U.S. v. Forbes, 61 M.J. 354

Military Justice Personnel: Military Judge: Instructions

1. MRE 301(g) provides that when the accused does not testify at trial, defense counsel may request that the members of the court not be instructed to disregard the accused’s silence; under this rule, defense counsel’s election is binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice; Rule 301(g) recognizes that the decision to ask for a cautionary instruction is one of great tactical importance for the defense and generally leaves that decision solely within the hands of the defense; the rule reflects the President’s authority to grant members of the armed forces rights more protective than those required by the Constitution
2. when there is a defense objection to the failure-to-testify instruction under MRE 301(g), a military judge is bound by the defense election unless the judge performs a balancing test that weighs the defense concerns against the case-specific interests of justice
3. a military judge’s decision to override the otherwise binding election of the defense under MRE 301(g) must be based on something more than a generalized fear that the members would hold the appellant’s silence against him because such a fear could be argued in every case of silence of the accused
4. in this case, the military judge’s failure to articulate any “interests of justice” to give the failure-to-testify instruction over the defense objection, other than the standard fear of member misuse of the appellant’s silence, indicates that such “interests of justice” simply did not exist; the standard fear that members might hold an accused’s silence against him has already been accounted for by the President in MRE 301(g) and resolved by giving the election to the defense team, except in an unusual case; a generalized fear that the panel will misuse an accused’s silence, by itself, does not provide a basis for concluding that the circumstances of a case are so unusual as to warrant rejection of a defense objection to the instruction

Trial Stages: Merits: Instructions › Generally

1. MRE 301(g) provides that when the accused does not testify at trial, defense counsel may request that the members of the court not be instructed to disregard the accused’s silence; under this rule, defense counsel’s election is binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice; Rule 301(g) recognizes that the decision to ask for a cautionary instruction is one of great tactical importance for the defense and generally leaves that decision solely within the hands of the defense; the rule reflects the President’s authority to grant members of the armed forces rights more protective than those required by the Constitution
2. when there is a defense objection to the failure-to-testify instruction under MRE 301(g), a military judge is bound by the defense election unless the judge performs a balancing test that weighs the defense concerns against the case-specific interests of justice
3. a military judge’s decision to override the otherwise binding election of the defense under MRE 301(g) must be based on something more than a generalized fear that the members would hold the appellant’s silence against him because such a fear could be argued in every case of silence of the accused
4. in this case, the military judge’s failure to articulate any “interests of justice” to give the failure-to-testify instruction over the defense objection, other than the standard fear of member misuse of the appellant’s silence, indicates that such “interests of justice” simply did not exist; the standard fear that members might hold an accused’s silence against him has already been accounted for by the President in MRE 301(g) and resolved by giving the election to the defense team, except in an unusual case; a generalized fear that the panel will misuse an accused’s silence, by itself, does not provide a basis for concluding that the circumstances of a case are so unusual as to warrant rejection of a defense objection to the instruction

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in this case, despite its resolution of the appeal on an instructional issue, the court of criminal appeals did not err by evaluating the legal and factual sufficiency of the evidence of guilt; while there may be good reasons in a particular case for an intermediate appellate court to focus only on case-dispositive issues, the court is not precluded from offering alternative holdings; in the present case, the court of criminal appeals might have wanted the CAAF to know that it had performed its responsibility under Article 66(c) to weigh the legal and factual sufficiency of the evidence in the event that the CAAF were to disagree with its decision on the instructional issue

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

1. an appellate court considers allegations of error involving mandatory instructions under a de novo standard of review; it reviews issues concerning non-mandatory instructions for an abuse of discretion
2. because MRE 301(g) requires a balancing of both mandatory and non-mandatory components, the standard of review must take into account the specific attributes of the rule; when a military judge gives a failure-to-testify instruction over defense objection after having identified the case-specific “interests of justice” that support his decision and articulating his analysis of those interests relative to the defense election, then he should be accorded great deference under a standard of review of abuse of discretion; if he identifies the interests of justice in question but does not articulate his balancing of those interests with the defense election, he is accorded less deference; if he does not identify interests of justice at all, the standard of review is de novo
3. when a military judge commits error by giving a failure-to-testify instruction over defense objection in the absence of articulated case-specific interests of justice, a presumption of prejudice results; the government then bears the burden of showing by a preponderance of the evidence why the appellant was not prejudiced by the instruction; in this case, the government did not carry its burden of rebutting the presumption of prejudice where the prosecution’s evidence, while strong, was not dispositive of the factual and legal issues of guilt and where the defense offered serious and repeated objections to the instruction