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8. Charging and Instructions

Chapter 8

Charging & Instructions

  1.       Overview 

  2.       The Charging Decision

  3.       Pleadings Generally

  4.       Multiplicity

  5.       Unreasonable Multiplication of Charges (UMC)

  6.       Instructions Generally

  7.       Counsel’s Role in Drafting Instructions

  8.       Procedural Instructions

  9.       Elements of the Offenses

  10.       Instructions on Defenses

  11.       Evidentiary Instructions

  12.       Sentencing Instructions

  13.       General Findings in the Military – R.C.M. 918(a)

  14.       What May/May Not Be Considered in Reaching Findings?  R.C.M. 918(c)

  15.       Deliberations and Voting on Findings.  R.C.M. 921

  16.       Instructions on Findings.  R.C.M. 920

  17.       Announcement of Findings.  R.C.M. 922

  18.       Reconsideration of Findings.  UCMJ art. 52, R.C.M. 924

  19.       Defective Findings

  20.       Impeachment of Findings.  R.C.M. 923

  21.       Special Findings


I.      Overview

A.  This chapter focuses on how the theoretical issues of military criminal law become tangible concerns with which practitioners must contend regularly.  The chapter first discusses the charging decision:  the point at which concepts and theory become reality via a charge sheet.  The chapter then addresses those issues that must be considered at the time of charging because they generally flow directly from the charging decision – pleadings, multiplicity, unreasonable multiplication of charges, lesser included offenses, instructions, and findings.

II.   The Charging Decision

A.      One Method for Making the Charging Decision.

1.       Prosecutorial Discretion.  Even in the absence of any formal limitations, it is important to remember that there is no ethical or legal obligation to plead all possible charges that the evidence might support.  Compare ABA Criminal Justice Standards, Standard 3-4.4(a) (listing factors properly considered in exercise of prosecutorial discretion) with R.C.M. 306(b) discussion (listing factors to be considered by commanders in making an initial disposition of offenses) and MCM Appendix 2.1 (Non-Binding Disposition Guidance).

2.       How To Make the Charging Decision: A Method.

a)       Review all the evidence.

b)      Develop a theory of the case.

c)       List possible charging options.

d)      Conduct elements/proof analysis of each charge.

e)       Consider ethical and legal limitations.

f)       Consider prudential/tactical factors.

(1)    Theory of the case.

(2)    Nature and degree of harm.

(3)    Panel’s perception and sense of fairness.

(4)    Exigencies of proof and intentional multiplicity.

(5)    Use of “mega-specs”

(6)    Preservation of LIOs.

(7)    Maximum punishments.

(8)    Uncharged misconduct / M.R.E. 404(b) issues.

(9)    Cooperation of accused.

(10) Improper motives of witnesses or victims.

(11) Reluctance of victim to testify.

g)      Draft the Charges.  Consider these basic principles:

(1)    Charge the most serious offense consistent with the evidence. See United States v. Foster, 40 M.J. 140, 144 n. 4 (C.M.A. 1994) (“[T]here is prosecutorial discretion to charge the accused for the offense(s) which most accurately describe the misconduct and most appropriately punish the transgression(s).”).

(2)    Err on the side of liberal charging and be prepared to dismiss/withdraw as the case develops.  See R.C.M. 401(c) and R.C.M. 604 concerning dismissal and withdrawal of charges and specifications.

(3)    United States v. Leahr, 73 M.J. 364 (C.A.A.F. 2014).  Convening authority properly dismissed charges in order to investigate new misconduct and refer all known charges to the same court-martial.  Doing so did not violate the accused’s speedy trial rights and was not an improper withdrawal of the charges.

(4)    If charging conspiracy, ensure that it is important/necessary for your theory of the case.

(5)    The facts alleged in the specification define the entire universe of facts that the government can use to establish the accused’s criminality.  Findings by exceptions and substitutions can render a specification defective if it is drafted too sparsely.  Consider United States v. Plant, 74 M.J. 297 (C.A.A.F. 2015), where the accused was charged with child endangerment “by using alcohol and cocaine.”  The panel found him guilty but excepted the words “and cocaine.” Because of how the government charged the offense and the panel's verdict, CAAF held that the only basis for establishing the accused’s endangerment of his thirteen-month-old son was his drinking alcohol while responsible for his care.  CAAF also held it could not consider whether the accused endangered his son by having a party at his off-post quarters, allegedly using cocaine during the party, inviting virtual strangers into his home while his son was there, or by sexually assaulting two young women in his quarters while his son was sleeping there.  The CAAF found the evidence legally insufficient to sustain the specification because the accused’s intoxication did not cause a reasonable probability that the child would be harmed.

B.      Ethical and Legal Limitations.

1.       Ethical Limitations.

a)       Charges must be warranted by the evidence.

(1)    Army Reg. 27-26, Rule 3.8(a), provides that a trial counsel shall “recommend to the convening authority that any charge or specification not supported by probable cause be withdrawn.”

(2)    ABA Standards, Standard 3-4.3, provides that “a prosecutor should seek or file criminal charged only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to cahrge is in the interests of justice." 

b)      A supervising prosecutor cannot compel a subordinate to prosecute an offense about which the supervisor has a reasonable doubt as to the guilt of the accused.  Cf. R.C.M. 307(a) discussion.

c)       Charges should not be unreasonably multiplied.

(1)    Nature of Charges.  What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person.  R.C.M. 307(c)(4).  Cf. ABA Standards, Standard 3-44(d)  (A prosecutor should not “file or maintain charges greater in number or degree than . . . are necessary to fairly reflect the gravity of the offense or deter similar conduct.”).

2.       Constitutional Limitations.

a)       A prosecutor cannot selectively prosecute an individual because of “race, religion, or other arbitrary classification.”  Wayte v. United States, 470 U.S. 598, 608 (1985).  Accused must show more than a mere possibility of selective prosecution, he must show discriminatory intent.  United States v. Hagen, 25 M.J. 78 (C.M.A. 1987).

b)      A prosecutor cannot vindictively prosecute to penalize an individual’s exercise of constitutional or statutory rights.  Blackledge v. Perry, 417 U.S. 21 (1974).

3.       Policy Limitations.

a)       See MCM Appendix 2.1, Section 2.7 (Inappropriate Considerations). 

C.      The Defense Response to the Charging Decision.

1.       Motions to dismiss.

a)       Lack of jurisdiction.  R.C.M. 907(b)(1)

b)      Statute of limitations.  R.C.M. 907(b)(2)(B).

c)       Defective or misleading specifications.  R.C.M. 907(b)(3)(A).

d)      Multiplicity.  R.C.M. 907(b)(3)(B).

2.       Motions for appropriate relief.

a)       Unreasonable Multiplication of Charges.  R.C.M. 906(b)(12).

b)      Bill of particulars.  R.C.M. 906(b)(6).

c)       Severance of duplicitous specifications.  R.C.M. 906(b)(5).

d)      Severance of offenses.  R.C.M. 906(b)(10).

e)       Vindictive or selective prosecution.  Fifth Amendment; United States v. Hagen, 25 M.J. 78 (C.M.A. 1987).

III.           Pleadings Generally

A.     Introduction.

1.       Military pleadings follow the format of charge and specification.  R.C.M. 307(c)(1).

2.       Charge:  The article of the UCMJ, law of war, or local penal law of an occupied territory which the accused is alleged to have violated.  R.C.M. 307(c)(2).

3.       Specification:  plain, concise, and definite statement of the essential facts constituting the offense charged.  R.C.M. 307(c)(3).

B.      Charges and Specifications.

1.       Charges.  R.C.M. 307(c)(2).

a)       A single charge is not numbered (“The Charge:”).

b)      If more than one charge, use Roman numerals (“Charge I:”   “Charge II:”).

c)       Additional charges follow the same format and may be added until arraignment.

d)      Error in, or omission of, the designation of the charge shall not be a ground for dismissal of a charge or reversal of a conviction unless the error prejudicially misleads the accused.  R.C.M. 307(d); see United States v. Bluitt, 50 C.M.R. 675 (A.C.M.R. 1975).

2.       Specifications.  R.C.M. 307(c)(3) and discussion.

a)       Numbering.

(1)    A single specification is not numbered (“The Specification:”).

(2)    Multiple specifications use Arabic numbers (“Specification 1:”  “Specification 2:”).

b)      Drafting the Language.

(1)    Model specifications may be found in either:

(a)    MCM, part IV; or,

(b)    Dep't of Army, Pam. 27-9, Military Judges' Benchbook, Chapter 3 and Chapter 3A (February 2020).  Note:  Be sure to check for approved interim updates found on the Trial Judiciary page on JAGCNET.

(2)    Legally Sufficient Specifications.  See infra Chapter 7, Appendix A; see also R.C.M. 907(b)(1), and R.C.M. 307(c)(3).

(3)    Describe the accused.

(a)    Name and rank.

(b)    Armed force.

(c)    Social security number of accused should not be stated in specification.

(4)    Place of offense.  “At or near . . .”

(5)    Date and time of offense.  “On or about . . . ”

c)       Novel Specifications.

(1)    Counsel are unlikely to have novel specifications for most offenses.  However, counsel may have to draft novel specifications for general disorders or service-discrediting conduct that are charged as violations of UCMJ art. 134, or for many forms of conduct unbecoming that are charged as violations of UCMJ art. 133.

(2)    Designing a novel specification.  See United States v. Sell, 11 C.M.R. 202 (C.M.A 1953). 

(a)    Identify and expressly plead the elements of the offense.

(i)     Consult civilian case law or pattern jury instructions for the elements of crimes and offenses, not capital, integrated from federal law or assimilated from state law.

(ii)   Conduct prejudicial to good order and discipline and service discrediting conduct not specifically listed as crimes by the President are more problematic.

(iii)  The MCM provides that there are only two elements to such offenses:  act or omission by accused, and a prejudicial or discrediting effect.  MCM, pt. IV, para. 91.b(1) and 91.b(2), respectively.

(iv)    Words of Criminality.  If the act alleged is not inherently criminal, but is made an offense only by operation of custom, statute, or regulation, the specification must include words of criminality appropriate to the facts of the case, e.g., “without authority,” “wrongfully,” or “unlawfully.”  See R.C.M. 307(c)(3) discussion.

(b)    Describe the offense with sufficient specificity to inform the accused of the conduct charged, to enable the accused to prepare a defense, and to protect the accused from subsequent re-prosecution for the same offense.  Notice pleading, nevertheless, remains the rule.

(c)    Allege in the specification only those facts that make the accused’s conduct a crime.

(d)    Evidence supporting the allegation should ordinarily not be included in the specification.

