Part IV · Punitive Articles

Article 118. Murder · MCM ¶ 56

2024 Manual for Courts-Martial, United States · Last updated

Recent revisions Summary of changes
(a) Text of statute. Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when such person— revised · Public Law No. 118-31 (NDAA 2024)
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery or aggravated arson; is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), such person shall suffer death or imprisonment for life as a court-martial may direct, unless such person is otherwise sentenced in accordance with a plea agreement entered into between the parties under section 853a of this title (article 53a). revised · Public Law No. 118-31 (NDAA 2024)
(b) Elements.
(1) Premeditated murder.
(a) That a certain named or described person is dead;
(b) That the death resulted from the act or omission of the accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused had a premeditated design to kill.
(2) Intent to kill or inflict great bodily harm.
(a) That a certain named or described person is dead;
(b) That the death resulted from the act or omission of the accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.
(3) Act inherently dangerous to another.
(a) That a certain named or described person is dead;
(b) That the death resulted from the intentional act of the accused;
(c) That this act was inherently dangerous to another and showed a wanton disregard for human life;
(d) That the accused knew that death or great bodily harm was a probable consequence of the act; and
(e) That the killing was unlawful.
(4) During certain offenses.
(a) That a certain named or described person is dead;
(b) That the death resulted from the act or omission of the accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused was engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.
(c) Explanation.
(1) In general. Killing a human being is unlawful when done without justification or excuse. See R.C.M. 916. Whether an unlawful killing constitutes murder or a lesser offense depends upon the circumstances. The offense is committed at the place of the act or omission although the victim may have died elsewhere. Whether death occurs at the time of the accused’s act or omission, or at some time thereafter, it must have followed from an injury received by the victim which resulted from the act or omission.
(2) Premeditated murder.
(a) Premeditation. A murder is not premeditated unless the thought of taking life was consciously conceived and the act or omission by which it was taken was intended. Premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended. It is not necessary that the intention to kill have been entertained for any particular or considerable length of time. When a fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution. The existence of premeditation may be inferred from the circumstances.
(b) Transferred premeditation. When an accused with a premeditated design attempted to unlawfully kill a certain person, but, by mistake or inadvertence, killed another person, the accused is still criminally responsible for a premeditated murder, because the premeditated design to kill is transferred from the intended victim to the actual victim.
(c) Intoxication. Voluntary intoxication ( see R.C.M. 916(l)(2)) not amounting to legal insanity may reduce premeditated murder (Article 118(1)) to unpremeditated murder (Article 118(2) or (3)) but it does not reduce either premeditated murder or unpremeditated murder to manslaughter (Article 119) or any other lesser offense.
(3) Intent to kill or inflict great bodily harm.
(a) Intent. An unlawful killing without premeditation is also murder when the accused had either an intent to kill or inflict great bodily harm. It may be inferred that a person intends the natural and probable consequences of an act purposely done. Hence, if a person does an intentional act likely to result in death or great bodily injury, it may be inferred that death or great bodily injury was intended. The intent need not be directed toward the person killed, or exist for any particular time before commission of the act, or have previously existed at all. It is sufficient that it existed at the time of the act or omission (except if death is inflicted in the heat of a sudden passion caused by adequate provocation – see paragraph 57). For example, a person committing housebreaking who strikes and kills the householder attempting to prevent flight can be guilty of murder even if the householder was not seen until the moment before striking the fatal blow.
(b) Great bodily harm. “Great bodily harm” means serious injury; it does not include minor injuries such as a black eye or a bloody nose, but it does include fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries. It is synonymous with the term “grievous bodily harm.”
(c) Intoxication. Voluntary intoxication not amounting to legal insanity does not reduce unpremeditated murder to manslaughter (Article 119) or any other lesser offense.
(4) Act inherently dangerous to others.
(a) Wanton disregard of human life. Intentionally engaging in an act inherently dangerous to another— although without an intent to cause the death of or great bodily harm to any particular person, or even with a wish that death will not be caused—may also constitute murder if the act shows wanton disregard of human life. Such disregard is characterized by heedlessness of the probable consequences of the act or omission, or indifference to the likelihood of death or great bodily harm. Examples include throwing a live grenade toward another in jest or flying an aircraft very low over one or more persons to cause alarm.
(b) Knowledge. The accused must know that death or great bodily harm was a probable consequence of the inherently dangerous act. Such knowledge may be proved by circumstantial evidence.
(5) During certain offenses.
(a) In general. The commission or attempted commission of any of the offenses listed in Article 118(4) is likely to result in homicide, and when an unlawful killing occurs as a consequence of the perpetration or attempted perpetration of one of these offenses, the killing is murder. Under these circumstances it is not a defense that the killing was unintended or accidental.
(b) Separate offenses. The perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson may be charged separately from the homicide.
(d) Maximum punishment.
(1) Article 118(1) or (4)—death. Mandatory minimum—imprisonment for life with the eligibility for parole.
(2) Article 118(2) or (3)—such punishment other than death as a court-martial may direct.
(e) Sample specification. In that ______________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about ______ 20___, (with premeditation) (while (perpetrating) (attempting to perpetrate)__________) murder __________________ by means of (shooting (him) (her) with a rifle) (_________).
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or mandatory minimum of confinement for life with eligibility for parole. (Category 6)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, with premeditation, murder __________ by means of (shooting (him) (her) with a rifle) (__________).

