Military judges in the various military services play a crucial role in defining reasonable doubt to their panels (juries). For instance, the Army and the Coast Guard judges instruct the panel that a “reasonable doubt is a fair and reasonable hypothesis other than that of guilt.” Soldiers and Coasties are guided to acquit if there is another rational, innocent explanation for the facts. On the other hand, the Air Force, Navy, and Marine Corps use different language, telling the panel that they must be “firmly convinced” or similar language to convict.

The highest standard of legal proof in criminal trials is beyond Reasonable Doubt. This means that the prosecution must present evidence strong enough to convince a reasonable person that there is no other logical explanation for the facts except that the defendant committed the crime. This demanding standard makes it less likely that someone will be convicted based on weak or insufficient evidence. The evidence must firmly convince the jury of the defendant’s guilt. If there is any reasonable uncertainty, the jury is instructed to acquit. This standard recognizes the gravity of depriving someone of their freedom, or worse, their life, and requires that the evidence be overwhelmingly convincing.

See our video for more, presented by Nathan Freeburg, our lead trial attorney.

The reason for the high burden of reasonable doubt on the prosecution is the severe consequences of a court-martial conviction. If you are convicted at a court-martial, the implications are grave. You could lose your retirement and practically all benefits of your military service, go to prison for years, have to register as a sex offender, and, in a capital trial, lose your life.

The reasonable doubt standard ultimately unites with the presumption of innocence to create a sound defense at a court-martial. The presumption of innocence means that no matter how many bad things are said about you, you remain innocent until (and only if) the court-martial president says “Guilty.” The court-martial panel can only say “Guilty” if the prosecution has presented evidence proving your guilt beyond a reasonable doubt. Our job as your military defense attorney is to persuade the jury that the prosecution didn’t and couldn’t meet their burden.

Sometimes I see military prosecutors proudly proclaim to the panel: “I’m Major or Lieutenant Commander so and so, and we represent the United States.” When this happens, I get up and say to the panel, “actually it is you that represents the United States and it is your job to apply the presumption of innocence and the reasonable doubt standard that our country requires.”

In a court-martial, the stakes are incredibly high. However, the reasonable doubt standard is everything when it comes to protecting your innocence. This standard, upheld by the legal system, provides a sense of reassurance and security in the face of such high stakes.

As military defense counsel, we at Cave & Freeburg, LLP, have the experience to help ensure the best opportunity for the jury to have some doubt that can lead to a not guilty finding. Visit our court-martial and court-martial appeal pages for some of our many successes. As military defense attorney’s we follow several key strategies to introduce reasonable doubt and challenge the prosecution’s case, here are some examples:

1. Attacking the Evidence:

• Highlighting inconsistencies: Discrepancies in witness testimonies, conflicting forensic evidence, or gaps in the timeline can all raise doubts about the prosecution’s narrative.
  Challenging the reliability of evidence: The defense can question the methods used to collect and analyze evidence, suggesting potential contamination, errors, or biases in the process.
  Presenting alternative explanations: Offering alternative interpretations of the evidence that are consistent with the defendant’s innocence can create doubt about the prosecution’s version of events.

2. Undermining Witness Credibility:

• Impeaching witnesses: The defense can cross-examine witnesses to expose inconsistencies in their statements, biases, or motives that might affect their testimony.
• Presenting evidence of prior misconduct: If a witness has a history of dishonesty or criminal behavior, the defense can use this information to cast doubt on their credibility.
• Introducing alibi witnesses: Witnesses who can place the defendant at a different location at the time of the crime can create doubt about their involvement.

3. Focusing on the “Burden of Proof”:

• Reminding the jury of the presumption of innocence: The defense emphasizes that the defendant is innocent until proven guilty and that the burden of proof rests entirely on the prosecution.
• Highlighting gaps in the prosecution’s case: If the prosecution fails to address key elements of the crime or leaves unanswered questions, the defense can argue that this creates reasonable doubt.
• Emphasizing the high standard of proof: The defense reminds the jury that the prosecution must prove guilt “beyond a reasonable doubt,” not just show that the defendant is probably guilty.

4. Presenting an Alternative Narrative:

• Offering a different version of events: The defense may present a theory of the case that is consistent with the evidence but points to a different perpetrator or suggests that the defendant acted in self-defense or under duress.
• Providing a plausible motive for someone else: If the defense can suggest a motive for another individual to commit the crime, it can raise doubts about the defendant’s guilt.