C.      General Rules of Pleading

1.       Principals.  All principals are charged as if they were the perpetrator.  R.C.M. 307(c)(3) discussion at (H)(i).  For a thorough discussion of principals, see UCMJ art. 77; MCM, pt. IV, ¶ 1; and Chapter 20 of the Criminal Law Deskbook.  The theory of liability does not need to be specified.  See United States v. Vidal, 23 M.J. 319 (C.M.A. 1987)

2.       Duplicity. 

a)       General.  Duplicity is the practice of charging two or more offenses in one specification.  Distinguish this from multiplicity, which is the practice of charging one offense in two or more separate charges or specifications.

b)      Rule.  Each specification shall state only one offense. R.C.M. 307(c)(4).  If an accused is found guilty of a duplicitous specification, his maximum punishment is that for a single specification of the offense.  Exception: “mega-specs;” see below.

c)       Remedy.  The sole remedy for duplicity is severance into separate specifications.  R.C.M. 906(b)(5).  United States v. Hiatt, 27 M.J. 818 (A.C.M.R. 1988) (conspiracy specification that alleged both conspiracy to commit larceny and to receive stolen property was duplicitous, but failure at trial to move to sever or strike constituted waiver).  As a practical matter, severance is rarely requested, because it exposes the accused to multiple punishments.

d)      Applications.

(1)    “Mega-specs.”  The CAAF has held that the maximum punishment for some duplicitous specifications may be calculated as if each offense alleged in a duplicitous specification had been charged separately.

(a)    Bad checks.  United States v. Mincey, 42 M.J. 376 (C.A.A.F. 1995) (holding that maximum punishment in a bad-check case is calculated by the number and amount of checks as if they had been charged separately, regardless of whether Government joined multiple offenses in one specification).

(b)    Check forgery.  United States v. Dawkins, 51 M.J. 601 (A. Ct. Crim. App. 1999) (extending the Mincey rule to check forgery).

(2)    Larceny.

(a)    See pleading principles for value infra at Part II.C.4.

(b)    United States v. Rupert, 25 M.J. 531 (A.C.M.R. 1987) (accused charged under one specification for larceny of different items "on divers occasions" over a 17-month period having a combined value of over $100).  To be convicted of larceny over $100 either:

(i)     One item must have that value, or

(ii)   Several items taken at the same time and place must have that aggregate value.

Note:  The threshold for increased punishment has been raised to $1,000.

3.       Matters in aggravation (i.e., punishment enhancers). 

a)       Must be alleged and proven beyond a reasonable doubt if they will increase the maximum authorized punishment; if not, they ordinarily should not be alleged in the specification.  R.C.M. 307(c)(3).

b)      Examples.

(1)    Over 30 grams of marijuana. MCM, pt. IV, ¶ 50d(1).

(2)    Value over $1000; military property. MCM, pt. IV, ¶ 64d(1).

(3)    Use of a dangerous weapon. MCM, pt. IV, ¶ 67d(1).

(4)    Age of the victim. MCM, pt. IV, ¶ 77d(2)(f).

4.       Value.

a)       Pleading value. ("of a value greater than . . .," "of a value not less than . . .," "of some value").

b)      Proving value.  Value is a question of fact to be determined by all of the evidence admitted.  MCM, pt. IV, ¶64c(1)(g).

(1)    Government property.  Listed in official publications.

(2)    Other property.  Legitimate market value.

(3)    United States v. Trisler, 25 M.J. 611 (A.C.M.R. 1987) (hearsay testimony admissible to show value of stereo equalizer and two speakers absent defense objection).

c)       Value in larceny cases. 

(1)    Multiple items taken at substantially the same time and place are a single larceny, even if the items belonged to more than one victim.  In such cases, a single specification is used to allege theft of all items, and the values of the items are combined to determine the maximum punishment.  See MCM, pt. IV, ¶64c(1)(h)(ii).  The specification should state the value of each item followed by a statement of the aggregate value.  R.C.M. 307(c)(3) discussion at (H)(iv).

(2)    Cannot combine or aggregate values of items stolen from different places or on different dates. 

(3)    To be convicted of larceny over $1,000 either:

(a)    One item must have that value (over $1,000.00), or

(b)    Several items taken at the same time and place must have that aggregate value. See MCM, pt. IV, ¶64c(1)(h)(ii). 

5.       Joinder of offenses.

a)       All offenses against an accused may be referred to the same court-martial for trial.  R.C.M. 601(e)(2). 

b)      The military judge may sever offenses “only to prevent manifest injustice.”  R.C.M. 906(b)(10)(A); United States v. Duncan, 53 M.J. 494 (C.A.A.F. 2000); see also United States v. Simpson, 56 M.J. 462 (C.A.A.F. 2002).

c)       Joinder of perjury charges resulting from accused’s testimony at previous trial.  United States v. Giles, 59 M.J. 374 (C.A.A.F. 2004) (holding the military judge abused his discretion by failing to sever the perjury charge from the attempted use and distribution charges at retrial; the instructions given were insufficient to prevent a manifest injustice).

d)      After arraignment, charges cannot be added without the consent of the accused.  R.C.M. 601(e)(2).

D.     Amendments.  R.C.M. 603.

1.       Types of changes.  R.C.M. 603(b). 

a)       Major change.  Adds a party, offense, or substantial matter not fairly included in those previously preferred, or which is likely to mislead the accused.

b)      Minor changes.  All other changes.

2.       Making minor changes.

a)       Before arraignment.  Any person forwarding, acting upon, or prosecuting the charges, except a preliminary hearing officer, can make minor changes before arraignment.  R.C.M. 603(a).

b)      After arraignment.  After arraignment, the military judge may, upon motion, permit minor changes any time before findings if no substantial right of the accused is prejudiced.  R.C.M. 603(e).

3.       Making Major Changes.

a)       After referral, charges other than minor changes may never be made over the objection of the accused unless the charge or specification is preferred anew.  R.C.M. 603(d).

b)      Applications.

(1)    Conspiracy.  United States v. Moreno, 46 M.J. 216 (C.A.A.F. 1997) (holding that accused’s ability to prepare a defense was not prejudiced by a change to conspiracy specification the day before trial).

(2)    Disobedience.  United States v. Longmire, 39 M.J. 536 (A.C.M.R. 1994) (change to person issuing order and document used to issue order was major change).

E.      Variance.  R.C.M. 918(a)(1)

1.       A variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge.  United States v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999).

2.       Findings by exceptions and substitutions may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it.  R.C.M. 918(a)(1).

3.       The specification and the findings may differ, but substantial similarity between the facts alleged and those provided is required.  United States v. Collier, 14 M.J. 377 (C.M.A. 1983).

4.       Test for prejudice.  United States v. Lee, 1 M.J. 15 (C.M.A. 1975). 

a)       The variance misled the accused to the extent that he was unable to adequately prepare for trial; or

b)      The variance puts accused at risk of another prosecution for the same offense. 

5.    Exceptions and Substitutions. United States v. Wray, 17 M.J. 375 (C.M.A. 1984).

a)    The variance changes the nature or identity of the offense and the accused has been denied the opportunity to defend against the charge. 

6.       Applications.

a)       Substantially different offense. United States v. Lovett, 59 M.J. 230 (C.A.A.F. 2004) (holding variance was fatal when finding of guilt for solicitation to obstruct justice was substantially different from the charged solicitation to murder).

b)      Different date. United States v. Parker, 59 M.J. 195 (C.A.A.F. 2003) (holding two-year variance in date of rape fatal); United States v. Wray, 17 M.J. 375 (C.M.A. 1984) (holding variance in date of larceny fatal). But see United States v. Hunt, 37 M.J. 344 (C.M.A. 1993) cert. denied, 114 S. Ct. 1052 (1993) (holding three-week variance in date of rape not fatal). 

c)       Different victim.  United States v. Marshall, 67 M.J. 418 (C.A.A.F. 2009) (holding variance fatal in an Art. 95 prosecution when specification alleged that the accused escaped from the custody of “CPT Kreitman” and military judge entered findings by exceptions and substitutions convicting the accused of escaping the custody of “SSG Fleming”).

d)      Different injury.  United States v. Dailey, 37 M.J. 1078 (N.M.C.M.R. 1993) (holding variance not fatal).

e)       Different unit.  United States v. Atkinson, 39 M.J. 462 (C.M.A. 1994) (holding variance in alleging unit of assignment rather than temporary place of duty not fatal).

f)       Violation of different paragraph of general order.  United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003) (holding variance fatal where accused was charged with violating a lawful general order by providing alcohol to a recruit but convicted of violating of a different paragraph of the same order by engaging in a personal relationship with the recruit).

g)      Statute of limitations—divers occasions. United States v. Rollins, 61 M.J. 338 (C.A.A.F. 2005).  Appellant was charged with numerous offenses including attempted rape on divers occasions and indecent acts on divers occasions.  The panel found appellant not guilty of attempted rape, but guilty of indecent assault on divers occasions, and guilty of the divers occasions indecent act specification.  Both of these specifications included periods which would later be time-barred by the holding in United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000).  The convening authority modified the findings to include only the dates not affected by the statute of limitations.  HELD:  The military judge erred by not providing the panel with instructions that focused their attention on the period not barred by the statute of limitations.  The convening authority’s action did not cure this prejudice and the affected findings were set aside. See also United States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004).

7.       Continuing course of conduct "on divers occasions." 

a)       On findings, when the phrase “on divers occasions” is removed from a specification, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions.  United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010); United States v. Augsberger, 61 M.J. 189 (C.A.A.F. 2005).

b)      Where the findings do not disclose the single occasion on which the conviction is based, appellate courts cannot conduct a factual sufficiency review or affirm findings because it cannot determine which occasion the Servicemember was acquitted of.  United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010); United States v. Augsberger, 61 M.J. 189 (C.A.A.F. 2005).

c)       “Both trial practitioners and military judges need to be aware of the potential for ambiguous findings . . . and take appropriate steps through instruction and pre-announcement review of findings to ensure no ambiguity occurs.”  United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010), quoting United States v. Walters, 58 M.J. 391, 396 (C.A.A.F. 2003). 

d)      While a Court of Criminal Appeals may not review the record to determine which incident most likely formed the basis for the conviction, the court “may review the record to determine if there was only a single possible incident that met ‘all the details of the specification’ for which the [accused] was convicted.  United States v. Trew, 68 M.J. 364, 368 (C.A.A.F. 2010); United States v. Ross, 68 M.J. 415, 418 (C.A.A.F. 2010).  However, Government may prevail on appeal if legal sufficiency review reveals only one occasion that is legally sufficient.  “Under those circumstances, . . . the verdict would be unambiguous.”  See United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010).

e)       Applications.  United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) (holding variance fatal where specification alleged wrongful drug use on “divers occasions” and findings by exceptions and substitutions removed the “divers occasions” language; the substituted language must clearly reflect the specific instance of conduct upon which the modified findings are based); see also United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010) (accused charged with indecent acts upon a child on divers occasions, military judge convicted of assault consummated by battery on one occasion without clarification, ambiguous findings); United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010) (charged with possession of child pornography on divers occasions, military judge excepted words “on divers occasions” without additional comment,” ambiguous findings); United States v. Wilson, 67 M.J. 423 (C.A.A.F. 2009) (error for military judge to fail to identify the specific instance of conduct forming the basis for the conviction); United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004) (fatal variance); United States v. Augspurger, 61 M.J. 189 (C.A.A.F. 2005) (fatal variance); and United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005) (partially affirmed and partially set aside).

