Articles Posted in Instructions

Here is an interesting piece about Members having certain types of electronic evidence in the deliberation room.

A few federal courts provide guidance on the use of electronic evidence during jury deliberations, including the Ninth Circuit Model Jury Instructions and the U.S. District Court for the District of New Hampshire.

/tip Federal Evidence blog.

Jury instructions to include rules on use of new media

Recent incidents of jurors using new media during cases in civilian courtrooms in the States have led a military judge to rework instructions given to panelists in military courts-martial.

Army Col. Ted Dixon, a military judge who edits the military judges’ benchbook, said he’s not aware of any cases of a servicemember posting information on an ongoing court-martial while serving as a juror, but he’s aware of such events in the civilian world.

As a result of cases like these, Dixon said he’s been working on specific language addressing networking phenomena such as Twitter and Facebook that judges would use when instructing troops who sit on court-martial panels. Fellow judges have been providing him feedback and there seems to be a general consensus, he said.

In prosecution for first-degree murder and for using a firearm in the commission of a crime of violence, testimony that defendant threatened two percipient witnesses at the scene of the crime were admissible under FRE 404(b) to show consciousness of guilt, in United States v. Begay, _ F.3d _ (9th Cir. June 1, 2009) (No. 07-10487)

Other act evidence under FRE 404(b) is admissible for other than propensity purposes, such as for showing a defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This list is not exhaustive and occasionally other act evidence is admissible for other purposes, such as to show a defendant’s consciousness of guilt on the charged crime (emphasis added).

FederalEvidence blog.

Don’t forget that in the right case the defense should be introducing, arguing for, and asking for instructions on consciousness of innocence.  As of yet no military or federal court accepts this theory when it comes to instructions.  However, there are plenty of state court rulings on “consciousness of innocence.”

United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009).  Let’s get the nub of the case from CAAFLog’s summary.

Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a ‘simple disorder,’ under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an ‘offense necessarily included’ under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court’s previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

If you are like me you are doing a lot of BAH fraud cases right now, especially for recalled or activated Guard and Reserve personnel.  The AFCCA has issued an opinion about mistake and instructions in the fraud type case.

United States v. Armstrong, ACM 37130 (A.F. Ct. Crim. App. 10 February 2009).

In Armstrong the MJ gave a mistake of fact instruction on two offenses (and appellant was acquitted on those two offenses), but declined the instruction on a third allegation.  The AFCCA found harmful error and reversed.

Professor Yung posts and asks Which Community Standard?  The question relates to purchasing of alleged obscence materials across state lines.

For courts-martial, the community standard question is also important for allegations alleging indecency or obscenity.  It would be beneficial for a service-member being prosecuted at court-martial for an incident in the local town to argue the alleged acts or items are not indecent according to that community standard.  Not so fast.  The military has it's own community standard.  It's basically the most restrictive, and some.

In United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996), the military judge incorrectly instructed the Members (jury) that:

C.A.A.F.’s decision in United States v. Burton, __ M.J. ___, No. 07-0848/AF (C.A.A.F. Jan. 15, 2009), leads to consideration of arguments on findings. [and for the curious, United States v. Burton, No. ACM 36296 (A.F. Ct. Crim. App. July 16, 2007) (unpublished).]

The general principle on argument at trial is that:

Counsel should limit their arguments to “the evidence of record, as well as all reasonable inferences fairly derived from such evidence.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000), (emphasis added).

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