2020 (October Term)
United States v. Mader, 81 M.J. 105 (the RCMs make clear that even if an alleged victim did not consent to being touched, an accused cannot be convicted of assault consummated by a battery if the accused mistakenly believed that the alleged victim consented and that that belief was reasonable under all the circumstances; a reasonable and honest mistake of fact as to consent constitutes an affirmative defense in the nature of a legal excuse).
2016 (October Term)
United States v. Feliciano, 76 M.J. 237 (the three defenses under RCM 916 for which the defense bears the initial burden of proof (lack of mental responsibility, mistake of fact as to age, and mistake of fact as to consent) should be appropriately referred to as affirmative defenses, and every other defense under the rule is a special defense that, if raised at trial, the defense need not initially prove in order for the burden of proof to be placed on the prosecution).
United States v. Davis, 76 M.J. 224 (mistake of fact is a special (affirmative) defense under RCM 916(j)).
(the test for determining whether an affirmative defense of mistake of fact has been raised is whether the record contains some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired).
2013 (September Term)
United States v. MacDonald, 73 M.J. 426 (if an affirmative defense is reasonably raised by the evidence, the military judge has a sua sponte duty to instruct the members on that defense; a defense is reasonably raised when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose).
(any doubt regarding whether an affirmative defense instruction is in order should be resolved in favor of the accused).
(involuntary intoxication is an affirmative defense under the UCMJ).
(the affirmative defense of involuntary intoxication requires a finding that there has been involuntary ingestion of an intoxicant and that the accused was unable to appreciate the nature and quality or wrongfulness of his acts).
(the defense of involuntary intoxication is similar to that of lack of mental responsibility in that the defense must prove by clear and convincing evidence that he did not appreciate the nature and quality or wrongfulness of his acts, but different in that he need not prove that he suffered a severe mental disease or defect, but rather that he was intoxicated by some substance that results in what amounts to legal insanity).
(during this murder trial, where appellant put on some evidence that the potential side effects of Chantix, a smoking cessation drug he was taking at the time he fatally stabbed the victim, could have affected his ability to appreciate the nature and quality or wrongfulness of his acts, the affirmative defense of involuntary intoxication was reasonably raised and the military judge had a sua sponte duty to instruct on the defense of involuntary intoxication).
United States v. Davis, 73 M.J. 268 (RCM 916(a) suggests that the terms “special defense” and “affirmative defense” are interchangeable; however, it is more accurate to refer to defense of property as a “special defense,” and that the prosecution continuously bears the burden of proving beyond a reasonable doubt that the defense did not exist).
2011 (September Term)
United States v. Ignacio, 71 M.J. 125 (if evidence of consent is presented in a trial for abusive sexual contact, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt).
(where appellant was charged with abusive sexual contact in violation of Article 120(h), UCMJ, and the military judge explained on the record why he would instruct the panel pursuant to the Military Judges’ Benchbook rather than the statutory language and the military judge’s instructions included the statement that evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt and that the prosecution has the burden to prove beyond a reasonable doubt that consent did not exist, the military judge did not err in so instructing the panel; the instructions correctly conveyed the government’s burden to the members).
United States v. Stanley, 71 M.J. 60 (an affirmative defense is raised by the evidence when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose).
United States v. Hayes, 70 M.J. 454 (an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea).
2010 (September Term)
United
States v. Prather, 69 M.J. 338 (with respect to
the offense of aggravated
sexual assault by engaging in sexual intercourse with a person who is
substantially incapacitated, an accused’s burden to prove the
affirmative
defense of consent by a preponderance of the evidence under Article 120(c)(2), Article 120(r), Article
120(t)(14), and Article 120(t)(16), unconstitutionally shifts the
burden of
disproving an element of the offense to the defense; if
an accused proves that the victim consented, he has necessarily proven
that the
victim had the capacity to consent, which logically results in the
accused
having disproven an element of the offense of aggravated sexual assault
- that
the victim was substantially incapacitated; an affirmative
defense may
not shift the burden of disproving any element of the offense to the
defense).
