MILITARY JUSTICE PERSONNEL: Military Judge: Instructions

2022 (October Term)

United States v. Harrington, 83 M.J. 408 (generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion). 

(under the version of the UCMJ and Rules for Courts-Martial that apply in this case, military courts impose unitary sentences—a single sentence that accounts for all the offenses for which the defendant was found guilty rather than distinct sentences for each individual offense of conviction; consistent with this approach, RCM 1005(e)(1) requires the military judge to instruct panel members on the maximum authorized punishment that may be adjudged; in a case involving multiple offenses, this maximum authorized punishment is the cumulative total of the punishments authorized by the MCM for each offense of conviction; however, even under the military’s unitary sentencing system, a military judge is not prohibited from instructing panel members on the maximum punishments authorized for each offense of conviction in addition to the maximum cumulative punishment).

2021 (October Term)

United States v. Palacios Cueto, 82 M.J. 323 (while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused). 

2019 (October Term)

United States v. Rich, 79 M.J. 472 (RCM 920(e)(3) requires the military judge to include in findings instructions a description of any special defense under RCM 916 in issue). 

(if the military judge omits a required instruction that is reasonably raised by the evidence, the accused may preserve the instructional error either by making an adequate objection or by requesting an instruction in a way that sufficiently signals to the military judge the existence of an error in need of correction; while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge). 

United States v. Davis, 79 M.J. 329 (failure to object to an instruction or to omission of an instruction before members close to deliberate constitutes forfeiture of the objection; however, where appellant does not just fail to object but rather affirmatively declines to object to the military judge’s instructions, i.e., by expressly and unequivocally acquiescing to the military judge’s instructions, and offers no additional instructions, appellant waives all objections to the instructions, including in regards to the elements of the offense). 

(panel instructions are analyzed for plain error based on the law at the time of appeal; an appellate court generally only reviews the matter for plain error when a new rule of law exists, as an appellant gets the benefit of changes to the law between the time of trial and the time of his appeal). 

United States v. Easterly, 79 M.J. 325 (the test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is that there must be (1) an evidentiary predicate and (2) a request for the instruction; this test applies to all forms of retirement benefits, including retirement for disability). 

(where the two-part test for an instruction on the impact of a punitive discharge on retirement benefits is met, the military judge must be liberal in granting a request for such an instruction and may deny a request only in cases where there is no evidentiary predicate for it or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence; if given, the instruction should be appropriately tailored to the facts of the case with the assistance of counsel).  

(in this case, where the government introduced evidence at trial on the merits that a Formal Physical Evaluation Board recommended that the accused be permanently retired with a 100% disability rating based on a schizophrenia diagnosis, and both parties referred to the accused’s disability rating multiple times throughout their findings arguments, the military judge did not commit any error, let alone plain and prejudicial error, by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on the accused’s potential permanent disability retirement, where the accused did not request such an instruction; without a request for the instruction, the military judge had no sua sponte duty to give it and there was no error).    

2018 (October Term)

United States v. Voorhees, 79 M.J. 5 (military judges are required to instruct members on the elements of each offense). 

(in this case, where the military judge’s instructions on the offense of conduct unbecoming adequately explained the actus reus of appellant’s crimes (actions that could not, under the circumstances, have been innocent) and informed the members that they were to consider appellant’s conduct under the circumstances, this instructional language could reasonably be understood as requiring the panel members to determine whether appellant knew that he was engaging in certain conduct, and the military judge was under no requirement to offer any further instruction specific to general intent; as such, the instructions were not erroneous, let alone plainly erroneous). 

United States v. Hale, 78 M.J. 268 (the military judge shall give the members appropriate instructions on findings). 

2017 (October Term)

United States v. Armstrong, 77 M.J. 465 (it is error for the military judge to instruct the members that they may find the accused guilty of an offense that is not necessarily included of the offense charged).     

United States v. Williams, 77 M.J. 459 (the use of charged conduct as propensity evidence under MRE 413 for other charged conduct in the same case prejudices an accused’s constitutional right to be presumed innocent until proven guilty, regardless of the forum, the number of victims, or whether the events are connected; an accompanying propensity instruction is likewise constitutional error). 

United States v. Condon, 77 M.J. 244 (in light of other definitions, to include part of the defense-proposed instruction for “incapable of consenting,” and defining “impaired,” as well as the definitions of “consent” from the Military Judges’ Benchbook, the phrase “incapable of consenting” did not require additional definition and further instruction on this point was not required; with these definitions, the military judge allowed the panel to understand the element “incapable of consenting;” accordingly, the military judge did not abuse his discretion in failing to give the entire defense-proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members). 

United States v. Blanks, 77 M.J. 239 (in this case, the military judge did not err, plainly or otherwise, by instructing the members that negligence is not an authorized level of mens rea for an Article 92(3), UCMJ, dereliction of duty offense). 

United States v. Bailey, 77 M.J. 11 (a military judge is required to instruct on the elements of a charged offense; these instructions should fairly and adequately cover the issues presented, and should 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). 

