Generally:
2011 (September Term)
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. Stanley, 71 M.J. 60 (waiver does not apply to required instructions such as affirmative defenses).
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).
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. Phillips, 70 M.J. 161 (in a panel case, the military judge must instruct the members how to evaluate that evidence).
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).
(where the statutory scheme
with respect to
the offense of aggravated sexual assault by engaging in sexual
intercourse with
a person who is substantially incapacitated unconstitutionally shifted
the
burden to the accused to negate or disprove the element of substantial
incapacity and the panel was so instructed, the standard ultimate
burden
instructions were insufficient to resolve the constitutional issue; in
addition, the unconstitutional burden shift was not cured by the
military judge
instructing the members that they may consider any evidence
presented on
the affirmative defense of consent if they found such evidence was
relevant as
to whether the prosecution had proven the elements of the offense
beyond a
reasonable doubt; such a permissive instruction is inconsistent with
the CAAF’s
decision in US v. Neal, 68 MJ 289, which held that where there was an
overlap
between the evidence pertinent to an affirmative defense and evidence
negating
the prosecution’s case, there was no due process violation when
instructions
conveyed to the members that all of the evidence, including the
evidence going
to the affirmative defense, must be considered in deciding
whether there
was a reasonable doubt about the sufficiency of the government’s proof
of the
elements of the crime).
United
States v. Maynulet, 68 M.J. 374 (generally, a
military judge has substantial
discretionary power to decide whether to issue a jury instruction).
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).
United States v. Collier, 67 M.J. 347 (members are presumed to follow a military judge’s instructions to consider evidence for a proper purpose, such as bias or motive to misrepresent, and not let personal beliefs or feelings affect their determinations about witness credibility).
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).
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).
2007
(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. 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).
United States v. Terry, 64 M.J. 295 (generally,
a military judge is granted considerable discretion in deciding which
instructions to give; the military judge will generally instruct on
matters that are in issue; a matter is in issue when some evidence,
without regard to its source or credibility, has been admitted upon
which members might rely if they chose).
(the military judge did not
abuse her discretion in giving a constructive force instruction on a
rape charge where the
record contained some evidence that the accused intimidated
the victim into sexual intercourse without consent and that
the victim’s perception of this intimidation and her attendant fear
were reasonable; among other
things, there was some evidence that the accused, acting under the
guise of an E-5 medical technician in order to gain the victim’s trust
for the purported test, lured the victim to an isolated part of the
hospital at off-duty hours, that he told the victim not to scream, and
that the victim was really scared).
2006
United States v. Dearing, 63 M.J. 478 (instructions
must be sufficient to provide necessary guideposts for an informed
deliberation on the guilt or innocence of the accused).
United States v. Wolford, 62 M.J. 418 (failure to
provide correct and complete instructions to the panel before
deliberations begin may amount to a denial of due process).
(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).
(it was not error for the military judge to use the introductory
language of 18 U.S.C. § 2256(8) in his instructions on the definition
of child pornography; the reference to “computer generated image” was
not unconstitutional where the Supreme Court left intact 18 U.S.C. §
2256(8)(C) which prohibits computer morphing; therefore, some types of
“computer generated images” are not constitutionally protected).
(the military judge’s instruction on the definition of “child
pornography” that included the language of 18 U.S.C. § 2256(8)(D)
without the “conveys the impression” phrase was not erroneous; it is
clear that the Supreme Court’s concern with § 2256(8)(D) centered on
the “conveys the impression” language, its impact, and how it addressed
how speech was presented, and not on what was actually depicted).
2005
United
States v. Rollins, 61 M.J. 338 (when the evidence raises an issue
concerning the statute of limitations, the military judge must provide
the
members with instructions that focus their deliberations on the period
not
barred by the statute of limitations).
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).
United
States v. Brewer, 61 M.J. 425 (where there is no objection to an
instruction at trial, an appellate court will provide relief only if it
finds
plain error).