(the second burden shift in
Article
120(t)(16), UCMJ, which purports to shift the burden to the government
once an
accused proves an affirmative defense by a preponderance of the
evidence,
constitutes a legal impossibility; Article 120(t)(16), UCMJ, initially
assigns
the burden of proof for any affirmative defense to the accused; it then
provides that after the defense meets this burden, the prosecution
shall have
the burden of proving beyond a reasonable doubt that the affirmative
defense
did not exist; the problem with the provision is structural; if the
trier of
fact has found that the defense has proven an affirmative defense by a
preponderance of the evidence, it is legally impossible for the
prosecution to
then disprove the affirmative defense beyond a reasonable doubt and
there must
be a finding of not guilty).
United
States v. Maynulet, 68 M.J. 374 (the test
whether an affirmative defense is
reasonably raised is whether the record contains some evidence to which
the
court members may attach credit if they so desire).
(it is well settled in civil
and military law
that mistake of law is generally not a defense to criminal conduct; RCM
916(l)(1) provides that ignorance or mistake of law, including general
orders
or regulations, ordinarily is not a defense; there are a few narrow
exceptions
to the general rule; one such exception exists when the mistake results
from
reliance on the decision or pronouncement of an authorized public
official or
agency; however, reliance on the advice of counsel that a certain
course of
conduct is legal is not, of itself, a defense; in civilian practice,
this
defense is more generally stated as a reasonable reliance upon an
erroneous
official statement of the law).
(in a defense of entrapment by
estoppel
situation, the government is rightly
barred from
obtaining a conviction because the government - through its
representatives
acting in an official capacity - is responsible for the defendant’s
inability
to know that his conduct was proscribed; in this case, there
was no
evidence in the record to support a claim that there was an official
decision,
pronouncement, or interpretation, later determined to be erroneous,
upon which
appellant could have reasonably relied or that could have formed the
basis of a
claim of estoppel).
(a mistake of law defense was
not available to
appellant who fatally shot a severely injured Iraqi driver of a vehicle
that
crashed after speeding past a military checkpoint; appellant allegedly
had been
taught to “ease suffering” during his pre-deployment legal training on
the law
of war and the rules of engagement, and he claimed that he shot the
driver to
put him out of his misery; however, the record was devoid of any
erroneous
pronouncement or interpretation of military law or the law of armed
conflict
upon which appellant could have reasonably relied to justify his
killing of the
injured driver; the best appellant could argue was that he had a
subjective
mistaken belief as to what the law allowed; however, this is the very
kind of
mistake rejected by the general rule regarding mistake of law; absent
from the
record was any evidence that appellant received affirmative assurances
from
briefers or anyone in his chain-of-command that “mercy killing” was
lawful; to
the contrary, the rules of engagement card carried by appellant in
combat specifically
instructed him not to engage enemy combatants who were out of battle
due to
wounds; moreover, appellant had time to consult with both his command
and with
medical authorities if he had felt that additional legal, medical, or
command
guidance was needed before deciding how to proceed).
United
States v. Smith, 68 M.J. 316 (obedience to
lawful orders is an affirmative
defense on which the military judge has a sua sponte duty to instruct
if the
defense is reasonably raised).
(the test whether an affirmative defense is
reasonably raised is whether the record contains some evidence to which
the
court members may attach credit if they so desire).
United
States v. Neal, 68 M.J. 289 (consent and
mistake of fact as to consent are
affirmative defenses for the sexual conduct in issue in a prosecution
for
aggravated sexual contact; an affirmative defense is any special
defense which,
although not denying that the accused committed the objective acts
constituting
the offense charged, denies, wholly, or partially, criminal
responsibility for
those acts; the accused has the burden of proving the affirmative
defense by a
preponderance of the evidence; after the defense meets this burden, the
prosecution shall have the burden of proving beyond a reasonable doubt
that the
affirmative defense did not exist).
