Generalisable advice to forensic psychologists in a guide about US courts-martial: a similar volume is needed for Australians

Introduction

For many, the work of a forensic psychologist may be misunderstood to be solely within the criminal courts. That is not accurate. Similarly, many may perceive that the professional life of a civilian forensic psychologist will involve work only in civilian courts and never in a military court martial or other military court, military service tribunal or military legal proceeding. Perhaps such a view flows from the wrong assumption that only military psychologists would ever be welcome to appear in military courts. That, again, is not accurate.

The role for civilian forensic psychologists as experts in United States (US) military courts is documented in a revealing and impressive way in this highly informative volume edited by Christopher T. Stein and Jeffrey N. Younggren. The volume is a great introduction to the US military courts system as well as an invaluable how-to guide. These editors have attracted an impressive range of contributors – a further dozen authors – who are well placed to comment from longstanding and recent experience. Some of these authors have given expert forensic reports to, and/or testimony in, military proceedings; some are lawyers who have commissioned forensic psychologists as experts in military proceedings; some are forensic psychologists; and some are trial consultants. Many of these authors are also practitioners and academics, and some are or have been judge advocates in military courts of first instance or sit as appellate judges in the military courts. Despite the title of the work only invoking ‘forensic psychology’, it should also be mentioned that most of the comments made in this volume are of clear relevance to the engagement not only of forensic psychologists but also of forensic psychiatrists and other clinicians and allied health professionals as experts in military legal proceedings.

While reading this important work I kept thinking how useful it would be to have a similar book produced in Australia that explains the Australian military jurisdiction and how civilian as well as military psychologists can assist in military cases. In recent years, civilians not knowledgeable about the Australian military law system have been able to read wonderful overviews of the system authored by those who work within it. For those who are interested in how Australian military discipline law has evolved and how it is both similar to and different from US military discipline law, there are now some extremely useful historical¹ and overview² works that explain the Australian military jurisdiction for the newcomer. However, there is no Australian equivalent to this US volume edited by Stein and Younggren that describes and evaluates the role of forensic psychologists in military proceedings. Even if you never work in the military justice system, there is plenty of generalisable advice in this volume, making it a very useful model for assisting clinicians working in both military and civilian systems.

The editors are well qualified to marshal the diverse troops required here. At the time of publication, Christopher T. Stein, JD, was an active duty US Air Force officer and staff judge advocate (general counsel) for a fighter wing in the Republic of Korea; he is one of the Air Force’s most experienced trial lawyers, having prosecuted and defended complex cases around the world.³ Jeffrey N. Younggren, PhD, ABPP, is a clinical and forensic psychologist who is active in academic publishing and writing for practitioner audiences including lawyers, a Fellow of the American Psychological Association and a clinical professor in the Department of Psychiatry and Behavioral Sciences at the University of New Mexico.⁴

There are many reasons why even Australian forensic psychologists, forensic psychiatrists, lawyers and many other professional groups should be interested in this American volume. As a legal psychology academic who has taught military discipline law to legally qualified permanent Australian Defence Force (ADF) personnel and reservists (typically barristers) training as legal officers in the ADF since 2006, a few of whom were dual trained in law and psychology, it is clear to me that a volume of this type would be of utmost use to permanent ADF legal officers (usually the prosecutors) and reservist ADF legal officers (usually the defence lawyers), as well as military clinicians working in the ADF and civilian clinicians working with ADF personnel. Stein and Younggren have provided a model for an educative and reflective work that is long overdue in the US but also sorely needed in Australia.

Like the US experience documented in this volume, I feel that we are on the verge of seeing much more use of mental state arguments informed by forensic psychological assessments in Australian military courts, for the reasons set out below. In addition to those reasons, what may be waning due to the upsurge in multiple deployments of Australian troops to conflict and peacekeeping roles – let alone evolving roles aiding the civilian power such as bushfire and pandemic management⁵ – is the possible reluctance held historically by low- and highly-ranked⁶ ADF personnel alike for disclosing the mental health issues that flow from service. Raising a mental state argument in civilian courts is, of course, a complex strategic decision due to the potential consequence of indefinite detention and/or medical discharge from service. For a defendant in an Australian military discipline matter, reluctance to argue fitness to plead or a mental impairment defence under s. 145 of the Defence Force Discipline Act 1982 (Cth) (DFDA) is understandable. For a complainant or witness to disclose their mental health history or distress flowing from an incident, issues of perceived reliability of complaint can surface. Mental health disclosures can be thought of as antithetical to being fit for trusted, disciplined and valued team-based military service, rather than being expected and normal human reactions to the nature of that service. This means that stigma and concern abound when such arguments may be feared to be a career-ending move possibly resulting in subsequent medical discharge.

