U.S. v. Lewis, 65 M.J. 85

Military Justice Personnel: Military Judge: Instructions

1. a military judge is required to instruct the members on special (affirmative) defenses in issue; a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which the members might rely if they choose
2. in this case, the self-defense instruction given was incomplete where the military judge erred in not instructing the members that a mutual combatant could regain the right to self-defense when the opposing party escalated the conflict and when he was incapable of withdrawing in good faith
3. military judge’s failure to give complete and correct self-defense instruction created a constitutional error

Core Criminal Law Subjects: Defenses: Self-Defense

1. self-defense is considered a special defense, because although not denying that the accused committed the objective acts constituting the offense charged, self-defense denies, wholly or partially, criminal responsibility for those acts
2. under RCM 916(e)(4), the right to self-defense is lost if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to an apprehension that the accused was about to suffer death or grievous bodily harm, unless the accused had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred; while RCM 916(e)(4) sets out a duty to withdraw under certain circumstances in order to avail oneself of the defense of self-defense, it does not address either escalation in general or the specific situation in which the original aggressor or someone engaged in mutual combat is not able to withdraw in good faith; the Rule’s silence regarding an inability to withdraw creates an ambiguity
3. under common law self-defense principles, even a person who starts an affray is entitled to use self-defense when the opposing party escalates the level of the conflict
4. a mutual combatant can regain the right of self-defense when the opposing party escalates the conflict and when he is incapable of withdrawing in good faith, as long as he responds in a manner proportionate to the threat faced; RCM 916(e)(4) does not require the absurd result of requiring a mutual combatant or even an initial aggressor to withdraw when he is physically incapable of doing so
5. in this case, the self-defense instruction given was incomplete where the military judge erred in not instructing the members that a mutual combatant could regain the right to self-defense when the opposing party escalated the conflict and when he was incapable of withdrawing in good faith
6. military judge’s failure to give complete and correct self-defense instruction created a constitutional error

Trial Stages: Merits: Instructions › Affirmative defenses

1. a military judge is required to instruct the members on special (affirmative) defenses in issue; a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which the members might rely if they choose
2. in this case, the self-defense instruction given was incomplete where the military judge erred in not instructing the members that a mutual combatant could regain the right to self-defense when the opposing party escalated the conflict and when he was incapable of withdrawing in good faith
3. military judge’s failure to give complete and correct self-defense instruction created a constitutional error

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when the instructional error raises constitutional implications, the error is tested for prejudice using a harmless beyond a reasonable doubt standard; 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. military judge’s failure to give complete and correct self-defense instruction created a constitutional error, requiring a determination as to whether the error was harmless beyond a reasonable doubt; in assessing prejudice under this standard, the government must prove, beyond a reasonable doubt, that the instructional error did not contribute to the members’ guilty findings
3. military judge’s failure to give complete and correct self-defense instruction was not harmless beyond a reasonable doubt, where the incomplete instruction essentially undercut the defense theory and could very well have contributed to the finding of guilty; the members were told that if they found the accused was engaged in mutual combat or provoked the fight, he could not assert self-defense, if he did not first withdraw from the original fight; this incomplete instruction prevented the accused from fully asserting that he rightfully defended himself (1) after an escalation of violence; and (2) when he was incapable of withdrawing in good faith

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

1. if an instruction is mandatory, an appellate court will review allegations of error under a de novo standard of review
2. when the instructional error raises constitutional implications, the error is tested for prejudice using a harmless beyond a reasonable doubt standard; 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. an appellate court uses well-established principles of statutory construction to construe provisions in the MCM; statutory construction begins with a look at the plain language of a rule; the plain language will control, unless use of the plain language would lead to an absurd result

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. an appellate court uses well-established principles of statutory construction to construe provisions in the MCM; statutory construction begins with a look at the plain language of a rule; the plain language will control, unless use of the plain language would lead to an absurd result