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Lesser Included Offenses. UCMJ ART. 79. Instructions

Lesser Included Offenses. UCMJ ART. 79. Instructions

Lesser Included Offenses. UCMJ ART. 79. Instructions

  1. bestmilitarydefensedefenseattorneys9.49.45PMcopyIf there is some evidence admitted at trial that reasonably raises a lesser included offense, then the military judge has a sua sponte duty to give an instruction on the lesser included offense. United States v. Miergrimado, 66 M.J. 34 (C.A.A.F. 2008); United States v. Rodwell, 20 M.J. 264, 265 (C.M.A.1985); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000)  reversing involuntary manslaughter conviction for failing to instruct on lesser included offense of negligent homicide); United States v. Wells , 52 M.J. 126 (C.A.A.F. 1999) (reversing premeditated murder conviction for failing to instruct on lesser  included offense of voluntary manslaughter).Air Force Law Review
  2. If the military judge fails to give an instruction, defense failure to object constituteswaiver, absent plain error. R.C.M. 920(f); United States v. Pasha , 24 M.J. 87 , 91 (C.M.A. 1987); United States v. Mundy , 9 C.M.R. 130 (C.M.A. 1953). The defense may waive an LIO instruction in order to pursue an “all or nothing” trial strategy and there is no rule that prevents the  government from acquiescing in such a strategy. See United States v. Upham , 66 M.J. 83, 87 (C.A.A.F. 2008). The military judge need not oblige, however. As one court observed, “Such a litigation tactic remains viable in military jurisprudence, but it is far from being an absolute right or the unilateral prerogative of the defense.” United States v. Swemley , No. 200900359 (N.M. Ct. Crim. App. Apr. 29, 2010) (unpub.).
  3. An instruction on a lesser included offense is proper when an element of the chargedgreater offense, which is not required for the lesser included offense, is in dispute. United States v. Miergrimado, 66 M.J. 34 (C.A.A.F. 2008); United States v. Griffin, 50 M.J. 480 (C.A.A.F.1999) (holding that factual issue as to whether accused intended to stab victim with a knife, which he knowingly held in his hand, did not require an instruction on the lesser included offense of simple battery, because proof of intent to use the dangerous weapon is not required for the greater offense).