In United States v. Savage, 67 M.J. 656 (A. Ct. Crim. App. 2009) the ACCA determined that disclosure of the full R.C.M. 706 report is a violation of Mil. R. Evid. 302(c). The appellant argued that he was asleep when he stabbed his victim due to a disorder known as parasomnia. Before referral, the appellant underwent a Rule for Courts-Martial (R.C.M.) 706 inquiry to determine whether he understood the charges and could assist in his own defense. The R.C.M. 706 report indicated that the appellant was competent to stand trial, that there was a reasonable possibility that the appellant suffered from “parasomnia, or somnambulism that caused an automatism or sleep-related behavior at the time of the assault,” and that the appellant may not have been unable to appreciate the wrongfulness of his conduct. The defense provided the government with notice of intent to rely on the defense of lack of mental responsibility. Approximately six weeks later, the defense e-mailed the full R.C.M. 706 report to the trial counsel without an order from the military judge. Six weeks after that, the appellant hired civilian counsel and excused the counsel who e-mailed the report. Eventually the civilian counsel notified the government that the defense would not seek the defense of lack of mental responsibility, and instead would use partial mental responsibility to negate mens rea. The defense filed a successful motion to bar the government from using the statements the appellant made in the full R.C.M. 706 report. The military judge deferred ruling on the use of those statements in cross-examination or rebuttal. Some of the statements were eventually used in cross-examination of the appellant’s expert. The ACCA ruled that Mil. R. Evid. 302(c) was violated, but the error was harmless. The defense case-in-chief contained statements from an expert that revealed specific statements made by the appellant captured in the R.C.M 706 inquiry. As a result, the government was entitled to those portions of the full report. However, the government was not entitled to the other statements made in the full report. Since the defense did not request any remedy for this, the error was harmless. The defense must have sought disqualification of the trial counsel. The ACCA held that the government did not use any of the other statements taken from the full R.C.M. 706 report at trial or in preparation for trial. The defense could have avoided the government using any portion of the report by not calling experts who authored the report.
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