Instructions Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

Reasonable doubt

November 26, 2024 | The Law Office of Philip D. Cave

Reasonable doubt is the fundamental pillar protecting the rights of accused service members in a court martial. It is a legal standard that ensures a fair and just process and safeguards against the potential for wrongful convictions. The prosecutor must prove a case beyond a reasonable doubt, a crucial safeguard against false convictions. The BRD standard serves as a second cornerstone to a fair trial. BRD works alongside another cornerstone of the legal system- the presumption of innocence. The burden of proving guilt rests solely on the prosecution. The defendant does not have to prove their innocence. This principle helps to prevent wrongful convictions by ensuring that individuals are not punished unless the state can provide compelling evidence of their guilt. The high burden of proof helps to mitigate the potential impact of biases or errors in the justice system. It requires the prosecution to present objective evidence that can withstand scrutiny, reducing the risk of convictions based on prejudice, faulty eyewitness testimony, or flawed forensic evidence.

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.

Defining meaning from words in a statute

September 24, 2023 | The Law Office of Philip D. Cave

Generally

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:

Affirmative defenses–Macdonald trailers?

June 21, 2019 | The Law Office of Philip D. Cave

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 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 because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

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.

Collateral consequences

January 29, 2019 | The Law Office of Philip D. Cave

Thanks to Prof. Berman at Sentencing Law 7 Policy who directs us to Murray, Brian, Are Collateral Consequences Deserved? (January 29, 2019). Available at SSRN: https://ssrn.com/abstract=

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.

Deliberate ignorance?

March 14, 2018 | The Law Office of Philip D. Cave

Of interest to military justice practitioners is a new grant of certiorari at the U. S. Supreme Court today. SCOTUSBlog reports:

Okechuku v. United States, No. 17-1130

Issues: Whether, and under what circumstances, the erroneous submission of a deliberate-ignorance instruction is harmless error.

Mens rea in military criminal statutes or charges

October 25, 2017 | The Law Office of Philip D. Cave

From Prof. Berman at Sentencing Law & Policy.

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….

No, sorry

June 17, 2017 | The Law Office of Philip D. Cave

The CAAF daily journal for 15 June 2017 has this entry: No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. On consideration of Appellee’s petition for reconsideration of this Court’s decision, United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), it is ordered that said petition for reconsideration be, and the same is, hereby denied.

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.

Case to watch–jury nullification

February 11, 2017 | The Law Office of Philip D. Cave

The SCOTUS might soon give us an idea on the subject of jury nullification in Lee v. United States.

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.

In the Supremes

December 3, 2015 | The Law Office of Philip D. Cave

On 30 November 2015, the Supreme Court heard oral argument in Musacchio v. United States, a case of potential interest to military justice practitioners.

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

Benchbooks and Instructions

July 21, 2014 | The Law Office of Philip D. Cave

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.