IV.            Multiplicity

A.     Defined:  “[T]he practice of charging the commission of a single offense in several counts.”  Black's Law Dictionary 1016 (6th ed. 1990).

B.      The doctrine of Multiplicity rests on a Constitutional Basis.

1.       "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb."  U.S. Const. amend. V. 

2.       This prohibition extends to multiple punishments for the same offense at a single criminal trial.  Ohio v. Johnson, 467 U.S. 493 (1984); Ball v. United States, 470 U.S. 856 (1985).

C.      The Fundamental Rule.  United States v. Teters, 37 M.J. 370 (C.M.A. 1993).

1.       An accused may not be convicted of multiple offenses arising out of a single criminal transaction unless there is a clear expression of legislative intent to the contrary.

2.       Legislative intent to allow multiple convictions for offenses arising out of a single criminal transaction may be inferred if each offense requires proof of a fact that the other does not.  The determination that each offense requires proof of a unique fact is made by comparing the elements of the offenses.  See United States v. Dillon, 61 M.J. 221 (C.A.A.F. 2005) (holding that separate specifications for different controlled substances used at the same time not multiplicious; Congress clearly intended separate specifications for each controlled substance and this complies with the statutory elements test under Teters.).

3.       "[T]hose elements required to be alleged in the specification, along with the statutory elements, constitute the elements of the offense for the purpose of the elements test."  United States v. Weymouth, 43 M.J. 329, 340 (C.A.A.F. 1995).

4.       The inference of legislative intent to allow separate convictions may be overcome if there are indications of contrary legislative intent.  See, e.g., UCMJ art. 120(b) (prior to 1 Oct. 2007) (2008 MCM, App. 27) (limiting carnal knowledge to “circumstances not amounting to rape”). 

5.       Offenses found to be "separate" under this analysis may be considered separate for all purposes, including sentencing.  United States v. Morrison, 41 M.J. 482 (1995).

6.       Charges reflecting both an offense and a lesser included offense are impermissibly multiplicious.  United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004); United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999).

D.     Multiplicity does not apply to sentencing.  If an offense is multiplicious for sentencing, then it is necessarily multiplicious for findings.  United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (eliminating the doctrine of multiplicity for sentencing, but affirming the application of unreasonable multiplication of charges for sentencing).

E.      Multiplicity and Waiver.

1.       Absent plain error, an unconditional guilty plea waives a multiplicity claim.  United States v. Lloyd, 46 M.J. 19 (C.A.A.F. 1997).  However, if two specifications are facially duplicative, i.e., “factually the same,” then they are multiplicious, and it is plain error not to dismiss one of them.  United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004) (holding, under the facts, that breaking restriction and AWOL are not factually the same, so the military judge did not commit plain error by not dismissing the AWOL charge as a lesser included offense).

2.       Failing to object to charges as multiplicious waives the issue absent plain error.  See United States v. Britton, 47 M.J. 195 (C.A.A.F. 1997); United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999); but see United States v. Hanks, 74  M.J. 556 (A. Ct. Crim. App. 2014) (addressing multiplicity without plain error analysis despite accused’s not raising it at trial; rejecting government concession that maiming and aggravated assault by intentionally inflicting grievous bodily harm specifications were multiplicious, holding that the aggravated assault offense was not a lesser included offense of maiming despite the MCM listing it as such and disagreeing with a case from the Navy-Marine Corps Court of Criminal Appeals holding that it was).

F.      Suggested References for Multiplicity.  Articles that may assist in understanding these principles include:  Captain Gary E. Felicetti, Surviving the Multiplicity/LIO Family Vortex, Army L., Feb. 2011, 46; Major Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial,  63 A. F. L. Rev. 23 (2009); Lieutenant Colonel Michael Breslin & Lieutenant Colonel LeEllen Coacher, Multiplicity and Unreasonable Multiplication of Charges:  A Guide to the Perplexed, 45 A. F. L. Rev. 99 (1998); Major William T. Barto, Alexander the Great, the Gordian Knot, and the Problem of Multiplicity in the Military Justice System, 152 Mil. L. Rev. 1 (1996).

V.   Unreasonable Multiplication of Charges (UMC)

A.     General.  Even if offenses are not multiplicious, courts may apply the doctrine of unreasonable multiplication of charges (UMC). 

1.       “What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person.”  R.C.M. 307(c)(4); see also R.C.M. 1003(c)(1)(C).  Cf. R.C.M. 906(b)(12).

2.       Military judges must ensure that prosecutors do not needlessly “pile on” charges against a military accused.  United States v. Foster, 40 M.J. 140, 144 n.4 (C.M.A. 1994).

B.      The Doctrine.  United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). 

1.       Multiplicity and UMC are founded on distinct legal principles.  The prohibition against multiplicity complies with the constitutional and statutory restrictions against double jeopardy.  The prohibition against UMC addresses features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.   After considering these factors, if the court finds the “piling on” of charges to be unreasonable, it will fashion an appropriate remedy on a case by case basis.

2.       In Quiroz, the CAAF endorsed the N-MCCA's non-exclusive list of factors to consider in weighing a claim of UMC:  1) Did accused object at trial?  2) Is each charge and specification aimed at a distinctly separate act?  3) Does the number of charges misrepresent or exaggerate accused’s criminality?  4) Is there any evidence of prosecutorial overreaching in drafting?  5) Does number of charges and specifications unfairly increase accused’s punitive exposure? 

C.      Trial Judges may dismiss unreasonably multiplied charges.  United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006).  

D.     Service courts may consider UMC claims waived or forfeited if not raised at trial.  United States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001).

E.      On appeal, service courts may disapprove findings, even if they are correct in law and fact, in order to remedy what it finds to be an unreasonable multiplication of charges.  United States v. Bond, 69 M.J. 701 (C.G. Ct. Crim. App. 2010).

F.      Unreasonable multiplication of charges can occur across multiple prosecutions.  See United States v. Raynor, 66 M.J. 693 (A.F. Ct. Crim. App. 2008) (after the AFCCA ordered a rehearing on two charges, the government added charges for indecent liberties, sodomy, assault, and enticing minors to engage in sexually explicit conduct under 18 U.S.C. § 2251, which arose from the same conduct at issue at the first trial; held:  not an unreasonable multiplication of charges).

G.     Applications.

1.       Although CAAF eliminated the doctrine of multiplicity for sentencing, courts may still apply the unreasonable multiplication of charges test during sentencing.  United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012).

2.       United States v. Mazer, 58 M.J. 691 (N-M. Ct. Crim. App. 2003).  A commissioned officer exchanged sexually suggestive and explicit e-mail and “chat” messages with a 14-year-old girl.  Four specifications of an Article 133 charge was not UMC, because they did not reflect the same act or transaction.  Each specification identified a discrete and unique communication.

3.       United States v. Esposito, 57 M.J. 608 (C.G. Ct. Crim. App. 2002).  Appellant made a false statement about the source of injuries sustained in a fight and asked a fellow crewmember to do the same.  Charging appellant with false official statement and obstructing justice by making the same false statement was UMC.  Also, charging appellant with soliciting a false official statement and obstructing justice by that same solicitation was UMC.

4.       United States v. Clarke, 74  M.J. 627 (A. Ct. Crim. App. 2015).  Assault under Article 128, UCMJ, is a continuous course-of-conduct offense such that each blow in an altercation should not be the basis for a separate finding of guilty.  Separate aggravated assault convictions for the accused’s hitting his wife in the head with a metal stool – causing grievous bodily harm – and in the elbow with a means likely to cause death or grievous bodily harm, to wit:  the same metal stool (during the same beating) was unreasonable.

5.       United States v. Elespru, 73 M.J. 326 (C.A.A.F. 2014).  Accused was charged in the alternative with abusive sexual contact and wrongful sexual contact based on exigencies of proof.  The panel convicted him of both offenses, and the MJ combined them for sentencing.  The CAAF held that the military judge should have dismissed the wrongful sexual contact specification, but the error did not prejudice the sentence.

a)       The appellate courts recognize that Article 120 cases often lend themselves to charging in the alternative.  See United States v. Elespru, 73 M.J. 326 (C.A.A.F. 2014).  Military judges should ordinarily dismiss one of the charges based on the principle of unreasonable multiplication of charges only after findings have been reached.  Id.  Practitioners are advised to request the military judge to conditionally dismiss until such time as appellate review has been completed.  See, e.g., United States v. Hines, 75 M.J. 734 (A. Ct. Crim. App. 2016) fn 4  (MJ “should clearly state that the dismissal of the one specification is conditioned on a second specification surviving appellate review.”).  See also United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim. App. 2014), United States v. Parker, 75 M.J. 603 (N-M. Ct. Crim. App. 2016).  Consolidation of specifications may also be appropriate as an alternative to dismissal.  See United States v. Nelms, 2016 CCA LEXIS 227 (N-M. Ct. Crim. App. Apr. 14, 2016). 

6.       United States v. Chandler, 74 M.J. 674 (A. Ct. Crim. App. 2015).  Where there is only one agreement, there is only one conspiracy.  Charging two conspiracies for one agreement (here one conspiracy to steal military property and one to sell military property from the same agreement and course of events) is an unreasonable multiplication of charges.

VI.            Instructions Generally

A.     Three essential presumptions underlie the use of instructions at trial:

1.       The panel or jury hears and listens to the instructions.  See United States v. Smith, 25 C.M.R. 86 (C.M.A. 1958).

2.       The panel or jury understands the instructions.  United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001).

3.       The panel or jury follows the instructions.  Quintanilla, 56 M.J. at 83.

B.      Instructions should be written in plain language that is easy for lay people to understand.  See Carolyn G. Robbins, Jury Instructions: Plainer is Better, Trial, Apr. 1996, at 32.

C.      Instructions should be carefully tailored to the specific facts in each case.  United States v. Harrison, 41 C.M.R. 179 (C.M.A. 1970).

