Standard of review for required instructions

Standard of review for required instructions

Standard of review for required instructions

  1. bestmilitarydefensedefenseattorneys10.03.26PM“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).
    1. 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 prejudice, with the prejudice test being determined by whether the error was of a constitutional dimension or not. Mance , 26 M.J. 244; United States v. Cowan , 42 M.J. 475 (C.A.A.F. 1995).
    2. 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).
    3. 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 (Court Martial Trial Practice Blog) 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. 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).
      4. 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).