U.S. v. Wolford, 62 M.J. 418

Military Justice Personnel: Military Judge: Instructions

1. a military judge is obligated to assure that the accused receives a fair trial; this obligation includes the duty to provide appropriate legal guidelines to assist the jury in its deliberations; failure to provide correct and complete instructions to the panel before deliberations begin may amount to a denial of due process
2. a military judge’s instructions are intended to aid the members in the understanding of terms of art, to instruct the members on the elements of each offense and to explain any available defenses
3. a military judge is more than a mere referee; he is charged with deciding whether any defense is reasonably raised by the evidence; if there is some evidence of a possible defense –- it does not have to be compelling or convincing beyond a reasonable doubt –- the military judge is duty bound to give an instruction even if the instruction was not requested by the parties

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. images alone can constitute legally sufficient evidence as to whether an actual child was used to produce child pornography; the finder of fact can make a determination that an actual child was used to produce the images in question based upon a review of the images alone
2. it was not error for the military judge to use the introductory language of 18 U.S.C. § 2256(8) in his instructions on the definition of child pornography; the reference to “computer generated image” was not unconstitutional where the Supreme Court left intact 18 U.S.C. § 2256(8)(C) which prohibits computer morphing; therefore, some types of “computer generated images” are not constitutionally protected
3. in this case, the military judge erred in his affirmative defense instruction with respect to sending, receiving, and reproducing child pornography by using the phrase “conveys the impression,” language found by the Supreme Court to be unconstitutional
4. the military judge’s instruction on the definition of “child pornography” that included the language of 18 U.S.C. § 2256(8)(D) without the “conveys the impression” phrase was not erroneous; it is clear that the Supreme Court’s concern with § 2256(8)(D) centered on the “conveys the impression” language, its impact, and how it addressed how speech was presented, and not on what was actually depicted

Trial Stages: Merits: Instructions › Generally

1. failure to provide correct and complete instructions to the panel before deliberations begin may amount to a denial of due process
2. a military judge’s instructions are intended to aid the members in the understanding of terms of art, to instruct the members on the elements of each offense and to explain any available defenses
3. it was not error for the military judge to use the introductory language of 18 U.S.C. § 2256(8) in his instructions on the definition of child pornography; the reference to “computer generated image” was not unconstitutional where the Supreme Court left intact 18 U.S.C. § 2256(8)(C) which prohibits computer morphing; therefore, some types of “computer generated images” are not constitutionally protected
4. the military judge’s instruction on the definition of “child pornography” that included the language of 18 U.S.C. § 2256(8)(D) without the “conveys the impression” phrase was not erroneous; it is clear that the Supreme Court’s concern with § 2256(8)(D) centered on the “conveys the impression” language, its impact, and how it addressed how speech was presented, and not on what was actually depicted

Trial Stages: Merits: Instructions › Affirmative defenses

1. a military judge is charged with deciding whether any defense is reasonably raised by the evidence; if there is some evidence of a possible defense – it does not have to be compelling or convincing beyond a reasonable doubt –- the military judge is duty bound to give an instruction even if the instruction was not requested by the parties

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if instructional error is found and there are constitutional dimensions at play, the instructional claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence
2. in this case, the military judge erred in his affirmative defense instruction with respect to sending, receiving, and reproducing child pornography by using the phrase “conveys the impression,” language found by the Supreme Court to be unconstitutional; however, this error was harmless beyond a reasonable doubt where there was no evidence in the record of a possible affirmative defense and the defense counsel agreed that no instruction was needed

Trial Stages: Appeals: Law of the Case

1. if instructional error is found and there are constitutional dimensions at play, the instructional claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence
2. in this case, the military judge erred in his affirmative defense instruction with respect to sending, receiving, and reproducing child pornography by using the phrase “conveys the impression,” language found by the Supreme Court to be unconstitutional; however, this error was harmless beyond a reasonable doubt where there was no evidence in the record of a possible affirmative defense and the defense counsel agreed that no instruction was needed

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

1. even though defense counsel did not object to the military judge’s instructions at the time of trial, waiver must be established by affirmative action of the accused’s counsel, and not by a mere failure to object to erroneous instructions; where there is no affirmative waiver, an appellate court reviews instructional claims de novo
2. if instructional error is found and there are constitutional dimensions at play, the instructional claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence
3. with respect to a legal sufficiency claim, an appellate court’s test is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt
4. an appellate court reviews a military judge’s decision to give an instruction de novo

Trial Stages: Appeals: Waiver

1. even though defense counsel did not object to the military judge’s instructions at the time of trial, waiver must be established by affirmative action of the accused’s counsel, and not by a mere failure to object to erroneous instructions; where there is no affirmative waiver, an appellate court reviews instructional claims de novo