(a counsel has the right to request tailored instructions, but a military judge has substantial discretionary power regarding whether to give those instructions). 

(a military judge does not err in refusing to give a defense-requested instruction that is an incorrect statement of the law). 

(if a definition of a phrase in an element of an offense is necessary for the panel members to understand it, then an instruction would be mandatory). 

(incapable of consenting is an element of sexual assault charged under Article 120(b)(3); consistent with the principle that words generally known and in universal use do not require additional definition, the phrase incapable of consenting requires no additional definition or instruction on this point; incapable is not a technical legal or scientific term; the plain meaning of incapable is one that is generally and correctly understood as being unable to do something; at trial in this case, the military judge gave an instruction on the definition of consent; accordingly, the plain meaning of incapable combined with the definition of consent allowed the panel to understand the element incapable of consenting; as such, the military judge was not required to give an instruction on the definition of incapable of consenting). 

2016 (October Term)

United States v. Feliciano, 76 M.J. 237 (a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could find in the favor of the accused in regard to that defense). 

United States v. Davis, 76 M.J. 224 (RCM 920(e) lists required instructions on findings, meaning instructions that shall be given; this list of required instructions includes the elements of the offense, elements of each lesser included offense, and, any special (affirmative) defense under RCM 916 in issue; relatedly, Article 51(c), UCMJ, requires that members be instructed, inter alia, as to the elements of the offense; this statutory duty extends to affirmative defenses as well). 

(where a special (affirmative) defense is reasonably raised by the evidence, an instruction on that defense is required).

(the threshold question in determining whether a military judge erred in failing to give a mistake-of-fact instruction is whether that defense was reasonably raised by the evidence — in other words, was there error at all).

(in this case, even assuming that appellant’s statement, “I thought she was joking until I saw her crying,” was some evidence of an honest mistake about consent, there was not an iota of evidence that such a belief was reasonable, where appellant overwhelmed the victim with physical force, pinned her down, and penetrated her while she repeatedly told him to stop; accordingly, the military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions). 

United States v. Haverty, 76 M.J. 199 (the military judge committed plain error in this case by not instructing the panel that the proper mens rea standard required for an Article 92, UCMJ, violation of Army Regulation 600-20, prohibiting hazing was recklessness; there was error, the error was clear or obvious, and appellant met his burden of showing that the error had an unfair prejudicial impact on the members deliberations; not only did the military judge not instruct the panel that it must find appellant acted with a mens rea of recklessly, the military judge did not instruct the panel that it needed to find any mens rea at all; as such, based on the military judge’s instructions, it may be presumed that the panel applied a general intent analysis whereby appellant’s knowledge of his commission of the actus reus alone was sufficient to determine guilt; because appellant contested the issue of intent in this case, the military judge’s error had an unfair prejudicial impact on the members’ deliberations and appellant demonstrated material prejudice to a substantial right).

United States v. Rosario, 76 M.J. 114 (it is not plain error for a military judge to instruct panel members, without objection, that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty). 

United States v. McClour, 76 M.J. 23 (it is not plain error for a military judge to instruct panel members that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty). 

(a directed verdict is a ruling by a trial judge taking a case from the jury because the evidence will permit only one reasonable verdict; the harm of a directed verdict is that it deprives the panel of the power to determine guilt, and the accused of the statutory right to have his guilt determined by a panel of fellow servicemembers). 

(in this case, where the judge instructed the members that if, based on their consideration of the evidence, they were firmly convinced that the accused was guilty of the offense charged, they must find him guilty, this was not a directed verdict; the military judge reiterated that the panel members were the ones to determine guilt or innocence by weighing and evaluating the evidence and using their own common sense, their own knowledge of human nature and the ways of the world; when taken as a whole, the instructions clearly stated the proper burden of proof and left it to the members to determine whether the government’s evidence met that burden; nothing more was required; as such, it cannot be said that any error (if error there were) on the military judge’s part in using the word “must” in his burden of proof instruction was clear or obvious, and accordingly, appellant failed to establish plain error). 

2015 (September Term)

United States v. Hills, 75 M.J. 350 (in this case, where the error involved using charged misconduct as MRE 413 evidence, the instructions provided the members with directly contradictory statements about the bearing that one charged offense could have on another, one of which required the members to discard the accused’s presumption of innocence, and with two different burdens of proof — preponderance of the evidence and beyond a reasonable doubt; these instructions invited the members to bootstrap their ultimate determination of appellant’s guilt with respect to one offense using the preponderance of the evidence burden of proof with respect to another offense; not only were charged offenses not properly admitted under MRE 413 to prove a propensity to commit the charged offenses, but the muddled accompanying instructions implicated fundamental conceptions of justice under the due process clause by creating the risk that the members would apply an impermissibly low standard of proof, undermining both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt; as such, the error resulted in constitutional error). 