5. Utilizing Expert Testimony:

• Challenging forensic evidence: Defense experts can offer alternative interpretations of forensic evidence or highlight limitations in the techniques used.
• Providing alternative explanations for the defendant’s behavior: Experts in psychology or other fields can offer explanations for the defendant’s actions that are consistent with innocence.

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

• Looking at the context of the word or term in the statute. This means considering the other words and phrases in the statute, as well as the overall purpose of the statute.
• Considering the legislative history of the statute. This includes looking at the bill drafts, committee reports, and other materials that were created during the legislative process.
• Considering relevant case law. This includes looking at how other courts have interpreted similar words and terms in other statutes.

The court will use these tools to interpret the ambiguous word or term in a way consistent with the statute’s overall purpose. Readers should also be aware of Scalia & Garner’s excellent book–Reading the Law, for deep dives into the rules and their complexities. As military defense counsel, we have a copy handy on our bookshelf.

It is important to note that the rules of statutory interpretation are complex and no single rule can be applied to all cases. Courts will often weigh different factors when interpreting a statute, including the plain meaning of the text, the context of the statute, the legislative history of the statute, and relevant case law.

A specific case-–United States v. Cabuhat

Over the last few years, Congress has made life difficult for military defense counsel, actually all lawyers practicting military justice, because of the numerous changes to the definition of what is or is not a crime.

Before a description of Cabuhat, what does (Google) Bard say The phrase “in the presence of” means in the same place as and close enough to be seen or heard. It can be used to describe a physical presence, such as when you are sitting in a room with someone.’

Cabuhat, assigned to the 86th Aircraft Maintenance Squadron, Ramstein, Germany, was sentenced to 30 years confinement in June 2021. He plead guilty to SA of a child, wrongfully photographing the child, and viewing and possessing CP.

Cabuhat was arrested in 2021 after an Air Force Office OSI investigation. Cabuhat SA a child on many times and had photographed the person during the abuse. He also had a large collection of CP.

Cabuhat pleaded guilty to all charges in June 2021. The military judge sentenced him to 30 years (to be served at the U.S. Disciplinary Barracks, Fort Leavenworth, KS), a dishonorable discharge, reduction to E-1, and mandatory SOR.

The central issue in the case is the meaning of “in the prescence of.” This can be important when the parties are separated and are communicating via Skype, WhatsApp, FaceTime or similar application.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

United States v. Kangich, 78 M.J. 304 (C.A.A.F. 2019).

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of the granted issue, __M.J. __ (C.A.A.F. 2019), the opinion of the United States Army Court of Criminal Appeals, United States v. Davis, No. 20160069 (A. Ct. Crim. App. Aug. 16, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that the military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

The ACCA unpublished opinion of 16 August 2018, ARMY No. 20160069, in “Nicholas E. Davis” is here.

I conclude the instructional issue must have been in the Grostefon?

We address two assignments of error, with multiple subparts, one of which merits relief. Appellant personally raised seven matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which is also an assigned error. The remaining Grostefon matters, after due consideration, do not warrant discussion or relief.

United States v. Davis, No. ARMY 20160069, 2018 CCA LEXIS 417, at *2 (A. Ct. Crim. App. Aug. 16, 2018).

CAAF granted on the following issue.

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT FOR THE OFFENSE OF INDECENT VISUAL RECORDING AND THE DEFENSE OF MISTAKE OF FACT AS TO CONSENT.

United States v. Davis, 2019 CAAF LEXIS 223 (C.A.A.F. 2019).

Here’s the link to United States v. Macdonald.

Appellant was convicted of sexual assault by bodily harm on a nonconsent theory. The military judge in his case gave no specific mens rea instruction beyond the standard mistake of fact defense, which provides a defense if the accused had an honest and reasonable (nonnegligent) belief that consent was obtained. Appellant, however, contends that Elonis v. United States, 135 S. Ct. 2001 (2015), required the military judge to instruct the members that a mens rea of at least recklessness with regard to consent was necessary for conviction. We granted review to determine the required mens rea for sexual assault by bodily harm, and conclude that Congress clearly implied a general intent mens rea for that offense.

I have a standard sex offender registration motion that I use in all cases in which a sex offense is charged and if convicted the client will have to register as a sex offender.

Few appellate courts have been willing to agree that SOR is a punishment and hold that to be a collateral consequence. Some state supreme courts have held new amendments to their state law are “punishment” for ex post facto analysis, but they are few. Despite that, I continue to argue that SOR is more than a collateral consequence. As the second part of my motion, I argue admissibility of SOR as “evidence” under the principles for giving punishment, on which the members are instructed: particularly rehabilitation and deterrence.