D.     Instructions must provide meaningful legal principles for the courts-martial’s consideration.  United States v. Dearing, 63 M.J. 478, 483 (C.A.A.F. 2006).

E.      Instructions must be given orally on the record in the presence of all parties and members.  Written copies of the instructions or, unless a party objects, portions of them may also be given to the members for their use during deliberation.  R.C.M. 920(d).

F.      Further readings.

1.       Colonel R. Peter Masterton, “Instructions:  A Primer for Counsel” Army Law., Oct. 2007, at 85.

VII.        Counsel’s role in drafting instructions

A.     “Although judges have the responsibility for giving proper instructions, counsel may request specific instructions, and, indeed, subject to ethical considerations, competent counsel should always seek to do so unless the applicable standard instruction is at least as favorable as any reasonable proposed instruction would be.”  22 Francis A. Gilligan & Fredric I. Lederer, Court-Martial Practice § 31.00 (3d ed. 2006).

B.      At the close of the evidence or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request.  R.C.M. 920(c).

C.      A military judge is required to give requested instructions “as may be necessary and which are properly requested by a party.”  R.C.M. 920(e)(7); United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993).  Requested instructions are necessary when:

1.       The issue is reasonably raised;

a)       A matter is “in issue” when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose.  R.C.M. 920(e) discussion; United States v. Terry, 64 M.J. 295, 299 (C.A.A.F. 2007).

b)      Whether an issue is raised is a matter for the judge to decide; the judge should not permit the court members to decide if the issue was raised.  United States v. Jones, 7 M.J. 441 (C.M.A. 1979).

2.       The issue is not adequately covered elsewhere in anticipated instructions; and

a)       See United States v. Briggs, 42 M.J. 367 (C.A.A.F. 1995); United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007); see also R.C.M. 920(c) discussion (the military judge is not required to give the specific instruction requested by the counsel as long as the issue is adequately covered in the instructions).

3.       The proposed instruction accurately states the law concerning facts in the case. 

D.     When counsel draft instructions or request instructions that are not required, the standard of review on appeal is abuse of discretion.  United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993); United States v. Acosta-Zapata, 65 M.J. 811 (A. Ct. Crim. App. 2007).

1.       However, if the instruction is otherwise required, the fact that the defense submitted a proposed but erroneous instruction does not excuse the military judge from his duty to instruct correctly.  United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006).  In those cases, use the standard of review for required instructions.  See section IX.C below.

2.       Waiver of error (R.C.M. 920(f)) does not really apply.  Here, the defense counsel is active.

VIII.    Procedural Instructions

A.     The military judge may make such preliminary instructions as may be appropriate.  R.C.M. 913(a). 

1.       These instructions are generally found in Chapter 2 of U.S. Dep’t of Army, Pam 27-9, Military Judges’ Benchbook (Feb 2020) [hereinafter Benchbook].

B.      Mixed plea cases. 

1.       The military judge should ordinarily defer informing the members of the offenses to which the accused pled guilty until after the findings on the remaining contested offenses have been entered.  R.C.M. 913(a).

2.       Exceptions to this rule include when the accused requests otherwise and when the accused’s plea was to lesser-included-offense and the prosecution intends to prove the greater offense.  See R.C.M. 913(a) discussion.

C.      Required instructions.  Art. 51(c), R.C.M. 920(e)(4)-(6).

1.       Only matter properly before the court-martial may be considered.

2.       The accused is presumed innocent.

3.       If there is reasonable doubt, the accused must be acquitted.

4.       If there is a lesser included offense and there is reasonable doubt as to the greater offense, the finding must be to an offense to where there is not reasonable doubt.

5.       The burden of proof is on the government (except for certain defenses).

6.       Instructions on deliberations and voting.

IX.            Elements of the Offenses

A.     Instructions on findings shall be given before or after arguments by counsel, or at both times.  R.C.M. 920(b). 

1.       Chapters 3 and 3A of the Benchbook contains the instructions on the elements of the offense.

2.       The timing is within the sole discretion of the military judge.  R.C.M. 920(b) discussion.  

B.      Required instructions.  Art. 51(c), R.C.M. 920(e)(1) and (2).

1.       Charged offenses.  A description of the elements of each offense charged (unless the accused pled guilty to that offense).

2.       Lesser included offenses.  A description of the elements of each lesser included offense, unless trial on the lesser included offenses is barred by the statute of limitations.

a)       The military judge has a sua sponte duty to instruct on all lesser-included-offenses reasonably raised by the evidence.  United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); United States v Griffin, 50 M.J. 480 (C.A.A.F. 1999); United States v. Wells, 52 M.J. 126 (C.A.A.F. 1999).

b)      Whether an issue is raised is a matter for the judge to decide; the judge should not permit the court members to decide if the issue was raised.  United States v. Jones, 7 M.J. 441 (C.M.A. 1979).

c)       A matter is “in issue” when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose.  R.C.M. 920(e) discussion.  See United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003) (contains a thorough analysis of this problem done in the context of a defense instruction).

d)      Any doubt about whether the evidence is sufficient to raise the need to instruct on a lesser included offense must be resolved in favor of the accused. United States v. Gillenwater, 43 M.J. 10 (C.A.A.F. 1995); United States v. Rodwell, 20 M.J. 264 (C.M.A. 1985).  But see United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) (the court appears to weigh the evidence on one aspect of the defense of duress).

e)       The defense may affirmatively waive instruction on lesser included offenses.  United States v. Strachan, 35 M.J. 362 (C.M.A. 1992). 

f)       However, the defense does not have an “all or nothing” option.  If the prosecution (or the military judge) wants the instruction on the lesser included offense, the military judge can read that instruction.

(1)    Either party may request a lesser included offense instruction.  United States v. Miergrimando, 66 M.J.34 (C.A.A.F. 2008).

(2)    The military judge can instruct on a lesser included offense even over defense objection.  United States v. Emmons, 31 M.J. 108 (C.M.A. 1990)(the prosecution should not be denied of a conviction of the lesser included offense if the prosecution has met its burden on that lesser offense).  See also United States v. Toy, 60 M.J. 598 (N-M. Ct. Crim. App. 2004); United States v. Miergrimando, 66 M.J.34 (C.A.A.F. 2008) (no error when military judge gave lesser included offense instruction and defense planned to use an “all or nothing” strategy, and military judge gave the defense an option to continue the case to remedy defense’s mistaken strategy).

g)      Lesser included offenses include attempts.  United States v. Brown, 63 M.J. 735 (A. Ct. Crim. App. 2006) (error not to instruct on attempted murder when the evidence showed that the victim may have already been dead when shot).

h)      The military judge may instruct on lesser included offenses in order of severity of punishment or severity of the elements of the offenses.  United States v. Emmons, 31 M.J. 108 (C.M.A. 1990).

i)        A service court may, after disapproving a conviction for an offense due to an error, approve a conviction for the lesser included offense whose instruction was not considered nor instructed upon at the trial and in fact had been waived by both parties.  The court’s authority comes from Article 66(c), UCMJ which allows the court to consider the entire record.  United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008).

j)        Where some LIOs may be time-barred by the statute of limitations, the military judge has an affirmative duty to personally discuss the issue with the accused, and if not waived by the accused, to modify the instructions to include only the period of time for those LIOs that are not time-barred by the statute of limitations.  United States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004). 

C.      Standard of review for required instructions.

1.        “The propriety of the instructions given by a military judge is reviewed de novo.”  United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001); United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006).

2.       Erroneous instructions and lack of proper instructions are reviewed for prejudice.  Art. 59(a).

a)       When the erroneous instruction is of a constitutional dimension (undermines the fundamental trial structure), the test for prejudice is harmless beyond a reasonable doubt.  United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995). 

(1)    If the military judge omits an element entirely, the error is per se prejudicial.  United States v. Mance, 26 M.J. 244 (C.M.A. 1988). 

(2)    However, if the judge adequately identifies the element but gives an erroneous instruction on it, that error may be tested for harmlessness.  Mance, 26 M.J. 244 at 255-256; United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995).

b)      When the erroneous instruction is not of a constitutional dimension, the test for prejudice is harmless error. United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995). 

c)       Effect of failure to object to erroneous instructions or to request certain instructions.

(1)    R.C.M. 920(f) states that failure to object to an instruction or to the omission before the members close to deliberate constitutes waiver of the objection in the absence of plain error.

(2)    However, in United States v. Taylor, 26 M.J. 127, 128 (C.M.A. 1988), the court restricted that language to only those instructions that relate to R.C.M. 920(e)(7) (“such other” instructions).  The court held that this rule does not apply to required instructions, such as those on elements, defenses, and due process principles.  See also United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006); United States v. Smith, 50 M.J. 451 (C.A.A.F. 1999) (failure to object to erroneous instructions given by the military judge does not waive appellate review of the instructions given; affirmative waiver on the record is required). 

(3) To the extent that United States v. Taylor holds that an accused's right to a required instruction on findings is not waived (that is, extinguished on appeal) by a failure to object without more, it remains good law. But to the extent that Taylor can be read to suggest that plain error review is never appropriate in teh context of a required instruction where there was no objection, it is . . . overruled. United States v. Davis, 76 M.J. 224 (C.A.A.F. 2017). 

(4)    Failure to object does not result in plain error analysis; rather, the test for error is de novo and the test for prejudice is determined by whether the error was of a constitutional dimension or not.  United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995). 

(5)    However, failure to give an amplifying instruction on the element (fully defining “wrongfulness,” for example) is tested for plain error if the defense counsel does not request that instruction or fails to object to an incorrect amplifying instruction. United States v. Glover, 50 M.J 476 (C.A.A.F. 1999); United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003); United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005).

X.   Instructions on Defenses

A.     Instructions on findings shall be given before or after arguments by counsel, or at both times.  R.C.M. 920(b). 

1.       Chapter 5 of the Benchbook contains the instructions on special and other defenses.  Chapter 6 contains the instructions for lack of mental responsibility and partial mental responsibility.

