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finally, upon realization that he was the primary suspect, to confess his crime and immediately ask for understanding and clemency. Moreover, during the entire period he had the mental ability to regularly attend aviation school classes, act and converse in his usual manner and outwardly appear to be his normal self. An issue of lack of capacity to entertain a specific intent is only raised where, on the record as a whole, reasonable minds might conclude that an accused was totally or completely incapable of entertaining that specific intent. Where the whole evidence goes no further than to establish that an accused's capacity to entertain a specific intent was impaired or weakened, although a proper mitigating or aggravating factor for the court's consideration, is insufficient as a matter of law to require an instruction on the consideration of the mental deficiency of the accused short of insanity in the legal sense in determining his capacity to entertain a specific intent.

-the issue of legal insanity and the issue of lack of capacity to entertain a specific state of mind are two distinct, separate factual issues, concerning separate defenses. The issue of legal insanity is a factual issue concerning a particular defense, wherein the court's attention is directed to the questions of the accused's capacity to distinguish right from wrong and adhere to the right as to the whole offense, whereas the issue of lack of capacity is a factual issue concerning another defense, wherein the court's attention is specifically directed to the application of the evidence as to the accused's capacity to entertain a particular state of mind as to a particular element of the offense.

- in any case where the defense of lack of capacity is in issue, a separate instruction is required in order that the court may not be misled or confused as to the applicability of the evidence presented. Where the evidence reasonably raises the issue of the accused's lack of capacity to entertain a specific intent the court should be specifically instructed what the defense is and that they may consider the evidence of lack of mental capacity as to that defense, irrespective of whether they have been previously instructed on the defense of legal insanity and that this same evidence could be considered in determining that issue. To preclude the possibility of confusion, at least where a request is made, the law officer should instruct on the separate issue and a failure to do so may involve a fair risk of prejudice to the accused. (Citing U. S. v. Higgins (No. 3145), 4 USCMA 143, 15 CMR 143; U. S. v. Kunak (No. 3787), 5 USCMA 347, 17 CMR 347; U. S. v. Trede (No. 1803), 2 USCMA 581, 10 CMR 79; U. S. v. Edwards (No. 4355), 4 USCMA 299, 15 CMR 299; U. S. v. Burns (No. 847), 5 USCMA 707, 19 CMR 3. Distinguishing U. S. v. Latsis (No. 5327), 5 USCMA 596, 18 CMR 220.)

-the applicability of the defense of lack of capacity short of insanity in the legal sense is not restricted to cases of premeditated murder. (Citing U. S. v. Higgins (No. 3145), 4 USCMA 143, 15 CMR 143; U. S. v. Burns (No. 847), 5 USCMA 707, 19 CMR 3.)

the defense of lack of capacity short of legal insanity to entertain a specific state of mind is not contrary to the provisions of the Manual for Courts-Martial, 1951, but is merely the necessary and

logical extension of an existing well recognized rule of law. (Citing MCM, 1951, par 120b, 123, 154a (2).) ACM 9926, Somerville (1955) 19 CMR

§ 35.15. Amnesia.

With respect to the charge of murder of her newborn child immediately after birth, defense psychiatrists sought to establish that prior and subsequent to the offense charged the accused had a fugue which precluded her recollection of acts associated with the conception and delivery of an infant and was consistent with her belief that she was a virgin. Prior to delivery of the child, the accused, in their opinions, because of her religious and moral training, considered intercourse outside the bonds of matrimony a "sin" and thereby consciously rejected the experience by thrusting it into her unconscious mind. The fact that she subsequently became pregnant and gave birth was similarly rejected and blotted from conscious recollection, all of which constituted a dissociative reaction. However, these expressions of opinion and diagnosis were emphatically contradicted by the government psychiatrist, who maintained that the accused could recall the events surrounding the alleged offense. Held: Hysterical fugue or amnesia does not in and of itself relieve one of criminal responsibility. (Citing U. S. v. Olvera (No. 2761), 4 USCMA 134, 15 CMR 134; Davidson's, "Forensic Psychiatry," 1952, p 16; TM 8-240; AFM 160-42, Psychiatry in Military Law, May 1953, pars 12c, h.) ACM 9073, Gibson (1954) 17 CMR 911.

