Articles Tagged with tdy

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.

In 1988 the Court of Military Appeals decided Griffith.  I have used the case from time to time, not often successfully.  But here is a recent example of what I call 917-on-steroids.  I was pleasantly surprised that it was the judge who first raised the Griffith possibility.

R.C.M. 917 allows the defense to make a motion (or the MJ sua sponte) for a finding of not guilty at the close of the prosecution case or at the close of the evidence.  I have just completed one of the infamous Army TCS/Reserve TDY cases.  The E-8 accused was charged with conspiracy with two others to steal using fraudulent rent receipts, false official statement, theft of funds in excess of $500.00, and two specifications of fraud under Article 132, UCMJ.  The standard or amount of evidence is so low that it is hard to obtain an R.C.M. 917 dismissal.

At the close of the prosecution case they had not introduced evidence of a delta between the amount alleged to have been stolen and that to what the accused would have been entitled, and had not introduced evidence that the travel claim vouchers were actually signed and submitted by the accused.  Rather than grant a 917 motion, the judge allowed the prosecution time to rethink their case and potentially request they be allowed to reopen.  After the interlude the judge kicked the can and referenced Griffith, again giving the prosecution more opportunity to reopen.  The military judge is permitted to take such a course of action.  See e.g. United States v. Ray, 26 M.J.  468 (C.M.A. 1988).