2.       The timing is within the sole discretion of the military judge.  R.C.M. 920(b) discussion.  

B.      Required instructions.  Art. 51(c), R.C.M. 920(e)(3).

1.       A description of any special defense under R.C.M. 916 in issue.

a)       Special defenses are those defenses that, while not denying that the accused committed the acts charged, seek to deny criminal responsibility for those acts.  R.C.M. 916(a).

b)      Alibi and good character are not special defenses; rather, they are failure of proof offenses.  R.C.M. 916(a) discussion. 

c)       Partial mental responsibility (Instruction 6-5) and evidence that negates mens rea (Instruction 5-17) are failure of proof defenses but the military judge has a sua sponte duty to instruct on them.  The partial mental responsibility instruction is only read if the evidence has raised a lack of mental responsibility defense and there is evidence that tends to negate mens rea.  Note that both instructions will be read.  If the evidence has not raised the lack of mental responsibility defense, use Instruction 5-17.

d)      Voluntary intoxication is considered a special defense for purposes of requiring an instruction.  United States v. Hearn, 66 M.J. 770 (A. Ct. Crim. App. 2008).  The court found that some evidence of severe intoxication is required to trigger an instruction.  The court developed a three-prong test to determine whether a voluntary intoxication is required:

(1)    The crime charged includes a mental state;

(2)    There is evidence of impairment do to the ingestion of alcohol or drugs;

(3)    There is evidence that the impairment affected the defendant’s ability to form the required intent or mental state.

e)       The description must adequately cover the concepts of the defense so that the panel can fairly consider the defense theory.  United States v. Dearing, 63 M.J. 478, 483 (C.A.A.F. 2006).

2.       The military judge has a sua sponte duty to instruct on special defenses reasonably raised by the evidence.

a)       Whether an issue is raised is a matter for the judge to decide; the judge should not permit the court members to decide if the issue was raised.  United States v. Jones, 7 M.J. 441 (C.M.A. 1979).

b)      The test for whether a special defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire.  United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003) (applying a thorough analysis and using a totality of the circumstances approach when finding that an instruction was not required).

c)       In determining whether to give a requested instruction on a defense, the judge may not weigh the credibility of the defense evidence.  United States v. Brooks, 25 M.J. 175 (C.M.A. 1987).

d)      The military judge also has the sua sponte duty to read the instruction on the defense of lack of mental responsibility if some evidence has raised the defense.  Benchbook para. 6-4.  Preliminary instructions may be read when the evidence is introduced so that the panel can put the evidence in context.  Benchbook para. 6-3.

3.       Defense counsel may affirmatively waive an affirmative defense instruction. United States v. Gutierrez, 64 M.J. 374 (C.A.A.F. 2007).

C.      Failure of proof defenses. 

1.       The military judge ordinarily has no sua sponte duty to instruct on defenses which deny the accused’s commission of the acts charged.  United States v. Stafford, 22 M.J. 825 (N.M.C.M.R. 1986). 

2.       Alibi and good character are not special defenses; rather, they are “failure of proof” defenses.  R.C.M. 916(a) discussion.

a)       The Benchbook contains an instruction on alibi (Benchbook, para. 5-13).  See also United States v. Jones, 7 M.J. 441 (C.M.A. 1979) (instruction that defense of alibi “may or may not” have been raised was improper; military judge must determine if defense has been raised and instruct accordingly).

b)      The Benchbook also contains direction to the military judge on good character defenses.  See Benchbook, para. 5-14.

c)       The Benchbook contains instructions on other “failure of proof” defenses.  See e.g. Benchbook, para. 5-17.

3.       For a discussion of voluntary intoxication as a failure of proof defense, See United States v. Hensler, 44 M.J. 184, 187 (C.A.A.F. 1996); United States v. Hearn, 66 M.J. 770 (A. Ct. Crim. App. 2008) (voluntary intoxication is a required instruction).

D.     Standard of review. 

1.       The analysis for the standard of review is the same as that for instructions on the elements of the offense.  United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006).  See generally, United States v. Gillenwater, 43 M.J. 10 (C.A.A.F. 1995); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000).

2.       For that analysis, go to section IX.C, above.

3.       Failure of proof defenses fall under R.C.M. 920(e)(7) and are subject to the forfeiture rules of R.C.M. 920(f).

XI.            Evidentiary instructions

A.     Duty to provide instructions.

1.       The military judge ordinarily has no sua sponte duty to give these instructions.  (Exceptions to this rule are found below). 

2.       However, when the evidence relates to a central issue at trial, in some cases it may be plain error for the military judge not to give a sua sponte evidentiary instruction.  See United States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003) (when the government introduced “human lie detector” testimony through an OSI agent, it was plain error for the judge not to give a sua sponte curative instruction, even though defense counsel did not request one because the testimony involved a central issue at trial -- the appellant’s credibility).

3.       Evidentiary instructions are found in chapter 7 of the Benchbook.

B.      Summarizing the evidence.  R.C.M. 920(e) discussion.

1.       The military judge may summarize and comment upon evidence.  However, the military judge should:

a)       Present an accurate, fair, and dispassionate statement of what the evidence shows;

b)      Not depart from an impartial role;

c)       Not assume as true the existence or nonexistence of a fact in issue when the evidence is conflicting or disputed, or when there is no evidence to support the matter;

d)      Make clear that the members must exercise independent judgment as to the facts.

2.       See generally United States v. Figura, 44 M.J. 308 (C.A.A.F. 1996).

C.      Standard of review. 

1.       The military judge’s ruling to issue or not issue an instruction that is not required is tested for abuse of discretion.  United States v. Thompson, 31 M.J. 125 (C.M.A. 1990); United States v. Forbes, 61 M.J. 354 (C.A.A.F. 2005).

2.       Failure to object to an erroneous instruction or to request an omitted (non-mandatory) instruction constitutes forfeiture.  R.C.M. 920(f).  This triggers plain error analysis, United States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003).

3.       The test for prejudice depends on whether the error was of constitutional dimension.  See generally United States v. Forbes, 61 M.J. 354 (C.A.A.F. 2005).

D.     Judicial notice.  Benchbook, para. 7-6. 

1.       The military judge shall give an instruction whenever he or she takes judicial notice of any matter.  See Mil. R. Evid. 201 and 202.

E.      Credibility of witnesses.  Benchbook, para. 7-7. 

1.       This instruction should be given upon request or when appropriate and must be given when the credibility of a principal witness or witness for the prosecution has been assailed by the defense.

F.      Failure to testify.  Benchbook, para. 7-12.

1.       General rule.  When the accused does not testify at trial, defense counsel may request that the members of the court be instructed to disregard that fact and not to draw any adverse inference from it.  Defense counsel may request that the members not be so instructed.  Defense counsel’s election shall be binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice.  Mil. R. Evid. 301(f)(3).

2.       In United States v. Forbes, 61 M.J. 354 (C.A.A.F. 2005), the court adopted the following analysis.  The military judge is bound by the defense election unless the judge performs a balancing test that weighs the defense concerns against the case-specific interests of justice.  This is the same balancing test that is found in M.R.E. 403.  Something more than just a generalized fear that the panel will hold it against the accused must be present.  If the military judge follows that analysis, she will be granted abuse of discretion on review.  If she does not, the test will be de novo.  If there is error, then the test for prejudice is: a presumption of prejudice, where the burden shifts to the government to prove by a preponderance of the evidence that no prejudice exists.

3.       If the members ask a question that implicates the accused’s silence, the military judge has an affirmative duty to give the instruction.  United States v. Jackson, 6 M.J. 116 (C.M.A. 1979).

G.     Uncharged misconduct.  Benchbook, para. 7-13.

1.       The military judge is required to instruct on the limited use of uncharged misconduct “on timely request.” Mil. R. Evid. 105.

2.       Instruction may be required even absent defense request.  United States v. Barrow, 42 M.J. 655 (A.F. Ct. Crim. App. 1995).

3.       Timing of instruction.  United States v. Levitt, 35 M.J. 114 (C.M.A. 1992).  Instruction should be given immediately following introduction of evidence and repeated before deliberations.

H.     Spill-over effect of charged misconduct.  Benchbook, para. 7-17. 

1.       This instruction should be given, and might be required, whenever unrelated but similar offenses are tried at the same time.  See United States v. Myers, 51 M.J. 570 (N-M. Ct. Crim. App. 1999) (failure to give requested spill-over instruction was of constitutional dimension). 

I.        Cross-racial identification (as it relates to Benchbook para. 7-7-2, eyewitness identification).  

1.       This instruction should be given if cross-racial identification is in issue.  The mere fact that an eyewitness and the accused are of different races does not require instruction – cross-racial identification must be a “primary issue” in the case.  United States v. Thompson, 31 M.J. 125 (C.M.A. 1990).

J.        Variance.  Benchbook, paras. 7-15 and 7-16. 

1.       This instruction should be given if the evidence indicates that the offense occurred but the time, place, amount, etc. is different than that charged.

a)       United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003).  The appellant was tried for wrongful use of ecstasy on “divers occasions.”  The government presented evidence of six uses, and after being instructed on variance, the panel found him guilty of use on “one occasion.”  The court reversed, holding that where a specification alleges wrongful acts on “divers occasions,” any findings by exceptions and substitutions that remove the “divers occasions” language must specify the particular instances of conduct upon which the findings are based. 

b)      See also United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004) (citing Walters and holding that the lower court could not conduct an Art. 66 review when the members excepted the words “divers occasions” from their findings and did not indicate  which of the two instances the accused was guilty); United States v. Augspurger 61 M.J. 189 (C.A.A.F. 2005). 

2.       However, a factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of those means beyond a reasonable doubt.  United States v. Brown, 65 M.J. 356 (C.A.A.F. 2007); United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997).


XII.        Sentencing Instructions

A.     Instructions on sentencing shall be given after arguments by counsel on sentencing and before the members close to deliberate.  The military judge may, upon request of the members, any party, or sua sponte, give additional instructions at a later time.  Instructions must be given orally, but may, in addition, be in writing.  R.C.M. 1005(b) and (d). 

1.       Chapter 2 of the Benchbook contains the sentencing instructions.

B.      Required Instructions. R.C.M. 1005(e).

1.       Maximum punishment and mandatory minimum punishment, if any. 

a)       Military judge must instruct on the correct maximum punishment, but not how the amount was reached (unitary sentencing).  United States v. Purdy, 42 M.J. 666 (A. Ct. Crim. App. 1996).  See also United States v. Reyes, 63 M.J. 265 (2006) (reversing where the military judge incorrectly instructed that a dishonorable discharge was available).

b)      Punishments other than the maximum. The  military judge has no sua sponte duty to instruct on other punishments.  Instruction on the maximum punishment plus a proper sentence worksheet is sufficient.  United States v. Brandolini, 13 M.J. 163 (C.M.A. 1982).

2.       A statement of the effect any sentence announced that includes a punitive discharge and confinement, or confinement in excess of six months, will have on the accused’s entitlement to pay and allowances.

3.       Procedures for deliberations and voting. 

a)       Failure to give instruction that members are to begin voting with the lightest proposed sentence is not plain error.  United States v. Fisher, 21 M.J. 327 (C.M.A. 1986).  However, in capital cases, this is error.  United States v. Thomas, 46 M.J. 311 (C.A.A.F. 1997); United States v. Simoy, 50 M.J. 1 (C.A.A.F. 1999). 

b)      Collecting and counting votes. 

