CORE CRIMINAL LAW SUBJECTS: Defenses: Generally

2020 (October Term)

United States v. Mader, 81 M.J. 105 (consent is not a defense to hazing charged as a violation of a general order).

(consent is generally a defense to assault consummated by a battery).

(as a general matter, consent can convert what might otherwise be offensive touching into non-offensive touching). 

(consent is a well-established defense to simple assault). 

(consent is generally not a defense to aggravated assault). 

(junior Marines who appellant supervised could have lawfully consented to being burned with a cigarette by appellant in an apparent attempt to bond with them during a farewell party in the barracks, and the consent of those junior Marines would be a defense to a charge of assault consummated by a battery; although the government might have charged appellant with hazing as a violation of a general order or with aggravated assault, both of which would have eliminated the opportunity to raise a consent defense, it did not, and there was no policy reason to strip appellant of a defense to which he was otherwise legally entitled). 

2018 (October Term)

United States v. Briggs, 78 M.J. 289 (for offenses that have a period of limitations, the accused has a defense if the period of limitations expires before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command).

(RCM 907(b)(2)(B) requires the military judge to inform the accused of the right to assert the statute of limitations as a defense if it appears that the accused is unaware of that right). 

(the period of limitations for rape of an adult woman under the version of Article 43(a), UCMJ, in force from 1986 until 2006, was five years).  

(applying a new statute of limitations to revive a previously time-barred prosecution violates the Constitution’s Ex Post Facto Clause). 

(in this case, the version of Article 43, UCMJ, that existed at the time of Appellant’s charged rape offense in 2005 established a five-year period of limitations; in 2006, Congress amended Article 43, UCMJ, to clarify that rape was an offense with no statute of limitations; had Congress not amended Article 43, UCMJ, in 2006, the period of limitations with respect to Appellant’s 2005 charged rape offense would have run in 2010, long before the charges in this case were received by the summary court-martial convening authority in 2014; because the 2006 amendment to Article 43, UCMJ, did not apply retroactively to offenses committed before the enactment of the amendment but for which the then extant statute of limitations had not expired, the finding of guilt in this case had to be set aside and the charge dismissed).  

(the 2006 amendment to Article 43, UCMJ, that provided that the offense of rape may be tried and punished at any time without limitation did not apply to a rape that occurred in 2005 based on the general presumption against retroactive legislation, the general presumption in favor of liberal construction of criminal statutes of limitation in favor of repose, and the absence of any indication of congressional intent to apply the 2006 amendment retrospectively). 

(under RCM 907(b)(2)(B), the accused has a right before final adjournment of the case to assert the statute of limitations as a ground for dismissing a charge or specification; and the military judge must inform the accused of this right if it appears that the accused is unaware of it). 

2017 (October Term)

United States v. Armstrong, 77 M.J. 465 (to prepare a defense, the accused must have notice of what the government is required to prove for a finding of guilty; the charge sheet provides the accused notice that he or she will have to defend against any charged offense and specification).

United States v. Mangahas, 77 M.J. 220 (an accused is subject to the statute of limitations in force at the time of the offense). 

(statutes of limitations represent the legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them; thus, in the realm of criminal prosecution, after a certain time, no quantum of evidence is sufficient to convict; in addition, criminal statutes of limitations are to be liberally interpreted in favor of repose). 

2016 (October Term)

United States v. Feliciano, 76 M.J. 237 (voluntary abandonment is a defense to the crime of attempt). 

(it is a defense to an attempt offense that the person voluntarily and completely abandoned the intended crime, solely because of the person’s own sense that it was wrong, prior to the completion of the crime; the voluntary abandonment defense is not allowed if abandonment results, in whole or in part, from other reasons, for example, the person feared detection or apprehension, decided to await a better opportunity for success, was unable to complete the crime, or encountered unanticipated difficulties or unexpected resistance). 

(because there was no evidence that appellant decided not to complete the sexual assault of the victim solely because of his own sense that it was wrong, appellant was not entitled to an instruction on the affirmative defense of voluntary abandonment for the charge of attempted aggravated sexual assault; rather, the evidence showed that he only ceased his attempted aggravated sexual assault of the victim after being reminded by a witness that what he was about to do was wrong and that he would suffer serious repercussions if he continued). 

2015 (September Term)

United States v. Sterling, 75 M.J. 407 (to establish a prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action (1) substantially burdens (2) a religious belief (3) that the defendant sincerely holds; if a claimant establishes a prima facie case, the burden shifts to the government to show that its actions were the least restrictive means of furthering a compelling governmental interest; in this case, because appellant failed to establish a prima facie case, the burden did not shift to the government in this case). 

