Required instructions. Art. 51(c), R.C.M. 920(e)(3).

Required instructions. Art. 51(c), R.C.M. 920(e)(3)

Required instructions. Art. 51(c), R.C.M. 920(e)(3)

  1. bestmilitarydefensedefenseattorneys10.05.29PMA description of any special defense under R.C.M. 916 in issue.
    1. Special defenses are those defenses that, while not denying that the accused committed the acts charged, seek to deny criminal responsibility for those acts. R.C.M. 916(a).
    2. Alibi and good character are not special defenses; rather, they are failure of proof offenses. R.C.M. 916(a) discussion.
    3. Partial mental responsibility (Instruction 6-5) and evidence that negates mens rea (Instruction 5-17) are failure of proof defenses but the military judge has a sua sponte duty to instruct on them. The partial mental responsibility instruction is only read if the evidence has raised a lack of mental responsibility defense and there is evidence that tends to negate mens rea . Note that both instructions will be read. If the evidence has not raised the lack of mental responsibility defense, use Instruction 5-17.
    4. Voluntary intoxication is considered a special defense for purposes of requiring an instruction. United States v. Hearn , 66 M.J. 770 (A. Ct. Crim. App. 2008). The court found that some evidence of severe intoxication is required to trigger an instruction. The court developed a three-prong test to determine whether a voluntary intoxication is required:
      1. The crime charged includes a mental state;
      2. There is evidence of impairment do to the ingestion of alcohol or drugs;
      3. There is evidence that the impairment affected the defendant’s ability to form the required intent or mental state.
    5. The description must adequately cover the concepts of the defense so that the panel can fairly consider the defense theory. United States v. Dearing , 63 M.J. 478, 483 (C.A.A.F. 2006).
  2. The military judge has a sua sponte duty to instruct on special defenses reasonablyraised by the evidence.
    1. 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 test for whether a special defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire. United States v. Davis , 53 M.J. 202 (C.A.A.F. 2000); United States v. Hibbard , 58 M.J. 2003 (C.A.A.F. 2003) (applying thorough analysis to this problem, using a totality of the circumstances approach, when finding that an instruction was not required).
    3. In determining whether to give a requested instruction on a defense, the judge may not weigh the credibility of the defense evidence. United States v. Brooks , 25 M.J. 175 (C.M.A. 1987).
    4. The military judge also has the sua sponte duty to read the instruction on the defense of lack of mental responsibility if some evidence has raised the defense. Benchbook para. 6-4. Preliminary instructions may be read when the evidence is introduced so that the panel can put the evidence in context. Benchbook para. 6-
  3. Defense counsel may affirmatively waive an affirmative defense instruction. UnitedStates v. Gutierrez , 64 M.J. 374 (C.A.A.F. 2007)