U.S. v. Gutierrez, 64 M.J. 374

Military Justice Personnel: Military Judge: Instructions

1. the affirmative defense of mistake of fact is a required instruction under RCM 920(e)(3); when this defense is reasonably raised by the evidence, the military judge is duty-bound to give an instruction, unless it is affirmatively waived
2. a military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, even though the instructions are not requested by the parties
3. like affirmative defenses, lesser included offenses are required instructions under RCM 920(e) and cannot be waived simply by counsel’s failure to request such instructions

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. the affirmative defense of mistake of fact is a required instruction under RCM 920(e)(3); when this defense is reasonably raised by the evidence, the military judge is duty-bound to give an instruction, unless it is affirmatively waived
2. even if an affirmative defense is reasonably raised by the evidence, it can be affirmatively waived by the defense
3. there are no magic words to establish affirmative waiver of a defense; in making waiver determinations, an appellate court looks to the record to see if the statements signify that there was a “purposeful decision” at play

Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility

1. the affirmative defense of mistake of fact is a required instruction under RCM 920(e)(3); when this defense is reasonably raised by the evidence, the military judge is duty-bound to give an instruction, unless it is affirmatively waived
2. an accused does not waive his right to a mistake of fact instruction by failure to request it or by failure to object to its omission
3. the defense counsel affirmatively waived an instruction on the affirmative defense of mistake of fact with respect to the lesser-included offense of assault consummated by a battery, where during an Article 39(a) session, the military judge raised a possible mistake of fact instruction for that offense and specifically asked the defense counsel if he was requesting one, and the defense counsel replied that he simply did not want to request one for battery; the defense counsel was presented with the opportunity to request or decline the mistake of fact instruction; he chose to decline it, and in doing so he affirmatively waived his right to the instruction; in the context of the whole record, there is no doubt that defense counsel’s statement was a purposeful decision to forego the defense instruction as to assault consummated by battery

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. the affirmative defense of mistake of fact is a required instruction under RCM 920(e)(3); when this defense is reasonably raised by the evidence, the military judge is duty-bound to give an instruction, unless it is affirmatively waived
2. an accused does not waive his right to a mistake of fact instruction by failure to request it or by failure to object to its omission
3. the defense counsel affirmatively waived an instruction on the affirmative defense of mistake of fact with respect to the lesser-included offense of assault consummated by a battery, where during an Article 39(a) session, the military judge raised a possible mistake of fact instruction for that offense and specifically asked the defense counsel if he was requesting one, and the defense counsel replied that he simply did not want to request one for battery; the defense counsel was presented with the opportunity to request or decline the mistake of fact instruction; he chose to decline it, and in doing so he affirmatively waived his right to the instruction; in the context of the whole record, there is no doubt that defense counsel’s statement was a purposeful decision to forego the defense instruction as to assault consummated by battery

Trial Stages: Merits: Instructions › Lesser-included offenses

1. like affirmative defenses, lesser included offenses are required instructions under RCM 920(e) and cannot be waived simply by counsel’s failure to request such instructions

Trial Stages: Merits: Instructions › Affirmative defenses

1. the affirmative defense of mistake of fact is a required instruction under RCM 920(e)(3); when this defense is reasonably raised by the evidence, the military judge is duty-bound to give an instruction, unless it is affirmatively waived
2. even if an affirmative defense is reasonably raised by the evidence, it can be affirmatively waived by the defense
3. there are no magic words to establish affirmative waiver of a defense; in making waiver determinations, an appellate court looks to the record to see if the statements signify that there was a “purposeful decision” at play
4. the defense counsel affirmatively waived an instruction on the affirmative defense of mistake of fact with respect to the lesser-included offense of assault consummated by a battery, where during an Article 39(a) session, the military judge raised a possible mistake of fact instruction for that offense and specifically asked the defense counsel if he was requesting one, and the defense counsel replied that he simply did not want to request one for battery; the defense counsel was presented with the opportunity to request or decline the mistake of fact instruction; he chose to decline it, and in doing so he affirmatively waived his right to the instruction; in the context of the whole record, there is no doubt that defense counsel’s statement was a purposeful decision to forego the defense instruction as to assault consummated by battery

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

1. there are no magic words to establish affirmative waiver of a defense; in making waiver determinations, an appellate court looks to the record to see if the statements signify that there was a “purposeful decision” at play
2. whether an affirmative defense has been affirmatively waived is an instructional claim that an appellate court reviews de novo