United States v. Caldwell, 75 M.J. 276 (in this case, the military judge did not commit plain error when he provided instructions to the general court-martial panel with respect to the offense of maltreatment of a subordinate given that his instructions properly emphasized general intent, even though the relevant instructions were less-than-explicit with respect to mens rea; here, the military judge defined maltreatment as action that when viewed objectively under all the circumstances: (a) is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose; and (b) results in physical or mental harm or suffering, or reasonably could have caused, physical or mental harm or suffering; the military judge also explained that Article 93, UCMJ, imposes liability for conduct that constitutes assault or sexual harassment, defining sexual harassment as influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and further noting that sexual harassment also includes deliberate or repeated offensive comments or gestures of a sexual nature; finally, the military judge stated that for sexual harassment to constitute maltreatment, the accused’s conduct must, under all of the circumstances, constitute maltreatment as was previously defined; because the military judge repeatedly made clear that the panel members were required to consider appellant’s conduct under all the circumstances, these instructions could reasonably be understood as requiring the panel members to determine whether appellant knew that the alleged victim was subject to his orders and knew that he was making statements or was engaging in other conduct in respect to that alleged victim, i.e., whether appellant possessed the requisite general intent mens rea; accordingly, there was not a sufficient basis to conclude that the military judge’s instruction were erroneous). 

(a well-constructed maltreatment instruction should not merely refer to general intent implicitly, i.e., through the invocation of the phrase “under all the circumstances;” rather, going forward, a military judge’s instructions (in concert with the Benchbook’s approach) should more clearly and explicitly state that in order for an accused to be convicted of maltreatment under Article 93, UCMJ, the government must have proven that: (a) the accused knew that the alleged victim was subject to his or her orders; (b) the accused knew that he or she made statements or engaged in certain conduct in respect to that subordinate; and (c) when viewed objectively under all the circumstances, those statements or actions were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering).

United States v. Killion, 75 M.J. 209 (instructions given by a military judge must be sufficient to provide necessary guideposts for an informed deliberation on the guilt or innocence of the accused).

(in this case, it was error for the military judge to instruct the members on the charged Article 117, UCMJ, offense to determine whether the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation; a violation of Article 117, UCMJ, depends not on the likely reaction of the hypothetical average person but rather on the likely reaction of an objectively reasonable person in the position of the persons to whom the words are addressed).

(while military judges have some discretion in tailoring panel instructions, a military judge has a duty to provide appropriate legal guidelines to assist the jury in its deliberations; failure to provide correct and complete instructions to the panel before deliberations begin may amount to a denial of due process; RCM 920(e) expressly requires that instruction on findings include, inter alia, a description of the elements, and 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 this case, the military judge’s instruction on the provoking words offense was deficient because while it did, in fact, direct the panel to consider the facts and circumstances of this case, it effectively negated the focus on the actual circumstances of those who were the targets of appellant’s speech by misdirecting the members’ focus to the reaction of a hypothetical average person; based on the evidence presented at trial, the question for the members was not what an average person might do under the circumstances but whether a reasonable medical care provider with the training described was likely to retaliate against a fully restrained, obviously intoxicated patient).

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (in this case, where the military judge instructed the panel that to impose a death sentence, it had to unanimously determine, in relevant part, (1) beyond a reasonable doubt, that the aggravating factor existed, and (2) that the extenuating and mitigating circumstances were substantially outweighed by the aggravating circumstances, there was no error in the instruction; although appellant argues that the military judge should have instructed the members that they had to find that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, the decision weighing aggravating and mitigating does not have to be proven beyond a reasonable doubt; the beyond a reasonable doubt standard is unnecessary in weighing aggravating and mitigating factors in capital cases). 

(in a capital case, where the members requested reconsideration of their sentence and the military judge, without objection and with appellant’s consent, provided the members with the standard Benchbook reconsideration instruction 2-7-19, there was no plain or obvious error in the military judge’s instruction; a plain reading of RCM 1009 (reconsideration of sentence) does not mandate the position that a panel is not authorized to reconsider its sentencing determination with a view toward increasing a sentence to death; for instance, RCM 1009(e)(3)(A), which identifies the number of votes needed to increase a sentence on reconsideration, does not provide an exception in death penalty cases; the reconsideration provision for decreasing a sentence, on the other hand, does contain a specific provision for death cases; because RCM 1009 does not explicitly prohibit the panel from reconsidering a sentence in a capital case with a view to increasing the sentence to death, the military judge’s reconsideration instruction was not plainly erroneous). 

United States v. Carter, 74 M.J. 204 (the military judge should, as necessary, give tailored instructions to the panel members to distinguish between Article 13, UCMJ credit addressed to the government's conduct, and the use of such evidence in mitigation; the evidence of Article 13, UCMJ, violations coupled with the number of days of confinement credit already awarded can thereby be weighed as part of the totality of the evidence the panel members consider when determining the appropriate sentence for the accused).

