Opinion of e Court
HomeR FeRguson, Judge:
The accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. He was sentenced to dismissal from the service. Intermediate appellate authorities affirmed, and The Judge Advocate General of the Navy certified to this Court the following issues :
“(a) ‘Did the repeated reference by trial counsel to the “policeman at the elbow test” and his use of the technical manual, TM 8-240 prejudice the rights of the accused?;
“(b) ‘Was the accused prejudiced by the argument made by trial counsel?;
“(c) ‘Was the accused prejudiced by the instruction of the law officer on the sentence?’”
The evidence adduced at the trial [540]*540tends to establish that the accused removed certain Government-owned machine tools under his control from the Marine Corps Air Station, Beaufort, South Carolina, and sold them to a civilian firm in Waycross, Georgia. The tools were subsequently identified as Government property and recovered.
Several lay witnesses testified for the defense. Uniformly, they established a close acquaintance with the accused for a number of years and declared that they had noted a considerable change in his attitude and behavior at approximately the time of offense. Following the receipt of their testimony, Dr. Boris Astrachan, a qualified psychiatrist, testified that he had extensively examined the accused and was of the view that, at the time of the offense, the latter was suffering from a mental disease which caused him to be unable to adhere to the right. He admitted he had initially diagnosed accused’s condition as a neurotic depressive reaction. However, on being informed of Captain Allen’s intent on one occasion to mutilate himself, he eventually concluded the accused was suffering, at the time of the theft, from a psychotic depressive reaction.
On cross-examination, the trial counsel repeatedly made reference to whether the accused would have committed the offense in question “if there had been a policeman or MP standing next to him when he took this gear.” He then referred to the now familiar Technical Manual entitled “Psychiatry in Military Law,” and ascertained that Dr. Astrachan was aware of its contents. Over objection by defense counsel, trial counsel read various paragraphs from the Technical Manual to Dr. Astrachan, asking whether he agreed with the material thus set forth. In each instance, Dr. Astrachan expressed agreement generally with the psychiatric concepts therein presented but refused to comment on the “legal matter” contained in some of the paragraphs read. On redirect examination, Dr. Astrachan testified that he did not “feel particularly bound by this pamphlet.”
In rebuttal, the trial counsel adduced the testimony of Dr. Loren L. Royal, also a qualified psychiatrist. Dr. Royal testified that he was of the opinion that the accused, at the time of the offense, was able to distinguish between right and wrong and to adhere to the right. His ability to adhere to the right, however, was impaired, as the accused was suffering from a depressive reaction of neurotic proportions. Dr. Royal’s attention was also drawn to the “policeman at the elbow” test, and he testified that he understood it to mean an inquiry into whether accused would have committed the offense if apprehension or detection was imminent or immediate. The difference of opinion between Dr. Astrachan and Dr. Royal was denominated as one of degree. Dr. Royal concluded his testimony on direct examination with the declaration that his opinion was based upon his view “of the way that military law and psychiatry must work together.”
In his final argument, trial counsel made the following statements:
“. . . Now what is this adhere to the right business? What does it mean ? It really means that at the time and place where he took the gear the accused could not have done otherwise. If he could have done otherwise then you cannot say that he could not adhere to the right. Not being able to adhere to the right is in effect a form of compulsion. Now the law officer is not going to use the term irrestible [sic] impulse in his instructions and yet he is going to tell you that if you feel that the accused would not have so acted, if he could have expected to immediately be apprehended then this is not a true inability to adhere to the right. Doctor Astrachan chose to or not rather to he bound by the technical manual which I questioned him on, entitled Psychiatry and the Law, whereas Doctor Royal adhered very closely to it. Now here is the reason for the difference of opinion. Doctor Royal brought out on the witness stand, in all States, there is a test for legal insanity. .In Washington, D. C. and one or two other states there is a different test. It is called the Durham test based on the Durham decision which toas handed down [541]*541by a court in Washington. The military also has its test. Now it doesn’t do any good for a military psychiatrist to come in and say, well under the test laid dgivn by the state of New York, the accused is sane, and on the test laid down by the District of Columbia, he could not adhere to the right. The only thing WE ARE concerned with is, could he or could he not adhere to the right under the test laid down by the military. The court will receive that test and the instructions governing it from the law officer. And I submit that you all are bound by this instruction. Members of the Court, the accused is a Captain in the Marine Corps, and I certainly don’t enjoy speaking of him like this, however, it seems very strange to me that there is nothing brought out, nothing appeared to be wrong with this man until after he talked to his Defense Counsels [sic]. Nothing appeared to have been wrong with him until it was obvious that he was hooked when he made that statement. The presecution’s [sic] case was air tight. There were no objections made. There was no way the defense could keep my evidence from coming out. The only other alternative was an insanity plea, and that is ivhat they did. Doctor Ast-rachan refusing to go along with the military manual, Psychiatry and the Law, played right into their hands. This again is good experience for him, and I am sure that he enjoyed coming over here and testifying. . . . Now once again, the only reason Doctor Astraehan said this man has a psychosis is because when he came back from Bethesda, he said Doctor, on one occasion I thought about . . . [self-mutilation]. This does seem odd — if we believe it, if we accept it. Doctor Boyal was very suspicious of it because as I pointed out, this should have come up long ago. Now realize this man’s position when he returned from Bethesda. An intelligent officer, no dispute, he’s intelligent, he has been up there, he knows that he is under a charge of larceny, he has been told up there that the Doctors feel that he could adhere to the right, what does he do? He comes back here with something new, and Doctor Astraehan says, hmm — I don’t know whether any of the court members have read Anatomy of a Murder, but in there, there was an interesting portion of the book dealing with a similar situation. There was an air tight case against the accused and the lawyer knew his only defense would be insanity. So he sat down and gave what he called ‘the lecture’ to his client. I’m not saying this happened in this case, but I’m saying that such things are possible.