(where the instruction on the
permissive
inference of wrongful use of drugs begins by explaining that the drug
use must
be wrongful, identifies three situations in which use of a controlled
substance
is not wrongful, states that members may infer wrongfulness if there is
no
evidence that it is not wrongful, but that they are not required to do
so,
tells the members that the burden of going forward with evidence of any
of the
exceptions is on the person claiming the benefit of the exception, and
finally,
states that if such an issue is raised by the evidence presented, then
the
burden of proof is upon the United States to establish that the use was
wrongful, that instruction is confusing; it is confusing because it
does not
explain the difference between a burden of production, which only
requires that
an issue as to an exception be raised by the evidence, and a burden of
persuasion, which would require an accused to affirmatively prove by
some
standard of proof that he came within the exception; without such an
explanation,
a member may believe that it is the accused’s responsibility to prove
that one
of the exceptions applies, rather than simply to raise the issue by
presenting
some evidence to that effect; further, a member may believe that it is
not
until one of the exceptions has been proven by the accused that the
burden
shifts back to the government to show wrongful use; to categorize the
three
circumstances that make a use not wrongful as exceptions suggests that
unless
one of those exceptions is found, wrongfulness should be presumed
(i.e., they
are exceptions to the general rule of wrongfulness); inclusion of the
word
“exception” creates the possibility that a reasonable member could have
interpreted the instruction to require a presumption of wrongfulness
absent evidence
to the contrary; because the confusing language of the instruction
might have
led the members to conclude that there was a presumption that the
accused’s use
of drugs was wrongful and/or the accused had the burden of proving that
it was
not, the instruction was erroneous).
(under the permissive
inference of
wrongful use of drugs instruction given in this case, it would be
difficult for
a lay person to grasp the subtle distinction between a permissive
inference and
a rebuttable presumption, or to know the difference between a burden of
proof
and a burden of persuasion; because the potential for confusion of
these terms
is obvious in a use-of-drugs case, the need for more carefully crafted
language
and for further explanation of this language is obvious as well; even
though
the instruction was taken from the Benchbook, it was clearly
erroneous
under the particular circumstances of this case and therefore obvious
error).
United
States v. Shelton, 62 M.J. 1 (appellant’s conviction for conspiracy
to
commit unpremeditated murder cannot be affirmed on appeal because the
military
judge’s instructions authorized the members to base the conviction on a
finding
of an intent to inflict great bodily harm; if the intent of the parties
to the
agreement was limited to the infliction of great bodily harm, their
agreement
was to commit aggravated assault, not unpremeditated murder).
United
States v. Fletcher, 62 M.J. 175 (when the trial counsel
injected
improper argument into her argument on findings, the trial judge should
have
interrupted the trial counsel before she ran the full course of her
impermissible argument; corrective instructions at an early point might
have
dispelled the taint of the initial remarks; on the facts of this
case).
2003
United
States v. Simpson, 58 MJ 368 (the military judge
provided
instructions on the pertinent elements, and the issue before us is
whether the
military judge erred by not providing greater specificity or
amplification; any
such deficiency is waived by defense counsel's failure to object unless
the
instructions were so incomplete as to constitute plain error).
(with respect to deviations from the model instructions in the
Benchbook,
the military judge is not required to track literally its guidance or
follow
literally its non-binding examples).
(the instruction actually given by the military judge, which was
discussed
in detail with counsel, summarized the general concept of constructive
force
under our case law; if defense counsel believed that further
amplification of
the law by the military judge was warranted, the time to request such
modifications was at trial, when the military judge could have tailored
any
requested wording to the law and the evidence; counsel was actively
engaged in
the consideration of the instruction at trial; under these
circumstances, there
was no plain error).
(we do not agree that, even if not waived, the content of the
constructive
force instruction provided by the military judge was defective;
appellant
suggests that the military judge erred by providing a constructive
force
instruction referring to fear of "physical injury" rather than fear
of "great bodily harm"; fear of "great bodily harm" is used
in the MCM with respect to inferring consent on the element of lack of
consent;
with respect to the use of constructive force to prove the element of
force,
however, we have held that it is sufficient if the Government proves
that the
abuse of authority placed the victim in fear of physical injury).
(even if it was error for the military judge to give a constructive
force
instruction for rape that deviated from the model instruction, it was
not plain
error where the constructive force instruction and related instruction
on the
element of force sufficiently informed the members that force was
required for the
crime of rape, that it could be in the form of constructive force, and
that
constructive force could be brought to bear on the victim through the
use or
abuse of military authority that created a reasonable belief that the
victim
would suffer physical injury or that resistance would be futile).
2002
United States v. Quintanilla, 56 MJ 37 (although instructions in this complex case were not presented in the most organized and coherent fashion possible, the military judge clearly retracted and corrected all erroneous instructions, and under these circumstances the military judge did not abuse his discretion in the overall manner in which the instructions were delivered).