(1)    United States v. Truitt, 32 M.J. 1010 (A.C.M.R. 1991).  Failure to instruct that junior member collects and counts the votes and the president shall check the count was harmless in the absence of evidence that the panel actually voted incorrectly.

(2)    But see United States v. Harris, 30 M.J. 1150 (A.C.M.R. 1990).  Failure to give instructions that voting was to be by secret written ballot and that the junior member was to collect and count the ballots was error.  The court declined to presume that the correct procedures were followed and reversed.

4.       The members are solely responsible for selecting the sentence and they cannot rely upon mitigating action by the convening authority. 

5.       Members must consider all matters in extenuation, mitigation and aggravation, whether introduced before or after findings, and matters introduced under R.C.M. 1001(b)(1), (2), (3), and (5).  R.C.M. 1005(e)(5).  If the accused states irrelevant matters in her unsworn statement, the military judge may give a Friedmann instruction (based on United States v. Friedmann, 53 M.J. 800 (A. F. Ct. Crim. App. 2000)); see also United States v. Barrier, 61 M.J. 482 (C.A.A.F. 2005).

6.       Members shall consider the sentencing guidance set forth in R.C.M. 1002(f). R.C.M. 1005(e)(6)

7.       Such other explanations, descriptions, or directions that the military judge determines to be necessary, whether properly requested by a party or determined by the military judge sua sponte. R.C.M. 1005(e)(7)

C.      Requested instructions.

1.       After presentation of matters relating to sentence or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request.  R.C.M. 1005(c).

2.       The analysis is the same as described in section VII above.  United States v. Simmons, 48 M.J. 193 (C.A.A.F. 1998).

3.       Often, defense requests relate to identifying certain things as being mitigating.

a)       United States v. Simmons, 48 M.J. 193 (C.A.A.F. 1998).  When there is a dispute as to whether the mitigator exists, the preferable method is for the judge to modify a requested instruction to say that the members can consider the matter in mitigation if they decided the mitigator exists.

b)      United States v. Perry, 48 M.J. 197 (C.A.A.F. 1998).  Accused convicted of forcible sodomy and other offenses.  Defense wanted an instruction in sentencing about the fact that the accused dismissal may cause the accused to pay back his education.  The judge refused to give the instruction, claiming that it was collateral and there were too many factors to know for certain whether the money would be taken back.  CAAF agreed.

c)       United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (holding that military judges are required to instruct on the impact of a punitive discharge on retirement benefits, “if there is an evidentiary predicate for the instruction and it is requested”).

D.     Standard of review.

1.       Failure to object to an instruction or omission of instruction constitutes forfeiture of the objection in the absence of plain error.  R.C.M. 1005(f); United States v. Reyes, 63 M.J. 265 (C.A.A.F. 2006).

2.       The test for prejudice is whether the error materially prejudiced a substantial right.  The question is whether the panel might have been substantially swayed by the error during the sentencing process.  United States v. Reyes, 63 M.J. 265 (C.A.A.F. 2006).

XIII.    General Findings in the Military – R.C.M. 918(a)

A.     Guilty;

B.     Not Guilty;

C.     Guilty by Exceptions (with or without substitutions);

D.     Guilty of Lesser Included Offense (LIO).

1.          R.C.M. 918(a)(1)(B) permits a plea of “not guilty of an offense as charged, but guilty of a named lesser included offense.”  What constitutes a “named lesser included offense” and whether this rule can be reliably applied is questionable in light of United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).

2.          When plea to an LIO is entered, defense counsel should provide a written revised specification.  Revised specification should be an appellate exhibit.

3.          United States v. Fowler, 74 M.J. 689 (A. Ct. Crim. App. 2015).  Accused pled to absence without leave as LIO of desertion, and military judge mistakenly entered findings of guilty to the LIO and not guilty of the greater offense before the government had the opportunity to prove the greater offense.  The finding of not guilty did not constitute an acquittal because a military judge cannot foreclose the government’s opportunity to present its case by entering a finding of not guilty before it has the opportunity to do so.

E.      Not Guilty Only by Reason of Lack of Mental Responsibility.

XIV.     What May / May Not Be Considered in Reaching Findings?  R.C.M. 918(c)

A.     Matters properly before the court (e.g., testimony of witnesses, real and documentary evidence).  Does not include documents provided ex parte to the military judge.  But see United States v. McCarthy, 37 M.J. 595 (A.F.C.M.R. 1993) (finding no prejudice when military judge “finds” missing performance evaluation report during deliberations and “adds” it to the record without explaining where he got it). 

B.      Specialized knowledge – i.e., gained by member from source outside court-martial – may not be considered.

1.          United States v. Davis, 19 M.J. 689 (A.C.M.R. 1984).  Improper for court member to visit the crime scene to determine quality of lighting.  Convening authority should have ordered an evidentiary hearing to determine whether the accused was prejudiced.

2.          United States v. Johnson, 23 M.J. 327 (C.M.A. 1987).  During deliberations, demonstration by member with martial arts expertise did not constitute extraneous prejudicial information where the demonstration was merely an examination and evaluation of evidence already produced.

C.      Member may not communicate with witnesses.

1.          United States v. Elmore, 33 M.J. 387 (C.M.A. 1991).  Blood expert witness had dinner with the members.  Extensive voir dire established the lack of taint.

2.          United States v. White, 36 M.J. 284 (C.M.A. 1993).  Although any contact between witnesses and members gives rise to perceptions of unfairness, it is not automatically disqualifying.  In this case the voir dire disclosed in full the innocuous nature of the contact.

D.     Members may not seek information that is not available in open court.  United States v. Knight, 41 M.J. 867 (Army Ct. Crim. App. 1995).  Three members repeatedly quizzed bailiff/driver about matters presented in court out of presence of members, and sought his medical opinion – he was also an EMT – about bruising, which was a key issue in sexual assault prosecution.

E.      Split Plea.  Unless the defense requests (or offenses stand in greater – LIO relationship), panel members may not consider, and should not be told, that the accused earlier plead guilty to some offenses.  United States v. Kaiser, 58 M.J. 146 (2003).

F.      Use of providence inquiry statements in mixed plea cases.

1.          Admissions in a plea of guilty to one offense cannot be used as evidence to support a finding of guilty of an essential element of a separate and different offense, but the elements established by the guilty plea inquiry and stipulation of fact may be considered in trial on contested charges, if the pled to charge is LIO of the contested charge. United States v. Abdullah, 37 M.J. 692 (A.C.M.R. 1993) (relying on United States v. Caszatt, 29 C.M.R. 521, 522 (1960)).  See also United States v. Rivera, 23 M.J. 89, 95 (C.M.A. 1986) (guilty plea to one offense can only be considered on findings when the plea is to a lesser included offense of the same specification as to which the plea is being offered into evidence).

2.          Plea of guilty may be used to establish common facts and elements of a greater offense within the same specification but may not be used as proof of a separate offense.  The elements of a LIO established by guilty plea (but not the accused’s admissions made in support of that plea) can be used to establish common elements of the greater offense.  United States v. Ramelb, 44 M.J. 625 (Army Ct. Crim. App. 1996).

3.          Admissions concerning the elements of the LIO made during providence inquiry can be considered insofar as the admissions relate to common elements of the greater offense, but it was error for the military judge to consider the accused’s admissions that pertained to different elements of the greater offense.  United States v. Grijalva, 55 M.J. 223 (2001).

G.     Matters taken into the deliberation room may be considered.  R.C.M. 921(b).   

1.          Notes of the court members.

2.          Exhibits admitted into evidence.

3.          Stipulations of fact are taken into the deliberation room so long as the military judge sufficiently ensures that the accused understood the effect of the stipulation of fact entered into with the Government.  See United States v. Resch, 65 M.J. 233 (C.A.A.F. 2007).

4.          Testimonial substitutes (depositions, stipulations of expected testimony) do not go into the deliberation room.  See United States v. Austin, 35 M.J. 271 (C.M.A. 1992) (finding that a verbatim transcript of alleged victim’s testimony at pretrial investigation was not an “exhibit” that members could take into the deliberation room).

H.     Fact finder may not consider submitted Chapter 10.  United States v. Balagna, 33 M.J. 54 (C.M.A. 1991).  Character witness acknowledged (upon prodding in open court by MJ) that he could not vouch for accused because had seen a “report.”  When asked by the MJ what that report was, the witness responded “a request for Chapter 10.”  Court finds no “extraordinary circumstances” requiring the declaration of a mistrial since the “adverse impact can be neutralized by other means.”  Id. at 57.  The MJ twice instructed the members that the evidence was inadmissible and prior to findings advised the members that it was to be “completely disregarded.”  Id; see also United States v. Vasquez, 54 M.J. 303 (C.A.A.F. 2001).

I.        Findings worksheet is used to assist members in putting findings in order.  See Appendix 10, Manual for Courts-Martial, Forms of Findings.

XV.        Deliberations and Voting on Findings.  R.C.M. 921

A.     Basic rules and procedures.

1.          Deliberations.  R.C.M. 921(a) and (b). 

2.          Only members present.  R.C.M. 921(a).

3.          No superiority in rank used to influence other members.  R.C.M. 921(a).

4.          May request reopening of court to have record read back or for introduction of additional evidence.  R.C.M. 921(b).

5.          Voting.  R.C.M. 921(c).

6.          By secret written ballot, with all members voting. 

7.          Guilty only if at least 3/4 vote for guilty.

8.          Fewer than 3/4 vote for guilty, then finding of not guilty results.

9.          Special procedure to find accused not guilty by reason of lack of mental responsibility.

10.      Procedure.  R.C.M. 921(c)(6).

B.      Straw polls.

1.          United States v. Fitzgerald, 44 M.J. 434 (1996).  Two specifications each alleged multiple discrete acts of sodomy and indecent acts.  As to discrete acts alleged in specifications, MJ suggested straw vote on specification as charged, then treating individual discrete acts separately as lesser included offenses.  Instructions likely inured to benefit of accused, and brought no objection from counsel.  Court found waiver by defense, no plain error, and affirmed findings and sentence.

2.          United States v. Lawson, 16 M.J. 38 (C.M.A. 1983).  Straw polls, i.e., informal non-binding votes, are not specifically prohibited, but are discouraged.  Cannot be used directly or indirectly to allow superiority of rank to influence opinion.

XVI.     Instructions on Findings.  R.C.M. 920

A.     United States v. Hardy, 46 M.J. 67 (1997).  MJ cannot direct panel to accept findings of fact, or to return verdict of guilty.  In non-capital case, panel returns only general verdict.  In answering panel question regarding required finding, MJ refused trial counsel request to instruct that proof beyond reasonable doubt as to all elements meant panel must find accused guilty.