(a legislature may redefine
the elements of an
offense and require the defense to bear the burden of proving an
affirmative
defense, subject to due process restrictions on impermissible
presumptions of
guilt).
(a statute may place the
burden on the accused
to establish an affirmative defense even when the evidence pertinent to
an
affirmative defense also may raise a reasonable doubt about an element
of the
offense).
(the possibility that evidence
pertinent to
the affirmative defense of consent could raise a reasonable doubt about
the
element of force in a particular case does not render the aggravated
sexual
contact statute unconstitutional; as such, in this case, the military
judge
erred in treating lack of consent as an element of the offense and in
concluding that Congress established an unconstitutional element-based
affirmative defense in Article 120).
(the Constitution permits a
legislature to
place the burden on the accused to establish an affirmative defense,
even if
the evidence necessary to prove the defense also may raise a reasonable
doubt
about an element of the offense; if such evidence is presented, the
judge must
ensure that the factfinder is instructed to consider all of the
evidence,
including the evidence raised by the accused that is pertinent to the
affirmative defense, when determining whether the prosecution
established guilt
beyond a reasonable doubt).
United
States v. Forney, 67 M.J. 271 (before a
military judge is required to give
an affirmative defense instruction, there must be some evidence in the
record
to which the members might attach credit).
(constitutional free speech
protection of virtual child pornography in civilian
society was not a defense to a charge of conduct unbecoming an officer
based on
appellant’s possession of virtual child pornography on government
computers on
a Navy warship underway; in any event, in this case, there is
absolutely no
evidence that the images were or might have been virtual; thus, even if
appellant’s defense were recognized in military law, and it is not, the
military judge would not have been required to instruct on it).
United
States v. DiPaola, 67 M.J. 98 (if the record
contains some evidence of the
affirmative defense of mistake of fact to which the military jury may
attach credit
if it so desires, the military judge is required to instruct the panel
on that
affirmative defense).
(a military judge is required
to instruct the
panel on affirmative defenses, such as mistake of fact, if the record
contains
some evidence to which the military jury may attach credit if it so
desires;
when the defense has been raised by some evidence, the military judge
has a sua
sponte duty to give the instruction).
(an accused is not required to
testify in order
to establish a mistake-of-fact defense; the evidence to support a
mistake-of-fact instruction can come from evidence presented by the
defense,
the prosecution, or the court-martial).
(the
defense theory at trial and the nature of the evidence presented by the
defense
are factors that may be considered in determining whether the accused
is
entitled to a mistake of fact instruction; any doubt whether an
instruction
should be given should be resolved in favor of the accused).
(while an indecent assault
offense includes a
specific intent element as to whether the touching was committed to
satisfy the
lust or sexual desires of the accused, the lack of consent element of
the
offense is a general intent element; accordingly, a mistake-of-fact
defense on
this element would require both a subjective belief of consent and a
belief
that was reasonable under all circumstances).
(a military judge’s duty to
instruct is not
determined by the defense theory; he must instruct if the defense is
raised;
the defense’s theory of the case is not dispositive in determining what
affirmative defenses have been reasonably raised by the evidence but
can be
taken into account when considering the evidence).
(evidence that the victim
consented to and
willingly participated in some of the sexual acts listed in the
specification
was some evidence that appellant honestly and reasonably believed the
victim
consented to some of his actions, requiring a mistake-of-fact
instruction on
the indecent assault specification; appellant and the victim had a
prior
consensual sexual relationship, the victim consented to the removal of
her
shirt and the kissing of her breasts after saying “no” to intercourse,
creating
a mixed message as to which acts were permissible and which were
off-limits;
where the record revealed a mixed message evidentiary situation in
conjunction
with defense counsel’s mixed message theme in his opening and closing
statements and his request for a mistake-of-fact instruction, it
contained some
evidence of a mistake of fact that the panel could attach credit to if
it so
desired, and the military judge erred in failing to give a
mistake-of-fact
instruction on the specification).