United States v. Tyndale, 56 MJ 209 (court members are presumed to follow the military judge’s instructions).
United States v. Simpson, 56 MJ 462 (failure to object to an instruction prior to commencement of deliberations waives the objection in the absence of plain error).
(while an instruction that incorporates evidence not admitted at trial may constitute error, in the absence of an objection, and given trial defense counsel’s use of that evidence in his closing argument, there was no plain error).
United States v. McDonald, 57 MJ 18 (even though not requested, a military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence).
(military judges have substantial discretionary power in deciding on the instructions to give).
(judge’s decision to give or not give a specific instruction, as well as the substance of any instructions given, is reviewed to determine if they sufficiently cover the issues in the case and focus on the facts presented by the evidence; the question of whether a jury was properly instructed is a question of law, and thus, review is de novo).
United States v. Baker, 57 MJ 330 (in the military justice system, it is the military judge who is required to tailor the instructions to the particular facts and issues in a case).
(appropriate instructions means those instructions necessary for the members to arrive at an intelligent decision concerning appellant’s guilt; an intelligent or rational decision on a person’s guilt requires consideration of the elements of a charged offense, the evidence pertaining to those elements, and applicable principles of law necessary to decide the case).
United States v. Ellis, 57 MJ 375 (an adverse inference instruction is an appropriate curative measure for improper destruction of evidence).
(after the loss of certain bodily tissue evidence, refusal to give an adverse inference instruction was harmless beyond a reasonable doubt in light of appellant’s confession; an accused’s confession goes far in rendering harmless any error in the military judge’s failure to give an adverse inference instruction or stop trial counsel from commenting on the defense’s inability to examine lost evidence).
2001
United
States v. New, No. 99-0640, 55 MJ 95 (the military judge must
instruct
the court-martial panel on the elements of an offense).
(because lawfulness of an order is a question of law, the military
judge did
not err by resolving it himself without submission to the members).
2000
United States v. Grier, 53 MJ 30 (the phrase “or intoxicated,” in the context of the descriptive terms preceding that phrase and the totality of all the instructions given on the issue, could only be understood to address intoxication to a degree rendering legal consent impossible; see DA Pam 27-9 at 430, 431 (30 Sep 96)).
United States v. Armstrong, 53 MJ 76 (although curative instructions can render an evidentiary error harmless, where expert testimony of a psychologist impermissibly vouched for the credibility of a victim of sexual abuse there were grave doubts about whether the military judge’s instructions could eliminate prejudicial impact of expert’s impermissible testimony).
United States v. Guthrie, 53 MJ 103 (absent plain error, failure to object to instructions as given or to request additional instructions forfeits the issue on appeal; with three clear opportunities to request spillover instruction, defense counsel forfeited the issue by failing to request the instruction).
(although spillover instructions are important, there was no plain error in the failure to give the instruction where: (1) the defense theory of the case did not lend itself to such an instruction; and (2) the government used distinct evidence to prove an earlier rape rather than evidence of a general criminal disposition).
United States v. Taylor, 53 MJ 195 (a curative instruction is the preferred remedy for correcting error when the court members have heard inadmissible evidence, as long as the instruction is adequate to avoid prejudice to the accused).
United States v. Davis, No. 53 MJ 202 (RCM 902(f)’s waiver rule applies only to the instructions listed in RCM 920(e)(7), but does not apply to required instructions such as those on reasonable doubt, elements of the offense, and affirmative defenses).
1999
United States v. Southworth, 50 MJ 74 (military judge is tasked with giving proper instructions including limiting instructions to preclude spillover from one offense to another distinct offense).
United
States v. Brown, 50 MJ 262 (“deliberate avoidance”
instruction
informs the fact-finders that they may infer the accused’s knowledge of
a
particular fact where an accused intentionally decides to avoid
knowledge of
that fact; where an accused claims a lack of some specific aspect of
knowledge
necessary to a conviction, affirmative efforts to avoid knowledge do
not
protect an accused against criminal responsibility where the evidence
allows a
rational court member to conclude, beyond a reasonable doubt, that the
accused
was aware of a high probability of the fact in issue and consciously
avoided
gaining knowledge of that fact).
(erroneous deliberate avoidance instruction may have constitutional
significance if it causes a fact-finder to convict an accused on the
basis of
negligence, thus relieving the government of its obligation to prove
requisite
knowledge beyond a reasonable doubt).