However, in personnel-strapped and relatively cash-strapped militaries like Australia’s, and particularly in response to the offending of senior or, say, highly trained personnel, should militaries – via their stated commitment to retraining and rehabilitation upon conviction and detention at, say, Australia’s Defence Force Correctional Establishment⁷ – make every effort not to simply see mental state arguments as the first step towards inevitable discharge? Sometimes administrative discharge occurs in lieu of military prosecutions; and being able to make such exculpatory or mitigatory mental state arguments becomes moot.⁸ However, when a highly trained ADF member commits an offence for an underlying reason (e.g. diagnosis of a mental condition, trauma, substance abuse, stress, coping problems, anger management or impulse control reasons) in interaction with military or even civilian circumstances (including readjusting to civilian life after deployment⁹ and even provocation from or clashes with civilians), should every effort be made not to waste expensive training on hasty discharge from service? Keeping offending service personnel in service following some infractions of the military’s discipline code or the general criminal law may be important, especially when offending can be explained and prevented in the future via appropriate psychological assessment, symptom management and rehabilitative attempts.

In any event, what seems crucial to share with military courts and military lawyers is the contemporary and evolving understanding of combat, deployment and other service-related mental illnesses, their episodic nature, their (un)predictability, the reality of recovery from acute and active symptoms and/or the possibility of the effective ongoing management of such symptoms. Inappropriate discharge of those managing mental health conditions including burnout and occupational stress in comparable paramilitary organisations such as the police, ambulance, fire and emergency services¹⁰ is a phenomenon that surely only weakens the corporate memory, experience and skills retained within such services.

What is more, as is done in civilian cases, a forensic psychologist is able to comment on a range of other characteristics of an offender that intersect with consideration of blameworthiness and criminal responsibility, as well as challenging or bolstering claims and observations and recollections made by complainants and witnesses. For example, the forensic psychologist can help a tribunal of fact – be it military or civilian – to understand coping and resilience skills, interpersonal skills, relationship history, developmental influences, cognitive and neurological phenomena, personality issues, trauma-informed assessments, comorbidity and previous attempts to manage symptoms and diagnoses with therapeutic interventions. Furthermore, expert witnesses like forensic psychologists are often invaluable in assessing and documenting psychological coping with physical injury or traumatic events – surely of relevance to a range of military proceedings like military discipline cases but also in cases beyond military prosecutions such as military administrative law disputes and veterans’ affairs compensation and allowance claims.

This volume provides three clear messages for American and Australian forensic psychologists

Civilian forensic psychologists do appear in military tribunals even when they least expect it

Firstly, the main theme of Stein and Younggren’s volume is to educate (American) clinicians and lawyers that they may sometimes end up representing and assessing clients appearing in military courts, even when these practitioners never ever harboured any thought that their training would allow them to participate in a court martial process. Much of the caseload requiring the military tribunal processing of the ‘enemy combatants’ incarcerated at Guantánamo Bay post-9/11, for example, drew civilian professionals (lawyers and clinicians) into a courts-martial culture when many were inexperienced with it. Those newcomers shared the bemusement of even experienced military lawyers, the confusion of the latter caused by the drastic changes to standard processes and the hasty rewriting of practices and procedures that caught out even the most experienced of military lawyers, such as US Marine Corps military lawyer Major Michael Mori.¹¹

Military discipline law regulates the private lives of military personnel

A second clear reason that this volume is of contemporary relevance is the arguably expanding reach of military discipline law in both America and Australia. The broad reach of military discipline law into the private lives and behaviours of even off-duty military personnel when out of uniform is a longstanding reality in the US and occurs from time to time in Australia. That reach has now been reconfirmed even more clearly in Australia by the High Court. In the US, this jurisdictional reach question is often referred to as the ‘service status’ test¹²; this means that your status as a service member alone subjects you to around the clock regulation by military discipline law, even when off duty, which makes American military personnel constantly at risk of potential prosecution under the Uniform Code of Military Justice (UCMJ). Something like this type of constant – and almost status-based – potential liability for Australian military prosecution has been mirrored, although on a different legal basis, with Australian High Court judges eschewing the concept of ‘service status’ in a recent decision of the High Court of Australia.

In Private R v Cowen,¹³ the Australian military discipline law jurisdiction was held to extend validly to a charge for assault occasioning actual bodily harm perpetrated by Private R, an ADF member, whilst off duty. This prosecution was brought not by a civilian prosecutor, as it could have so easily been, but by the Director of Military Prosecutions (DMP)¹⁴ after Private R assaulted a woman – with whom he had had a previous intimate relationship – when they were both off duty and out of uniform in a hotel room after a friend’s party. The facts of the assault by the intoxicated offender, as recited by High Court judge Justice Edelman in his judgment, are as follows:

At an evening social function in Brisbane, Private R made unwanted sexual advances upon the complainant. After the social function, when the complainant went to collect her belongings from a private hotel room, Private R arrived and told her that she was not going home. He grabbed the complainant by the throat and pushed her against the wall. She kept repeating that she wanted to go home. While both of her feet were off the ground, he shook her backwards and forwards against the wall, yelling at her ‘What is wrong with you!’. When she broke free from his grip, he tackled her to the ground and held her there with both of his knees on her chest. He then placed both his hands around her throat, choking her, preventing her from screaming or breathing. She banged her arms against the door and walls of the room to get help. After two security guards entered the room and tackled Private R, she fled the room. Bruises were left around her neck.¹⁵

Even though it is common in Australia now to ‘refer out’ sexual offences to the civilian criminal justice system and to civilian directors of public prosecutions, particularly sexual assaults committed by ADF members on each other¹⁶ or on civilians, the case of Private R above shows how behaviours in private between ADF members when off duty can be dealt with as military prosecutions.

