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.

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Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.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

Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment

“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial

The Impact of Melendez-Diaz v. Massachusetts on Admissibility of Forensic Test Results at Courts-Martial

Armed for the Attack: Recent Developments in Impeachment Evidence

Annual Review of Developments in Instructions

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

The appellant also admitted taking photographs and taking other actions over a period of time.

Smith involved allegations of error that the military judge failed to give proper instructions on a defense of obedience to orders. The case is valuable for the question of a judge’s sua sponte duty to instruct and the amount of evidence necessary to require an instruction.

“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. See United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M. 916(d); R.C.M. 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. A lawful order instruction would have been required only if the order given had been lawful or could reasonably have been believed to be lawful. See United States v. Calley, 22 C.M.A. 534, 544, 48 C.M.R. 19, 29 (1973).

Both cases have a good discussion of maltreatment and the standard of proof and type of evidence necessary for conviction. Smith holds that a detainee, while not himself subject to the UCMJ in traditional terms as a civilian, is “subject to the orders” of the accused. CAAF cited to the various Geneva Conventions to support this proposition.

Judge Efron notes an important point for both sides at trial, but most importantly the defense.

Appellant raises claims now that he did not make at trial. The record contains no instructions proposed by the Appellant. Appellant did not object to the military judge’s instructions as given.

As I frequently say, many a good appellate issue is lost because the trial defense counsel did not make a record. There are times when strategy may require doing or not doing something at trial, for example an objection. Not objecting potentially waives the issue absent plain error. That’s fine and consistent with the principle that you want to win at trial and do not litigate for appeal. But when it comes to instructions, that’s an area for action and creativity.

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.

A limiting instruction is appropriate where evidence is admissible for one or more purposes, but is also inadmissible for one or more purposes. Here is a reminder from federalevidence blog of how that works.

In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied by trial judge’s limiting instruction prior to deliberations that the jury give “separate, personal consideration to the case of each individual defendant” and to “analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant”; although the instruction was provided immediately prior to deliberations rather than contemporaneous with the testimony, the instruction satisfied the obligation to instruct jury when evidence can be admitted against one party and not others, in United States v. Beasley, 495 F.3d 142 (4th Cir. July 25, 2007) (No. 04-4107)

FRE 105 requires that if evidence is admissible for one purpose but not others, or against one party but not others, if requested by a party, the trial judge should instruct the jury on the proper scope of the evidence. A prerequisite to the applicability of FRE 105 is that a party requests the limiting instruction.

Bottom line to defense is be alert and request, request a limiting instruction at the time and during final instructions. As always you have to make a tactical choice. Do you in fact ask for the instruction knowing it may highlight and reinforce? My sense is that limiting instructions usually are the time that the balance is in favor of asking. This is a different situation than the so-called curative instruction request. You know the CID/NCIS/OSI agent who has testified a million times, but still makes the mistake saying the accused invoked, and the remedy is a curative instruction.