(failure to object to proposed instructions prior to deliberations
constitutes waiver of that objection in the absence of plain error; RCM
920(f)).
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).
(failure to give more detailed instruction on wrongfulness in charge
of
wrongful use of an inhalant was not clear and obvious, and thus not
plain
error, where: (1) the military judge’s benchbook did not provide
for a
more detailed definition of wrongful for this offense under Article
134, UCMJ;
(2) appellant rejected comparison of his offense with wrongful use of
controlled substances during sentencing; (3) the military judge applied
a
maximum sentence lower than that which would have applied to wrongful
use of
controlled substances; and (4) there is no case law requiring a more
detailed
instruction).
(failure to give more detailed instruction on wrongfulness in charge
of
wrongful use of an inhalant, even if clear and obvious error, was not
prejudicial where: (1) the case did not involve any evidence of
unknowing
ingestion or inadvertent ingestion; (2) in light of the evidence, there
was
little chance that the members would be unclear about how to apply the
word
“wrongful” in reaching findings; and (3) the instructions as a whole
were
sufficient to ensure the appellant would not be convicted of an
innocent
inhalation in the context of this case).
United
States v. Sidwell, 51 MJ 262 (military judge’s curative
instructions on improper evidence of rights invocation were sufficient
and it
may be presumed that the members followed those instructions
where: (1)
the members were told to disregard the evidence for all purposes; (2)
the
members were voir dired on their understanding of the
instruction; and
(3) a second more general instruction was given at the end of the
case).
United
States v. Davis, 52 MJ 201 (where testimony about
uncharged
sexual abuse of 9-year-old stepdaughter put her testimony into context
that she
“felt cornered, . . . trapped, [and] had to do what [appellant] said”,
it
cannot be said that military judge erred in rendering constructive
force/parental control and tender years instructions as they related to
the
force elements of both rape and forcible sodomy).
(instructions on constructive force, acceding to parental will, and
tender
years were presented as alternatives to actual force, and did not
invite the
members to dispense with the necessity of finding the force element of
both
rape and forcible sodomy.
(reasonable doubt instruction taken from paragraph 2-29.1 of the Military Judges’ Benchbook at 2-34 (Oct 1986) left no reasonable probability that appellant’s court-martial members used a lower standard of guilt or a higher standard for acquittal than required by law; see United States v. Loving, 41 MJ 213, 281 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).
(voting procedures instructions which required members to vote first on the charged offense before voting on any lesser-included offenses was based on RCM 921(c)(5), and CAAF perceived no real prejudice arising from this voting procedure; moreover, appellant failed to make a legally sufficient denial of due process argument in this regard).
2012 (September Term)
United States v. Wilkins, 71 M.J. 410 (an appellate court applies the elements test to determine whether one offense is an LIO of another; the test does not require that the offenses at issue employ identical statutory language; rather, after applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense).
2010
(September Term)
United States v. Arriaga, 70 M.J. 51 (Article 79, UCMJ, states that an accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein).
(a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction).
(regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary).
(the fact that there may be an alternative means of satisfying an element in a lesser offense does not preclude it from being a lesser-included offense).
(a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence).
United
States v. Girouard, 70 M.J. 5 (under RCM
920(e)(2), the military judge has a
sua sponte duty to instruct the court members on LIOs under the
prevailing law
at the time regardless of appellant’s request).
(in
determining
whether an offense is an LIO, a court applies the elements test).
United
States v. Bonner, 70 M.J. 1 (an accused may be
found guilty of an offense
necessarily included in the offense charged; Article 79 requires
application of
the elements test to determine whether one offense is an LIO of a
charged
offense; under the elements test, the elements of the lesser offense
are a
subset of the elements of the charged offense; where the lesser offense
requires an element not required for the greater offense, no
instruction
regarding an LIO is to be given).
United
States v. Alston, 69 M.J. 214 (the test for
determining lesser included
offenses under the UCMJ provides in pertinent part that an accused may
be found
guilty of an offense necessarily included in the offense charged; an
elements
test is applied in the course of determining whether an offense is
necessarily
included within another offense; under the elements test, one offense
is not
necessarily included in another unless the elements of the lesser
offense are a
subset of the elements of the charged offense; where the lesser offense
requires an element not required for the greater offense, no
instruction
regarding a lesser included offense is to be given; this approach
permits
lesser offense instructions only in those cases where the charge
contains the
elements of both offenses, and as a result gives notice to the accused
that he
may be convicted on either charge; the elements test does not require
that the
two offenses at issue employ identical statutory language; instead, the
meaning
of the offenses is ascertained by applying the normal principles of
statutory
construction).