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Opinion of e Court
HomeR FeRguson, Judge:
The accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. He was sentenced to dismissal from the service. Intermediate appellate authorities affirmed, and The Judge Advocate General of the Navy certified to this Court the following issues :
“(a) ‘Did the repeated reference by trial counsel to the “policeman at the elbow test” and his use of the technical manual, TM 8-240 prejudice the rights of the accused?;
“(b) ‘Was the accused prejudiced by the argument made by trial counsel?;
“(c) ‘Was the accused prejudiced by the instruction of the law officer on the sentence?’”
The evidence adduced at the trial [540]*540tends to establish that the accused removed certain Government-owned machine tools under his control from the Marine Corps Air Station, Beaufort, South Carolina, and sold them to a civilian firm in Waycross, Georgia. The tools were subsequently identified as Government property and recovered.
Several lay witnesses testified for the defense. Uniformly, they established a close acquaintance with the accused for a number of years and declared that they had noted a considerable change in his attitude and behavior at approximately the time of offense. Following the receipt of their testimony, Dr. Boris Astrachan, a qualified psychiatrist, testified that he had extensively examined the accused and was of the view that, at the time of the offense, the latter was suffering from a mental disease which caused him to be unable to adhere to the right. He admitted he had initially diagnosed accused’s condition as a neurotic depressive reaction. However, on being informed of Captain Allen’s intent on one occasion to mutilate himself, he eventually concluded the accused was suffering, at the time of the theft, from a psychotic depressive reaction.
On cross-examination, the trial counsel repeatedly made reference to whether the accused would have committed the offense in question “if there had been a policeman or MP standing next to him when he took this gear.” He then referred to the now familiar Technical Manual entitled “Psychiatry in Military Law,” and ascertained that Dr. Astrachan was aware of its contents. Over objection by defense counsel, trial counsel read various paragraphs from the Technical Manual to Dr. Astrachan, asking whether he agreed with the material thus set forth. In each instance, Dr. Astrachan expressed agreement generally with the psychiatric concepts therein presented but refused to comment on the “legal matter” contained in some of the paragraphs read. On redirect examination, Dr. Astrachan testified that he did not “feel particularly bound by this pamphlet.”
In rebuttal, the trial counsel adduced the testimony of Dr. Loren L. Royal, also a qualified psychiatrist. Dr. Royal testified that he was of the opinion that the accused, at the time of the offense, was able to distinguish between right and wrong and to adhere to the right. His ability to adhere to the right, however, was impaired, as the accused was suffering from a depressive reaction of neurotic proportions. Dr. Royal’s attention was also drawn to the “policeman at the elbow” test, and he testified that he understood it to mean an inquiry into whether accused would have committed the offense if apprehension or detection was imminent or immediate. The difference of opinion between Dr. Astrachan and Dr. Royal was denominated as one of degree. Dr. Royal concluded his testimony on direct examination with the declaration that his opinion was based upon his view “of the way that military law and psychiatry must work together.”
