- After presentation of matters relating to sentence Suits and Sentences or at such other time as the militaryjudge may permit, any party may request that the military judge instruct the members on the law as set forth in the request. R.C.M. 1005(c).
- The analysis is the same as described in section II above. United States v. Simmons ,48 M.J. 193 (C.A.A.F. 1998).
- Often, defense requests relate to identifying certain things as being mitigating.
- United States v. Simmons , 48 M.J. 193 (C.A.A.F. 1998). When there is a dispute as to whether the mitigator exists, the preferable method is for the judge to modify a requested instruction to say that the members can consider the matter in mitigation if they decided the mitigator exists.
- United States v. Perry, 48 M.J. 197 (C.A.A.F. 1998). Accused convicted of forcible sodomy and other offenses. Defense wanted an instruction in sentencing about the fact that the accused dismissal may cause the accused to pay back his education. The judge refused to give the instruction, claiming that it was collateral and there were too many factors to know for certain whether the money would be taken back. CAAF agreed.
- United States v. Boyd , 55 M.J. 217, 221 (C.A.A.F. 2001) (holding that military judges are required to instruct on the impact of a punitive discharge on retirement benefits, “if there is an evidentiary predicate for the instruction and it is requested”).