The reaction of the judges of the High Court of Australia to the appeal launched by Private R marks an important constitutional moment which has clarified the broad scope of military discipline law, including that a military court can be used in Australia even when a civilian prosecutor also has jurisdiction over a civilian offence perpetrated by an ADF member when off duty.¹⁷ One of the reasons why the High Court was prepared to again uphold such a broad jurisdiction for the DMP to charge ADF members like off-duty Private R is as follows:

The alleged offence was one of violence. As McHugh J said in Re Aird; Ex parte Alpert, ‘[i]t is central to a disciplined defence force that its members are not persons who engage in uncontrolled violence’ [(2004) 220 CLR 308 at 323 [42]; see also 314 [9], 325 [49], 356 [156]]. Conduct that ‘involves serious violence and disregard for the dignity of the victim … clearly has the capacity to affect discipline, morale, and the capability of the Defence Force to carry out its assignments … [I]t is a matter that pertains directly to the discipline, efficiency and morale of the military’ [Re Aird (2004) 220 CLR 308 at 313 [5] (citing Généreux [1992] 1 SCR 259 at 293), 314 [9], [11], 323–324 [42], 325 [49], 356 [156]; White (2007) 231 CLR 570 at 581 [4], 588–589 [21]; Australian Army, The Army Family and Domestic Violence Action Plan (2016) at [2]]. On any view, there is a sufficient connection between the charge laid against the plaintiff and the regulation of the forces for the purpose of maintaining and enforcing good order and discipline of service members [See, eg, Re Tracey (1989) 166 CLR 518 at 545; Re Aird (2004) 220 CLR 308 at 314 [8], 329 [66], 330 [69]]. Such violence is inconsistent with a disciplined service; it is a matter that pertains directly to the discipline, efficiency and morale of service members.¹⁸

Furthermore, in Australia, military prosecutions can be effected against Australian defence members (uniformed ADF personnel) and defence civilians.¹⁹

There is an increased risk of mental health issues with increased deployments

Thirdly, this volume is timely and relevant for both American and Australian audiences in terms of the broad psychological impact²⁰ of the recent upsurge in multiple deployments of the same military personnel overseas during the ‘war on terror’ and for other reasons. Responding sensitively to that increasing impact could include a greater role for expert psychological witnesses to appear in a wider range and greater number of American and Australian military discipline or other military proceedings. This upsurge in deployments may result in even more frequent reliance on combat-related and deployment-related mental state arguments. It is notable that BRIG Jennifer Woodward in her 2018 Annual Report as Australia’s DMP mentioned this prevalence and the need to reform some of the relevant mental state defence provisions – including fitness to plead and consequent procedures – as currently stated in the DFDA.

In her 2018 Annual Report, BRIG Woodward commented that those charged by her in 2018 were often experiencing mental health problems.²¹ She suggested that the overarching goal of the Australian military discipline law system is to maintain discipline, even for ADF members with mental health issues. She noted that s. 145 of the DFDA allowing for fitness to plead arguments and mental impairment defences, as currently drafted, is, nonetheless, invoked rarely.²² However, BRIG Woodward flagged necessary amendments to s. 145. The mental state arguments and defences and consequences of them that may be enacted by such amendments, in an era of a much higher rate of deployment than seen in the decades prior, again suggests potential growth for the role of forensic psychologists in Australian military prosecutions:

As I have said in my previous reports, this is an area that desperately needs legislative reform, particularly to establish treatment plans and diversionary conferencing, not only because of the growing prevalence of mental health issues, but because of the gross inadequacy of the existing legislative provisions in the DFDA.²³

A quick inspection of appellate cases reaching the Australian Defence Force Discipline Appeals Tribunal (DFDAT) – that does have, in turn, avenues of appeal on questions of law to the Federal Court²⁴ and the High Court – shows that there are at least eight appellate cases between 2003 and 2018 in which evidence of psychologists was important for the appeals tribunal to recite and discuss.²⁵

For example, in the case of Williams v Chief of Army²⁶ mental health records relevant to a complaint of indecent assault by a female ADF member were examined. In this case a male colleague had masturbated under his pants in front of the complainant when they were alone at the end of a private party, whilst off duty. Both were of the equivalent rank of Army Sergeant. The incident had occurred in the offender’s own home while his wife and children were sleeping. In the appeal, assessment of the medical records was used to fend off a challenge that the Defence Force Magistrate’s decision at first instance had been unsafe and satisfactory due to the reliability of the complainant’s disclosure of the indecency (with the appellant attempting to claim unreliability due to some reports of the disclosure relating to ‘exposure’²⁷ rather than masturbation) and concerns about the recency of the complaint and the delay involved in reporting the incident. Both the mental health records relating to the disclosure and some earlier post-deployment assessments by a psychologist, recommending psychological support during reintegration post-deployment, were examined by the DFDAT. The conviction was upheld on appeal, assisted by the evidence of the psychologist who had received the indecency complaint that the distress surrounding that disclosure related to the incident and not to any underlying psychological or psychiatric disorder that threatened the reliability of the disclosure.²⁸

Overview of Stein and Younggren’s chapter structure and a discussion of issues raised

The useful organisational structure of this volume, of great benefit to the newcomer to military legal practice and expert witness work and the experienced hand alike, is as follows: Part 1 – ‘Overview of the Military Justice System’; Part 2 – ‘Psychologists’ Roles in Courts-Martial’; and Part 3 – ‘Psychologists and Legal Counsel as Partners’.

