CORE CRIMINAL LAW SUBJECTS: Defenses: Affirmative Defenses


2013 (September Term)

United States v. MacDonald, 73 M.J. 426 (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). 

(involuntary intoxication is an affirmative defense under the UCMJ). 

(the affirmative defense of involuntary intoxication requires a finding that there has been involuntary ingestion of an intoxicant and that the accused was unable to appreciate the nature and quality or wrongfulness of his acts). 

(the defense of involuntary intoxication is similar to that of lack of mental responsibility in that the defense must prove by clear and convincing evidence that he did not appreciate the nature and quality or wrongfulness of his acts, but different in that he need not prove that he suffered a severe mental disease or defect, but rather that he was intoxicated by some substance that results in what amounts to legal insanity).

(during this 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 (RCM 916(a) suggests that the terms “special defense” and “affirmative defense” are interchangeable; however, it is more accurate to refer to defense of property as a “special defense,” and that the prosecution continuously bears the burden of proving beyond a reasonable doubt that the defense did not exist).    

2011 (September Term)

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 (an affirmative defense is raised by the evidence when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose).

United States v. Hayes, 70 M.J. 454 (an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea).

2010 (September Term)

United States v. Prather, 69 M.J. 338 (with respect to the offense of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated, an accused’s burden to prove the affirmative defense of consent by a preponderance of the evidence under Article  120(c)(2), Article 120(r), Article 120(t)(14), and Article 120(t)(16), unconstitutionally shifts the burden of disproving an element of the offense to the defense; if an accused proves that the victim consented, he has necessarily proven that the victim had the capacity to consent, which logically results in the accused having disproven an element of the offense of aggravated sexual assault - that the victim was substantially incapacitated; an affirmative defense may not shift the burden of disproving any element of the offense to the defense). 

 

(the second burden shift in Article 120(t)(16), UCMJ, which purports to shift the burden to the government once an accused proves an affirmative defense by a preponderance of the evidence, constitutes a legal impossibility; Article 120(t)(16), UCMJ, initially assigns the burden of proof for any affirmative defense to the accused; it then provides that after the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist; the problem with the provision is structural; if the trier of fact has found that the defense has proven an affirmative defense by a preponderance of the evidence, it is legally impossible for the prosecution to then disprove the affirmative defense beyond a reasonable doubt and there must be a finding of not guilty). 


2009 (September Term)

United States v. Maynulet, 68 M.J. 374 (the test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire). 

 

(it is well settled in civil and military law that mistake of law is generally not a defense to criminal conduct; RCM 916(l)(1) provides that ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense; there are a few narrow exceptions to the general rule; one such exception exists when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency; however, reliance on the advice of counsel that a certain course of conduct is legal is not, of itself, a defense; in civilian practice, this defense is more generally stated as a reasonable reliance upon an erroneous official statement of the law). 

 

(in a defense of entrapment by estoppel situation, the government is rightly barred from obtaining a conviction because the government - through its representatives acting in an official capacity - is responsible for the defendant’s inability to know that his conduct was proscribed; in this case, there was no evidence in the record to support a claim that there was an official decision, pronouncement, or interpretation, later determined to be erroneous, upon which appellant could have reasonably relied or that could have formed the basis of a claim of estoppel).

 

(a mistake of law defense was not available to appellant who fatally shot a severely injured Iraqi driver of a vehicle that crashed after speeding past a military checkpoint; appellant allegedly had been taught to “ease suffering” during his pre-deployment legal training on the law of war and the rules of engagement, and he claimed that he shot the driver to put him out of his misery; however, the record was devoid of any erroneous pronouncement or interpretation of military law or the law of armed conflict upon which appellant could have reasonably relied to justify his killing of the injured driver; the best appellant could argue was that he had a subjective mistaken belief as to what the law allowed; however, this is the very kind of mistake rejected by the general rule regarding mistake of law; absent from the record was any evidence that appellant received affirmative assurances from briefers or anyone in his chain-of-command that “mercy killing” was lawful; to the contrary, the rules of engagement card carried by appellant in combat specifically instructed him not to engage enemy combatants who were out of battle due to wounds; moreover, appellant had time to consult with both his command and with medical authorities if he had felt that additional legal, medical, or command guidance was needed before deciding how to proceed). 


