Failure of proof defenses

Failure of proof defenses

Failure of proof defenses

  1. bestmilitarydefensedefenseattorneys10.04.24PMcopyThe military judge ordinarily has no sua sponte duty to instruct on defenses whichdeny 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.
    1. 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).
    2. The Benchbook also contains direction to the military judge on good character defenses. See Benchbook, para. 5-14.
    3. The Benchbook contains instructions on other “failure of proof” defenses. See Benchbook, para. 5-17.
  3. For a discussion of voluntary intoxication as a failure of proof defense, see UnitedStates 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).