(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]).
2008
(Transition)
United
States v. Upham, 66 M.J. 83 (a military judge
has a sua sponte duty to
instruct the members on lesser included offenses reasonably raised by
the
evidence).
(an accused may seek to waive
an instruction on
lesser included offenses and present an all or nothing defense as a
matter of
trial tactics; no rule prevents the government from acquiescing in such
a defense
strategy).
United
States v. Miergrimado, 66 M.J. 34 (a military judge
has a sua sponte
duty to instruct the members on lesser included offenses reasonably
raised by
the evidence).
(a military judge can only
instruct
on a lesser included offense where the greater offense requires the
members to
find a disputed factual element which is not required for conviction of
the
lesser violation).
(an instruction on a lesser
included offense may appropriately be requested by either the
government or the
defense).
(the military judge did not
err by
instructing the members on the lesser included offense of attempted
voluntary
manslaughter over defense objection, where the greater offense of
attempted
premeditated murder required the members to find the disputed factual
element
of premeditation which was not required for the conviction of the
lesser included
offense).
(Article 79, UCMJ, which provides
that an accused may be found guilty of an offense necessarily included
in the
offense charged, puts a defense attorney on notice that a lesser
included
offense instruction may be given).
(the accused was provided fair
notice and adequate opportunity to defend on the lesser included
offense of
attempted voluntary manslaughter, where the accused did not claim that
attempted voluntary manslaughter was not a lesser included offense of
the
charged offense of attempted premeditated murder, where during the
government’s
case-in-chief and prior to the accused’s testimony, the military judge
made it
clear that he intended to instruct on this lesser included offense and
gave
defense counsel the option to continue the case for several days, and
where
defense counsel accepted the additional time).
2007
2006
United
States v. Bean, 62 M.J. 264 (a military judge has a duty to
instruct
sua sponte on all lesser-included offenses reasonably raised by the
evidence;
an accused is entitled to have a court-martial consider all reasonable
alternatives to guilt; toward this end, as long as an accused can show
some
evidence that reasonably raises the applicability of a lesser-included
offense,
the military judge must instruct the panel on that lesser-included
offense;
evidence reasonably raises a lesser-included offense if it could cause
members
to attach credit or rely upon it if they so choose; finally, any doubt
whether
the evidence is sufficient to raise the need to instruct on a
lesser-included
offense must be resolved in favor of the accused).
(where the evidence showed that an intoxicated accused pointed a loaded
firearm
at others, having first threatened the others verbally and with a
knife, and
having assumed a firing position, the lesser-included offense of simple
assault
was not reasonably raised, whether the firearm’s safety was engaged or
not).
2004
United
States v. Thompson, 59 MJ 432 (when the evidence
reasonably
raises issues concerning a lesser-included offense or the statute of
limitations, the military judge is charged with specific affirmative
responsibilities; if the evidence at trial reasonably raises a
lesser-included
offense, the military judge has an affirmative duty to include in the
instructions a description of the elements of each lesser included
offense in
issue, unless trial of a lesser included offense is barred by the
statute of
limitations (Article 43) and the accused refuses to waive the bar; the
military
judge has an affirmative obligation to advise an accused of the right
to assert
the statute of limitations, and must determine that any waiver of the
statute
of limitations bar is both knowing and voluntary).
(in
the present
case, the military judge appropriately noted that evidence at trial
reasonably
raised two lesser-included offenses, carnal knowledge and indecent
acts, to the
charged rape offense; he also provided appropriate instructions as to
the elements
of each offense; before giving those instructions, however, the
military judge
was required to draw the attention of appellant to the fact that a
substantial
portion of the time period set forth in the proposed instructions
included
dates in which prosecution of the lesser-included offenses was barred
by the
statute of limitations; the military judge erred by failing to engage
in these
discussions with appellant prior to instructing the members).
