Required instructions. Art. 51(c), R.C.M. 920(e)(1) and (2).
- Charged offenses. A description of the elements of each offense charged (unless the accused pled guilty to that offense).
- 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.
- 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).
- 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).
- 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. 2003 (C.A.A.F. 2003) (contains a thorough analysis of this problem done in the context of a defense instruction).
- 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).
- The defense may affirmatively waive instruction on lesser included offenses. United States v. Strachan , 35 M.J. 362 (C.M.A. 1992).
- 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.
- Either party may request a lesser included offense instruction. United States v. Miergrimando , 66 M.J.34 (C.A.A.F. 2008).
- 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).
- 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).
- 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).
- 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, and 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).