Elements

(1) That (state the name of the alleged victim) is dead;

(2) That his/her death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3) That the killing of (state the name or description of the alleged victim) by the accused was unlawful; and

(4) That, at the time of the killing, the accused had a premeditated design to kill.

Definitions & other instructions

The killing of a human being is unlawful when done without legal justification or excuse.

A murder is not “premeditated” unless the thought of taking life was consciously conceived and the act or omission by which it was taken was intended. Premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended. It is not necessary that the intention to kill have been entertained for any particular or considerable length of time. When a fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution. The existence of premeditation may be inferred from the circumstances.

NOTE 2. Premeditation and lesser included offenses. If the evidence raises an issue as to the accused’s capacity to premeditate, Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, and/or Instruction 5-21, Voluntary Intoxication, may be applicable. If so, instruct on the elements of unpremeditated murder and any other lesser included offenses that may be raised by the evidence.
NOTE 3. Lesser included offenses otherwise raised. When the accused denies premeditated design to kill, or other evidence in the case tends to negate such design, to include voluntary intoxication, an instruction on unpremeditated murder (Instruction 3a-56-2) will ordinarily be necessary. If the denial extends to any intent to kill or inflict great bodily harm, or other evidence tends to negate such intent, an instruction on involuntary manslaughter (Instruction 3a-57-2) must ordinarily be given.
NOTE 4. Causation. If an issue is raised at trial regarding whether the death resulted from the act of the accused, it may be necessary to instruct on lesser included offenses that do not include the death of the victim. See also Instruction 5-5, Causation (Lack Of), Intervening Cause, or Contributory Negligence.
NOTE 5. Transferred Premeditation. When an issue of transferred premeditation is raised by the evidence, the court may be instructed substantially as follows:

When a person with a premeditated design to kill attempts unlawfully to kill a certain person, but, by mistake or inadvertence, kills another person, the individual is still criminally responsible for a premeditated murder, because the premeditated design to kill is transferred from the intended victim of (his) (her) action to the actual victim. If you are satisfied beyond a reasonable doubt that the victim named in the specification is dead and that (his) (her) death resulted from the unlawful (act) (omission) of the accused in (state the act or omission alleged) with the premeditated design to kill (state the name or description of the individual other than the alleged victim), you may still find the accused guilty of the premeditated killing of (state the name or description of the alleged victim).