United States v. Torres, 74 M.J. 154 (neither epilepsy nor automatism constitutes a mental disease or defect, and CAAF has never held that the affirmative defense of lack of mental responsibility applies in such cases; in this case, where appellant sought to show that he had an epileptic seizure and was experiencing an altered state of consciousness when he assaulted his wife and that this altered state of consciousness rendered his actions involuntary, it was error for the military judge to instruct the panel that (1) the evidence raised the issue of whether the accused lacked criminal responsibility for the offenses as a result of a severe mental disease or defect, and (2) consistent with this affirmative defense, if it concluded that the government had proved all of the elements of the offense beyond a reasonable doubt, the burden then shifted to the defense to show by clear and convincing evidence that the accused suffered from a severe mental disease or defect, making him unable to appreciate the nature and quality or wrongfulness of his conduct; by instructing the panel pursuant to the provisions of RCM 916(k)(1), the military judge shifted the burden of proof to the defense to show that the accused suffered from a severe mental disease or defect, which made him unable to appreciate the nature and quality or wrongfulness of his conduct; this the military judge could not do; at trial, the burden always was required to rest with the government to prove beyond a reasonable doubt that appellant had committed each element of the offense, and one of those elements pertained to the issue of whether appellant’s actions were voluntary, and hence, unlawful).      

(in cases where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense).  

United States v. Norman, 74 M.J. 144 (an unconstitutional presumptive conclusion arises when the military judge instructs members that they must conclude that evidence of the charged conduct also satisfies the terminal element; such an instruction is unconstitutional because it relieves the government of its burden of proof, subverts the presumption of innocence accorded to accused persons, and also invades the truth-finding task assigned solely to juries in criminal cases). 

United States v. McFadden, 74 M.J. 87 (after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused.  You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member). 

(because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members).

2013 (September Term)

United States v. MacDonald, 73 M.J. 426 (the military judge bears the primary responsibility for ensuring that mandatory instructions are given and given accurately). 

(if an affirmative defense is reasonably raised by the evidence, the military judge has a sua sponte duty to instruct the members on that defense; a defense is reasonably raised when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose). 

(any doubt regarding whether an affirmative defense instruction is in order should be resolved in favor of the accused). 

(during a murder trial, where appellant put on some evidence that the potential side effects of Chantix, a smoking cessation drug he was taking at the time he fatally stabbed the victim, could have affected his ability to appreciate the nature and quality or wrongfulness of his acts, the affirmative defense of involuntary intoxication was reasonably raised and the military judge had a sua sponte duty to instruct on the defense of involuntary intoxication). 

United States v. Davis, 73 M.J. 268 (military judges are required to instruct members on the elements of each offense and explain available defenses; however, military judges also have broad discretion in how to craft such instructions; a matter is in issue when some evidence, without regard to its source or credibility, has been admitted upon which the members might rely if they choose). 

(in this case, the military judge erred by not sua sponte providing instructions for both theories of defense of property where appellant’s testimony about the underlying events sufficiently put both theories of defense of property at issue; appellant’s testimony that he was worried about what would happen to his property if he got knocked out by an alleged trespasser was some evidence that members could have relied upon to find that appellant believed his property was in immediate danger; similarly, his testimony that he wanted that alleged trespasser to leave his property was some evidence that the members could have relied upon to find that appellant sought to use force to remove a trespasser from his property). 

United States v. Talkington, 73 M.J. 212 (a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances). 

(appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions). 

(while the military judge’s discretion in choosing whether to instruct upon collateral matters is broad, he or she is required to give legally correct instructions that are tailored to the facts and circumstances of the case). 

(in instructing the court members on how to make use of appellant’s unsworn statement in sentencing for sex offenses, the military judge did not abuse his discretion by placing the sex offender registration mentioned during appellant’s unsworn statement in its proper context, by informing the members that appellant was permitted to address sex offender registration in his unsworn statement, while also informing them that possible collateral consequences should not be part of their deliberations in arriving at a sentence). 

2012 (September Term)

United States v. Mott, 72 M.J. 319 (a military judge did not err in providing an objective standard for wrongfulness in his instructions to the members regarding the affirmative defense of lack of mental responsibility).

United States v. Castellano, 72 M.J. 217 (in instructing members on an LIO of sodomy, not involving force, in violation of Article 125, UCMJ, a military judge’s decision to determine that a Marcum (60 MJ 198 (CAAF 2004)) factor (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) existed himself rather than instruct the members that they must determine the existence of a Marcum factor was error, and that this error materially prejudiced appellant’s due process rights under the Fifth and Sixth Amendments). 

(none of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) are statutory elements of Article 125, UCMJ; however, in case of sodomy without force, where, but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction, whether a Marcum factor exists is not solely a legal determination left to the military judge’s discretion; where, as here, an otherwise unconstitutional criminal statute is construed in such a way as to limit its reach to conduct that may constitutionally be subject to criminal sanction, the facts under that saving construction have constitutional significance; these facts are critical to a conviction as, absent such facts, the conduct is not criminal; therefore, they must be determined by the trier of fact; and each of the Marcum factors are fact questions in the commonsense meaning of the term; an act of sodomy either does, or does not, involve force, a child, open and notorious or public behavior, or prostitution, and, likewise, an act of sodomy either implicates a unique military interest or it does not; whether a Marcum factor exists is a determination to be made by the trier of fact based on the military judge’s instructions identifying facts or factors that are relevant to the constitutional context presented). 