Mr. Murray argues that we should reconsider the definition of collateral consequences and how they affect sentencing and most importantly recidivism and reintegration. Here is the abstract.

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation. Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints. This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order. Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

Take a look, I am looking for ways to bolster my trial motion on SOR.

From the petition of Appellant.

Prosecutors routinely request, and district courts routinely give, instructions allowing the jury to find a crime’s required scienter through “deliberate ignorance”—that the defendant purposely contrived to avoid learning that his conduct was criminal. Appellate courts recognize that these instructions risk misleading the jury into thinking they should convict for behavior that is merely reckless or even negligent. These same courts frequently hold that deliberate-ignorance instructions should not have been given. But there is a deep, threeway split regarding the circumstances under which such improper submissions merit reversal. Two circuits hold that an improper submission is harmless per se. Six circuits hold that it is harmless if there is “sufficient” or “substantial” evidence that the defendant had actual knowledge of criminal activity. And four circuits hold that it is harmless only if there is “overwhelming” evidence of actual knowledge. The circuits likewise differ on whether the charge’s phrasing matters in determining the likelihood that an erroneous deliberate-ignorance instruction caused harm.

As reported in this press release, yesterday “Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law.” Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard. This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind…. “Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Sen. Lee said. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime. The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law.” “I’m proud to join Sen. Hatch in addressing one of the biggest flaws in our modern criminal justice system,”Sen. Cruz said. “Currently, the federal government can send men and women to prison without demonstrating criminal intent. As Congress works to address criminal justice reform, the Mens Rea Reform Act needs to be enacted to protect the rights of all Americans.”

Prof. Berman observes:

I cannot yet find the full text of the Mens Rea Reform Act of 2017 on-line, but I suspect it is very similar if not identical to the previously introduced Mens Rea Reform Act of 2015 available here. It does not seem that Senator Hatch was a cosponsor of the 2015 version of this bill, so I think it is a very good sign that Senator Hatch is now apparently leading the charge for this reform (and doing so by stressing that he believes Congress has “mandated overly harsh penalties for too many crimes”).

I think this is what he’s looking for.

Two recent CAAF cases have addressed mens rea concerns.

United States v. Tucker, 76 M.J. 257 (C.A.A.F. 2017) and United States v. Blanks, petition granted 31 August 2017, so a decision is pending.

To refresh.

CAAF decided the Army case of United States v. Hukill, 76 M.J. 219, No. 17-0003/AR (slip op.), on Tuesday, May 2, 2017. A short opinion reiterates the rationale of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) . “[T]he use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Slip op. at 6. CAAF reverses the decision of the Army CCA that found Hills inapplicable in judge-alone trials, reverses the appellant’s convictions, and authorizes a rehearing.

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

It is not obvious from the Issue that nullification is central to the case. But, Ilya Shapiro, The Right to Hope for Jury Nullification, CATO Institute, 9 February 2017, explains.

It should be noted that the case arises because of a Padilla/Denedo issue, the context of IAC.

More here.

There are two questions presented.

(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and (2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

The first question is of more interest than the second. Military practice on motions waivable or otherwise is different from federal courts. Essentially there is a circuit split where two circuits hold the government’s feet to the fire to prove additional “elements” instructed on, but not required by statute, with two circuits reviewing legal sufficiency based only on the statutory elements regardless of the court’s instructions.

The ever helpful SCOTUSBlog has previously commented on the case.

• Argument analysis: Few friendly faces in the crowd for computer fraud defendant (Rory Little).

[W]hen the jury was ultimately instructed, the judge mistakenly told them that the statute “makes it a crime for a person to intentionally access a protected computer without authorization and” – not “or,” as the statute and the government’s proffered instructions actually said – “exceed authorization.” The jury convict[ed]. [A]fter a motion for new trial was denied [it was] notice[d] the “and” versus “or” error in the instructions. [The Apppellant of course then sought to argue for dismissal.] The trial court rejected that belated argument, as did the court of appeals, ruling that the statute and the indictment express all the elements the government must prove, and that the mistaken injection of an additional element was both irrelevant and harmless here. Indeed, it redounded to Musacchio’s benefit at trial, by adding to the government’s burden of proof (as Justice Ruth Bader Ginsburg also noted during yesterday’s oral argument).