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).

 
(the test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire). 


United States v. Neal, 68 M.J. 289 (consent and mistake of fact as to consent are affirmative defenses for the sexual conduct in issue in a prosecution for aggravated sexual contact; an affirmative defense is any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts; the accused has the burden of proving the affirmative defense by a preponderance of the evidence; after the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist). 

 

(a legislature may redefine the elements of an offense and require the defense to bear the burden of proving an affirmative defense, subject to due process restrictions on impermissible presumptions of guilt). 

 

(a statute may place the burden on the accused to establish an affirmative defense even when the evidence pertinent to an affirmative defense also may raise a reasonable doubt about an element of the offense). 

 

(the possibility that evidence pertinent to the affirmative defense of consent could raise a reasonable doubt about the element of force in a particular case does not render the aggravated sexual contact statute unconstitutional; as such, in this case, the military judge erred in treating lack of consent as an element of the offense and in concluding that Congress established an unconstitutional element-based affirmative defense in Article 120). 

 

(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). 


2008 (September Term)
 

United States v. Forney, 67 M.J. 271 (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). 

 

(while an indecent assault offense includes a specific intent element as to whether the touching was committed to satisfy the lust or sexual desires of the accused, the lack of consent element of the offense is a general intent element; accordingly, a mistake-of-fact defense on this element would require both a subjective belief of consent and a belief that was reasonable under all circumstances). 

 

(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). 

 
2007


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). 

 

(even if an affirmative defense is reasonably raised by the evidence, it can be affirmatively waived by the defense).

 

(there are no magic words to establish affirmative waiver of a defense; in making waiver determinations, an appellate court looks to the record to see if the statements signify that there was a “purposeful decision” at play).


2003

 United States v. Hibbard, 58 M.J. 71 (an affirmative defense may be raised by evidence presented by the defense, the prosecution, or the court-martial).

(an honest and reasonable mistake of fact as to the victim’s lack of consent is an affirmative defense to a charge of rape).

2001

United States v. Rivera, 54 MJ 489 (because appellant put into issue the parental-discipline defense, the Government had the additional burden of refuting appellant’s defense of parental discipline beyond a reasonable doubt).

(the parental discipline defense as set forth in Section 3.08(1), Model Penal Code (ALI 1985), and as applied by the Court of Appeals for the Armed Forces, states that force may be applied by parents or guardians when:  (a) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and (b) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation).

(in reviewing a claim of parental discipline, there is a test of contextual reasonableness in determining when proper parental motive turns to criminal anger, or necessary force becomes a substantial risk of serious bodily harm; this test does not rest on specialized medical knowledge, but rather on the everyday common sense and knowledge of human nature and the ways of the world expected of triers of fact).

(testing for legal sufficiency of the evidence, and in the context of this case, the members could have properly rejected the parental discipline defense and concluded that one closed-fist punch to the stomach can cause substantial risk of serious bodily injury; the burden of establishing substantial risk can be met without manifestation of actual harm).

(evidence of assault consummated by a battery upon a child was legally sufficient and overcame defense of parental discipline where the members could have properly found that the force used was unreasonable because:  (1) the child was struck with a closed-fist in the stomach; (2) there was legally sufficient evidence to conclude that the child was struck with sufficient force so as to fall down, and thus with sufficient force so as to cause a substantial risk of serious bodily injury when punched; and (3) it was reasonably within the common knowledge of the members that a blow to the stomach that is strong enough to knock a 13-year-old down creates a substantial risk of serious bodily injury).

2000

United States v. Davis, No. 99-0764, 53 MJ 202 (military judge must instruct on affirmative defenses which are reasonably raised; an affirmative defense is reasonably raised when the record contains some evidence to which the court members may attach credit if they so desire; the defense theory at trial is not dispositive in determining what affirmative defenses have been reasonably raised; and any doubt whether an instruction should be given should be resolved in favor of the accused).



Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site