Part 1 – ‘overview of the military justice system’

The initiation by this volume for any newcomer begins with a useful overview of the military justice system in Part 1. Here, the reader encounters description and critique of the role of the forensic psychologist in the US military justice system by Kathleen Coyne JD, a criminal defence lawyer of some three decades’ standing – mainly in sexual abuse cases – who has been a trial consultant as well as a trainer and resource writer for defence lawyers, and who holds the status of a Highly Qualified Expert/Attorney Advisor for the Marine Corps Defence Services Organisation. This initial chapter is crucial for busting myths about the role that forensic psychologists can play in military courts, especially in sexual abuse cases. Coyne is realistic about the sometimes overwhelming challenge that the military justice process and culture poses for the uninitiated. For example, she writes wisely and poignantly:

There is an increasing need for forensic psychologists in military courts-martial, especially in sexual assault cases. Yet the military justice system – and even the military itself – can intimidate many civilian psychologists. They may decide to stick with the civilian systems they know and end up missing out on a rewarding opportunity. Others who accept a military case may feel like they are trying to navigate without a map as they enter an unfamiliar system, learn new jargon-laden military language, and grapple with new rules.²⁹

This chapter gets the volume off to a very useful descriptive and evaluative beginning; it includes a structure that models what would be of utmost use to any future similar Australian version of this volume. There is a dense procedural flowchart (p. 17) that could only have been written by one steeped in much professional practice in a jurisdiction. This reveals a beneficial willingness to teach and explain procedure to the newcomer. Another important introductory feature is the need to explain the power of the convening authority of courts-martial and how that differs from the dominance of parties in civilian cases being freer to make their own partisan strategic choices and having more power to structure the dispute. There are surprises here for those unfamiliar with military tribunal processes, as this power may – in the US system – include who approves and permits a party to retain an expert forensic psychologist and how they are funded. Coyne calls for legislative reform surrounding issues of the retention and funding of experts in US courts-martials, but, in the interim, provides precise and detailed advice on how to make legal arguments for the inclusion of forensic psychological experts where needed. She concludes that for ‘the expert who undertakes to work in the military system, the rewards are great’.³⁰

The accompanying chapters in this part help the reader to understand the process, players and jargon of military trials as well as start to familiarise themselves with the relevant rules and orient themselves to the pretrial disputes over the use of mental health records. These necessarily-dense introductions are authored, respectively, by: an appellate judge with the Navy-Marine Corps Court of Criminal Appeals, Marcus N. Fulton JD; Joshua Kastenberg JD LLM, an evidence law academic and former US Air Force military judge of 5 years’ and 200 or more trials’ worth of experience, as well as 20 years of legal advocate experience in prior roles as both a prosecutor and defence counsel with two deployments to Iraq; and Robert D. Merrill JD, a judge advocate in the US Marine Corps serving as a battalion commander in Montgomery, Alabama, who also has judicial and legal advocate experience as well as having been deployed to Iraq.

The useful messages delivered by Marcus Fulton whilst describing the procedures, parties and terminology of military trials include this engaging opening wisdom:

For the uninitiated, stepping into a military courtroom can feel like arriving in a foreign country. The customs, clothing, and language are so different from those in the civilian world. This is a world in which the courtroom stands at attention when the judge walks in, panel members sit by rank order, and a verdict is delivered with only two thirds agreement of four or eight panel members. Then, frequently, the same afternoon panel members deliver a verdict, they may be asked to adjudge an appropriate punishment for those offenses. Acronyms and numbers abound […].³¹

If an Australian version of this volume were to be published, it would be useful to do as Fulton does and introduce the uninitiated reader – via the relevant statutory and delegated legislative rules or policies and/or procedures – to the courtroom participants: the military judge, the lawyers and other courtroom personnel, such as the court reporter who records the proceedings and keeps track of the exhibits, and the bailiff who assists the military judge with witnesses and interactions with the other court-martial panel members. There is a particularly useful section here on the expectations and nature of testifying and cross-examining expert witnesses like forensic psychologists. The newcomer also needs to understand who investigates and interrogates those suspected of military discipline infractions, and the scope of their powers and the sources of it. Australians may already have received an introduction to one of the relevant acronyms mentioned here via their TV viewing: Criminal Investigation Command (CID), the Naval Criminal Investigative Service (NCIS), the Air Force Office of Special Investigations (AFOSI) and the Coast Guard Investigative Service (CGIS)!

