U.S. v. Deisher, 61 M.J. 313

Military Justice Personnel: Military Judge: General Powers

1. when a servicemember is charged with violation of a lawful order, the legality of the order is an issue of law that must be decided by the military judge, not the court-martial panel
2. the lawfulness of an order, like other issues of law, may involve questions of fact that must be addressed by the military judge for the limited purpose of resolving the issue of law; the consideration of such factual matters by the military judge in the course of addressing an issue of law is distinct from, and does not preempt, the responsibility of a court-martial panel to address factual matters pertinent to the elements of an offense in the course of returning findings on the issue of guilt or innocence
3. when the defense moves to dismiss a charge on the grounds that the alleged order was not lawful, the military judge must determine whether there is an adequate factual basis for the allegation that the order was lawful; in the course of acting on such a motion, if the military judge rules that a specific set of words would constitute a lawful order under a specific set of circumstances, that is a preliminary ruling; the military judge’s ruling does not relieve the prosecution of the responsibility during its case-in-chief of proving beyond a reasonable doubt the facts necessary to establish the elements of the offense
4. the lawfulness of an order is not an element, but is an issue of law to be resolved by the military judge, not members; in this case, the military judge committed prejudicial error in ruling on the motion to dismiss by treating both the issue of lawfulness and the predicate factual aspects of the lawfulness issue as matters to be resolved by the members and by submitting the issue of lawfulness to the members

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. when a servicemember is charged with violation of a lawful order, the legality of the order is an issue of law that must be decided by the military judge, not the court-martial panel
2. an order is presumed to be lawful, and the accused bears the burden of rebutting the presumption
3. the essential attributes of a lawful order include: (1) issuance by competent authority -- a person authorized by applicable law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty
4. an accused may challenge an order on the grounds that it would require the recipient to perform an illegal act or that it conflicts with that person’s statutory or constitutional rights
5. the lawfulness of an order, like other issues of law, may involve questions of fact that must be addressed by the military judge for the limited purpose of resolving the issue of law; the consideration of such factual matters by the military judge in the course of addressing an issue of law is distinct from, and does not preempt, the responsibility of a court-martial panel to address factual matters pertinent to the elements of an offense in the course of returning findings on the issue of guilt or innocence
6. when the defense moves to dismiss a charge on the grounds that the alleged order was not lawful, the military judge must determine whether there is an adequate factual basis for the allegation that the order was lawful; in the course of acting on such a motion, if the military judge rules that a specific set of words would constitute a lawful order under a specific set of circumstances, that is a preliminary ruling; the military judge’s ruling does not relieve the prosecution of the responsibility during its case-in-chief of proving beyond a reasonable doubt the facts necessary to establish the elements of the offense
7. the lawfulness of an order is not an element, but is an issue of law to be resolved by the military judge, not members; in this case, the military judge committed prejudicial error in ruling on the motion to dismiss by treating both the issue of lawfulness and the predicate factual aspects of the lawfulness issue as matters to be resolved by the members and by submitting the issue of lawfulness to the members

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. an order is presumed to be lawful, and the accused bears the burden of rebutting the presumption

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court employs a de novo standard of review to assess the rulings of the military judge concerning the lawfulness of the charged order, including his decision to submit the issue of lawfulness to the court-martial panel