DEPOSITIONS

§ 1. In General

Competency of child witness testifying by deposition, see ACM 9442, Shade, WITN § 25.1.

§1.11. Counsel for accused.

The accused was tried by general court-martial for assaulting a certain person with intent to influence his testimony at a trial. A deposition was introduced without objection. At the taking of the deposition neither the accused nor the government was represented by counsel certified in accordance with UCMJ, Art 27(b)(2). The deposition was to the effect that the deponent had observed the accused and another standing with the victim at the time of the alleged offense and that the accused was moving his arms and gesturing and it looked like he was talking. The accused and his companion admitted being with the victim but the accused denied gesturing or talking. Another witness testified as to having seen the accused and his companion drag the victim from a building.

Held that:

the deposition was inadmissible. At a trial by general courtmartial, a deposition is inadmissible where neither counsel for the accused nor counsel for the government at the taking of the deposition was properly certified. Under UCMJ, Art 49, as interpreted by par 117a, MCM, 1951, a deposition may be taken lawfully, without regard to whether counsel for the parties are certified and such a deposition may be used at a special or summary court-martial. But, in a general court-martial, the policy of UCMJ, Art 27(b), limits Art 49 and the deposition cannot be used. (See U. S. v. Sutton (No. 1718), 3 USCMA 220, 11 CMR 220.)

there was no waiver by reason of the failure of the defense to object at trial to the admission of the deposition since the failure to object may well have resulted from reliance on the language of the Manual to the effect that it is not required that officers designated to represent the parties in taking oral or written depositions be legally qualified officers. (Citing MCM, 1951, par 117a; U. S. v. Hemp (No. 290), 1 USCMA 280, 3 CMR 14; U. S. v. Morris (No. 3834), 4 USCMA 209, 15 CMR 209.)

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the admission of the deposition was not prejudicial since, considering all the evidence, it is clear that the deposition contained merely collateral and cumulative information which was so incidental that it could have had no reasonable impact on the court. (Citing U. S. v. Young (No. 1015), 2 USCMA 470, 9 CMR 100.) United States v. Drain (No. 4510), 4 USCMA 646, 16 CMR 220, affirming ACM 7799, Dooley and Drain, 13 CMR 920.

A deposition was inadmissible in evidence at a trial by general court-martial where both the counsel appointed to represent the government and the counsel appointed to represent the accused at the taking of the deposition were not certified in accordance with

UCMJ, Art 27b. (Citing U. S. v. Drain (No. 4510), 4 USCMA 646, 16 CMR 220; see also U. S. v. Sutton (No. 1718), 3 USCMA 220, 11 CMR 220.) ACM 8920, Bridges (1954) 17 CMR 582.

A deposition introduced at the trial of the accused reflected that the deposing witness was cross-examined during the taking of the deposition but no showing was made therein, nor did either the record of trial or the allied papers describe, or otherwise identify, the counsel, if any, who represented the accused at the time. Held: While it does not appear affirmatively that the accused was represented by certified counsel, neither does it appear that he was unrepresented by such counsel and in the absence of anything more than a mere possibility that the accused was unrepresented by certified counsel it cannot be assumed for the first time at appellate level that he was not so represented. (Distinguishing U. S. v. Drain (No. 4510), 4 USCMA 646, 16 CMR 220 and ACM 8920, Bridges, 17 CMR 582.) Furthermore, the record shows that the deposition was taken after certified defense counsel had been appointed to defend the accused. It was the responsibility of this counsel, not alone to defend the accused at trial, but also to prepare the accused's case for trial and represent his interests at all intermediate stages prior to the trial itself. Accordingly, the presumption of regularity in the performance of official duties, which is applicable to defense counsel, furnishes an indication that the accused was represented by the regularly certified defense counsel. ACM 9442, Shade (1954) 18 CMR 536.