Important too is to outline the levels of tribunal on offer in a system of military justice – particularly military discipline law – as, in Australia, options exist at the unit and summary levels as well as at higher levels that include Defence Force Magistrate trials and different types of courts-martial.³² Fulton clearly outlines the options in the US between ‘Summary’ (often one officer who is not legally trained and sometimes without a need for defence lawyer representation), ‘Special’ (four-member panels with a 75% verdict rule) and ‘General’ (for serious cases with very senior commanders convening these, again requiring the agreement of six out of eight members for decisions) courts-martial. Describing the types of punishment is important too (including the military-specific reduction in rank sanction, forfeiture of pay, dishonourable discharge and, in the US, the death penalty), as is noting the collateral consequences of a court-martial decision. Fulton notes the more common modern trend of conviction, reduction in pay grade, confinement and, after all of that, punitive discharge from service. This underscores the utility of psychological arguments to mount fitness to plead, automatism and mental impairment defences or sentence leniency arguments – all in a system that can be quite harsh and have lifelong career implications in the military and related occupations, where similar skill sets and security clearances are required.

Final positive reflections made by Fulton include the following:

Experts in psychology are ever more frequently requested by parties to a court-martial for their assistance in helping lawyers and the court understand important issues that arise in military cases […]. My own interactions with top-notch psychologists have been among the most rewarding of my professional experience in military justice. When it is done well, the attorney-psychologist collaboration is a powerful tool for justice, and your familiarity with the people and processes involved in courts-martial will help you help attorneys serve the interests of justice. May you serve this important function well.³³

Additional important contributions to this introductory part of the volume by Joshua Kastenberg writing on military rules³⁴ include the litigated issue of when a psychologist is required, the impact on psychotherapist–patient privilege in military trials and the role of competency determinations. It is an interesting legal development that a service member in the US who is facing a court-martial may move for the appointment of a psychologist regardless of whether or not the prosecution (usually in conjunction with the convening authority in the US system) has obtained the consultation services of a psychologist – usually on the legal basis of being necessary for the defendant service member to be able to present a complete defence at trial.³⁵

Robert Merrill’s advice for navigating the legal maze relating to tendering the mental health records of the defendant and prosecution witnesses during pretrial litigation in the US military jurisdiction seems to have some highly generalisable advice for those tendering mental health records in Australian military cases. For example, Merrill notes that mental health records are a

potential goldmine for a defense team [… because if] the records uncover that the primary witness has serious mental health issues, that alone can be the difference between a conviction or a verdict of not guilty.³⁶

Merrill warns that litigants sometimes abuse mental health records and seek to misconstrue them to confuse a civilian jury or a court-martial panel of military officers untrained in psychology, psychiatry, law and the intersection between these, often increasing unwanted trauma in an already traumatic criminal or military discipline case. He highlights the tight controls and legal requirements if mental health records are to be used in US courts-martial by providing a detailed discussion of the relevant military rules of evidence – an important primer that should be undertaken for the Australian context in any similarly-helpful publication, as there can be tension between which rules of evidence may apply (Commonwealth or Australian Capital Territory (ACT) evidence rules, which are thankfully fairly similar) to some pretrial disputes in Australian military discipline law.³⁷

Despite the US court-martial process of the in-camera review of some mental health records, Merrill suggests, too, that the advocate and the expert forensic psychologist trial consultant should not forget the utility of exploiting the generous discovery rights afforded to parties to build cases using non-privileged materials. A fascinating piece of advice given here for forensic psychologists, in a highly useful ‘Tips for Forensic Psychologists’ section at the end of the chapter, is to remember that ‘judges are often unfamiliar with medical and mental health records’³⁸ and that in preparation it pays to ‘work backwards’.³⁹ Working backwards means that rather than thinking like a clinician, it is important to start preparations and make decisions on which evidence will help by focusing on the ultimate legal decision that needs to be made (e.g. about the admission of a mental health record) and how to give the pretrial arguments enough persuasive ammunition as they are fired across the bows of the legal decision-makers’ ship, as it were (my imagery, not Merrill’s!). In Merrill’s own (better?) words:

It is tempting to delve into an investigation and take notes on what your [clinical] training tells you is noteworthy. Unfortunately, that may not be noteworthy to a judge. Similarly, lawyers often think certain aspects of an investigation show serious mental health issues, until a forensic expert breaks it to them that what they thought was a bombshell is largely harmless. Instead, focus first on the general rules about what implicates the constitutional rights of the accused [or, in the Australian context, the law determining admissibility of evidence]. Before reading the investigation or watching a victim interview, remind yourself of what you’re looking for: evidence of an alleged victim’s inability to accurately perceive, remember, and relate events […]. No matter how interesting or concerning from a clinical standpoint some behaviour might be, if it doesn’t implicate one of the [… relevant legal] categories [for admission of the evidence], it is almost certainly not getting you anywhere.⁴⁰