United States v. Tunstall, 72 M.J. 191 (a military judge can only instruct on a lesser included offense where the greater offense requires members to find a disputed factual element which is not required for conviction of the lesser violation). 

(in his instructions on indecent acts as a lesser included offense of aggravated sexual assault, the military judge improperly instructed the members on a theory indecency on which appellant was neither charged nor on notice, where he instructed the members that engaging in a sexual act in the presence of others is considered “open and notorious” behavior which could constitute an indecent act; “open and notorious” is not a basis or theory for the offense of aggravated sexual assault, and that instruction was the first mention in the trial of the “open and notorious” theory; the military judge went on to instruct the members that the greater offense of indecent acts differed from the offense of aggravated sexual assault as it did not require them to find that the victim was substantially incapable of declining participation, but only that the act itself was indecent; in providing these instructions, the military judge essentially took the “substantially incapable of declining participation” theory for the offense of indecent acts off the table and instead provided the members with detailed instructions as to the “open and notorious” theory for the offense; this error resulted in material prejudice because the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; because appellant was neither charged with nor on notice of the offense of indecent acts under the “open and notorious” theory until the military judge’s instruction, he was not on fair notice to defend against that offense and his due process rights were violated). 

United States v. Riley, 72 M.J. 115 (although the Military Judges’ Benchbook is not binding as it is not a primary source of law, the Benchbook is intended to ensure compliance with existing law; an individual military judge should not deviate significantly from the instructions in the Benchbook without explaining his or her reasons on the record). 

United States v. Garner, 71 M.J. 430 (the military judge has an independent duty to determine and deliver appropriate instructions).

(RCM 1005(a) provides that the military judge shall give the members appropriate instructions on sentence; RCM 1009(e)(1) provides that the military judge shall instruct the members on the procedure for reconsideration when a sentence has been reached by members and reconsideration has been initiated; the text of RCM 1009(e) provides that any member may propose reconsideration of a sentence but does not address whether a military judge can initiate reconsideration; the analysis to RCM 1009 in Appendix 21 of the MCM, however, indicates that when reconsideration is initiated by the military judge, a formal vote on reconsideration is necessary). 

(the confinement portion of the sentence worksheet that included both 35 years of confinement and confinement for life without eligibility for parole was clearly ambiguous as to the period of confinement adjudged, and the military judge did not err in returning the members to their deliberations to clarify the ambiguity; however, when the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence that included confinement for life, it was obvious that the panel had “reconsidered” the initial sentence and had adopted a sentence that was not reflected on the initial sentence worksheet; regardless of which of the two initial sentences the members intended, the second sentence either increased or decreased that sentence, and therefore reconsideration occurred; at that point, the military judge erred by not suasponte providing the members with appropriately tailored instructions for reconsideration and returning them to deliberations to ensure compliance with RCM 1009(e)). 

2011 (September Term)

United States v. Barnett, 71 M.J. 248 (the military judge has an independent duty to determine and deliver appropriate instructions).

(once evidence of pretrial punishment was introduced during sentencing by the accused, in the interests of reliable and truthful sentencing, it was within the military judge’s discretion to initially instruct the members of the Article 13 credit and how it would be credited). 

(the military judge correctly responded to the members’ question about whether they could increase the accused’s sentence to offset the 100 days of pretrial confinement Article 13 credit the accused received by instructing the members that they had a duty to adjudge an appropriate sentence that they regarded as fair and just when imposed, not one whose fairness depended upon the actions of others; nothing in the instruction invited the members, either expressly or by inference, to either impose extra confinement to offset the pretrial confinement Article 13 credit or impose less confinement in consideration for the pretrial punishment).

(while counsel may request specific instructions, the military judge has substantial discretion in deciding on the instructions to give and whether the requested instructions are appropriate; this discretion must be exercised in light of correct principles of law as applied to the facts and circumstances of the case). 

(denial of a requested instruction is error if: (1) the requested instruction is correct, (2) it is not substantially covered in the main charge, and (3) it is on such a vital point in the case that the failure to give it deprives the accused of a defense or seriously impairs its effective presentation).

(the military judge did not abuse his discretion in declining to specifically instruct the members that they could not increase the amount of the accused’s confinement to offset or nullify some or all of the accused’s pretrial confinement Article 13 credit, where the issue as to how the members should consider the credit was substantially covered in the instructions provided; if the military judge had instructed the members that they could not consider the Article 13 confinement credit in determining an appropriate sentence, that instruction would have been in conflict with the standard instruction properly informing the members that they should consider all matters in extenuation and mitigation as well as those in aggravation in determining an appropriate sentence). 

