U.S. v. Rich, 79 M.J. 472

Military Justice Personnel: Military Judge: Instructions

1. RCM 920(e)(3) requires the military judge to include in findings instructions a description of any special defense under RCM 916 in issue
2. if the 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; while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. mistake of fact may be a special defense under RCM 916(j)

Trial Stages: Merits: Instructions › Generally

1. RCM 920(e)(3) requires the military judge to include in findings instructions a description of any special defense under RCM 916 in issue
2. if the 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; while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge
3. required findings instructions can be waived
4. in the context of findings instructions, a mere failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes forfeiture; but, when counsel affirmatively declines to object and offers no additional instructions, counsel expressly and unequivocally acquiesces to the military judge’s instructions, and his actions thus constitute waiver
5. in this case, where the military judge did not give an instruction on mistake of fact as to consent and appellant never requested a mistake of fact as to consent instruction and never objected to the absence of such an instruction, any objection to the failure to give the instruction was waived; because appellant expressly and unequivocally acquiesced to the military judge’s instructions, he waived all objections to the instructions with respect to mistake of fact as to consent on appeal; furthermore, it is evident from the record that appellant pondered the possibility of requesting a mistake of fact as to consent instruction, but ultimately made no such request; as such, those facts support the conclusion that appellant made a deliberate decision to abandon the mistake of fact as to consent instruction, and thus affirmatively waived the instructional issue on appeal

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. when a service court of criminal appeals is evenly divided on a question of law, the result is an affirmance of the lower court’s decision

Trial Stages: Appeals: Preservation of Error / Plain Error

1. while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge
2. waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; stated another way, a forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law
3. in the context of findings instructions, a mere failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes forfeiture; but, when counsel affirmatively declines to object and offers no additional instructions, counsel expressly and unequivocally acquiesces to the military judge’s instructions, and his actions thus constitute waiver
4. while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal

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

1. whether an appellant has waived an issue is a legal question that an appellate court reviews de novo
2. while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal

Trial Stages: Appeals: Waiver

1. while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge
2. waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; stated another way, a forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law
3. required findings instructions can be waived
4. in the context of findings instructions, a mere failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes forfeiture; but, when counsel affirmatively declines to object and offers no additional instructions, counsel expressly and unequivocally acquiesces to the military judge’s instructions, and his actions thus constitute waiver
5. while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal
6. in this case, where the military judge did not give an instruction on mistake of fact as to consent and appellant never requested a mistake of fact as to consent instruction and never objected to the absence of such an instruction, any objection to the failure to give the instruction was waived; because appellant expressly and unequivocally acquiesced to the military judge’s instructions, he waived all objections to the instructions with respect to mistake of fact as to consent on appeal; furthermore, it is evident from the record that appellant pondered the possibility of requesting a mistake of fact as to consent instruction, but ultimately made no such request; as such, those facts support the conclusion that appellant made a deliberate decision to abandon the mistake of fact as to consent instruction, and thus affirmatively waived the instructional issue on appeal