B.      United States v. Gibson, 58 M.J. 1 (2003).  MJ erred by failing to give defense requested accomplice instruction.  Three prong test to determine if failure to give requested instruction is reversible error: (1) was requested instruction accurate; (2) was requested instruction substantially covered by the instructions given; and (3) if not substantially covered, was the instruction on such a vital point that it (failure to give) deprived the accused of a defense or seriously impaired its effective presentation.  If (1) through (3) are met, the burden of persuasion shifts to the Government to show that the error was harmless, that is, failure to give the instruction did not have a “substantial influence on the findings.”  If it had a substantial influence or the court is left in “grave doubt” as to the validity of the findings, reversible error has occurred.

C.      United States v. Hibbard, 58 M.J. 71 (2003).  MJ did not err by failing to give mistake of fact instruction in rape case where defense theory throughout trial, to include cross examination of victim, was that no intercourse occurred. 

D.     United States v. Lewis, 65 M.J. 85 (2007).  MJ erred by giving an incomplete instruction regarding self-defense by failing to instruct the members that a mutual combatant could regain the right to self-defense when the conflict is escalated or, is unable to withdraw in good faith.  “When the instructional error raises constitutional implications, the error is tested for prejudice using a ‘harmless beyond a reasonable doubt’ standard.” United States v. Lewis, 65 M.J. 85, __ (2007) citing United States v. Wolford, 62 M.J. 418, 420 (2006).

XVII.   Announcement of Findings.  R.C.M. 922

A.     United States v. Jones, 46 M.J. 815 (N-M. Ct. Crim. App. 1997).  In mixed plea case, MJ failed to announce findings of guilty of offenses to which accused had pled guilty, and as to which MJ had conducted providence inquiry.  Upon realizing failure to enter findings, MJ convened post-trial Article 39(a) hearing and entered findings consistent with pleas of accused.  Though technical violation of R.C.M. 922(a) occurred, MJ commended for using post-trial session to remedy oversight. 

B.      United States v. Perkins, 56 M.J. 825 (Army Ct. Crim. App. 2002).  MJ’s failure to properly announce guilty finding as to Specification 3 of Charge II (MJ Announced Guilty to Specification 3 of Charge III) did not require court to set aside appellant’s conviction of Specification 3 of Charge II when it was apparent from the record that the MJ merely misspoke and appellant had actually plead guilty to Specification 3 of Charge II.  Court notes that a proceeding in revision under R.C.M. 1101 would have been an appropriate course of action had the MJ or SJA caught the mistake.  

XVIII.                      Reconsideration of Findings.  UCMJ art. 52, R.C.M. 924

A.     Members may reconsider any finding before such finding is announced in open session.  R.C.M. 924(a).

1.       United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993), rev’d in part 46 M.J. 311 (1997).  (CAAF affirmed the findings and reversed the sentence due to a sentencing instruction error).  Accepted practice is to instruct prior to deliberation on findings that if any member desires to reconsider a finding, the MJ should be notified so that reconsideration instructions may be given in open court.  Instruction on reconsideration is required only if a court member indicates desire to reconsider.

2.       United States v. Jones, 31 M.J. 908 (A.F.C.M.R. 1990).  Appellate court orders rehearing on sentence.  Can the second panel reconsider findings?  HELD:  No.  R.C.M. 924(a) states “Members may reconsider any finding reached by them.”  Jones at 909.  Also, the appellate court had already affirmed the findings of guilty.  Once affirmed, “they are no longer subject to reconsideration.” Id. 

B.      Judge alone.  MJ may reconsider guilty finding any time before announcement of sentence.  R.C.M. 924(c).

XIX.     Defective Findings

A.     Concerns:  Sufficient basis for court to base its judgment and protect against double prosecution.

1.       Divers occasions.

a)       United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003).  Appellant charged with drug use on divers occasions.  The evidence put on by the government alleged six separate periods.  The panel returned a finding by exceptions and substitutions (excepting the words “divers occasions” and substituting the words “one occasion”), but did not specify the time frame.  The CAAF held that the findings were ambiguous, setting aside the findings and sentence.  The court noted that where a specification alleges acts on divers occasions, the members must be instructed that any findings by exceptions and substitutions must reflect the specific instance of conduct on which the modified findings are made.

1.       United States v. Wilson, 67 M.J. 423 (C.A.A.F. 2009).  Appellant charged with rape of a child on divers occasion.  The testimony of the victim, and a sworn statement of the appellant admitted at trial, indicated that there were two possible occasions when a rape may have occurred.  The military judge found the appellant guilty, excepting the words “on divers occasions,” but did not indicate which occasion was the basis for the single rape conviction.  The CAAF held that a court of criminal appeals did not even have the authority to review the case because the findings where ambiguous – the appeals court would not know which occasion the appellant was guilty of.  The CAAF dismissed the rape charge with prejudice.  The CAAF identified two methods to prevent such a drastic remedy in future cases.  First, when “on divers occasions” is excepted out, the substituted findings must clearly identify which conduct served as a basis for the findings.  Second, in a judge alone trial, a clear statement from the military judge on the record explaining which conduct formed the basis for the conviction.

2.       United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010).  Appellant charged with indecent acts on divers occasions.  Military judge finds him guilty of LIO of assault consummated by battery on a child under sixteen and excepts the words “divers occasions.”  Trial counsel asks military judge to clarify if the guilty finding was for “divers occasions as charged or is that just for—for one event or—will you clarify that further for us?”  The military judge replied “[i]t is on the one occasion.”  NMCCA found the findings “were not ambiguous when placed it in the context of the entire record.”  CAAF reversed the NMCCA, stating that NMCCA’s “distinction between ‘evaluat[ing] evidence’ and ‘consider[ing] the record as a whole to clarify the meaning and intent of the military judge’s words’ appears to be a distinction without a difference.”  CAAF finds findings “ambiguous” and unreviewable, and dismissed the charges with prejudice.

3.       United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010).  Appellant found guilty by military judge alone of possession of child pornography, excepting the words “on divers occasions.”  CAAF holds findings are ambiguous and dismisses charge with prejudice.  Even though possession of child pornography is a continuing offense and the words “on divers occasions” may be “surplusage,” on these facts they were not because the images were on three different media.  Because the images could have been on more than one form of storage media, charging “on divers occasions” was appropriate, and excepting that language without identifying which media the child pornography was on created an ambiguous finding.

4.       United States v. Saxman, 69 M.J. 540 (N. M. Ct. Crim. App. 2010).  Appellant charged with possession of twenty-two child pornography videos on a computer.  Appellant was convicted by officer members by exceptions and substitutions of possessing only four of the charged twenty-two videos.  The announced finding did not specify which four videos formed the basis of the guilty finding.  NMCCA applies the Walters and Wilson logic to these facts and dismisses charge with prejudice.  Members’ finding meant the appellant was not guilty of possessing eighteen of the twenty-two videos.  Without knowing exactly which eighteen videos were not child pornography, the findings are ambiguous.

B.      Variance.

1.    United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003). Modification of a lawful general order charge from “wrongfully providing alcohol to [JK]” to “wrongfully [ ] engaging in and seeking [ ] a nonprofessional, personal relationship with [JK], a person enrolled in the Delayed-Entry Program” held to be a material variance; finding of guilty to the Charge and Specification set aside.  Variance cannot change the nature of the offense or increase the seriousness of the offense or its maximum punishment.

2.    United States v. Pryor, 57 M.J. 821 (N-M. Ct. Crim. App. 2003).  MJ erred by not entering guilty findings by exceptions and substitutions when the evidence in the stipulation of fact and the accused’s providence inquiry narrowed the period of the accused’s criminality.  By simply entering findings of guilty to the specifications as written, the appellant was prejudiced by a court-martial record that “indicates a pattern of criminal conduct occurring over a greater period of time than actually took place.”  The court provided relief by modifying the findings and reassessing the sentence based on the modified findings. 

3.    United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014).  MJ created a material variance in making a guilty finding by exceptions and substitutions.  Trial counsel originally charged the accused with “missing the movement of Flight TA4B702,” and the MJ found him guilty of “missing the movement of the flight dedicated to . . . transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.”  Witnesses at trial were unable to remember the flight number or had no memory of it.  The variance was material because the government must prove that the accused missed the specific flight or ship in question, and the government had identified the flight by its flight number in the specification.  The variance did not prejudice the accused because the accused, who raised a defense of impossibility at trial, was not denied the opportunity to defend against the charge of which he was convicted.

C.      Bill of particulars.

1.    United States v. Harman, 66 M.J. 710 (Army Ct. Crim. App. 2008).  MJ erred by accepting a verdict from the panel that specifically incorporated the bill of particulars.  ACCA amended the specification and charge to implement the panel’s clear intent.

D.     Announcement of findings.

1.    United States v. Mantilla, 36 M.J. 621 (A.C.M.R. 1992).  After findings of guilty have been announced, MJ may seek clarification any time before adjournment, and error in announcement of findings may be corrected by new announcement before final adjournment of court-martial.  Such correction is not reconsideration; accused, however, should be given opportunity to present additional matters on sentencing.

2.    United States v. Perez, 40 M.J. 373 (C.M.A. 1994).  President’s disclosure of members’ unanimous vote that overt act alleged in support of conspiracy specification had not been proven, during discussion of proposed findings as reflected on findings worksheet, was not announcement of finding of not guilty and had no legal effect.  MJ had authority to direct reconsideration of the inconsistent verdict.  Alternatively, MJ could have advised members that findings amounted to a finding of not guilty and advised them of their option to reconsider.

XX.          Impeachment of Findings.  R.C.M. 923

A.     Strong policy against the impeachment of verdicts.

1.    Promotes finality in court-martial proceedings.

2.    Encourages members to fully and freely deliberate.

B.      General rule:  Deliberative privilege – court deliberations are privileged (M.R.E. 509).

C.      Exceptions:  Court members’ testimony and affidavits cannot be used after the court-martial to impeach the verdict except in three limited situations.  R.C.M. 923; M.R.E. 606.  See United States v. Loving, 41 M.J. 213 (C.M.A. 1994).

1.    Extraneous prejudicial information.

a)       United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983).  Improper court member visit to crime scene.

b)      United States v. Almeida, 19 M.J. 874 (A.F.C.M.R. 1985).  No prejudice where court member talked to witness about Thai cooking during a recess in the trial.

c)       United States v. Elmore, 33 M.J. 387 (C.M.A. 1991).  Blood expert witness had dinner with the members.  Extensive voir dire established the lack of taint.