United States v. Behenna, 71 M.J. 228 (in regard to form, a military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, complete, and intelligible statement of the law).

(instruction on losing and regaining the right to act in self-defense was erroneous where (1) the military judge provided no guidance on how to evaluate an offer-type assault, which occurs, for instance, when an individual points a loaded pistol at another person without lawful justification or authorization, and (2) the military judge gave an inaccurate statement of the law when he linked the lawful use of force with the issue of escalation with the conjunction “and” (“However, if you have a reasonable doubt that the accused assaulted Ali Mansur, was provoked by Ali Mansur, or had some other legal justification or excuse, and you are not convinced beyond a reasonable doubt that Ali Mansur did not escalate the level of force, then you must conclude that the accused had the right to self-defense ....”); the statement of law was inaccurate because appellant would have had the right to self-defense if his original use of force had been lawful - it was provoked, justified, or otherwise excusable (i.e., appellant was not an initial aggressor) - or if Mansur had escalated the level of force). 

(a military judge is only required to instruct on a defense when there is some evidence in the record, without regard to credibility, that the members could rely upon if they chose; in other words, a military judge must instruct on a defense when, viewing the evidence in the light most favorable to the defense, a rational member could have found in the favor of the accused in regard to that defense).

(where appellant lost the right to act in self-defense as a matter of law, any instruction on losing and regaining the right to self-defense was superfluous). 

United States v. Ignacio, 71 M.J. 125 (if evidence of consent is presented in a trial for abusive sexual contact, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt). 

(where appellant was charged with abusive sexual contact in violation of Article 120(h), UCMJ, and the military judge explained on the record why he would instruct the panel pursuant to the Military Judges’ Benchbook rather than the statutory language and the military judge’s instructions included the statement that evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt and that the prosecution has the burden to prove beyond a reasonable doubt that consent did not exist, the military judge did not err in so instructing the panel; the instructions correctly conveyed the government’s burden to the members). 

United States v. Stanley, 71 M.J. 60 (a military judge is required to instruct members on any affirmative defense that is in issue, and a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose).

(military judges have substantial discretionary power in deciding on the instructions to give; however, when an affirmative defense is raised by the evidence, an instruction is required). 

(waiver does not apply to required instructions such as affirmative defenses). 

(an escalation of force instruction, in addition to detailed self-defense instructions that were given, was not warranted in a trial for two specifications of premeditated murder where appellant had escalated a conflict involving a physical altercation between his companion and a second victim into one involving use of deadly force when he came out of closet and held the victims at gun point, and then used the weapon to subdue them and to forcibly search them for weapons; although the fact that the first victim picked up a rifle and shot at appellant constituted the use of deadly force, at that point, the level of conflict had already been escalated to one involving the use of deadly force by appellant; furthermore, even though appellant alleged that the second victim attempted to stab his companion with a knife from behind, the issue for the members was simply whether appellant was entitled to use deadly force in defense of another and escalation of force was not in issue; accordingly, the military judge did not err in excluding the principle of escalation of force in his self-defense instructions to the members). 

United States v. Winckelmann, 70 M.J. 403 (the military judge must provide instructions that sufficiently cover the issues in the case and focus on the facts presented by the evidence). 

United States v. Pierce, 70 M.J. 391 (members must be instructed on all elements of an offense; military judges have substantial discretionary power in deciding on the instructions to give).

United States v. Schumacher, 70 M.J. 387 (a military judge must instruct members on any affirmative defense that is in issue; a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose; in other words, some evidence, entitling an accused to an instruction, has not been presented until there exists evidence sufficient for a reasonable jury to find in the accused’s favor; thus, the military judge must answer the legal question of whether there is some evidence upon which members could reasonably rely to find that each element of the defense has been established; this test is similar to that for legal sufficiency).

(in this case, the evidence was insufficient to establish that appellant reasonably believed the MPs who arrived at his home during a domestic dispute with his wife were unknown intruders in order to warrant a self-defense instruction in an assault prosecution arising from appellant pointing a pistol at one of the MPs, where (1) appellant was present when his wife requested that her neighbor call the MPs, (2) the MPs arrived four minutes later, (3) during the interim period, appellant’s wife had tried to persuade him to put away his guns because the MPs were coming, (4) when the MPs arrived, they were dressed in full military police attire including badges, (5) while in the process of waving the pistol around, appellant stated that it would be nothing for him to kill a few MPs, and (6) appellant’s defense counsel explicitly denied that the evidence could warrant such an instruction; given the sequence of events, the physical appearance of the MPs, appellant’s statement indicating knowledge of who the people were, and defense counsel’s concessions at trial, the military judge did not err in determining that there was no evidence that appellant reasonably perceived the infliction of wrongful bodily harm). 

