Articles Posted in Instructions

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

(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.

[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.”







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 . . . . . .?

I sometimes cringe when the circumstantial evidence instruction is given about waking up and the grass is wet.  In some neighborhoods, all that means is that people’s lawn sprinklers have been on during the night or early morning, not that it rained in the night.  Sometimes I make that point to be careful about the concept.  But, here is a much more scholarly and pithy discussion of circumstantial evidence and instructions.

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

Federal Evidence Review alerts us that:

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.

From time to time I find a need to ask for a special instruction or a rewording of a BB instruction.  Here is a favorite, in BAH/TAD/TDY fraud cases:


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. has this piece on about juries and social media, and a discussion of the model jury instruction.

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.

Maybe not.  There is quite a bit of research and anecdotal evidence to show that eyewitness testimony can be unreliable.  Now New Jersey is in the frontline of making sure a jury is aware of the potential problems with eyewitness testimony.  To quote the ABA Journal.

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.

I posted yesterday on a new Army case dealing with instructions on an affirmative defense in a court-martial under the UCMJ.

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.

United States v. Stanley.

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.