U.S. v. DiPaola, 67 M.J. 98

Military Justice Personnel: Military Judge: Instructions

1. if the record contains some evidence of the affirmative defense of mistake of fact to which the military jury may attach credit if it so desires, the military judge is required to instruct the panel on that affirmative defense
2. a military judge is required to instruct the panel on affirmative defenses, such as mistake of fact, if the record contains some evidence to which the military jury may attach credit if it so desires; when the defense has been raised by some evidence, the military judge has a sua sponte duty to give the instruction
3. an accused is not required to testify in order to establish a mistake-of-fact defense; the evidence to support a mistake-of-fact instruction can come from evidence presented by the defense, the prosecution, or the court-martial
4. the defense theory at trial and the nature of the evidence presented by the defense are factors that may be considered in determining whether the accused is entitled to a mistake of fact instruction; any doubt whether an instruction should be given should be resolved in favor of the accused
5. a military judge’s duty to instruct is not determined by the defense theory; he must instruct if the defense is raised; the defense’s theory of the case is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence but can be taken into account when considering the evidence
6. evidence that the victim consented to and willingly participated in some of the sexual acts listed in the specification was some evidence that appellant honestly and reasonably believed the victim consented to some of his actions, requiring a mistake-of-fact instruction on the indecent assault specification; appellant and the victim had a prior consensual sexual relationship, the victim consented to the removal of her shirt and the kissing of her breasts after saying “no” to intercourse, creating a mixed message as to which acts were permissible and which were off-limits; where the record revealed a mixed message evidentiary situation in conjunction with defense counsel’s mixed message theme in his opening and closing statements and his request for a mistake-of-fact instruction, it contained some evidence of a mistake of fact that the panel could attach credit to if it so desired, and the military judge erred in failing to give a mistake-of-fact instruction on the specification
7. while the military judge has a sua sponte duty to give a mistake-of-fact instruction even in the absence of a defense request, counsel’s request for the instruction is indicative of the defense’s theory of the case and can be considered by appellate courts as context for whether the entire record contains some evidence that would support the instruction
8. when some evidence exists in the record, the military judge must give a mistake-of-fact instruction
9. in the context of this case, the absence of a mistake-of-fact instruction on the indecent assault specification was not harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to an indecent exposure specification involving the same victim in the same setting; had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, it is not clear beyond a reasonable doubt that a rational jury would have found appellant guilty absent the error; the missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty

Core Criminal Law Subjects: Crimes: Article 134 -- Assault, Indecent Pre-2019 offenses

1. while an indecent assault offense includes a specific intent element as to whether the touching was committed to satisfy the lust or sexual desires of the accused, the lack of consent element of the offense is a general intent element; accordingly, a mistake-of-fact defense on this element would require both a subjective belief of consent and a belief that was reasonable under all circumstances
2. evidence that the victim consented to and willingly participated in some of the sexual acts listed in the specification was some evidence that appellant honestly and reasonably believed the victim consented to some of his actions, requiring a mistake-of-fact instruction on the indecent assault specification; appellant and the victim had a prior consensual sexual relationship, the victim consented to the removal of her shirt and the kissing of her breasts after saying “no” to intercourse, creating a mixed message as to which acts were permissible and which were off-limits; where the record revealed a mixed message evidentiary situation in conjunction with defense counsel’s mixed message theme in his opening and closing statements and his request for a mistake-of-fact instruction, it contained some evidence of a mistake of fact that the panel could attach credit to if it so desired, and the military judge erred in failing to give a mistake-of-fact instruction on the specification
3. in the context of this case, the absence of a mistake-of-fact instruction on the indecent assault specification was not harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to an indecent exposure specification involving the same victim in the same setting; had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, it is not clear beyond a reasonable doubt that a rational jury would have found appellant guilty absent the error; the missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. if the record contains some evidence of the affirmative defense of mistake of fact to which the military jury may attach credit if it so desires, the military judge is required to instruct the panel on that affirmative defense
2. a military judge is required to instruct the panel on affirmative defenses, such as mistake of fact, if the record contains some evidence to which the military jury may attach credit if it so desires; when the defense has been raised by some evidence, the military judge has a sua sponte duty to give the instruction
3. an accused is not required to testify in order to establish a mistake-of-fact defense; the evidence to support a mistake-of-fact instruction can come from evidence presented by the defense, the prosecution, or the court-martial
4. the defense theory at trial and the nature of the evidence presented by the defense are factors that may be considered in determining whether the accused is entitled to a mistake of fact instruction; any doubt whether an instruction should be given should be resolved in favor of the accused
5. while an indecent assault offense includes a specific intent element as to whether the touching was committed to satisfy the lust or sexual desires of the accused, the lack of consent element of the offense is a general intent element; accordingly, a mistake-of-fact defense on this element would require both a subjective belief of consent and a belief that was reasonable under all circumstances
6. a military judge’s duty to instruct is not determined by the defense theory; he must instruct if the defense is raised; the defense’s theory of the case is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence but can be taken into account when considering the evidence
7. evidence that the victim consented to and willingly participated in some of the sexual acts listed in the specification was some evidence that appellant honestly and reasonably believed the victim consented to some of his actions, requiring a mistake-of-fact instruction on the indecent assault specification; appellant and the victim had a prior consensual sexual relationship, the victim consented to the removal of her shirt and the kissing of her breasts after saying “no” to intercourse, creating a mixed message as to which acts were permissible and which were off-limits; where the record revealed a mixed message evidentiary situation in conjunction with defense counsel’s mixed message theme in his opening and closing statements and his request for a mistake-of-fact instruction, it contained some evidence of a mistake of fact that the panel could attach credit to if it so desired, and the military judge erred in failing to give a mistake-of-fact instruction on the specification
8. while the military judge has a sua sponte duty to give a mistake-of-fact instruction even in the absence of a defense request, counsel’s request for the instruction is indicative of the defense’s theory of the case and can be considered by appellate courts as context for whether the entire record contains some evidence that would support the instruction
9. when some evidence exists in the record, the military judge must give a mistake-of-fact instruction
10. in the context of this case, the absence of a mistake-of-fact instruction on the indecent assault specification was not harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to an indecent exposure specification involving the same victim in the same setting; had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, it is not clear beyond a reasonable doubt that a rational jury would have found appellant guilty absent the error; the missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty

Trial Stages: Merits: Instructions › Affirmative defenses

1. if the record contains some evidence of the affirmative defense of mistake of fact to which the military jury may attach credit if it so desires, the military judge is required to instruct the panel on that affirmative defense
2. a military judge is required to instruct the panel on affirmative defenses, such as mistake of fact, if the record contains some evidence to which the military jury may attach credit if it so desires; when the defense has been raised by some evidence, the military judge has a sua sponte duty to give the instruction
3. an accused is not required to testify in order to establish a mistake-of-fact defense; the evidence to support a mistake-of-fact instruction can come from evidence presented by the defense, the prosecution, or the court-martial
4. the defense theory at trial and the nature of the evidence presented by the defense are factors that may be considered in determining whether the accused is entitled to a mistake of fact instruction; any doubt whether an instruction should be given should be resolved in favor of the accused
5. a military judge’s duty to instruct is not determined by the defense theory; he must instruct if the defense is raised; the defense’s theory of the case is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence but can be taken into account when considering the evidence
6. evidence that the victim consented to and willingly participated in some of the sexual acts listed in the specification was some evidence that appellant honestly and reasonably believed the victim consented to some of his actions, requiring a mistake-of-fact instruction on the indecent assault specification; appellant and the victim had a prior consensual sexual relationship, the victim consented to the removal of her shirt and the kissing of her breasts after saying “no” to intercourse, creating a mixed message as to which acts were permissible and which were off-limits; where the record revealed a mixed message evidentiary situation in conjunction with defense counsel’s mixed message theme in his opening and closing statements and his request for a mistake-of-fact instruction, it contained some evidence of a mistake of fact that the panel could attach credit to if it so desired, and the military judge erred in failing to give a mistake-of-fact instruction on the specification
7. while the military judge has a sua sponte duty to give a mistake-of-fact instruction even in the absence of a defense request, counsel’s request for the instruction is indicative of the defense’s theory of the case and can be considered by appellate courts as context for whether the entire record contains some evidence that would support the instruction
8. when some evidence exists in the record, the military judge must give a mistake-of-fact instruction
9. in the context of this case, the absence of a mistake-of-fact instruction on the indecent assault specification was not harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to an indecent exposure specification involving the same victim in the same setting; had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, it is not clear beyond a reasonable doubt that a rational jury would have found appellant guilty absent the error; the missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty

Trial Stages: Appeals: Harmless / Prejudicial Error

1. once it is determined that a specific instruction is required but not given, the test for determining whether this constitutional error was harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; stated differently, the test is: is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error
2. in the context of this case, the absence of a mistake-of-fact instruction on the indecent assault specification was not harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to an indecent exposure specification involving the same victim in the same setting; had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, it is not clear beyond a reasonable doubt that a rational jury would have found appellant guilty absent the error; the missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty

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

1. once it is determined that a specific instruction is required but not given, the test for determining whether this constitutional error was harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; stated differently, the test is: is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error