2010 (September Term)

United States v. Lusk, 70 M.J. 278 (the military judge should give a limiting instruction concerning the appropriate use of inadmissible evidence relied upon for the basis of the expert opinion; importantly, such instructions can ensure that the testimony is not transformed from evidence introduced for the limited purpose of showing what the expert witness relied upon into substantive evidence introduced for the purpose of establishing a truth of the matter, particularly in view of the potential that the latter case could raise constitutional issues under the Confrontation Clause of the Sixth Amendment; limiting instructions are particularly important when evidence that is inadmissible, or admissible for only a limited purpose, involves a discrete fact or set of facts).

(in a prosecution for wrongful use of cocaine, once it was determined that a laboratory’s confirmatory drug test report contained inadmissible hearsay, the military judge erred in failing to give a limiting instruction concerning the appropriate use of that inadmissible evidence after an expert witness testified concerning the reliability of the initial, admissible laboratory test report and relied on the confirmatory test report in formulating his opinion).

United States v. Medina, 69 M.J. 462 (under the aggravated sexual assault statute in Article 120(c)(2), UCMJ, the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, and the military judge erred in instructing the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt). 

(even though the military judge erred in not instructing the members under the statutory scheme of the aggravated sexual assault offense under Article 120(c)(2), UCMJ, that the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, the error was harmless beyond a reasonable doubt where the military judge clearly and correctly instructed the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt). 

United States v. Prather, 69 M.J. 338 (the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law).

United States v. Pope, 69 M.J. 328 (when demonstrative evidence is admitted, the military judge is required to properly instruct the members that the evidence is for illustrative purposes only).

United States v. Alston, 69 M.J. 214 (the MCM expressly notes that its listing of lesser included offenses is not all-inclusive). 

(even though the MCM does not list aggravated sexual assault as a lesser included offense with respect to rape by force, the military judge properly instructed the members that aggravated sexual assault was a lesser included offense of rape by force in the context of the charge at issue). 

(in this case, the elements of aggravated sexual assault were necessarily included in the charge at issue, rape by force, that alleged that appellant caused the victim to engage in a sexual act, to wit: penetration of her vagina with his fingers by using power or strength or restraint applied to her person sufficient that she could not avoid or escape the sexual conduct; the first element of aggravated sexual assault - causing another person to engage in a sexual act - is the same for both offenses; the second element of aggravated sexual assault - causing bodily harm - is defined in Article 120(t)(8), UCMJ, to include an offensive touching, however slight, and that element is a subset of the force element in the offense of rape under Article 120(a), UCMJ, as defined in Article 120(t)(5)(C), UCMJ [*but note that the definitions of force in Article 120(t)(5)(A), UCMJ, and Article 120(t)(5)(B), UCMJ, which do not require an offensive touching, are not at issue in the present case]). 

United States v. Maynulet, 68 M.J. 374 (generally, a military judge has substantial discretionary power to decide whether to issue a jury instruction). 

(a military judge has a sua sponte duty to instruct on an affirmative defense if reasonably raised). 

United States v. Trew, 68 M.J. 364 (where a specification alleges wrongful acts on “divers occasions,” the members must be instructed that any findings by exceptions and substitutions that remove the “divers occasions” language must clearly reflect the specific instance of conduct upon which their modified findings are based; that can generally be accomplished through reference in the substituted language to a relevant date or other facts in evidence that will clearly put the accused and the reviewing courts on notice of what conduct served as the basis for the findings).

United States v. Smith, 68 M.J. 316 (obedience to lawful orders is an affirmative defense on which the military judge has a sua sponte duty to instruct if the defense is reasonably raised). 

United States v. Neal, 68 M.J. 289 (if evidence of consent is introduced in aggravated sexual contact prosecution, the military judge must instruct the members to consider all of the evidence, including the evidence of consent, when determining whether the government has proven guilt beyond a reasonable doubt; in doing so, the military judge must be mindful of both the content and sequential structure of the instructions). 

(the Constitution permits a legislature to place the burden on the accused to establish an affirmative defense, even if the evidence necessary to prove the defense also may raise a reasonable doubt about an element of the offense; if such evidence is presented, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt). 

United States v. Ediger, 68 M.J. 243 (where the members 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; moreover, the factfinder may not convict on the basis of propensity evidence alone). 

United States v. Forney, 67 M.J. 271 (the military judge did not err by instructing the members using the definition of child pornography from 18 USC § 2256 of the Child Pornography Prevention Act to explain the term in the context of a conduct unbecoming an officer and a gentleman charge, even though the Supreme Court later held that this definition violated the First Amendment to the extent that it criminalized the possession and distribution of certain “virtual” images – images that were neither obscene nor produced by the exploitation of actual children; speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command, and if it does, it is constitutionally unprotected; the First Amendment does not protect a military officer from prosecution under Article 133 for wrongfully possessing virtual child pornography on government computers on a Navy warship underway). 

(before a military judge is required to give an affirmative defense instruction, there must be some evidence in the record to which the members might attach credit). 

(constitutional free speech protection of virtual child pornography in civilian society was not a defense to a charge of conduct unbecoming an officer based on appellant’s possession of virtual child pornography on government computers on a Navy warship underway; in any event, in this case, there is absolutely no evidence that the images were or might have been virtual; thus, even if appellant’s defense were recognized in military law, and it is not, the military judge would not have been required to instruct on it). 

