U.S. v. Nelson, 53 M.J. 319

Core Criminal Law Subjects: Crimes: Article 107 - False Official Statements Pre-2019 offenses

1. statements to criminal investigators can be prosecuted under Article 107; the court has rejected application of the “exculpatory no” doctrine to Article 107
2. where appellant did not assert at trial that her statement to criminal investigators was not an official statement because she did not have an independent duty or obligation to speak (paragraph 31c(6)(a), MCM), appellant failed to preserve that issue for appellate review

Core Criminal Law Subjects: Crimes: Article 118 - Murder Pre-2019 offenses

1. because homicide offenses under the UCMJ are derived from the common law, it is appropriate to construe Articles 118 and 119 – including the phrase “human being” – in the context of the common law; other important public policy concerns surrounding homicide of a child should be resolved in a legislative rather than a judicial forum
2. under the UCMJ, for homicide offenses involving a child, the modern common law view defines “human being” as a child that was “born alive,” and that “born alive” means that the child was wholly expelled from its mother’s body and possessed or was capable of an existence by means of a circulation independent of the mother

Core Criminal Law Subjects: Crimes: Article 119 - Manslaughter Pre-2019 offenses

1. under Article 119(b), culpable negligence arises only from a legal duty to act; when there is no duty to act, there can be no neglect
2. under Article 119(b), a parent is culpably negligent in failing to provide medical assistance when a reasonable person in such circumstances would have realized the substantial and unjustified danger created by his act
3. culpable negligence in fulfilling the parental duty to provide a child with medical assistance is a question of fact to be decided on the basis of all applicable evidence
4. evidence was legally sufficient to show culpable negligence in fulfilling the parental duty to provide a child with medical assistance where appellant made a conscious decision to not invoke medical assistance during her pregnancy or childbirth and then was not attentive to the health or medical condition of her child for over an hour after delivery

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where appellant did not assert at trial that her statement to criminal investigators was not an official statement because she did not have an independent duty or obligation to speak (paragraph 31c(6)(a), MCM), appellant failed to preserve that issue for appellate review