NOTE 6. Passion and ability to premeditate. When the evidence indicates that the passion of the accused may have affected his or her capacity to premeditate, as in the case where there was a lapse of time between adequate provocation and the act, but the passion of the accused persists, the court may be instructed substantially as follows:

An issue has been raised by the evidence as to whether the accused acted in the heat of sudden “passion.” “Passion” means a degree of rage, pain, or fear which prevents cool reflection. If sufficient cooling off time passes between the provocation and the time of the killing which would allow a reasonable person to regain self-control and refrain from killing, the provocation will not reduce murder to the lesser offense of voluntary manslaughter. However, you may consider evidence of the accused’s passion in determining whether (he) (she) possessed sufficient mental capacity to have “the premeditated design to kill.” An accused cannot be found guilty of premeditated murder if, at the time of the killing, (his) (her) mind was so confused by (anger) (rage) (pain) (sudden resentment) (fear) (or) (_________) that (he) (she) could not or did not premeditate. On the other hand, the fact that the accused’s passion may have continued at the time of the killing does not necessarily demonstrate that (he) (she) was deprived of the ability to premeditate or that (he) (she) did not premeditate. Thus, (if you are convinced beyond a reasonable doubt that sufficient cooling off time had passed between the provocation and the time of the killing which would allow a reasonable person to regain his/her self-control and refrain from killing), you must decide whether the accused in fact had the premeditated design to kill. If you are not convinced beyond a reasonable doubt that the accused killed with premeditation, you may still find (him) (her) guilty of unpremeditated murder, if you are convinced beyond a reasonable doubt that the death of (state the name of the alleged victim) was caused, without justification or excuse, by an (act) (failure to act) of the accused and (the accused intended to kill or inflict great bodily harm on the victim) (the act of the accused was inherently dangerous to others and showed a wanton disregard for human life).

NOTE 7. Issue of sudden passion caused by adequate provocation raised. When killing in the heat of sudden passion caused by adequate provocation is placed in issue, the military judge should instruct on the lesser included offense of voluntary manslaughter as well as unpremeditated murder.
NOTE 8. Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of spontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See US v. Gomez, 15 MJ 954 (ACMR 1983); US v. Jefferson, 22 MJ 315 (CMA 1986); and US v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death, may be adapted for this circumstance.
NOTE 9. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable.
Source: Instruction 3a-56-1 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

DD, TF, life without eligibility for parole, E-1. (Category 5)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, murder __________ by means of (shooting (him) (her) with a rifle) (__________).

Elements

(1) That (state the name or description of the alleged victim) is dead;

(2) That his/her death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3) That the killing of (state the name or description of the alleged victim) by the accused was unlawful; and

(4) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.

Definitions & other instructions

The killing of a human being is unlawful when done without legal justification or excuse.

The intent to kill or inflict great bodily harm may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, it may be inferred that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in death or great bodily harm, it may be inferred that (he) (she) intended to inflict death or great bodily harm. The drawing of this inference is not required. The intent need not be directed toward the person killed, or exist for any particular time before commission of the act, or have previously existed at all. It is sufficient that the intent to kill existed at the time of the act or omission.

“Great bodily harm” means serious injury. “Great bodily harm” does not mean minor injuries, such as a black eye or bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries.

NOTE 2. Intent to kill or inflict great bodily harm in issue. When the accused denies the intent to kill or inflict great bodily harm, an instruction on involuntary manslaughter must ordinarily be given.
NOTE 3. Sudden passion caused by adequate provocation in issue. When killing in the heat of sudden passion caused by adequate provocation is placed in issue, the judge must instruct substantially as below. Do not use Instruction 3a-57-1 to instruct on the lesser included offense of voluntary manslaughter; use the instruction below:

The lesser offense of voluntary manslaughter is included in the crime of unpremeditated murder. “Voluntary manslaughter” is the unlawful killing of a human being, with an intent to kill or inflict great bodily harm, done in the heat of sudden passion caused by adequate provocation. Acts of the accused which might otherwise amount to murder constitute only the lesser offense of voluntary manslaughter if those acts were done in the heat of sudden passion caused by adequate provocation. “Passion” means a degree of anger, rage, pain, or fear which prevents cool reflection. The law recognizes that a person may be provoked to such an extent that in the heat of sudden passion caused by adequate provocation, (he) (she) strikes a fatal blow before (he) (she) has had time to control (himself) (herself). A person who kills because of passion caused by adequate provocation is not guilty of murder. Provocation is adequate if it would cause uncontrollable passion in the mind of a reasonable person. The provocation must not be sought or induced as an excuse for killing or doing harm.

