U.S. v. Bailey, 77 M.J. 11

Military Justice Personnel: Military Judge: Instructions

1. a military judge is required to instruct on the elements of a charged offense; these instructions should fairly and adequately cover the issues presented, and should include such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given
2. a counsel has the right to request tailored instructions, but a military judge has substantial discretionary power regarding whether to give those instructions
3. a military judge does not err in refusing to give a defense-requested instruction that is an incorrect statement of the law
4. if a definition of a phrase in an element of an offense is necessary for the panel members to understand it, then an instruction would be mandatory
5. it is a well known principle that words in a statute that are generally known and in universal use do not need judicial definition
6. incapable of consenting is an element of sexual assault charged under Article 120(b)(3); consistent with the principle that words generally known and in universal use do not require additional definition, the phrase incapable of consenting requires no additional definition or instruction on this point; incapable is not a technical legal or scientific term; the plain meaning of incapable is one that is generally and correctly understood as being unable to do something; at trial in this case, the military judge gave an instruction on the definition of consent; accordingly, the plain meaning of incapable combined with the definition of consent allowed the panel to understand the element incapable of consenting; as such, the military judge was not required to give an instruction on the definition of incapable of consenting

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Pre-2019 offenses › (b) Sexual Assault

1. sexual assault charged under Article 120(b)(3) requires in relevant part that the victim be incapable of consenting to the sexual act due to impairment by any intoxicant
2. with respect to sexual assault charged under Article 120(b)(3), a person can be awake and conscious and still be incapable of consenting
3. with respect to sexual assault charged under Article 120(b)(3), for a complainant to be incapable of consenting to a charged sexual act, it is not required that the complainant be completely unable to communicate
4. incapable of consenting is an element of sexual assault charged under Article 120(b)(3); consistent with the principle that words generally known and in universal use do not require additional definition, the phrase incapable of consenting requires no additional definition or instruction on this point; incapable is not a technical legal or scientific term; the plain meaning of incapable is one that is generally and correctly understood as being unable to do something; at trial in this case, the military judge gave an instruction on the definition of consent; accordingly, the plain meaning of incapable combined with the definition of consent allowed the panel to understand the element incapable of consenting; as such, the military judge was not required to give an instruction on the definition of incapable of consenting

Trial Stages: Merits: Instructions › Generally

1. a military judge is required to instruct on the elements of a charged offense; these instructions should fairly and adequately cover the issues presented, and should include such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given
2. a counsel has the right to request tailored instructions, but a military judge has substantial discretionary power regarding whether to give those instructions
3. a military judge does not err in refusing to give a defense-requested instruction that is an incorrect statement of the law
4. if a definition of a phrase in an element of an offense is necessary for the panel members to understand it, then an instruction would be mandatory
5. it is a well known principle that words in a statute that are generally known and in universal use do not need judicial definition
6. incapable of consenting is an element of sexual assault charged under Article 120(b)(3); consistent with the principle that words generally known and in universal use do not require additional definition, the phrase incapable of consenting requires no additional definition or instruction on this point; incapable is not a technical legal or scientific term; the plain meaning of incapable is one that is generally and correctly understood as being unable to do something; at trial in this case, the military judge gave an instruction on the definition of consent; accordingly, the plain meaning of incapable combined with the definition of consent allowed the panel to understand the element incapable of consenting; as such, the military judge was not required to give an instruction on the definition of incapable of consenting

Trial Stages: Appeals: Remedies › Remand

1. the appropriate remedy for incomplete or ambiguous rulings is a remand for clarification
2. in this case, where the CCA’s opinion was ambiguous as to whether the court below affirmed a sentence that included forfeiture of all pay and allowances, the case must be remanded to the CCA for clarification of this point

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

1. when deciding whether the military judge properly instructed a panel, an appellate court uses a de novo standard of review
2. in reviewing whether a military judge erred by not providing a requested instruction in a specific case, an appellate court uses a three-pronged test to determine whether: (1) the requested instruction is correct; (2) the main instruction given does not substantially cover the requested material; and (3) the instruction is on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its effective presentation; all three prongs must be satisfied for there to be error

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

1. it is a well known principle that words in a statute that are generally known and in universal use do not need judicial definition