In his final argument, trial counsel made the following statements:
“. . . Now what is this adhere to the right business? What does it mean ? It really means that at the time and place where he took the gear the accused could not have done otherwise. If he could have done otherwise then you cannot say that he could not adhere to the right. Not being able to adhere to the right is in effect a form of compulsion. Now the law officer is not going to use the term irrestible [sic] impulse in his instructions and yet he is going to tell you that if you feel that the accused would not have so acted, if he could have expected to immediately be apprehended then this is not a true inability to adhere to the right. Doctor Astrachan chose to or not rather to he bound by the technical manual which I questioned him on, entitled Psychiatry and the Law, whereas Doctor Royal adhered very closely to it. Now here is the reason for the difference of opinion. Doctor Royal brought out on the witness stand, in all States, there is a test for legal insanity. .In Washington, D. C. and one or two other states there is a different test. It is called the Durham test based on the Durham decision which toas handed down [541]*541by a court in Washington. The military also has its test. Now it doesn’t do any good for a military psychiatrist to come in and say, well under the test laid dgivn by the state of New York, the accused is sane, and on the test laid down by the District of Columbia, he could not adhere to the right. The only thing WE ARE concerned with is, could he or could he not adhere to the right under the test laid down by the military. The court will receive that test and the instructions governing it from the law officer. And I submit that you all are bound by this instruction. Members of the Court, the accused is a Captain in the Marine Corps, and I certainly don’t enjoy speaking of him like this, however, it seems very strange to me that there is nothing brought out, nothing appeared to be wrong with this man until after he talked to his Defense Counsels [sic]. Nothing appeared to have been wrong with him until it was obvious that he was hooked when he made that statement. The presecution’s [sic] case was air tight. There were no objections made. There was no way the defense could keep my evidence from coming out. The only other alternative was an insanity plea, and that is ivhat they did. Doctor Ast-rachan refusing to go along with the military manual, Psychiatry and the Law, played right into their hands. This again is good experience for him, and I am sure that he enjoyed coming over here and testifying. . . . Now once again, the only reason Doctor Astraehan said this man has a psychosis is because when he came back from Bethesda, he said Doctor, on one occasion I thought about . . . [self-mutilation]. This does seem odd — if we believe it, if we accept it. Doctor Boyal was very suspicious of it because as I pointed out, this should have come up long ago. Now realize this man’s position when he returned from Bethesda. An intelligent officer, no dispute, he’s intelligent, he has been up there, he knows that he is under a charge of larceny, he has been told up there that the Doctors feel that he could adhere to the right, what does he do? He comes back here with something new, and Doctor Astraehan says, hmm — I don’t know whether any of the court members have read Anatomy of a Murder, but in there, there was an interesting portion of the book dealing with a similar situation. There was an air tight case against the accused and the lawyer knew his only defense would be insanity. So he sat down and gave what he called ‘the lecture’ to his client. I’m not saying this happened in this case, but I’m saying that such things are possible. A shrewd defense counsel after talking to the accused can say, well, that’s fine, it’s too bad you hadn’t gone a little further and perhaps contemplated . . . [self-mutilation]. The next day or the day after that, sure enough, the accused, will come in and he’ll say, you know I forget [sic] to tell you something. On one occasion I contemplated . . . [self-mutilation], and the defense counsel said, wonderful, fine, I’m glad you remembered to bring it out. Those things do happen. . . . Members of the Court, the Law Officer is going to instruct you at great length on insanity. One of the things that he is going to tell you, is very important. This will be the law. This is the law by which the court is bound. This is the law by which the military psychiatrist are bound. This is the law by which Doctor Astraehan should have been bound, in giving his testimony. If the accused would not have committed the act if the circumstances were such that he could have expected immediate detection and certain apprehension he can not be said to have acted under an inability to adhere to the right. That is what the Lato Officer will instruct you. That is what Doctor Royal said, and very reluctantly that is what Doctor Astraehan said too. That is the policemam at the elbow test, which you have heard talked about, and the Law Officer will cover it. Gentlemen, I submit that the two expert witnesses were in agreement up to a point. It is only when they begin to interpret the law with their psychiatric findings that they differ. I submit the reason is [542]*542because they were using different reference material, different manuals. Doctor Royal was using psychiatry and the law which embodies the policeman at the elbow test, as the Law Officer is going to incorporate into his instructions, which the court is bound by. Doctor Astrachan did not feel bound by that. Doctor Astrachan perhaps was thinking of the Durham law, or some other law of which we cannot take notice.” [Emphasis supplied.]
The law officer fully instructed the members of the court-martial on the elements of the offense and the issues of mental responsibility and mental capacity to entertain the specific intent involved in larceny. He gave no instructions, however-, concerning the trial counsel’s argument that the Technical Manual represented the official view concerning the correlation between psychiatric doctrines and the law of mental responsibility.
