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

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.

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.

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:

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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.

Federalevidence.com 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[.]

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.

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.

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.