2.    Unlawful command influence or other outside influence (e.g., bribery, jury tampering).

a)       United States v. Carr, 18 M.J. 297 (C.M.A. 1984).  Unlawful command control for president to order a re-vote after a finding of not guilty had been reached.  MJ should build a factual record at a post-trial Article 39(a) session.

b)      United States v. Accordino, 20 M.J. 102 (C.M.A. 1985).  President of court can express opinions in strong terms and call for a vote when discussion is complete or further debate is pointless.  It is improper, however, for the president to use superiority of rank to coerce a subordinate to vote in a particular manner.

3.    A mistake was made in entering the finding or sentence on the finding or sentence forms.

4.    Possible voting irregularity not enough.  United States v. Brooks, 42 M.J. 384 (1995).  Deliberative privilege precludes MJ from entering a finding of not guilty when he concludes that members may have come to guilty finding as a result of improperly computing their votes.   

5.    United States v. Hardy, 46 M.J. 67 (1997).  “[T]he protection of the deliberative process outweigh[s] the consequences of an occasional disregard of the law by a court-martial panel.”  Id. at 74.    

D.     Discovery of impeachable information.

1.    Polling of court members is prohibited.  R.C.M. 922(e).  May not impeach findings with post-trial member questionnaires.  See United States v. Heimer, 34 M.J. 541 (A.F.C.M.R. 1991).  M.R.E. 606 establishes the only three permissible circumstances to impeach a verdict.  Post-trial questionnaires improperly “sought to impeach each panel member’s subjective interpretation of the evidence – the precise material the rule seeks to protect.”  Id. at 546.

2.    United States v. Ovando-Moran, 48 M.J. 300 (1998).  Gathering information to impeach a verdict is not a proper basis for post-trial interviews by counsel of panel members.  Information in counsel’s post-trial affidavit that members improperly considered testimony and were impacted by military judge’s comments during trial fell outside bounds of M.R.E. 606(b) to impeach findings of court-martial.

3.    Additional cases involving impeachment:  United States v. Hance, 10 M.J. 622 (A.C.M.R. 1980); United States v. Higdon, 2 M.J. 445 (A.C.M.R. 1975); United States v. Harris, 32 C.M.R. 878 (A.F.B.R. 1962).

E.      Evidence introduced at sentencing for the sole purpose of impeaching the findings is inadmissible.  See infra United States v. Johnson, 62 M.J. 31 (2005).

XXI.     Special Findings

A.     Purpose.  In a trial by court-martial composed of military judge alone, the military judge shall make special findings upon request by any party.  Special findings may be requested only as to matters of fact reasonably in issue as to an offense and need be made only as to offenses of which the accused was found guilty.  R.C.M. 918(b).

1.       "Special findings enable the appellate court to determine the legal significance attributed to particular facts by the military judge, and to determine whether the judge correctly applied any presumption of law, or used appropriate findings." United States v. Hussey, 1 M.J. 804 (A.F.C.M.R. 1976).

a)       "Special findings serve many of the same functions as do jury instructions in trials before a court of members."  Captain Lee D. Schinasi, Special Findings: Their Use at Trial and On Appeal, 87 Mil. L. Rev.73, 74 (Winter, 1980).  "Special findings are to a bench trial as instructions are to a trial before members.  Such procedure is designed to preserve for appeal questions of law.  It is the remedy designed to rectify misconceptions regarding: the significance of a particular fact; the application of any presumption; or the appropriate legal standard."  Id. at 105 (quoting United States v. Falin, 43 C.M.R. 702 (A.C.M.R. 1971)).  See also United States v. Zambrano, 2016 CCA LEXIS 19 (N-M. Ct. Crim. App. Jan 19, 2016)( “special findings are to a bench trial as instructions are to a trial before members.”) (internal citations omitted).

2.       "Viewed together, special findings can make a record for appellant, or protect it for the government."  Schinasi at 121.

3.       Analogues (Specifically Mandated Occasions for Special Findings)

4.       R.C.M. 905(d) - Motions:  "Where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record."

5.       M.R.E. 304(f)(5) - Confessions and Admissions:  "The military judge shall state essential findings of fact on the record when the ruling involves factual issues."

6.       M.R.E. 311(d)(7) - Evidence Obtained From Unlawful Searches and Seizures:  "The military judge must state essential findings of facts on the record when the ruling involves factual issues."

7.       M.R.E. 321(d)(7) - Eyewitness Identification: "Where factual issues are involved in ruling upon such motion or objection, the military judge shall state his or her essential findings of fact on the record."

B.      Trial Procedures

1.       Who may request special findings: 

a)       Any party to the proceeding.  R.C.M. 918(b).  Whenever the government and the defendant in a criminal case waive a jury, they are entitled to not just a verdict one way or the other, but to the reasons behind it."  Schinasi at 86 (citing United States v. Clark, 123 F.Supp.608 (S.D. Cal 1954)).

2.       The military judge acting sua sponte.  Schinasi at 81 (discussing United States v. Figueroa, 377 F.Supp. 645 (S.D.N.Y. 1970)).

3.       What the party may request:  Any party can request special findings on any facts reasonably related to an important issue, but may make only one set of requests per case.  R.C.M. 918(b).

4.       When to make such a request:  At any time before general findings are announced.  R.C.M. 918(b).

5.       How to make the request: There is no specified format, and the rule allows for either verbal or written requests.  However, the military judge has the authority to require any request be specific and in writing.  R.C.M. 918(b). 

6.       What issues merit special findings: 

7.       "Not only findings on elements of the offense, but also on all factual questions reasonably in issue prior to findings as well as controverted issues of fact which are deemed relevant to the sentencing decision," including jurisdictional issues.  Schinasi at 107 (citing United States v. Falin, 43 C.M.R. 702, 703 (A.C.M.R. 1971)).  Also, the judge must ensure they are made whenever another rule requires “essential findings of fact.”

8.       Issues which are irrelevant, immaterial, or so remote as to have no effect on the trial's outcome do not merit special findings.  Schinasi at 107-108 (discussing United States v. Burke, 4 M.J. 530 (N.C.M.R. 1977)).  Special findings are also not required when counsel desires to know what evidence was considered unimportant by the trial judge.  Schinasi at 91 (citing United States v. Peterson, 338 F.2d 595 (7th Cir. 1964)).

9.       How the military judge must issue special findings:  Verbally on the record or in writing.  R.C.M. 918(b).

10.   When the military judge must enter findings:  During or after the court-martial, but in any event before entry of judgment, as they must be included with the record of trial.  R.C.M. 918(b); R.C.M. 1112(f)(1)(D).

C.      Use by Defense Counsel

1.       When creatively designed, special findings requests can ensure that the trial judge fully understands the defense position.  Schinasi at 121.  "Virtually all trial judges agree that special findings help clarify those determinations..."  Schinasi at 88 (citing United States v. Johnson, 496 F.2d 1131 (5th Cir. 1974)).

2.       If there is any inkling that the judge is laboring under any misapprehension of law or fact..." special findings may reveal that misapprehension, so the defense counsel can either resolve the issue at trial, or preserve it for appeal.  Schinasi at 88.  Convictions will be reversed for example, if "inconsistent special and general findings are returned."  Schinasi at 95, citing United States v. Maybury, 274 F.2d 899 (2nd Cir. 1960).

3.       When the judge takes a contrary position to that requested by the defense, special findings flush-out the operative conclusions the judge has relied upon.  "Findings of fact in non-jury criminal cases primarily aid the defendant in preserving questions for    appeal, and aid the appellate court in delineating the factual bases on which the trial court's decisions rested."  United States v Livingston, 459 F.2d 797, 798 (3rd. Cir.1972) (en banc). 

D.     Use by trial counsel

1.       Prosecutors can "protect the record from appellate intervention by requiring the trial judge to clearly establish the factual and legal predicate upon which conviction will be based." Schinasi at 102.  Special findings can also "show that the judge decided the case correctly after all."  Schinasi at 73.  

2.       To "ensure that conflicting and often confusing evidence is thoroughly evaluated by the trial court, and that the law is properly applied to the facts, protecting the record from inconsistent appellant review."  Schinasi at 88.  This may be particularly important in light of Article 66(c), which allows the military appellate courts the unique ability, unlike civilian appellate courts, to "weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact..."  Id.

a)       "Special findings provide a concise format for establishing what evidence was considered by the bench, and, more important, what legal theory was employed to support the ultimate decision.  Used in this fashion, special findings prohibit an appellate court from 'discovering' variant interpretations or irregularities in the record which could be used to justify reversing conviction." Schinasi at 122.

E.      Sua sponte use by court

1.       The military judge must make all “essential findings of fact,” even if not requested.  See M.R.E. 304(f)(5), M.R.E. 311(d)(7), M.R.E. 321(d)(7). 

2.       "Special findings justify themselves not only in averting an unjust act, but also in highlighting to the public, and the particular accused involved, that no injustice occurred."  Schinasi at 80.  "The existence of a rationale may not make the hurt pleasant, or even just.  But the absence, or refusal, of reason is a hallmark of injustice."  Schinasi at 80.

F.      Standard of Review

1.       Virtually every military court" which has addressed the issue "recognizes that it [918(b)] is based upon [Federal] Rule [of Criminal Procedure] 23(c), and attempts, as best it can, to adopt the federal practice."  Schinasi at 102. 

2.       Specific findings on an ultimate issue of guilt or innocence are subject to the same appellate review as a general finding of guilt, while other special findings are reviewed for clear error.  United States v. Jones, 2009 WL 1508418, (A.F. Ct. Crim. App) (unpublished). 

3.       The test for legal sufficiency is whether, considering the evidence in the light most favorable to the government, any rational trier of fact could have found the appellant guilty beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Quintanilla, 56 M.J. 37, 82 (C.A.A.F. 2001); United States v. Turner, 25 M.J. 324 (C.M.A.1987); United States v. Jones, 2009 WL 1508418 at 3. 

4.       The test for factual sufficiency is whether, after weighing the evidence in the record of trial and allowing for the fact that we did not personally see and hear the witnesses, we ourselves are convinced of the appellant's guilt beyond a reasonable doubt. Turner, 25 M.J. at 325.  We review legal and factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)."  United States v. Jones, 2009 WL 1508418 at 3.

G.     Remedy for defective special findings.  If the trial judge's mistake in rendering special findings is merely procedural, most appellate courts will return the case for compliance with statutory requirements.  Schinasi at 117.  "Where a trial judge's special findings disclose that he has misperceived, ignored, or confused the law or the facts, reversal will be the result."  Schinasi at 118 (examining United States v. People, 45 C.M.R. 872 (N.C.M.R. 1971); Haywood v. United States, 393 F.2d 780 (5th Cir. 1968).  See also United States v. McMurrin, 69 M.J. 591 (N.M. Ct. Crim. App. 2010) (setting aside findings when military judge’s special findings omitted a critical element of the offense).

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