U.S. v. Haverty, 76 M.J. 199

Military Justice Personnel: Military Judge: Instructions

1. the military judge committed plain error in this case by not instructing the panel that the proper mens rea standard required for an Article 92, UCMJ, violation of Army Regulation 600-20, prohibiting hazing was recklessness; there was error, the error was clear or obvious, and appellant met his burden of showing that the error had an unfair prejudicial impact on the members deliberations; not only did the military judge not instruct the panel that it must find appellant acted with a mens rea of recklessly, the military judge did not instruct the panel that it needed to find any mens rea at all; as such, based on the military judge’s instructions, it may be presumed that the panel applied a general intent analysis whereby appellant’s knowledge of his commission of the actus reus alone was sufficient to determine guilt; because appellant contested the issue of intent in this case, the military judge’s error had an unfair prejudicial impact on the members’ deliberations and appellant demonstrated material prejudice to a substantial right

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. when construing an order — a violation of which underlies an Article 92, UCMJ, offense — commanders should be held to the same standard as legislatures when determining whether they intended to create an offense that does not require the government to prove an accused’s mens rea; that is, they must speak with a clear voice on the matter; when a commander fails to do so, the criminal offense is interpreted as including broadly applicable scienter requirements; accordingly, in such cases, the proper level of mens rea is only that necessary to separate wrongful conduct from otherwise innocent conduct
2. in order for conduct to be prosecuted for an Article 92, UCMJ, violation as hazing under Army Regulation 600-20, that conduct must consist of any form of initiation rite of passage or congratulatory act
3. the minimum mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, prohibiting hazing is recklessness
4. the elements of hazing under AR 600-20 are as follows: (1) conduct (2) that unnecessarily causes another (3) to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful; recklessly is the sufficient mens rea for this offense; pursuant to this mens rea requirement, in order for an accused to be convicted under Article 92, UCMJ, for a violation of AR 600-20 para. 4-20, the accused must have consciously disregarded a known risk that his or her conduct would unnecessarily cause another military member or employee to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful; in this regard, a servicemember who honestly believes that an activity is not cruel, abusive, oppressive, or harmful could not be held criminally liable; the recklessness standard is sufficient to separate wrongful conduct from innocent conduct in prosecutions under AR 600-20 para. 4-20

Trial Stages: Merits: Instructions › Generally

1. the military judge committed plain error in this case by not instructing the panel that the proper mens rea standard required for an Article 92, UCMJ, violation of Army Regulation 600-20, prohibiting hazing was recklessness; there was error, the error was clear or obvious, and appellant met his burden of showing that the error had an unfair prejudicial impact on the members deliberations; not only did the military judge not instruct the panel that it must find appellant acted with a mens rea of recklessly, the military judge did not instruct the panel that it needed to find any mens rea at all; as such, based on the military judge’s instructions, it may be presumed that the panel applied a general intent analysis whereby appellant’s knowledge of his commission of the actus reus alone was sufficient to determine guilt; because appellant contested the issue of intent in this case, the military judge’s error had an unfair prejudicial impact on the members’ deliberations and appellant demonstrated material prejudice to a substantial right

Trial Stages: Appeals: Preservation of Error / Plain Error

1. because appellant did not object to the military judge’s failure to instruct the members on a mens rea requirement for the offense of hazing under Article 92, UCMJ, the issue is reviewed by an appellate court for plain error; furthermore, panel instructions are analyzed for plain error based on the law at the time of the appeal
2. with respect to the third prong of the plain error analysis, appellant has the burden of showing that the error had an unfair prejudicial impact on the members’ deliberations
3. the military judge committed plain error in this case by not instructing the panel that the proper mens rea standard required for an Article 92, UCMJ, violation of Army Regulation 600-20, prohibiting hazing was recklessness; there was error, the error was clear or obvious, and appellant met his burden of showing that the error had an unfair prejudicial impact on the members deliberations; not only did the military judge not instruct the panel that it must find appellant acted with a mens rea of recklessly, the military judge did not instruct the panel that it needed to find any mens rea at all; as such, based on the military judge’s instructions, it may be presumed that the panel applied a general intent analysis whereby appellant’s knowledge of his commission of the actus reus alone was sufficient to determine guilt; because appellant contested the issue of intent in this case, the military judge’s error had an unfair prejudicial impact on the members’ deliberations and appellant demonstrated material prejudice to a substantial right

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

1. because appellant did not object to the military judge’s failure to instruct the members on a mens rea requirement for the offense of hazing under Article 92, UCMJ, the issue is reviewed by an appellate court for plain error; furthermore, panel instructions are analyzed for plain error based on the law at the time of the appeal
2. with respect to the third prong of the plain error analysis, appellant has the burden of showing that the error had an unfair prejudicial impact on the members’ deliberations
3. an appellate court presumes that the panel followed the instructions given by the military judge

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

1. the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence; although there are exceptions, the general rule is that a guilty mind is a necessary element in the indictment and proof of every crime; however, the general rule that an accused must have a guilty mind does not mean that, as a general rule, an accused must know that his actions constitute criminal conduct
2. mens rea is not always required for criminal offenses; with strict liability offenses, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction; however, strict liability offenses are generally disfavored
3. silence in a criminal statute regarding a mens rea requirement does not necessarily prevent such a requirement from being inferred; courts must seek to discern any legislative intent about a mens rea requirement in a statute that is otherwise silent; if a court determines that Congress intended, either expressly or impliedly, to purposefully omit a mens rea requirement, then the court must respect that legislative intent; similarly, if a court determines that Congress intended, either expressly or impliedly, to have a particular mens rea requirement apply to a certain criminal statute, then the court must construe that statute accordingly; if, however, a statute is silent regarding a mens rea requirement, and if a court cannot discern the legislative intent in regard to that statute, then the court will infer a mens rea requirement consistent with the general rule that a guilty mind is a necessary element in the indictment and proof of every crime