U.S. v. Condon, 77 M.J. 244

First Principles: Constitutional Matters: Right to Counsel

1. the fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 requested counsel is not admissible against the accused

Military Justice Personnel: Military Judge: Discretion

1. in light of other definitions, to include part of the defense-proposed instruction for “incapable of consenting,” and defining “impaired,” as well as the definitions of “consent” from the Military Judges’ Benchbook, the phrase “incapable of consenting” did not require additional definition and furrther instruction on this point was not required; with these definitions, the military judge allowed the panel to understand the element “incapable of consenting;” accordingly, the military judge did not abuse his discretion in failing to give the entire defense-proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members

Military Justice Personnel: Military Judge: Instructions

1. in light of other definitions, to include part of the defense-proposed instruction for “incapable of consenting,” and defining “impaired,” as well as the definitions of “consent” from the Military Judges’ Benchbook, the phrase “incapable of consenting” did not require additional definition and further instruction on this point was not required; with these definitions, the military judge allowed the panel to understand the element “incapable of consenting;” accordingly, the military judge did not abuse his discretion in failing to give the entire defense-proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members

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

1. in light of other definitions, to include part of the defense-proposed instruction for “incapable of consenting,” and defining “impaired,” as well as the definitions of “consent” from the Military Judges’ Benchbook, the phrase “incapable of consenting” did not require additional definition and further instruction on this point was not required; with these definitions, the military judge allowed the panel to understand the element “incapable of consenting;” accordingly, the military judge did not abuse his discretion in failing to give the entire defense-proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. the fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 requested counsel is not admissible against the accused

Trial Stages: Merits: Instructions › Generally

1. in light of other definitions, to include part of the defense-proposed instruction for “incapable of consenting,” and defining “impaired,” as well as the definitions of “consent” from the Military Judges’ Benchbook, the phrase “incapable of consenting” did not require additional definition and instruction on this point was not required; with these definitions, the military judge allowed the panel to understand the element “incapable of consenting;” accordingly, the military judge did not abuse his discretion in failing to give the entire defense-proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an appellate court reviews claims of an improper reference to an accused’s invocation of his constitutional rights de novo
2. a finding or sentence of court-martial may not be held incorrect by an appellate court on the ground of an error of law unless the error materially prejudiced the substantial rights of the accused; where the alleged error is of constitutional dimensions, an appellate court must conclude beyond a reasonable doubt that it was harmless before it can affirm; to conclude that such an error was harmless beyond a reasonable doubt, an appellate court must be convinced that the error did not contribute to the verdict; that an error did not contribute to the verdict is not of course to say that the members were totally unaware of that feature of the trial later held to have been erroneous; it is, rather, to find that error unimportant in relation to everything else the members considered on the issue in question as revealed in the record
3. in this case, appellant was not prejudiced by the admission of his invocation of his right to counsel at trial; that is, even if the members were aware of the invocation, the inclusion of it was unimportant in relation to everything else the members considered in the case, where (1) the invocation played a minor part in appellant’s trial, being briefly mentioned once on the second day of a six day trial (2) the members did not see appellant’s invocation in a vacuum, having heard the military judge instruct them not to make an adverse inference from appellant’s invocation and heard appellant’s continuing proclamations of his innocence throughout the interrogation after the invocation, (3) the record presented no evidence to rebut the presumption that the members followed the military judge’s instruction, and (4) the government had a strong case against appellant, to include the victim’s testimony and supporting DNA evidence

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

1. an appellate court reviews claims of an improper reference to an accused’s invocation of his constitutional rights de novo
2. a finding or sentence of court-martial may not be held incorrect by an appellate court on the ground of an error of law unless the error materially prejudiced the substantial rights of the accused; where the alleged error is of constitutional dimensions, an appellate court must conclude beyond a reasonable doubt that it was harmless before it can affirm; to conclude that such an error was harmless beyond a reasonable doubt, an appellate court must be convinced that the error did not contribute to the verdict; that an error did not contribute to the verdict is not of course to say that the members were totally unaware of that feature of the trial later held to have been erroneous; it is, rather, to find that error unimportant in relation to everything else the members considered on the issue in question as revealed in the record