If a reasonable doubt exists as to the mental responsibility of the accused for an offense charged, the accused cannot be legally convicted of that offense (74a (3)). A person is not mentally responsible in a criminal sense for an offense unless he was, at the time, so far free from mental defect, disease, or derangement as to be able concerning the particular act charged both to distinguish right from wrong and to adhere to the right. The phrase "mental defect, disease, or derangement" comprehends those irrational states of mind which are the result of deterioration, destruction, or malfunction of the mental, as distinguished from the moral, faculties. To constitute lack of mental responsibility, the impairment must not only be the result of mental defect, disease, or derangement but must also deprive the accused of his ability to distinguish right from wrong or to adhere to the right as to the act charged. Thus, mere defect of character, will power, or behavior, as manifested by one or more offenses, ungovernable passion, or otherwise, does not necessarily indicate insanity, even though it may demonstrate a diminution or impairment in ability to adhere to the right with respect to the act charged. Similarly, mental disease, in itself, does not always amount to mental irresponsibility. For example, if a person commits an assault under psychotic delusion with a view to redressing or revenging some supposed injury to his reputation, he is nevertheless mentally responsible if he knew at the time that the act was contrary to law, and if he was not acting under an irresistible impulse. On the other hand, an accused is not responsible for a homicide, if, as a result of mental disease, he had an insane delusion that another person was in the act of attempting to kill him and he thereupon killed the supposed attacker under the delusion that it was necessary to kill the deceased to preserve his own life.

c. Partial mental responsibility. A mental condition, not amounting to a general lack of mental responsibility (1206), which produces a lack of mental ability, at the time of the offense, to possess actual knowledge or to entertain a specific intent or a premeditated design to kill, is a defense to an offense having one of these states of mind as an element. For example, if premeditated murder is charged and the court finds that, as a result of mental impairment, not

amounting to a general lack of mental responsibility, the accused at the time of the offense lacked the mental ability to entertain a premeditated design to kill, the court must find the accused not guilty of premeditated murder, but it may find him guilty of the included offense of unpremeditated murder as a premeditated design to kill is not an element of the latter.

d. Mental capacity at time of trial. No person should be brought to trial unless he possesses sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense.

121. INQUIRY BEFORE TRIAL. If it appears to any commanding officer who considers the disposition of charges as indicated in 32, 33, and 35 or to any investigating officer (34), trial counsel, or defense counsel that there is reason to believe that the accused is insane (120d) or was insane at the time of the alleged offense (1206), that fact and the basis of the observation should be reported through appropriate channels in order that an inquiry into the mental condition of the accused may be conducted before trial. When the report indicates a reasonable basis for the belief, the matter will be referred to a board of one or more medical officers for their observation and report as to the sanity of the accused. At least one member of the board should be a psychiatrist. The board should be fully informed of the reasons for doubting the sanity of the accused and, in addition to other requirements, should be required to make separate and distinct findings as to each of the three following questions:

a. Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to distinguish right from wrong (1206)?

b. Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to adhere to the right (1206) ?

c. Does the accused possess sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense (120d)?

To determine these questions the board should place the accused under observation, examine him, and conduct any further investigation that it deems necessary. On the basis of this report, further action in the case may be suspended, the charges may be dismissed by an officer competent to convene a courtmartial appropriate to try the offense charged, administrative action may be taken to discharge the accused from the service on the grounds of his mental disability, or the charges may be referred for trial. Such additional mental examinations may be directed at any stage of the proceedings as circumstances may require. The officer directing or requesting the mental examination of the accused will attach the report of examination to the charges if referred for trial or forwarded.

122. INQUIRY AND DETERMINATION BY THE COURT. a. Presumption of sanity; reasonable doubt; burden of proof. The accused is presumed initially to be sane and to have been sane at the time of the alleged offense. This presumption authorizes the court to assume that the accused was and is sane until evidence is presented to the contrary. When, however, some evidence which could reasonably tend to show that the accused is insane (120d)

or was insane at the time of his alleged offense (1206) is introduced either by the prosecution or by the defense or on behalf of the court, then the sanity of the accused is an essential issue. Although the defense usually raises the issue of insanity by producing evidence of mental irresponsibility or lack of capacity, it is the duty of the court to call for evidence on this matter whenever there is reasonable indication that such an inquiry is warranted in the interest of justice. The burden of proving the sanity of the accused, like every other fact necessary to establish the offense alleged, is always on the prosecution, and when the sanity of the accused becomes an issue, the prosecution should introduce any available evidence tending to prove his sanity. If, in the light of all the evidence, including that supplied by the inference of sanity (138a (2)), a reasonable doubt as to the mental responsibility of the accused at the time of the offense (1206) remains, the court must find the accused not guilty of that offense. If a reasonable doubt extends only to the accused's ability, at the time of the offense, to possess the actual knowledge, specific intent, or premeditated design to kill which is an element of the offense, the court must find the accused not guilty of that offense, but it may convict him of any included offense which does not require proof of one of these states of mind and as to which there is not otherwise a reasonable doubt. If a reasonable doubt as to the mental capacity of the accused at the time of trial (120d) remains, the court will adjourn and transmit to the convening authority the record of its proceedings with a statement of its determination of the issue of mental capacity.

b. Procedure. (1) General. Different issues relating to the sanity of an accused may be raised in a variety of ways at any time during the course of a trial. The method of disposing of an issue depends upon the kind of issue and manner in which it is raised.

(2) Inquiry. The actions and demeanor of the accused as observed by the court or the bare assertion from a reliable source that the accused is believed to lack mental capacity or is mentally irresponsible may be sufficient to warrant inquiry by the court. It should be remembered, however, that although a person who lacks mental capacity or responsibility to the extent indicated in 120 should not be tried, sanity is presumed (122a), and a mere assertion that a person is insane is not necessarily sufficient to impose any burden of inquiry on the court or to raise the issue of insanity.

A request or other action to cause the court to make inquiry concerning the accused's sanity may be initiated by the law officer or any member of the court, prosecution, or defense. The law officer, or the president of a special courtmartial, rules, subject to objection by any member of the court and final determination by the court, as to whether an inquiry should be made (Art. 51(b)). Upon objection, a tie vote of the members upon a motion relating to the sanity of the accused is a determination against the accused (Art. 52(c)). If it is determined to make an inquiry, priority will be given to it, and the inquiry should exhaust all reasonably available sources of information with respect to the mental condition of the accused. If it appears that the inquiry will be protracted or if the court desires to hear expert testimony, the court may adjourn and report the matter to the convening authority with its recommendations. These recommendations may include in a proper case a recommendation that the accused be examined as provided in 121 and that the officer or officers conducting the ex

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