Articles Posted in Instructions

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:

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 Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake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.

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.

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

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

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….

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.

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.

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).

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