At the trial of the accused a number of depositions were used. At the time the interrogatories were prepared and forwarded to be taken the officer appointed to represent the prosecution was not certified in accordance with UCMJ, Art 27(b), but the officer designated to represent the defense was so certified. The name of the officer designated to represent the prosecution appeared on the depositions as the officer representing the prosecution at the taking thereof. With respect to one of the depositions it was shown that the officer designated to represent the defense was the person preparing the cross interrogatories. However, with respect to the remaining depositions neither the identity nor the qualifications of the officer representing the defense was indicated. Held: Where the qualifications of defense counsel are superior to those of the officer representing the prosecution no jurisdictional error occurs and the rights of the accused are not prejudiced thereby. (Citing ACM 6674, Royer, 10 CMR 699, 701-702 and cases cited; U. S. v. Bartholomew (No. 166), 3 CMR 41, 43-46; ACM S-5230, Fritz, 8 CMR 813, 816.) Under the circumstances, absent any showing in the record to the contrary, a presumption that the officer designated to represent the defense was the person representing the defense in all of the depositions is logical and justified. Accordingly, the requirement that the depositions be prepared by defense counsel certified pursuant to UCMJ, Art 27(b), is satisfied. The type of difficulty involved in this case can be obviated by adapting the form of depositions set out in Appx 18, MCM, 1951, pp 560-562 in the following manner: Where a general court-martial is involved

and officers have been designated to represent the prosecution and the defense in taking depositions before reference of a case to a particular court the information required to be inserted in the second paragraph of the caption pertaining to the request that the deposition be taken should be augmented to include the fact of certification pursuant to the provisions of UCMJ, Art 27 (b). Further, the information required in item 9 of the deposition form relating to circumstances where defense counsel elects to ask no cross-interrogatories should be augmented to require, in the case where the depositions are to be taken, that the defense counsel subscribe the deposition at the conclusion of his interrogatories showing his name, grade, organization, official capacity and the fact of certification pursuant to Art 27(b). ACM 9391, Wells (1954) 18 CMR 592.

Admission of deposition in which certified counsel played no part as prejudicial notwithstanding withdrawal and instruction to disregard, see ACM 9347, Kennedy, infra § 9.1.

§3.1. Generally.

§ 3. Procedure, Generally

At the trial of the accused, the prosecution introduced some depositions. The trial counsel had submitted the interrogatories to the individual civilian defense counsel prior to the taking of the depositions but they were not submitted to the convening authority as provided in par 117b, MCM, 1951, pp 193-194. Held: The depositions were properly in evidence since the Manual provision cited above is an administrative provision to enable the convening authority to propound additional interrogatories or to prohibit the taking of the deposition for good cause and the failure to follow this administrative step could not have prejudiced the accused since the interrogatories were submitted to his counsel and he could have propounded cross-interrogatories if he so desired and he could have brought to the attention of the law officer or the convening authority the existence of any good cause to forbid taking the depositions. (Citing UCMJ, Art 49(a); NCM 203, Leonard, 9 CMR 580.) ACM 9515, Dowling (1954) 18 CMR 670.

§ 9.1. Generally.

§ 9. Use as Evidence

On the trial of the accused, the prosecution introduced into evidence depositions without laying a foundation for their reception. The deponents were residents of Nevada and the place of trial was San Francisco. Held: Since it appears that the deponents resided beyond the state in which the court sat and were beyond 100 miles from the place of trial, two of the statutory conditions authorizing the taking of a deposition existed, and the record not showing the contrary it must be presumed that these conditions continued to exist at the time of trial so as to justify the admission in evidence of the depositions. However, as a matter of good trial practice the party offering a deposition ought to show affirmatively that its admission is author

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