CORE CRIMINAL LAW SUBJECTS: Defenses: Obedience to Orders

2015 (September Term)

United States v. Sterling, 75 M.J. 407 (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). 

2008 (September Term)

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). 

(it is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful; the prosecution bears the burden of proving beyond a reasonable doubt that the defense does not exist). 


(the essential attributes of a lawful order include: (1) issuance by competent authority - a person authorized by applicable law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty). 

(orders are presumed to be lawful). 

(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). 


(a competent authority necessary to issue a lawful order is a person authorized by applicable law to give such an order). 


(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). 

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