(the
military
judge had a timely opportunity to correct the lesser included
offense/statute
of limitations error after the court was closed for deliberations; at
that
point, when the problem was called to his attention by the trial
counsel, the
military judge could have conducted the required inquiry of appellant
to ensure
that appellant understood the import of the statute of limitations in
this
case; if the military judge had made such an inquiry, and if appellant
had
responded in a manner demonstrating a knowing and voluntary waiver, no
further
instructions would have been required; if, on the other hand, the
military
judge had determined that appellant would not waive the statute of
limitations,
the military judge would have been obligated to modify the instructions
as to
the lesser included offenses to include only the period that was not
time-barred).
2002
United
States v. Richards, 56 MJ 282 (there
was no
need for an instruction on involuntary manslaughter as a lesser
included
offense because it was not raised by the evidence; there was no
evidence that
appellant’s culpable negligence caused the victim’s death - the
stabbing by
another, not the simultaneous kicking and beating by appellant, caused
the
victim’s death).
United
States v. Simpson, 56 MJ 462 (independent evidence
permitted, if not required, the military judge to give an instruction
on the
lesser-included offense of attempted rape where the charged greater
offense
required the jury to find a disputed factual element which was not
required for
conviction of the lesser-included offense).
2000
United
States v. Davis, 53 MJ 202 (military judge must
instruct
on lesser-included offenses and defenses which are reasonably raised
and are
not affirmatively waived by the defense).
(failure to instruct on lesser-included offense of negligent
homicide was
error because the members were never instructed to consider two
possible causes
for infant’s death, and thus the members did not address whether
appellant’s
negligence in any form – not attaching the vehicle seatbelt to an
infant car seat,
not properly fastening the straps to car seat, or negligently shaking
the
infant – was the cause of the child’s injuries and death).
United
States v. Matthews, 53 MJ 465 (court members are
presumed
to follow military judge’s instructions).
1999
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).
Affirmative defenses:
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 (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. 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).
2009 (September Term)
United States v. Maynulet, 68 M.J. 374 (a military judge has a sua sponte duty to instruct on an affirmative defense if reasonably raised).
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).
(in this case, the evidence
did not reasonably
raise the defense of obedience to orders regarding the offense of
maltreatment
of juvenile detainees in an Iraqi prison by using a military working
dog to
frighten them, where the evidence indicated that the use of working
dogs in aid
of interrogation, if authorized, was only authorized in the case of
certain
high-value detainees, where there was no evidence in the record that
appellant
mistook the juvenile detainees in question for high-value detainees,
where
appellant’s use of his dog in the manner alleged went beyond the
patrolling
duties that the SOP defined, where there was no immediate plan to
interrogate
the juveniles, and where appellant had the stated goal of making them
defecate).
United
States v. Neal, 68 M.J. 289 (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. 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 was
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).
(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. 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).
(the defense counsel
affirmatively waived an instruction on the affirmative defense of
mistake of fact with respect to the lesser-included offense of assault
consummated by a battery, where during an Article 39(a) session, the
military judge raised a possible mistake of fact instruction for that
offense and specifically asked the defense counsel if he was requesting
one, and the defense counsel replied that he simply did not want to
request one for battery; the defense counsel was presented with the
opportunity to request or decline the mistake of fact instruction; he
chose to decline it, and in doing so he affirmatively waived his right
to the instruction; in the context of the whole record, there is no
doubt that defense counsel’s statement was a purposeful decision to
forego the defense instruction as to assault consummated by battery).
2006
United States v. Dearing, 63 M.J. 478 (instructions on
findings shall include a description of any special defense under RCM
916 in issue, and as self-defense is a special defense identified in
RCM 916, if this defense was at issue in the case, the military judge
is obligated to give a correct instruction on self-defense).
(a military judge’s
instruction on self-defense in an unpremeditated murder trial was
deficient in not instructing the panel on the concept of escalation of
the conflict, where the prosecution presented evidence that the accused
was the initial aggressor in the lethal altercation, but the defense
presented evidence of mutual combat and an escalation of violence
directed at the accused; in addition, the military judge compounded the
error by erroneously instructing the panel that the accused, if an
aggressor or a person voluntarily engaged in mutual fighting, was not
entitled to self-defense unless he previously withdrew in good faith,
an instruction that severely limited the military members’ ability to
consider fairly the accused’s self-defense theory).
United
States v. Wolford, 62 M.J. 418 (a military
judge 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).
2003
United States v. Hibbard, 58 M.J. 71 (the military judge is required to instruct the court-martial panel on the availability and legal requirements of an affirmative defense, if the record contains some evidence to which the military jury may attach credit if it so desires).