Mr. Little impliedly predicts Mussachio loses because he does “not perceive any support for Musacchio’s arguments in the transcript of oral argument. Rather, there were repeated expressions of non-understanding or outright rejection.”

• Argument preview: An unusual two-issue case of federal computer crime (Rory Little)
• Criminal law grants for the October Term 2015 (Rory Little)
• Petition of the day (Maureen Johnston)

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 . . . . . .?

Eugenee M. Heeter, Chance of Rain: Rethinking Circumstantial Evidence Jury Instructions, 64 HASTINGS L. J. 527 (2013).

The Seventh Circuit is the first circuit to publish revised jury instructions based on the recent ruling Supreme Court ruling clarifying the burden to withdraw from a conspiracy in Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), which abrogated prior Seventh Circuit cases on the issue

On January 9, 2013, the Supreme Court issued a unanimous decision clarifying the burden of proof to establish withdrawal from a conspiracy. In a decision authored by Justice Antonin Scalia, the Court held that the defendant holds the burden to prove withdrawal and the government does not bear any burden to disprove withdrawal. See Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013). The ruling resolved a split on the issue among the circuits.

If you have this situation and COL Hargis hasn’t issued a interim change to the Benchbook, check here.

I have asked for (but not gotten) a “Consciousness of Innocence,” instruction in cases where there is evidence to support it (cooperating with NCIS, giving a full statement, consenting to searches, other assistance. A one point I was also of the opinion that a willingness to take a polygraph examination was also indicative.). I craft it based on the prosecution friendly consciousness of guilt instruction. There appears to be acceptance in some courts of this instruction.

Federal Evidence Review continues the practice of checking it twice for federal jury instructions among the circuits. Personally I have found the Eleventh’s instruction for child por******phy cases to be an excellent resource.

United States v. Simpson, 58 M.J. 368, 378 (C.A.A.F. 2003).

They also link to an interesting 22 November 2011 Federal Judicial Center report .

The use of social media by jurors during trials and deliberations is not a common occurrence. Of the 508 judges who responded to the survey, only 30 judges (6%) reported any detected instances of jurors using social media during trial and deliberation[.]

Of course in civilian court it wouldn’t be an Article 92, UCMJ, violation.

New jury instructions in New Jersey will warn that human memory is not foolproof and eyewitness testimony must be carefully scrutinized. Set to take effect on Sept. 4, the new instructions follow a landmark ruling last year by the New Jersey Supreme Court that makes it easier for defendants to challenge the reliability of eyewitness identifications, the New York Times reports. The decision also required juries to be instructed on the variables that could lead to mistaken identifications. The new instructions say accurate identifications may be hampered by stress, distance, poor lighting and differences in the race of the suspect and the witness. “Research has shown that people may have greater difficulty in accurately identifying members of a different race,” the instructions say. The instructions also warn of problems in lineups. The passage of time before a lineup or the behavior of a police officer during the process can influence the witness, the instructions say. Experts told the Times that the new instructions are expected to influence other state courts. University of Virginia law professor Brandon Garrett told the newspaper that the instructions are the most detailed and careful in the country.

Check out Instruction 7-7-2 in the current MJ Benchbook. There is no rule prohibiting the defense to seek a more detailed instruction citing research and the New Jersey rules as foundation, especially if this is a critical issue in the case.

Next step, can you get an expert in eyewitness identification issues.

Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.

In his sole assignment of error, the appellant alleges that the military judges erred in failing to instruct the members as to mistake of fact as to consent.

The court found that the military judge erred in failing to sua sponte instruct on the affirmative defense of consent.

A military judge has a sua sponte duty to instruct on an affirmative defense if reasonably raised. United States v. Davis , 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M. 916(d) and 920(e)(3). “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.” Davis, 53 M.J. at 205 (citation omitted).

Davis was also a Navy case involving the defense of accident and failure to instruct on an LIO.

NMCCA agreed with appellant that the affirmative defense of mistake of fact as to consent was “reasonably raised.”

Moreover, any doubt as to whether the evidence raises an affirmative defense is [to be] resolved in favor of the accused. United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981).

Steinruck (Army) involved an affirmative defense of “Agency,” (It is well established that one who acts in a transaction as a procuring agent is not a seller to that person.).

Applying the harmless error standard the NMCCA affirmed the conviction.

Finally, we note that mistake of fact as to consent was not a theory presented or argued to the members by trial defense counsel. Based on these facts and our review of the entire record, we find that the military judge’s error did not contribute to the appellant’s conviction.