If you are not satisfied beyond a reasonable doubt that the accused is guilty of murder, but you are satisfied beyond a reasonable doubt that the killing, although done in the heat of sudden passion caused by adequate provocation, was done with the intent to kill or inflict great bodily harm, you may still find (him) (her) guilty of voluntary manslaughter.

NOTE 4. Defenses. When an issue of self-defense, accident, or other legal justification or excuse is raised, tailored instructions must be given.
NOTE 5. Transferred intent. When the issue of transferred intent is raised by the evidence, the judge should instruct substantially as follows:

When a person with intent to kill or inflict great bodily harm attempts unlawfully to kill or inflict great bodily harm upon a certain person, but, by mistake or inadvertence, kills another person, the individual is still criminally responsible for a killing with intent to kill or inflict great bodily harm because the intent to kill or inflict great bodily harm is transferred from the intended victim of (his) (her) action to the actual victim. If you are satisfied beyond a reasonable doubt that the victim named in the specification is dead and that his/her death resulted from the unlawful (act) (omission) of the accused in (state the act or omission alleged) with intent to kill or inflict great bodily harm upon (state the name or description of the individual other than the alleged victim), you may still find the accused guilty of the unpremeditated murder of (state the name of the alleged victim).

NOTE 6. Timing of the formulation of intent. If an issue is raised with respect to the time of the formulation of the intent to kill or inflict great bodily harm, the military judge may instruct as follows:

The intent to kill or inflict great bodily harm does not have to exist for any measurable or particular time before the (act) (omission) which causes the death. All that is required is that it exist at the time of the (act) (omission) which caused the death.

NOTE 7. Voluntary intoxication raised. If there is some evidence of voluntary intoxication, but no issue of insanity, the following instruction may be appropriate, provided there were no other factors that may have combined with the accused’s alcohol consumption to affect his/her mental capacity to form the requisite intent:

Although the accused must have had the intent to kill or inflict great bodily harm, voluntary intoxication, by itself, is not a defense to unpremeditated murder. Voluntary intoxication, standing alone, will not reduce unpremeditated murder to a lesser degree of unlawful killing.

NOTE 8. Brain death instruction. The standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of brain function. See US v. Gomez, 15 MJ 954 (ACMR 1983) and US v. Jefferson, 22 MJ 315 (CMA 1986). Instruction 7-24, Brain Death, may be adapted for this circumstance.
NOTE 9. Causation. When causation is in issue, see Instruction 5-5, Causation (Lack of), Intervening Cause, or Contributory Negligence.
Source: Instruction 3a-56-2 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

DD, TF, life without eligibility for parole, E-1. (Category 5)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, murder __________ by means of (shooting (him) (her) with a rifle) (__________).

Elements

(1) That (state the name or description of the alleged victim) is dead;

(2) That (his) (her) death resulted from the intentional act of the accused in (state the act alleged), at (state the time and place alleged);

(3) That this act was inherently dangerous to another and showed a wanton disregard for human life;

(4) That the accused knew that death or great bodily harm was a probable consequence of the act; and

(5) That the killing by the accused was unlawful.

Definitions & other instructions

The killing of a human being is unlawful when done without legal justification or excuse.

An act shows a wanton disregard for human life when it is characterized by heedlessness of the probable consequences of the act, or indifference to the likelihood of death or great bodily harm, and demonstrates a total disregard for the known probable results of death or great bodily harm.

The act must be intentional, but death or great bodily harm does not have to be the intended result. However, the accused must have known that death or great bodily harm was a probable consequence of the inherently dangerous act. Such knowledge may be proved by circumstantial evidence.

(The act may even be accompanied by a wish that death will not be caused.)

“Great bodily harm” means serious injury. “Great bodily harm” does not mean minor injuries, such as a black eye or bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries.

