U.S. v. Davis, 76 M.J. 224

Military Justice Personnel: Military Judge: Instructions

1. RCM 920(e) lists required instructions on findings, meaning instructions that shall be given; this list of required instructions includes the elements of the offense, elements of each lesser included offense, and, any special (affirmative) defense under RCM 916 in issue; relatedly, Article 51(c), UCMJ, requires that members be instructed, inter alia, as to the elements of the offense; this statutory duty extends to affirmative defenses as well
2. where a special (affirmative) defense is reasonably raised by the evidence, an instruction on that defense is required
3. the threshold question in determining whether a military judge erred in failing to give a mistake-of-fact instruction is whether that defense was reasonably raised by the evidence — in other words, was there error at all
4. in this case, even assuming that appellant’s statement, “I thought she was joking until I saw her crying,” was some evidence of an honest mistake about consent, there was not an iota of evidence that such a belief was reasonable, where appellant overwhelmed the victim with physical force, pinned her down, and penetrated her while she repeatedly told him to stop; accordingly, the military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. mistake of fact is a special (affirmative) defense under RCM 916(j)
2. the test for determining whether an affirmative defense of mistake of fact has been raised is whether the record contains some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. mistake of fact is a special (affirmative) defense under RCM 916(j)
2. the test for determining whether an affirmative defense of mistake of fact has been raised is whether the record contains some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired
3. the threshold question in determining whether a military judge erred in failing to give a mistake-of-fact instruction is whether that defense was reasonably raised by the evidence — in other words, was there error at all
4. in this case, even assuming that appellant’s statement, “I thought she was joking until I saw her crying,” was some evidence of an honest mistake about consent, there was not an iota of evidence that such a belief was reasonable, where appellant overwhelmed the victim with physical force, pinned her down, and penetrated her while she repeatedly told him to stop; accordingly, the military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions

Trial Stages: Merits: Instructions › Generally

1. an accused’s right to a required instruction on findings is not waived (that is, extinguished on appeal) by a failure to object without more
2. RCM 920(e) lists required instructions on findings, meaning instructions that shall be given; this list of required instructions includes the elements of the offense, elements of each lesser included offense, and, any special (affirmative) defense under RCM 916 in issue; relatedly, Article 51(c), UCMJ, requires that members be instructed, inter alia, as to the elements of the offense; this statutory duty extends to affirmative defenses as well
3. if a military judge omits a required instruction that is reasonably raised by the evidence, the accused may preserve the instructional error either by making an adequate objection or by requesting an instruction in a way that sufficiently signals to the military judge the existence of an error in need of correction
4. the accused may choose to affirmatively waive certain required instructions, extinguishing the claim of error and leaving nothing for an appellate court to correct on appeal

Trial Stages: Merits: Instructions › Affirmative defenses

1. RCM 920(e) lists required instructions on findings, meaning instructions that shall be given; this list of required instructions includes the elements of the offense, elements of each lesser included offense, and, any special (affirmative) defense under RCM 916 in issue; relatedly, Article 51(c), UCMJ, requires that members be instructed, inter alia, as to the elements of the offense; this statutory duty extends to affirmative defenses as well
2. where a special (affirmative) defense is reasonably raised by the evidence, an instruction on that defense is required
3. the test for determining whether an affirmative defense of mistake of fact has been raised is whether the record contains some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired
4. the threshold question in determining whether a military judge erred in failing to give a mistake-of-fact instruction is whether that defense was reasonably raised by the evidence — in other words, was there error at all
5. in this case, even assuming that appellant’s statement, “I thought she was joking until I saw her crying,” was some evidence of an honest mistake about consent, there was not an iota of evidence that such a belief was reasonable, where appellant overwhelmed the victim with physical force, pinned her down, and penetrated her while she repeatedly told him to stop; accordingly, the military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. it is simply not for a service court of criminal appeals to act on the assumption that an opinion of the CAAF has been implicitly overruled; overruling by implication is disfavored, and the service courts of criminal appeals must adhere to the CAAF’s precedent even when they believe that subsequent decisions call earlier decisions into question; if a service court of criminal appeals is convinced that the underlying logic of a CAAF opinion has changed in the meantime, its recourse is to express that viewpoint and to urge the CAAF’s reconsideration of its precedent; beyond that, however, the service court is bound either to follow the existing CAAF precedent or to distinguish it; it is the CAAF’s prerogative to overrule its own decisions