United States v. DiPaola, 67 M.J. 98 (if the record contains some evidence of the affirmative defense of mistake of fact to which the military jury may attach credit if it so desires, the military judge is required to instruct the panel on that affirmative defense). 

(a military judge is required to instruct the panel on affirmative defenses, such as mistake of fact, if the record contains some evidence to which the military jury may attach credit if it so desires; when the defense has been raised by some evidence, the military judge has a sua sponte duty to give the instruction).  

(an accused is not required to testify in order to establish a mistake-of-fact defense; the evidence to support a mistake-of-fact instruction can come from evidence presented by the defense, the prosecution, or the court-martial).

(the defense theory at trial and the nature of the evidence presented by the defense are factors that may be considered in determining whether the accused is entitled to a mistake of fact instruction; any doubt whether an instruction should be given should be resolved in favor of the accused). 

(a military judge’s duty to instruct is not determined by the defense theory; he must instruct if the defense is raised; the defense’s theory of the case is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence but can be taken into account when considering the evidence). 

(evidence that the victim consented to and willingly participated in some of the sexual acts listed in the specification was some evidence that appellant honestly and reasonably believed the victim consented to some of his actions, requiring a mistake-of-fact instruction on the indecent assault specification; appellant and the victim had a prior consensual sexual relationship, the victim consented to the removal of her shirt and the kissing of her breasts after saying “no” to intercourse, creating a mixed message as to which acts were permissible and which were off-limits; where the record revealed a mixed message evidentiary situation in conjunction with defense counsel’s mixed message theme in his opening and closing statements and his request for a mistake-of-fact instruction, it contained some evidence of a mistake of fact that the panel could attach credit to if it so desired, and the military judge erred in failing to give a mistake-of-fact instruction on the specification). 

(while the military judge has a sua sponte duty to give a mistake-of-fact instruction even in the absence of a defense request, counsel’s request for the instruction is indicative of the defense’s theory of the case and can be considered by appellate courts as context for whether the entire record contains some evidence that would support the instruction). 

(when some evidence exists in the record, the military judge must give a mistake-of-fact instruction). 

(in the context of this case, the absence of a mistake-of-fact instruction on the indecent assault specification was not harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to an indecent exposure specification involving the same victim in the same setting; had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, it is not clear beyond a reasonable doubt that a rational jury would have found appellant guilty absent the error; the missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty). 

2008 (Transition)

United States v. Ober, 66 M.J. 393 (the military judge has an independent duty to determine and deliver appropriate instructions; the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law). 

(appellant failed to demonstrate that the omission of the charged words “cause to be” from the military judge’s instructions on the charge of transporting child pornography in interstate commerce constituted plain error, where appellant’s speculation that omission of the words might have caused the court-martial members to ignore that language or to convict him under another theory of liability for which they were not instructed did not carry his burden to show an unfair prejudicial impact on the members’ deliberations or material prejudice to his substantial rights; as a threshold matter, appellant failed to demonstrate how omission of the words “cause to be” -- which were not part of the underlying statute -- changed the nature of the offense or left the members with a misunderstanding of the transporting charge and its specification; furthermore, the defense did not object to the military judge’s proposed instructions on the transporting charge, nor did the defense request any additional instructions to clarify the elements of the offense).   

(appellant failed to demonstrate that the military judge committed plain error in his instructions on the charge of transporting child pornography in interstate commerce by failing to instruct on a theory of aiding and abetting, where appellant was charged and prosecuted with transporting child pornography as a primary actor, and the government focused its case on proving that he was guilty of transporting child pornography based on his own act of obtaining files via KaZaA, a peer-to-peer file sharing program; irrespective of whether the government could have relied on an aider and abettor theory in this case, appellant was not prejudiced by the decision of the military judge to focus his instructions on the primary theory presented by the prosecution). 

(appellant failed to demonstrate that the military judge committed plain error in his instructions on the charge of transporting child pornography in interstate commerce by failing to provide a definition of “uploading,” where the computer forensics experts who testified for the government and the defense offered comprehensive explanations of the KaZaA file sharing process, including uploading; the absence of a further description of uploading did not constitute a material prejudice to the substantial rights of appellant where the testimony at trial did not produce a material difference between the parties or their experts regarding the operation of KaZaA or how KaZaA could be used to obtain files, where the defense did not challenge the government expert’s testimony that downloading files through KaZaA caused an upload to occur on the host computer, but instead embraced the evidence of how KaZaA worked in an effort to convince the panel members that someone other than appellant was responsible for downloading child pornography on his computer, and where the defense did not object to the military judge’s proposed instructions, nor did the defense request additional instructions on uploading). 

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). 

United States v. Carruthers, 64 M.J. 340 (while counsel may request specific instructions from the military judge, the judge has substantial discretionary power in deciding on the instructions to give). 

(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).