U.S. v. McClour, 76 M.J. 23

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges are barred from contravening the right to a trial by members by directing members to return a verdict of guilty

Military Justice Personnel: Military Judge: Instructions

1. it is not plain error for a military judge to instruct panel members that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty
2. a directed verdict is a ruling by a trial judge taking a case from the jury because the evidence will permit only one reasonable verdict; the harm of a directed verdict is that it deprives the panel of the power to determine guilt, and the accused of the statutory right to have his guilt determined by a panel of fellow servicemembers
3. in this case, where the judge instructed the members that if, based on their consideration of the evidence, they were firmly convinced that the accused was guilty of the offense charged, they must find him guilty, this was not a directed verdict; the military judge reiterated that the panel members were the ones to determine guilt or innocence by weighing and evaluating the evidence and using their own common sense, their own knowledge of human nature and the ways of the world; when taken as a whole, the instructions clearly stated the proper burden of proof and left it to the members to determine whether the government’s evidence met that burden; nothing more was required; as such, it cannot be said that any error (if error there were) on the military judge’s part in using the word “must” in his burden of proof instruction was clear or obvious, and accordingly, appellant failed to establish plain error

Trial Stages: Merits: Instructions › Generally

1. it is not plain error for a military judge to instruct panel members that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty
2. in this case, where the judge instructed the members that if, based on their consideration of the evidence, they were firmly convinced that the accused was guilty of the offense charged, they must find him guilty, this was not a directed verdict; the military judge reiterated that the panel members were the ones to determine guilt or innocence by weighing and evaluating the evidence and using their own common sense, their own knowledge of human nature and the ways of the world; when taken as a whole, the instructions clearly stated the proper burden of proof and left it to the members to determine whether the government’s evidence met that burden; nothing more was required; as such, it cannot be said that any error (if error there were) on the military judge’s part in using the word “must” in his burden of proof instruction was clear or obvious, and accordingly, appellant failed to establish plain error

Trial Stages: Appeals: Preservation of Error / Plain Error

1. it is not plain error for a military judge to instruct panel members that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty
2. where there was no objection to an instruction at trial, an appellate court reviews that instruction for plain error
3. with respect to plain error, an appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim; and in determining whether an error is clear or obvious, an appellate court looks to law at the time of the appeal
4. in this case, where the judge instructed the members that if, based on their consideration of the evidence, they were firmly convinced that the accused was guilty of the offense charged, they must find him guilty, this was not a directed verdict; the military judge reiterated that the panel members were the ones to determine guilt or innocence by weighing and evaluating the evidence and using their own common sense, their own knowledge of human nature and the ways of the world; when taken as a whole, the instructions clearly stated the proper burden of proof and left it to the members to determine whether the government’s evidence met that burden; nothing more was required; as such, it cannot be said that any error (if error there were) on the military judge’s part in using the word “must” in his burden of proof instruction was clear or obvious, and accordingly, appellant failed to establish plain error

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

1. whether a panel was properly instructed is a question of law reviewed de novo
2. where there was no objection to an instruction at trial, an appellate court reviews that instruction for plain error
3. with respect to plain error, an appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim; and in determining whether an error is clear or obvious, an appellate court looks to law at the time of the appeal