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. it is the CAAF’s prerogative to overrule its own decisions

Trial Stages: Appeals: Preservation of Error / Plain Error

1. to the extent that US v. Taylor, 26 MJ 127 (CMA 1988), can be read to suggest that plain error review is never appropriate in the context of a required instruction where there was no objection, it is contrary to the great weight of authority, and is overruled
2. where appellant failed to object to the omission of a required instruction on a special defense, an appellate court reviews the military judge’s instructions for plain error
3. forfeiture is the passive abandonment of a right by neglecting to preserve an objection, whereas waiver is the affirmative, intentional relinquishment or abandonment of a known right; forfeiture results in plain error review, but waiver leaves no error for an appellate court to correct on appeal
4. if a military judge omits a required instruction that is reasonably raised by the evidence, the accused may preserve the instructional error either by making an adequate objection or by requesting an instruction in a way that sufficiently signals to the military judge the existence of an error in need of correction
5. where required instructional error is preserved, an appellate court tests for harmlessness; however, if an accused fails to preserve the instructional error by an adequate objection or request, an appellate court tests for plain error
6. the accused may choose to affirmatively waive certain required instructions, extinguishing the claim of error and leaving nothing for an appellate court to correct on appeal
7. in this case, where appellant did not object to the instructions given or request a mistake-of-fact instruction, the military judge’s failure to give a mistake-of-fact instruction is reviewed for plain error
8. waiver in the context of required instructions is accomplished by an affirmative action, not a mere failure to object; RCM 920(f), the court-martial rule on waiver of instructions on findings, is a forfeiture provision, not a waiver provision
9. plain error review is called for when an appellant fails to request an affirmative defense instruction or fails to request any required instruction under RCM 920(e), overruling US v. Taylor, 26 MJ 127 (CMA 1988), to the extent that it can be read to suggest otherwise
10. under a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused
11. in this case, even assuming that appellant’s statement, “I thought she was joking until I saw her crying,” was some evidence of an honest mistake about consent, there was not an iota of evidence that such a belief was reasonable, where appellant overwhelmed the victim with physical force, pinned her down, and penetrated her while she repeatedly told him to stop; accordingly, the military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions

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

1. where appellant failed to object to the omission of a required instruction on a special defense, an appellate court reviews the military judge’s instructions for plain error
2. forfeiture is the passive abandonment of a right by neglecting to preserve an objection, whereas waiver is the affirmative, intentional relinquishment or abandonment of a known right; forfeiture results in plain error review, but waiver leaves no error for an appellate court to correct on appeal
3. whether a required instruction on findings contained within RCM 920(e) is reasonably raised by the evidence is a question of law that an appellate court reviews de novo
4. where required instructional error is preserved, an appellate court tests for harmlessness; however, if an accused fails to preserve the instructional error by an adequate objection or request, an appellate court tests for plain error
5. the accused may choose to affirmatively waive certain required instructions, extinguishing the claim of error and leaving nothing for an appellate court to correct on appeal
6. the threshold question in determining whether a military judge erred in failing to give a mistake-of-fact instruction is whether that defense was reasonably raised by the evidence — in other words, was there error at all — a question of law that an appellate court reviews de novo
7. under a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused

Trial Stages: Appeals: Waiver

1. an accused’s right to a required instruction on findings is not waived (that is, extinguished on appeal) by a failure to object without more
2. forfeiture is the passive abandonment of a right by neglecting to preserve an objection, whereas waiver is the affirmative, intentional relinquishment or abandonment of a known right; forfeiture results in plain error review, but waiver leaves no error for an appellate court to correct on appeal
3. the accused may choose to affirmatively waive certain required instructions, extinguishing the claim of error and leaving nothing for an appellate court to correct on appeal
4. waiver in the context of required instructions is accomplished by an affirmative action, not a mere failure to object; RCM 920(f), the court-martial rule on waiver of instructions on findings, is a forfeiture provision, not a waiver provision