(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, but neither factor is dispositive; any doubt whether an instruction should be given should be resolved in favor of the accused).
(even if not requested by the defense, a military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, including a defense instruction as to the affirmative mistake of fact defense).
(in considering whether a mistake of fact instruction is required, the military judge should take into account the manner in which the issue was litigated as well as the material introduced into evidence at trial).
(it is not necessary to present evidence of a mistake of fact in the defense case on the merits or to discuss such evidence in closing argument in order to obtain an instruction in a proper case).
(although the defense presentation at trial is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence, the military judge may take into account the absence of a mistake of fact approach from the defense case when considering whether some evidence has been presented as to that defense).
2002
United
States v. McDonald, 57 MJ 18 (when an affirmative
defense
is raised by the evidence, an instruction is required).
(an honest-mistake-of-fact instruction is appropriate where raised
by the
evidence and is a defense to buying or attempting to buy stolen
property).
(appellant was entitled to a mistake-of-fact instruction regarding
his
dealings with an alleged source of stolen property; however, after
considering
the instructions given, in comparison to the mistake-of-fact
instruction set
forth in the Benchbook, Court found appellant suffered no prejudice).
(the absence of a mistake-of-fact instruction was not prejudicial,
in part,
because, had the instruction been given, the members would have been
told that
they needed to consider appellant’s age, education, and experience,
along with
other evidence in the case: appellant was thirty-eight years old,
had
nineteen-and-a-half years of active service, was in the “swap shop”
business for
several years, frequently bought large quantities of the same item at a
time,
and purportedly only paid twenty-five cents on the dollar for this
merchandise).
(although the military judge did not give a mistake-of-fact
instruction, the
ultimate question is whether the military judge’s instructions somehow
relieved
the Government of its responsibility to prove appellant had actual
knowledge
that the goods were stolen; here, the evidence, taken as a whole,
reflects a
high probability that appellant must have known the goods were stolen -
any
ignorance this appellant may have had as to the facts was based on his
failure,
through deliberate avoidance, to discover the truth during the two
years of his
criminal dealings with A and B).
(appellant was not prejudiced by the absence of a model
mistake-of-fact
instruction where he contested all the elements of receiving stolen
property
and, despite a failure to provide model mistake-of-fact instruction,
the
military judge, nonetheless, adequately conveyed the essential aspects
of the
instructions pertinent to the circumstances of the case).
(it is clear beyond a reasonable doubt that the court members would
have
found appellant guilty even if properly (and, perhaps, redundantly)
instructed
on ignorance or mistake of fact; the instructions given were sufficient
to make
the court members aware they had to find appellant actually knew the
items he
was buying or attempting to buy were stolen, and appellant was
convicted as a
result of his own statements and actions: first, with his denial
that he
had ever engaged in any commercial transactions with A; second, with
his
implausible explanation as to why he provided B money while B was in
jail;
third, with his similarly implausible explanation for bailing A out of
jail in
October 1997; fourth, with the fact that A’s and B’s phone numbers were
in his
watch telephone directory; and lastly, with his suspicious actions in
checking
B and the deputy sheriff for wires and weapons during the military and
civilian
police controlled buys during April 1998).
2001
United
States v. Rivera, No. 00-0630, 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).
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).
2007
2003
United
States v. Gibson, 58 MJ 1 (whenever the evidence
raises a
reasonable inference that a witness may have been an accomplice, and
either the
Government or defense requests an accomplice instruction, the military
judge
shall give the members a cautionary instruction regarding accomplice
testimony).
(the standard accomplice instruction need not necessarily be given
verbatim,
but the critical principles of that instruction shall be given and one
of the
critical principles is that the testimony of an accomplice must be
regarded
with caution).
2002
United
States v. Bigelow, 57 MJ 64 (while the better
practice is
to caution members against placing too much reliance upon the testimony
of an
accomplice, there is no absolute bar to a conviction based on the
testimony of
an accomplice, even though there is no cautionary instruction).
(language from United
States v. Gillette, 35 MJ 468, 470 (CMA 1992),
may have
too broadly suggested a mandatory requirement for the standard
Benchbook
instruction where none existed; instead, the critical principles of the
standard accomplice instruction shall be given, not necessarily the
standard
instruction itself, word for word).
2009 (September Term)
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. 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).
2003
United States v. Walters, 58 MJ 391 (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).