NOTE 2. Voluntary intoxication. If there is some evidence of voluntary intoxication, but no issue of insanity, the following instruction may be appropriate, provided there were no other factors which may have combined with the accused’s alcohol consumption to affect the accused’s mental capacity to intend the act and know its probable consequences:

Although the accused must have intended the act and known its probable results, voluntary intoxication, by itself, is not a defense to this offense. Furthermore, voluntary intoxication, standing alone, will not reduce this offense to a lesser degree of unlawful killing.

NOTE 3. Findings Worksheet and announcement of findings when Article 118(3) is a lesser included offense. When a violation of Article 118(3) is a lesser included offense or in issue as an alternate theory to murder under Article 118 (1) or (2), the Findings Worksheet should clearly indicate this theory of culpability.
NOTE 4. Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of spontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See US v. Gomez, 15 MJ 954 (ACMR 1983); US v. Jefferson, 22 MJ 315 (CMA 1986); and US v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death, may be adapted for this circumstance.
NOTE 5. Other instructions. When causation is in issue, see Instruction 5-5, Causation (Lack of), Intervening Cause, or Contributory Negligence. Instruction 7-3, Circumstantial Evidence (Knowledge), is usually appropriate. Instruction 5-13-1, Ignorance or Mistake - Where Specific Intent or Actual Knowledge is an Issue, may be applicable to the accused’s knowledge of the conditions under which he/she acted.
References

US v. Stokes, 19 CMR 191(CMA 1955), US v. Berg, 31 MJ 38 (CMA 1990); US v. McMonagle, 34 MJ 852 (ACMR 1992), rev’d in part, 38 MJ 53 (CMA 1993).

Source: Instruction 3a-56-3 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or mandatory minimum of confinement for life with eligibility for parole. (Category 6)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (while (perpetrating) (attempting to perpetrate) __________) murder __________ by means of (shooting (him) (her) with a rifle) (__________).

Elements

(1) That (state the name or description of the alleged victim) is dead;

(2) That his/her death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);

(3) That the killing of (state the name or description of the alleged victim) by the accused was unlawful; and

(4) That, at the time of the killing, the accused was engaged in the (attempted) perpetration of (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson).

Definitions & other instructions

The killing of a human being is unlawful when done without legal justification or excuse.

To find that the accused was participating in the (attempted) commission of the offense of (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson), you must be satisfied beyond a reasonable doubt:

NOTE 2. Elements of the felony offense. The military judge should state here the elements of the offense alleged to have been perpetrated or attempted. This statement should be based upon the pertinent instruction that lists the elements of that offense, but should be tailored to serve the purpose for which the statement is intended. When the offense committed is an attempted perpetration of the above stated crimes, the military judge should refer to Instruction 3a-4-1, Attempts - Other than Murder and Voluntary Manslaughter, which will prove helpful in drafting necessary instructions.
NOTE 3. Causation. Should an issue arise with regard to the lack of a relationship between the felony and the death, use the following instruction. See also Instruction 5-5, Causation (Lack of), Intervening Cause, or Contributory Negligence.

In order to find that the killing, if any, was committed while the accused was engaged in the (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson), you must find beyond a reasonable doubt that an act of the accused which caused the victim’s death and the (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson) occurred at substantially the same time and place. Additionally, you must find a causal connection between the commission of the (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson) and the act which caused the victim’s death.

NOTE 4. Specific intent as an element of the felony offense. While felony murder, as such, does not involve premeditation or specific intent, some of the crimes of (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson) do involve a specific intent. Also, the crime of aggravated arson involves an element of knowledge. Thus, when appropriate, you should consult Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, or Instruction 5-21, Voluntary Intoxication, for instructions bearing on specific intent or knowledge.
NOTE 5. Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of spontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See US v. Gomez, 15 MJ 954 (ACMR 1983); US v. Jefferson, 22 MJ 315 (CMA 1986); and US v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24 Brain Death, may be adapted for this circumstance.
NOTE 6. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), may also be applicable.
Source: Instruction 3a-56-4 · view original on jagcnet.army.mil