I
The first certified question involves the use by the trial counsel both of the “policeman at the elbow” test and the Technical Manual. We need not concern ourselves with the use of the test, see United States v Covert, 6 USCMA 48, 19 CMR 174, for we are convinced that the inquiry of The Judge Advocate General must be answered in the affirmative because of the references to the Technical Manual.
In United States v Gray, 9 USCMA 208, 25 CMR 470, we pointed out that Technical Manual 8-240, promulgated by the Army and adopted by the Air Force and Navy as an “official” publication, occupies no better position before a court-martial than any other text or treatise on the subject of insanity. In that case, at page 212, we stated that it may be used only “to a limited extent in connection with the testimony of an expert witness.” See also United States v Schick, 7 USCMA 419, 22 CMR 209. We decry in this record an attempt by the Government to transcend the boundaries we thus marked out, for, both in his cross-examination of Doctor Astrachan and his argument, the trial counsel sought to impress upon the members of the court-martial that the accused’s defense of insanity lacked merit solely because it did not fall within the principles “officially” espoused in the publication. The attempt thus made to circumscribe the deliberations of the court-martial must be unhesitatingly condemned, for, as the Chief Judge said in United States v Dunnahoe, 6 USCMA 745, 21 CMR 67, at page 761:
“. . . [T]he military law on the the legal effect of a particular mental condition of the accused cannot be determined by the classification of mental disorders in service publications.”
We reiterate our holding in United States v Gray, supra, that technical manuals promulgated by the armed services play no role in judicial proceedings beyond that accorded ordinary texts. When they are improperly used by the Government in an attempt to control consideration by the court of a particular defense advanced by the accused, intimations of command control are introduced and, absent proper curative action by the law officer, reversal must follow. The circumstances in this record depict just that situation, for the trial counsel repeatedly adverted to the Technical Manual, its “official” character, and the purported failure of Dr. Astrachan to abide by its terms. The evidence before the court-martial raised an issue concerning accused’s responsibility for the offense with which he was charged, and the effect of the prosecution’s declamation on the stature of the Technical Manual is apparent. Accordingly, it is clear beyond cavil that the Government’s use of the publication was prejudicial to the substantial rights of the accused.
II
The second certified issue concerns itself with whether accused was prejudiced by the trial counsel’s argument. Much of what has been stated above concerning the Technical Manual is equally applicable here, for it was principally in his argument that the trial counsel transcended the boundaries which we [543]*543set forth in United States v Gray, supra. Nevertheless, one further matter in the Government’s closing statement merits our attention. In attempting to explain away Doctor Astrachan’s testimony, he referred to a recent work of fiction which, in part, purported to depict the manner in which some attorneys encourage their clients to testify falsely in order that an appropriate defense may be fabricated. Whatever the literary merit of the work involved, such tactics have no part in the practice of law. If the trial counsel’s accusation was based upon fact, it was his duty to bring evidence of the “lecture” before the court-martial. His failure to adduce such proof leaves us no alternative but to conclude that his insinuations were completely without foundation. We have pointed out heretofore that the prosecution is entitled in argument to strike hard blows, but they must also be fair. United States v Doctor, 7 USCMA 126, 21 CMR 252; Berger v United States, 295 US 78, 79 L ed 1314, 55 S Ct 629 (1935). One can hardly conceive of a method more calculated to deceive the court concerning an apparently valid defense than baselessly to suggest that it was falsely constructed by a “shrewd” defense counsel. Coming as it does from the Government’s representative, it unjustifiably invited the court members to give short shrift to the accused’s contention that he was irresponsible. Under the circumstances, and particularly in the light of trial counsel’s repeated references to the “official” nature of the matters set forth in the Technical Manual, we are certain that the argument as a whole prejudiced the substantial rights of the accused. United States v Valencia, 1 USCMA 415, 4 CMR 7.
Ill
The last certified question presents the issue of whether the law officer erred prejudicially in advising the members of the court-martial that accused could not be sentenced to confinement at hard labor or forfeiture of all pay and allowances unless he was also dismissed from the service. As a rehearing is required by our answers to the other certified questions, this inquiry is rendered moot. Moreover, we are certain that the error involved in the instruction will not be repeated in the event the accused is again found guilty. United States v Smith, 10 USCMA 153, 27 CMR 227; United States v Varnadore, 9 USCMA 471, 26 CMR 251. There is no need, therefore, for us uselessly to express our views at this time.
The first two certified questions are answered in the affirmative. The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Navy. A rehearing may be ordered.
Chief Judge Quinn concurs.