U.S. v. Stanley, 71 M.J. 60

Military Justice Personnel: Military Judge: Instructions

1. a military judge is required to instruct members on any affirmative defense that is in issue, and a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose
2. military judges have substantial discretionary power in deciding on the instructions to give; however, when an affirmative defense is raised by the evidence, an instruction is required
3. waiver does not apply to required instructions such as affirmative defenses
4. an escalation of force instruction, in addition to detailed self-defense instructions that were given, was not warranted in a trial for two specifications of premeditated murder where appellant had escalated a conflict involving a physical altercation between his companion and a second victim into one involving use of deadly force when he came out of closet and held the victims at gun point, and then used the weapon to subdue them and to forcibly search them for weapons; although the fact that the first victim picked up a rifle and shot at appellant constituted the use of deadly force, at that point, the level of conflict had already been escalated to one involving the use of deadly force by appellant; furthermore, even though appellant alleged that the second victim attempted to stab his companion with a knife from behind, the issue for the members was simply whether appellant was entitled to use deadly force in defense of another and escalation of force was not in issue; accordingly, the military judge did not err in excluding the principle of escalation of force in his self-defense instructions to the members

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. an affirmative defense is raised by the evidence when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose

Core Criminal Law Subjects: Defenses: Self-Defense

1. self-defense is an affirmative defense for homicide or assault cases involving deadly force that consists of two elements: (1) that the accused apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on him; and (2) that the accused believed that the force he used was necessary for protection against death or grievous bodily harm
2. the theory of self-defense is protection and not aggression, and to keep the two in rough balance, the force to repel should approximate the violence threatened
3. even a person who starts an affray is entitled to use self-defense when the opposing party escalates the level of the conflict

Trial Stages: Merits: Instructions › Generally

1. waiver does not apply to required instructions such as affirmative defenses

Trial Stages: Merits: Instructions › Affirmative defenses

1. a military judge is required to instruct members on any affirmative defense that is in issue, and a matter is considered in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose
2. military judges have substantial discretionary power in deciding on the instructions to give; however, when an affirmative defense is raised by the evidence, an instruction is required
3. waiver does not apply to required instructions such as affirmative defenses
4. an escalation of force instruction, in addition to detailed self-defense instructions that were given, was not warranted in a trial for two specifications of premeditated murder where appellant had escalated a conflict involving a physical altercation between his companion and a second victim into one involving use of deadly force when he came out of closet and held the victims at gun point, and then used the weapon to subdue them and to forcibly search them for weapons; although the fact that the first victim picked up a rifle and shot at appellant constituted the use of deadly force, at that point, the level of conflict had already been escalated to one involving the use of deadly force by appellant; furthermore, even though appellant alleged that the second victim attempted to stab his companion with a knife from behind, the issue for the members was simply whether appellant was entitled to use deadly force in defense of another and escalation of force was not in issue; accordingly, the military judge did not err in excluding the principle of escalation of force in his self-defense instructions to the members

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

1. whether a panel was properly instructed is a question of law reviewed by an appellate court de novo

Trial Stages: Appeals: Waiver

1. waiver does not apply to required instructions such as affirmative defenses