The prosecution had argued two theories: a rape, or rape after the appellant was well aware that his wife had told him to stop but he continued with the sex. Apparently these facts as well as the ‘evidence’ of mistake were contained in an NCIS statement. It does not appear the appellant testified. Remember, an accused does not have to testify in order to present a defense, argue a defense, or ask for an instruction on an affirmative defense. Of course the quality of the evidence may be different. But the point I want to make is a client need not testify to get an instruction.

Oddly the NMCCA found the error may have contributed to the sentence. But they applied United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Morffeit, 63 M.J. 40 (C.A.A.F. 2006), and also affirmed the sentence of a DD, TF, three years, and E-1.

Morffeit questioned the proper factors, standards, and ability to reassess a sentence under Sales.

The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon.

One assignment of error warrants discussion, but no relief. Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense when the force used against him escalated. Today we find that any error by the military judge was harmless beyond a reasonable doubt and affirm the findings and sentence.

First some basics:

A military judge is required to instruct the members on special (affirmative) defenses “in issue.” Rule for Courts-Martial [hereinafter R.C.M.] 920(e)(3). 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 choose.’” United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007) (quoting R.C.M. 920(e) Discussion, and United States v. Gillenwater, 43 M.J. 10, 13 (C.A.A.F. 1995)).

I would add that this is a sua sponte duty.

[T]he military judge has a duty to instruct the factfinders on it, regardless of defense theories or requests. Any doubt whether the evidence is sufficient to require an instruction should be resolved in favor of the accused.

United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981).

[A]n affirmative defense is not waived by a mere failure to request it.

United States v. Buckley, 35 M.J. 262, 265 (C.M.A. 1992), citing to United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988).

So in Stanley,

At the close of evidence on findings the military judge gave extensive instructions, including self-defense and defense of another. Based on the evidence presented at trial, appellant now claims that the military judge should have instructed on two additional theories. First, the military judge should have instructed the panel that a mutual combatant has the right to escalate violence under certain circumstances without losing the right to self-defense. Second, the military judge should have instructed the panel that some mutual combatants may be unable to withdraw, and therefore retain their right to self-defense.

The court appears to distinguish Lewis and Gillenwater because a clear distinction is

the fact that none of appellant’s three defense counsel objected to the instructions given, nor asked for any additional instructions.

Basically the court concludes that no amount of additional instructions on self-defense would have lead to an acquittal because the evidence was so overwhelming. That’s essentially the Van Arsdall harmless beyond reasonable doubt issue. See United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010).

As to affirmative waiver of instructions, usually to LIO’s, see e.g., United States v. Duncan, 36 M.J. 668 (N.M.C.M.R. 1991); United States v. Strachan, 35 M.J. 362, 364 (C.M.A. 1992) (Instructions on lesser-included offenses are required unless affirmatively waived by the defense); United States v. Moore, 12 U.S.C.M.A. 696, 31 C.M.R. 282 (1962)(defense counsel affirmatively indicated his desire to withdraw his request for the instruction and, thereby, waived the instruction). But see, United States v. Taylor, 26 M.J. 127 (CMA 1988)(passive waiver); and United States v. Miergrimado, No. NMCCA 200501128 (N-M. Ct. Crim. App. Feb. 22, 2007), rejecting application of United States v. Waldron, 9 M.J. 811 (N.M.C.M.R. 1980), aff’d, 11 M.J. 36 (C.M.A. 1981), allowing the defense to choose whether to go all or nothing.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999). We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony. As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor. While trial defense counsel failed to request, remind or insist upon an instruction relative to the affirmative defense of consent, it was not his burden to do so. Rather, it was the sua sponte duty of the military judge. United States v. Guitierrez, 64 M.J. 374, 376 (C.A.A.F. 2007)[.]

What should a trial counsel do if the military judge doesn’t say she will instruct on an affirmative defense and the defense counsel doesn’t ask for it, but the trial counsel believes the evidence raises the affirmative defense? Does the trial counsel have an obligation to raise the question at least?

Jury instructions are too often so poorly written that even the most intelligent juror cannot understand them. That’s a serious problem. So how can we make jury instructions more understandable? Prof. Peter Tiersma offers many concrete suggestions in this article, available for free download on SSRN. If you’re a trial judge or trial lawyer, you need to read it.

From the (new) legal writer blog. Instructions given in a court-martial prosecution under the UCMJ can at times be confusing. Certainly the current practice in a court-martial of reading the instructions and then giving a written copy does help somewhat to alleviate potential issues from reading only.