This is followed by a concluding section entitled ‘Tips for Litigators – How to Help Your Consultant Help You’⁴¹ – an approach that resonates with the emergent theme of ‘partnership’ between lawyer and expert clinician, which is the subject of three entire chapters in the concluding third part of this volume (see below). Merrill gives five pieces of advice here, which may sound familiar to battle-scarred expert forensic psychologists in any legal system, starting with the following:

provide your expert with the case materials in an accessible manner. When you send your expert a thousand jumbled pages with a handful of disks, do you think they are going to be inspired and excited to delve into the case? They are going to set your package aside and turn to the other casefile that was sent to them neatly tabled in a binder, with a cover memorandum summarizing evidence, allegations, and potential mental health issues.⁴²

Secondly, he urges lawyers to focus on what is legally important and what is in dispute and explain this to the expert, rather than less usefully asking the expert the broader question: ‘what do you think?’. Thirdly, he implores the lawyer to prepare their presentation of (mental health) evidence, including providing a template for any affidavit from the expert if they cannot testify in person. Fourthly, he advocates giving example questions to the expert in advance, to the extent that the law and practice directions allow such preparation short of any impermissible coaching. Finally, he recommends avoiding trite and potentially offensive ways to refer to mental health evidence and those managing mental illness, such as avoiding discussing the defendant or witness as being ‘crazy’ and the like.

Part 2 – ‘psychologists’ roles in courts-martial’

In this part of the volume, the authors wrestle with the tensions that emerge around role conflicts in military courts-martial, including the range of roles that the psychologist plays in military proceedings – as a trial consultant, a courtroom educator and science translator and a describer of evaluation and testing results. This part therefore describes and critiques the ways in which the psychologists undertake – and the military justice system receives – their core functions, and wonders whether or not these professionals are as free to ply their trade in the military system as they are to do so in civilian courts.

Michael C. Gottlieb PhD, a forensic psychologist and clinical professor, joins editor Younggren himself to write about role conflicts due to multiple roles being expected from the same person retained as a forensic psychologist in military courts-martial. They list these roles as including the tension between being a trial consultant discussing trial strategy and profiling the tribunal of fact (e.g. jurors and judges in civilian systems, empanelled officers and the military judge in military systems) and testifying as an expert for the same side – see some discussion of trial consultancy and how that role is not as common in Australia below. Another typical ethical boundary to consider protecting, discussed here by Gottlieb, is that between the assessing and the treating psychologist. The advice given here includes becoming familiar with military culture and the military justice system, and attempting to maintain ethical and professional boundaries whilst realising that in the different military system there may be some role conflation that departs from expert work in civilian systems – and as uncomfortable as that can feel, it may be tolerable if it does not risk harming or exploiting a patient.⁴³

Mary Connell EdD, a clinical and forensic psychologist who has been in independent practice in Fort Worth, Texas for 37 years and has military as well as civilian court experience, describes roles undertaken by psychologists in military courts. In line with the earlier work on roles and role conflicts already discussed, the contribution made here is to emphasise the relevance of the Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association (APA).⁴⁴ The five roles discussed with the benefit of Connell’s practical experience-based advice are: (1) trial consultancy, (2) pretrial witness interviews and pretrial witness interviews with opposing experts, (3) court-martial panel selection (e.g. advising on the voir dire process where both group and individual questioning of the pool of potential officers, maybe 10 to 14, occurs), (4) provision of testimony in the motions and the findings portions of the trial and (5) sentencing testimony. As has been described by other authors, Connell advises:

The expectation in military courts is that the forensic psychologist will participate throughout the proceedings […]. The most efficacious way of navigating these roles, while delivering ethically sound psychological services, is to maintain one’s focus on how psychological science usefully, fairly, and accurately illuminates the issues that arise. Each role assumed by the expert participating in court-martials must be approached with attention to adherence to the ethical principles that guide psychologists.⁴⁵

Deborah Davis PhD, a professor of psychology and law with 25 years of experience as a trial consultant, along with Daniel Reisberg PhD, a cognitive psychologist and memory expert with much experience teaching lawyers, judges and law enforcement professionals, discuss the role that psychologists can play as trial consultants in military courts. The same authors also discuss the important science translation roles that psychologists play as educators in courtrooms – including those of the military – in their second chapter. The discussion about trial consultation cites research on jury reactions. The authors also make the valuable point that relying on a single-study experimental report is often less persuasive than relying on meta-analytic studies, recommending the latter where possible to make arguments overviewing years of experimental study of the same psychological phenomenon. Also discussed at a practical level is how to respond to expected critiques of ‘WEIRD data’ (data drawn from Western, Educated, living in Industrialised, Rich, Democratic societies) from university-based experimental studies. These are all generalisable and useful points for any trial consultant or testifying expert doing any science translation work in any court.

The chapter ends with advice on what to look for in an ideal trial consultant for military court work – advice that the chapter authors do not find easy to give. However, they do stress that early conversations about role – whether with a clinical, social, developmental or forensic psychologist, or an academic psychologist – are crucial to uncovering the comfort zone of the to-be-engaged psychologist, so that the role of ‘impartial friends of the court, offering testimony that is educational in nature’⁴⁶ versus a more partial consultant or provider of expert testimony only for one side can be determined as consistent with the need for including a psychologist in a military proceeding.

