Articles Tagged with Instructions

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.

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Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.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.

In the United States v. Jones the facts cited by the court show a consent defense.  However the defense counsel did not request an instruction on the affirmative defense and the military judge did not give one.  There being no evidence of an affirmative waiver the findings and sentence were set aside.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999).

We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony.  As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor.

Here are the military justice related articles in the new Army Lawyer.

Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment

“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial

CAAF has decided two cases related to Abu Ghraib:  United States v. Harman, and United States v. Smith.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

Jury instructions are too often so poorly written that even the most intelligent juror cannot understand them. That’s a serious problem. So how can we make jury instructions more understandable? Prof. Peter Tiersma offers many concrete suggestions in this article, available for free download on SSRN. If you’re a trial judge or trial lawyer, you need to read it.

From the (new) legal writer blog.  Instructions given in a court-martial prosecution under the UCMJ can at times be confusing.  Certainly the current practice in a court-martial of reading the instructions and then giving a written copy does help somewhat to alleviate potential issues from reading only.

Here I’m talking about limiting instructions at court-martial, not alleged curative instructions.

A limiting instruction is appropriate where evidence is admissible for one or more purposes, but is also inadmissible for one or more purposes.  Here is a reminder from federalevidence blog of how that works.

In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied by trial judge’s limiting instruction prior to deliberations that the jury give “separate, personal consideration to the case of each individual defendant” and to “analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant”; although the instruction was provided immediately prior to deliberations rather than contemporaneous with the testimony, the instruction satisfied the obligation to instruct jury when evidence can be admitted against one party and not others, in United States v. Beasley, 495 F.3d 142 (4th Cir. July 25, 2007) (No. 04-4107)