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Standard of review
Standard of review
- Failure to object to an instruction or omission of instruction constitutes waiver of the objection in the absence of plain error. R.C.M. 1005(f); United States v. Reyes , 63 M.J. 265 (C.A.A.F. 2006).
- The test for prejudice is whether the error materially prejudiced a substantial right.The question is whether the panel might have been substantially swayed by the error during the sentencing process. United States v. Reyes , 63 M.J. 265 (C.A.A.F. 2006).
- Read through the Archie fact pattern or your current fact pattern. Skim through the Crimes and Defenses chapters of this Deskbook and identify the legal issues in your case. Go to Appendix I of the Benchbook. Now identify which instructions you would want the military judge National Institute of Military Justice to read to the panel members. After you have identified the instructions you would want read, identify what instructions you would have to draft to adequately cover a point of law that you discovered in the Crimes and Defense chapters that is not covered in the Benchbook.
- Once you have done that, construct an argument using an argument worksheet based on an instruction you have identified (or want to write).
- Not Guilty;
- Guilty by Exceptions (with or without substitutions);
- Guilty of Lesser IncludedOffense (LIO).
- RCM 918(a)(1) permits a plea of “not guilty to an offense as charged, but guilty of a named lesser included offense.” What constitutes a “named lesser included offense” and whether this rule can be reliably applied is questionable in light of United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010).
- When plea to an LIO is entered, defense counsel should provide a written revised specification. Revised specification should be an appellate exhibit.
- Not Guilty Only by Reason of Lack of Mental Responsibility.