The chapter on the psychologist as a courtroom educator is structured around issues that commonly arise for discussion in particular types of cases. For example, in sexual assault and intimate partner violence cases, the authors engage in evidence-based discussion of the major issues that psychological experts need to provide educative science translations about, such as genuine misunderstandings by perpetrator and victim, memory processes – including the interesting issue of memory for conversations – and the impact of alcohol and other drugs. The authors also point to the literature surrounding lie detection and the legal psychological work on investigative interviewing, as well as child abuse and identification psychology, as being common foci of science translation needs in military courts-martial, as is often the case in civilian courts.

Karen Franklin PhD, a forensic psychologist and experienced expert witness in both civilian and military courts, also with prior professional experience in legal journalism and criminal investigation, outlines the use of evaluation and testing by forensic psychologists in courts-martial. This chapter begins with a description of the ‘Sanity Board’ that makes assessments under Rule 706 of the Manual for Courts-Martial, noting that in the US military justice system, it is

rare for a Sanity Board to find an accused incompetent to stand trial and even rarer for an accused to be deemed not criminally responsible. According to one report, the Sanity Board finds fewer than one in 100 military members unfit to stand trial and fewer than one in 200 not responsible for their actions by reason of military defect.⁴⁷

The chapter is a great introduction to particular assessment tools and diagnostic approaches, such as the MacArthur Competence Assessment Tool–Criminal Adjudication (MacCAT-CA) or the Evaluation of Competency to Stand Trial–Revised (ECST-R) for competency evaluation, the Rogers Criminal Responsibility Assessment Scales (R-CRAS) for assessing criminal responsibility and the logic of Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5)⁴⁸ diagnoses, as well as the contemporary science of risk assessment. The question of strategy surrounding when to test or not test is also discussed in a useful fashion, as is the challenges of assessment in death penalty evaluations and the assessment of psychopathy, interrogative suggestibility and the profiling of child abusers and complainants.

Part 3 – ‘psychologists and legal counsel as partners’

This final part addresses the hope of all forensic psychologists in any proceeding: that the lawyers will be a useful guide and partner in their role as a report writer, expert witness and/or trial consultant. Due to the nature of the US military court processes surrounding retention of and working with experts, the concept of partnership is examined in detail in this part of the volume. Andrew R. Norton JD, a military judge for the US Air Force Trial Judiciary at Joint Base Andrews, Maryland and a military justice instructor, describes the team concept in military courts. Practical advice abounds here, including suggesting that psychologists can be ‘team players’ by assessing the potential unconscious bias and other decision-making heuristics (e.g. the law of small numbers, the availability heuristic, framing, cognitive ease, the halo effect, anchoring and peak-end theorising) that the assembled court-martial panel members may be susceptible to in particular cases, providing a mixture of evidence-based knowledge of decision-making under uncertainty, while the forensic psychologist can perform the important role of close observer of interventions by the panel members in a court-martial.

Brian M. Thomson JD, a senior air staff lawyer for the Administrative Law Directorate in the Office of the Judge Advocate General at the Pentagon, with both prosecutorial and Air Force Inspector General’s Senior Officer Inquiries Division experience, gives a prosecutor’s perspective on how to collaborate with psychologists. Stepping the reader through the various stages of engagement between a prosecutor and forensic psychologist, Thomson suggests most usefully in conclusion:

The military justice system is unique, as is your role in it. Understand what is different in our system, be flexible in your role as psychologist consultant, be on time and willing to work hard no matter what that work is, be respectful and deferential in your interaction with the participants in the court-martial, and you will be successful. There are old dogs in our system (present company included), who will be more than willing to talk with you […]. Find mentors, and then find what works best for you, and be part of a community of forensic psychologists who serve an important role in making the military justice system and the pursuit of true justice better.⁴⁹

Finally, Eric Carpenter JD makes a contribution to the volume as a legal academic and former chair of the Criminal Law Department at the Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. With 20 years’ experience in the US Army, encompassing both prosecution and defence work in cases including a two-year-long capital murder case spanning 2007 to 2009, he is well placed to discuss how to take an integrated approach to defending those with mental health conditions. The relevant integrated approach to take here is described as blending the two overlapping fields of law and psychology ‘into a seamless whole’.⁵⁰ Wonderful imagery is used as follows:

Strive for the ‘you got your chocolate in my peanut butter, you got your peanut butter on my chocolate’ moment. Defense counsel understand the legal elements of the offenses and defences; they also should understand the importance of putting together a story that will maximize the client’s legal outcome based on those elements. Elements that defense counsel need to help the mental health professionals understand.⁵¹

This style of collaboration is thought important for a range of joint tasks, including the co-development of a comprehensive case theory that aims to explain all aspects of the client’s experience via predicting how the court-martial panel members may process any mental health evidence according to their experiences and other decision-making biases and orientations. It is feared that not all forensic psychologists working collaboratively with military lawyers understand that not all mental illnesses are equally persuasive; there is evidence suggesting that some illnesses or mental states invoke empathy whereas others provoke quite negative reactions. This is explained by focusing on different types of personality disorders. A particularly useful insight shared in this chapter, based on decades of military trial experience, includes that it is likely that those in the military justice system will have far less experience with and exposure to arguments about mental impairment than do actors in the civilian criminal justice system; and, when they do, it is often at the milder end of the mental illness severity spectrum. A final warning offered is that mental condition evidence should not be oversold – especially when it is not an apt fit to the chosen case theory. Carpenter notes that case theories should and can change if that fit is not present, and that the team of the legal advocate and the forensic psychologist should always be open to changing the case theory and its relationship to the clinical evidence as needed.

