TRIAL STAGES: Merits: Instructions


Generally:

2013 (September Term)

United States v. Payne, 73 M.J. 19 (RCM 920(f) states that failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error). 

(the same level of specificity that is required for evidentiary objections is required for objections to instructions; a party must state distinctly the matter to which that party objects and the grounds of the objection). 

(a generalized objection to an instruction is insufficient to preserve a specific objection on appeal). 

(appellant’s general objection at trial to the military judge’s instructions on the elements of the offenses failed to preserve any instructional error and waived any instructional issue in the absence of plain error; defense counsel did not identify which specification or specifications he was referring to or which elements he felt the military judge should have instructed on because he did not want to assist the military judge in correcting any alleged instructional error at trial). 

(an element cannot be considered to be properly instructed upon simply because legally sufficient evidence had previously been admitted at trial). 

(the failure to instruct on an element does not constitute structural error and can be tested for harmlessness, overruling US v. Mance, 26 MJ 244 (CMA 1988)). 

(words generally known and in universal use do not need judicial definition; the word “create” is such a word). 

(the military judge properly instructed the members as to what constituted child pornography by defining that term and then providing proper definitions of sexually explicit conduct and lascivious exhibition). 

2012 (September Term)

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. 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). 

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). 


2009 (September Term)

 

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). 


2008 (September Term)

 

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


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. 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.

United States v. Gray, 51 MJ 1 (rejecting argument that there is no meaningful distinction between premeditated and unpremeditated murder, and approving instruction that the principal difference between premeditated murder and unpremeditated murder is that for premeditated murder the accused must have had the premeditated design to kill, that is, the accused must have considered the act prior to the application of force and must have had the specific intent to kill, whereas unpremeditated murder requires the specific intent to kill or inflict great bodily harm without premeditation; see United States v. Loving, 41 MJ 213, 279-280 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).


(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).


Lesser-included offenses:

2012 (September Term)

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). 

(a factfinder must be able to rationally acquit on the greater offense but still convict on the lesser offense; the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater; a lesser-included offense instruction is only proper where the charged greater offense requires the factfinder to find a disputed factual element which is not required for conviction of the lesser-included offense).

(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. 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).

 

United States v. Brown, 65 M.J. 356 (the military judge did not err by instructing the court members that they could convict appellant of indecent assault as a lesser included offense of rape based on any one of three possible factual scenarios, without requiring the members to vote on each scenario and to disclose the factual basis of their findings; in this case, the military judge’s lesser-included-offense instruction identified the three different ways appellant could have indecently assaulted the victim at the time and place alleged, based on the evidence presented at trial and the parties’ theories of the case; and in the case of indecent acts, the elements require acts done with intent to gratify, and not the specification of particular acts or methods of gratification). 

2007

United States v. Gutierrez, 64 M.J. 374 (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). 

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:

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).

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). 


(entitlement to an instruction on the affirmative defense of obedience to orders requires some evidence that there was a lawful order, or an order the accused might have reasonably believed was lawful, given to the accused to engage in the conduct charged). 


(in this case, evidence was insufficient to support an instruction on an obedience to a lawful order defense in a prosecution for maltreatment of a prisoner based on appellant’s use of an unmuzzled military working dog to interrogate a prisoner in Iraq, where, while there was some evidence that appellant received an order to use his working dog in the context of the interrogation, there was no evidence he received an order, lawful or otherwise, to remove his dog’s muzzle or have his dog remove the prisoner’s hood, or that such an order would have been lawful had it been given). 

 

(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).    

 

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 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). 

 
2007

 

United States v. Lewis, 65 M.J. 85 (a military judge is required to instruct the members on special (affirmative) defenses in issue; a matter is considered 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 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).


Accomplice testimony:

2007

 

United States v. Carruthers, 64 M.J. 340 (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).

 

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).


Divers occasions:   

 

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).


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).

 

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).


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