2008 (Transition)
2007
(in this case, the
self-defense instruction given was incomplete where the military judge
erred in not instructing the members that a mutual combatant could
regain the right to self-defense when the opposing party escalated the
conflict and when he was incapable of withdrawing in good faith).
(military judge’s failure to
give complete and correct self-defense instruction created a
constitutional error).
United States v. Schroder, 65 M.J. 49 (in child
molestation case in which other acts of child molestation were
admitted, military judge was not required to give an instruction
distinguishing between the charged acts that met the definition of
offense of child molestation in MRE 414 and those in the charge that
did not).
(in child molestation case,
military judge erred in his instruction as to how the members could
consider the MRE 414 evidence, where the instruction was susceptible to
an unconstitutional interpretation that the members were permitted to
conclude that the presence of similarities between the charged and
uncharged misconduct were, standing alone, sufficient evidence to
convict appellant of the charged offenses).
(where the members in a child
molestation case are instructed that MRE 414 evidence may be considered
for its bearing on an accused’s propensity to commit the charged crime,
the members must also be instructed that the introduction of such
propensity evidence does not relieve the government of its burden of
proving every element of every offense charged).
United States v. Gutierrez, 64 M.J. 374 (the affirmative
defense of mistake of fact is a required instruction under RCM
920(e)(3); when this defense is reasonably raised by the evidence, the
military judge is duty-bound to give an instruction, unless it is
affirmatively waived).
(a military judge has a sua
sponte duty to give certain instructions when reasonably raised by the
evidence, even though the instructions are not requested by the
parties).
(like affirmative defenses,
lesser included offenses are required instructions under RCM 920(e) and
cannot be waived simply by counsel’s failure to request such
instructions).
(the military judge did not
abuse his discretion in denying a defense-requested instruction on
government witnesses testifying under a promise of leniency; although
the overall thrust of the requested instruction was correct, the
standard accomplice instruction that the military judge gave
substantially covered the leniency offered the witnesses and addressed
their possible motives to lie as a result of their favorable pretrial
agreements, and the denial of the requested instruction did not deprive
the accused of a defense or seriously impair his ability to present a
defense).
United States v. Foster, 64 M.J. 331 (within certain
bounds, military judges can comment upon and summarize evidence
admitted in the form of expert witness testimony; RCM 920(e)(7) states
that instructions on findings shall include such other explanations,
descriptions, or directions as may be necessary and which are properly
requested by a party or which the military judge determines, sua
sponte, should be given; in moving beyond benchbook instructions,
however, military judges must use caution not to do so in a manner that
either places undue emphasis on or minimizes the importance of expert
testimony).
2006
(a military
judge’s instructions are intended
to aid the members
in the
understanding of terms of art, to instruct the members on the elements
of each offense and to explain any available
defenses).
(a
military judge is more than a mere referee; he is charged with deciding
whether
any defense is reasonably raised by the evidence; if there is some
evidence of
a possible defense –- it does not have to be compelling or convincing
beyond a
reasonable doubt –- the military judge is duty bound to give an
instruction
even if the instruction was not requested by the parties).
2005
United
States v. Augspurger, 61 M.J. 189 (the military judge should
properly
instruct the members that if they except the “divers occasion” language
from a
specification, they need to make clear which allegation was the basis
for their
guilty finding).
United
States v. Forbes, 61 M.J. 354 (MRE 301(g) provides that when the
accused
does not testify at trial, defense counsel may request that the members
of the
court not be instructed to disregard the accused’s silence; under this
rule,
defense counsel’s election is binding upon the military judge except
that the
military judge may give the instruction when the instruction is
necessary in
the interests of justice; Rule 301(g) recognizes that the decision to
ask for a
cautionary instruction is one of great tactical importance for the
defense and
generally leaves that decision solely within the hands of the defense;
the rule
reflects the President’s authority to grant members of the armed forces
rights
more protective than those required by the Constitution).