(while the military judge has
a sua sponte duty
to give a mistake-of-fact instruction even in the absence of a defense
request,
counsel’s request for the instruction is indicative of the defense’s
theory of
the case and can be considered by appellate courts as context for
whether the
entire record contains some evidence that would support the
instruction).
(when some evidence exists in
the record, the
military judge must give a mistake-of-fact instruction).
(in the context of this case,
the absence of a
mistake-of-fact instruction on the indecent assault specification was
not
harmless beyond a reasonable doubt because that instruction resulted in
a
finding of not guilty when given with respect to an indecent exposure
specification involving the same victim in the same setting; had the
military
judge given a mistake-of-fact instruction informing the panel to
consider the
prior relationship and the circumstances leading up to the indecent
assault
incident, it is not clear beyond a reasonable doubt that a rational
jury would
have found appellant guilty absent the error; the missing instruction
essentially undercut a defense theory and could very well have
contributed to
the finding of guilty).
United States v. Gutierrez, 64 M.J. 374 (the affirmative
defense of mistake of fact is a required instruction under RCM
920(e)(3); when this defense is reasonably raised by the evidence, the
military judge is duty-bound to give an instruction, unless it is
affirmatively waived).
(even if an affirmative
defense is reasonably raised by the evidence, it can be affirmatively
waived by the defense).
(there are no magic words to
establish affirmative waiver of a defense; in making waiver
determinations, an appellate court looks to the record to see if the
statements signify that there was a “purposeful decision” at play).
2003
(an honest and reasonable mistake of fact as to the victim’s lack of
consent
is an affirmative defense to a charge of rape).
2001
United
States v. Rivera, 54 MJ 489 (because
appellant put
into issue the parental-discipline defense, the Government had the
additional
burden of refuting appellant’s defense of parental discipline beyond a
reasonable doubt).
(the parental discipline defense as set forth in Section 3.08(1),
Model
Penal Code (ALI 1985), and as applied by the Court of Appeals for the
Armed
Forces, states that force may be applied by parents or guardians
when:
(a) the force is used for the purpose of safeguarding or promoting the
welfare
of the minor, including the prevention or punishment of his misconduct;
and (b)
the force used is not designed to cause or known to create a
substantial risk
of causing death, serious bodily injury, disfigurement, extreme pain or
mental
distress or gross degradation).
(in reviewing a claim of parental discipline, there is a test of
contextual
reasonableness in determining when proper parental motive turns to
criminal
anger, or necessary force becomes a substantial risk of serious bodily
harm;
this test does not rest on specialized medical knowledge, but rather on
the
everyday common sense and knowledge of human nature and the ways of the
world
expected of triers of fact).
(testing for legal sufficiency of the evidence, and in the context
of this
case, the members could have properly rejected the parental discipline
defense
and concluded that one closed-fist punch to the stomach can cause
substantial
risk of serious bodily injury; the burden of establishing substantial
risk can
be met without manifestation of actual harm).
(evidence of assault consummated by a battery upon a child was
legally
sufficient and overcame defense of parental discipline where the
members could
have properly found that the force used was unreasonable because:
(1) the
child was struck with a closed-fist in the stomach; (2) there was
legally
sufficient evidence to conclude that the child was struck with
sufficient force
so as to fall down, and thus with sufficient force so as to cause a
substantial
risk of serious bodily injury when punched; and (3) it was reasonably
within
the common knowledge of the members that a blow to the stomach that is
strong
enough to knock a 13-year-old down creates a substantial risk of
serious bodily
injury).
2000
United
States v. Davis, No. 99-0764, 53 MJ 202 (military judge must
instruct
on affirmative defenses which are reasonably raised; an affirmative
defense is
reasonably raised when the record contains some evidence to which the
court
members may attach credit if they so desire; the defense theory at
trial is not
dispositive in determining what affirmative defenses have been
reasonably
raised; and any doubt whether an instruction should be given should be
resolved
in favor of the accused).