Counsel’s role in drafting instructions

Counsel’s role in drafting instructions

Counsel’s role in drafting instructions

  1. ethical consideration, 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).
  2. At the close of the evidence or at such other time as the military judge may permit, any partymay request that the military judge instruct the members on the law as set forth in the request. R.C.M. 920(c).
  3. A (Global Military Justice Reform Blog )military judge is required to give requested instructions “as may be necessary and which are properly requested by a party.” RCM 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;
      1. 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; United States v. Terry , 64 M.J. 295, 299 (C.A.A.F. 2007).
      2. 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
      1. 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.
  4. 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 aproposed 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 IVC below.
    2. Waiver of error (R.C.M. 920(f)) does not really apply. Here, the defense counsel isactive.