(when there is a defense objection to the failure-to-testify
instruction
under MRE 301(g), a military judge is bound by the defense election
unless the
judge performs a balancing test that weighs the defense concerns
against the
case-specific interests of justice).
(a military judge’s decision
to override
the otherwise binding election of the defense under MRE 301(g) must be
based on
something more than a generalized fear that the members would hold the
appellant’s silence against him because such a fear could be argued in
every
case of silence of the accused).
(in this case, the military
judge’s
failure to articulate any “interests of justice” to give the
failure-to-testify
instruction over the defense objection, other than the standard fear of
member
misuse of the appellant’s silence, indicates that such “interests of
justice”
simply did not exist; the standard fear that members might hold an
accused’s
silence against him has already been accounted for by the President in
MRE
301(g) and resolved by giving the election to the defense team, except
in an
unusual case; a generalized fear that the panel will misuse an
accused’s
silence, by itself, does not provide a basis for concluding that the
circumstances of a case are so unusual as to warrant rejection of a
defense
objection to the instruction).
1999
United
States v. Smith, 50 MJ 451 (a military judge is required
to
instruct, sua sponte, on the elements of each lesser-included
offense
for which there is in the record some evidence reasonably placing these
offenses in issue).
(failure
to object to an
instruction
or the omission of an instruction before the members close to
deliberate
constitutes a waiver of that objection absent plain error; waiver,
however,
must be established by affirmative action of counsel and not merely by
failure
to object to erroneous instructions or to request proper instructions).
United
States v. Glover, 50 MJ 476 (if a military judge omits
entirely
any instruction on an element of the charged offense, this error may
not be
tested for harmlessness because the court members are prevented from
considering that element at all; where the military judge fails to only
to give
a more specific or amplified instruction on the meaning of terms, the
court
will test for plain error where no such instruction is requested).
United
States v. Griffin, 50 MJ 480 (the military judge has
duty to
instruct sua sponte on all lesser-included offenses reasonably
raised by
the evidence; the lesser-included offense instruction is proper where
the
greater offense in issue requires the members to find a disputed
factual
element which is not required for conviction of the lesser-included
offense).
(where
appellant used a
knife
during an altercation, but contended that he did not intend to stab or
harm his
victim, no instruction on the lesser-included offense of assault
consummated by
a battery was required where there was no factual dispute that
appellant used a
dangerous weapon in his assault upon the victim; there was no disputed
factual
element which was not required for conviction of the lesser-included
offense).
United
States v. Brown, 50 MJ 262 (in instructing on the
elements of
proof, a military judge may not instruct in such a way that the will of
Congress is ignored or diluted concerning the requirements of guilt
provided in
the UCMJ).
United
States v. Hargrove, 51 MJ 408 (with respect to charges
of
willfully disobeying the lawful command of a superior commissioned
officer,
military judge should have instructed members on the lesser- included
offense
of failing to go to his appointed place of duty where: (1) the
officer
issuing the order left details to subordinates, thus raising question
of
whether the officer put the full weight of his office behind a
requirement to
sign in periodically; and, (2) during testimony, the first sergeant and
battalion commander referred to the misconduct as “breaking
restriction”, a
reflection of the command’s perception of appellant’s actions).
United
States v. Wells, 52 MJ 126 (an accused is entitled to an
instruction on a lesser-included offense if reasonably warranted by the
evidence presented; that is, when the evidence would permit the members
rationally to find the accused guilty of the lesser offense and not
guilty of
the greater).
(military law requires a military judge to give an instruction on a
lesser-included offense sua sponte when there is some evidence
which
reasonably places the lesser-included offense in issue; that is, when
there is
some evidence, without regard to its source or credibility, before the
members
upon which they might rely if they choose).
(testimony of appellant concerning a heated domestic dispute, the
presence
of the victim exacerbating this dispute, the victim’s display of a gun,
appellant’s belief that a shot was fired at him as he left initially,
and the
presence of the victim with a gun when appellant returned, placed heat
of
passion and adequate provocation at issue in the case so as to require
instruction on lesser-included offense of voluntary manslaughter).