Comparing the systems: similarities and differences between American and Australian courts-martial

This volume is also useful in highlighting what is similar and different between the roles of forensic psychologists in Australian and American military prosecutions. Without documenting all the apparent differences, and merely hoping that an Australian version of this volume will be forthcoming eventually, one obvious difference is that there is no death penalty possible in Australian military discipline law as there is under the UCMJ in the US. A further difference is that the US Coast Guard succumbs to the jurisdiction of the UCMJ, whereas that is not always the case in relation to the Australian Border Force and the authority of the DFDA. Also, in Australia, as referred to above, many sexual assault cases against serving ADF members are ‘referred out’ to be run in civilian courts by civilian directors of public prosecutions.

Marcus Fulton’s reference to a less than unanimous court-martial⁵² panel decision rule (e.g. requiring only two thirds or three quarters of panel members to agree) is, notably, a different requirement than the decision rule used in Australian courts-martial of a ‘majority of votes’, with the president having the casting vote.⁵³ This provokes thought about the utility of unanimous decision-making approaches, as studied by many legal psychological jury researchers.⁵⁴ Of particular relevance to the decision rule adopted in Australia for determining questions about mental state, s. 133(4) and s. 133(5) of the DFDA note respectively that if votes are tied on the verdict of guilty or not guilty then the court martial is to find the accused person not guilty, and if the question being voted on that results in an equality of votes includes the matter of whether or not

an accused person, at the time of the act or omission the subject of the charge, was suffering from such unsoundness of mind as not to be responsible, in accordance with law, for that act or omission, the court martial shall find that the person was, at that time, suffering from such unsoundness of mind.⁵⁵

Another difference is the way in which the American psychologist’s role as a trial consultant⁵⁶ has been extended into US military cases, although perhaps somewhat problematically creating the occasional role tension for the forensic psychologist. This highlights an ongoing difference in the professional practice of American and Australian psychologists, with less of a trial consultancy role as is seen in the US played by Australian psychologists in either civilian or military systems. Until Australia embraces a culture and practice of psychologists being trial consultants, it is unlikely that civilian or military psychologists involved in Australian military justice cases will be doing much work that resembles the strategic case advising of the US-style trial consultant. Such work is intriguing as it involves a new challenge for the US psychologist attempting trial consultancy, with a need to generalise from civilian trial jury research, perhaps, to a lay military court-martial panel without legal training but with other experience and professional identities relating to rank and command that are rarely the focus of jury studies in legal psychology. Perhaps that is fertile future ground for experimental legal psychologists to broaden insights from jury research on civilian systems to be of even more relevance to understanding the reception of (clinical) evidence and decision-making on the part of court-martial panels.

Conclusion

All that may be needed now is for Australian military lawyers and forensic psychologists to team up and reproduce the structure and style of Stein and Younggren’s work for the benefit of increasing understanding of the Australian military justice system. Such an Australian volume would promote the education and edification of forensic psychologists and legal practitioners working within the Australian military justice jurisdiction. Such a work could only benefit those ADF members charged with offences under the DFDA and dealt with in Australian military proceedings. What may be needed is leadership on such a project by retired and highly experienced Australian military lawyers and former military judges, who would be just the lightning rod around which the experienced players in the Australian military justice system could spark a collaboration with clinicians who have appeared in Australian courts-martial and other military tribunals over the history of that evolving system. I would be honoured to help with such a project, as would many legal psychological academics and other clinical members of the Australian and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) family.

For anyone keen to embark on such writing, Stein and Younggren’s volume and their array of contributing authors is a fine example of interdisciplinary legal-psychological writing at its best, in a jurisdiction that requires psychologists, psychiatrists and lawyers to achieve its aim. It is most fitting to end this review with Kathleen Coyne’s passionate call to arms addressed to fellow forensic psychologists whom she would like to see join her in her work in the military justice system:

Every accused marine, sailor, soldier, airman, and coast guardsman has taken an oath to defend the US Constitution. As part of that compact, they have agreed that they will place themselves in harm’s way if necessary to protect our rights and liberties. We owe it to all of them to demand from the military legal system those same rights they have committed themselves to die for, if necessary.⁵⁷

Mark Nolan
Director of the Centre for Law and Justice, Charles Sturt University
Honorary Professor, ANU College of Law, The Australian National University
Editor-in-Chief, Psychiatry, Psychology and Law
mnolan@csu.edu.au

Disclosure statement

Mark Nolan has declared no conflicts of interest.

Ethical statement

This article does not contain any studies with human participants or animals performed by any of the authors.