(to establish a prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action (1) substantially burdens (2) a religious belief (3) that the defendant sincerely holds; if a claimant establishes a prima facie case, the burden shifts to the government to show that its actions were the least restrictive means of furthering a compelling governmental interest; in this case, because appellant failed to establish a prima facie case, the burden did not shift to the government in this case). 

(while religious conduct triggers a RFRA inquiry, RFRA only protects actions that are sincerely based on a religious belief; determining sincerity is a factual inquiry within the trial court’s authority and competence, and the claimant’s sincerity in espousing that practice is largely a matter of individual credibility). 

(courts are highly deferential to claimants in evaluating sincerity, but may still conduct meaningful reviews of sincerity). 

(in evaluating sincerity, a court may not question whether the petitioner correctly perceived the commands of her faith, nor does a court differentiate among bona fide faiths).

(within the meaning of the RFRA, a substantial burden exists where a government action places substantial pressure on an adherent to modify her behavior and to violate her religious beliefs). 

(to determine whether a prima facie case has been established, courts do not question whether the petitioner correctly perceived the commands of her faith). 

(while a court will not assess the importance of a religious practice to a practitioner’s exercise of religion or impose any type of centrality test, a claimant must at least demonstrate an honest belief that the practice is important to her free exercise of religion in order to show that a government action substantially burdens her religious exercise). 

(a substantial burden is not measured only by the secular costs that government action imposes; the claimant must also establish that she believes there are religious costs as well, and this should be clear from the record). 

(a burden is not substantial if it merely prevents the adherent from either enjoying some benefit that is not otherwise generally available or acting in a way that is not otherwise generally allowed; moreover, an inconsequential or de minimis burden on religious practice does not constitute a substantial burden, nor does a burden on activity unimportant to the adherent’s religious scheme). 

(courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries). 

(an option to request an accommodation may eliminate burdens on religious exercise or reduce those burdens to de minimis acts of administrative compliance that are not substantial for RFRA purposes). 

(while appellant’s posting of signs at her workspace, which stated that “no weapon formed against me shall prosper,” was claimed to be religiously motivated at least in part and thus fell within the RFRA’s expansive definition of “religious exercise,” appellant nonetheless failed to identify the sincerely held religious belief that made placing the signs important to her exercise of religion or how the removal of the signs substantially burdened her exercise of religion in some other way, and thus appellant was not entitled to the RFRA defense at her court-martial proceedings for violating the order to remove the signs). 

United States v. Bess, 75 M.J. 70 (it is undeniable that a defendant has a constitutional right to present a defense). 

(whether rooted directly in the Due Process Clause or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense). 

(the right to present a defense has many aspects; under the Compulsory Process Clause, a defendant has a right to call witnesses whose testimony is material and favorable to his defense; a defendant’s Sixth Amendment right to confront the witnesses against him is violated where it is found that a trial judge has limited cross-examination in a manner that precludes an entire line of relevant inquiry; in addition, the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor). 

2014 (September Term)

United States v. Torres, 74 M.J. 154 (an accused cannot be held criminally liable in a case where the actus reus is absent because the accused did not act voluntarily, or where mens rea is absent because the accused did not possess the necessary state of mind when he committed the involuntary act). 

(automatism is defined as action or conduct occurring without will, purpose, or reasoned intention, behavior carried out in a state of unconsciousness or mental dissociation without full awareness, and the physical and mental state of a person who, though capable of action, is not conscious of his or her actions; automatism is sometimes referred to as an unconsciousness defense). 

(in the military justice system, neither epilepsy nor automatism has been held to be a mental disease or defect; therefore, the affirmative defense of lack of mental responsibility under RCM 916(k)(1) is not applicable in those instances). 

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

2013 (September Term)

United States v. MacDonald, 73 M.J. 426 (a defense is reasonably raised when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose).  

2009 (September Term)

United States v. Maynulet, 68 M.J. 374 (it is well settled in civil and military law that mistake of law is generally not a defense to criminal conduct; RCM 916(l)(1) provides that ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense; there are a few narrow exceptions to the general rule; one such exception exists when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency; however, reliance on the advice of counsel that a certain course of conduct is legal is not, of itself, a defense; in civilian practice, this defense is more generally stated as a reasonable reliance upon an erroneous official statement of the law). 

 

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

 


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