Benchbooks and Instructions

The Military Judge’s Benchbook (MJBB) is the bible for how a military judge will instruct the members of your court-martial under the UCMJ. Your military defense lawyer should be well versed in this book and these instructions. The military judge will tell the members what elements of the crime must be proved beyond reasonable doubt; she will tell them about how they may consider evidence presented in court; and she will tell them the voting procedures they must follow to ensure a secret written ballot without undue command influence.

Military appellate courts are not enthused with deviations from the MJBB, even though it is quite possible to do that. Oddly, the military court of criminal appeals allow for minor deviations and don’t actually require exacting compliance with the MJBB. See for example, United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002). On the other hand the Court of Appeals for the Armed Forces {CAAF) has cautioned against significant deviations from the MJBB, unless adequately explained on the record. United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001). That’s what happened with the litigation over challenges to Article 120, when a military judge ignored the law and also the MJBB, and advised the members that the accused did not have any burden to prove consent.

It may not matter if the judge does not follow the MJBB when instructing the members. For example in a recent case the Court of Appeals for the Armed Forces (CAAF) decided that the judge had made a mistake in not instructing on a defense, but that the error was harmless. We don’t need to go too deep into this area of trial practice; this is something your appellate military defense lawyer and trial military defense lawyer should know about and discuss with you.

However, there are times when it is necessary to go outside the MJBB to look for an appropriate instruction. Usually this happens when the prosecution is seeking to assimilate a federal or civilian crime under Articles 133 or 134, UCMJ. I have done this, for example by referring to the Eleventh Circuit instructions is CP cases.

So, it is helpful for your military defense lawyer to know that there is a good resource for civilian, primarily federal members (read jury) instructions. One of my favorite daily reads is the Federal Evidence Review blog. The blog is an excellent resource on federal evidence. They have two posts relevant to instructions: a main “page,” and an “update” for several circuits.

It appears one of the primary updates is intended to counter a growing problem – social media, cellphones in court, and the like. Thankfully this does not seem to be a problem at court-martial or other actions under the UCMJ.

The chief judge of the United States Army Trial Judiciary is responsible for publishing and updated the MJBB. You can find a copy here. If you are a military defense lawyer and practice at court-martial, you can also download an electronic version which works in MSWord, but unfortunately not WordPerfect.

And to digress a little, there is a presumption that members follow the instructions. That’s a nice social and legal “policy,” but if research is to be believed the presumption doesn’t work. Check out an article by one of my favorite resources, The Jury Verdict. Can members put aside their pride and prejudices? Can jury members ‘forget’ the inadmissible evidence they just heard? Can . . . . . .?