Procedure for Raising Defenses
Raising the defense
The military judge must instruct upon all special defenses raised by the evidence. According to United States v. Ferguson, 15 M.J. 12 (C.M.A. 1983), the test of whether a defense is raised is whether the record contains some evidence as to each element of the defense to which the trier of fact may attach credit if it so desires. See also United States v. Tan, 43 C.M.R. 636 (A.C.M.R. 1971); United States v. Jackson, 12 M.J. 163 (C.M.A. 1982); and United States v. Jett, 14 M.J. 941 (A.C.M.R. 1982). Also, the reasonableness of the evidence is irrelevant to the military judge’s determination to instruct. United States v. Thomas, 43 C.M.R. 89 (C.M.A. 1971); United States v. Symister, 19 M.J. 503 (A.F.C.M.R. 1984).
In United States v. Tulin, 14 M.J. 695 (N.M.C.M.R. 1982), the Court held that in deciding whether a defense is raised, the Court is not to judge credibility or prejudge the evidence and preclude its introduction before the court members. However, as stated in United States v. Brown, 19 C.M.R. 363 (C.M.A. 1955), a defense is not raised, if it is wholly incredible or unworthy of belief. See also United States v. Franklin, 4 M.J. 635 (A.F.C.M.R. 1977). Moreover, any doubt as to whether the evidence is sufficient to require an instruction should be resolved in favor of the defendant. United States v. Steinruck, 11 M.J. 322 (C.M.A. 1981). See also United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004) and United States v. Goins, 37 C.M.R. 396 (C.M.A. 1967).
In a bench trial, the impact of the raised defense is resolved by the military judge, sub silentio, in reaching a determination on the merits.
Burden of Proof
Except for the defense of lack of mental responsibility and the defense of mistake of fact as to age, in a prosecution of carnal knowledge, the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist. The defendant must prove the defense of lack of mental responsibility by clear and convincing evidence, and must prove mistake of fact as to age in a carnal knowledge prosecution by a preponderance of the evidence. R.C.M. 916(b).
Advising the Accused
If in the course of a guilty plea trial, the defendant’s comments or any other evidence raises a defense, the military judge must explain the elements of the defense to the defendant. See generally UCMJ art. 45(a). So, as described in United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976), if the defendant does not negate the defense or other evidence belies the defendant’s negation of the defense, the military judge must withdraw the guilty plea, enter a plea of not guilty for the defendant, and proceed to trial on the merits. See also United States v. Lee, 16 M.J. 278 (C.M.A. 1983).
In a members trial, the military judge must instruct the members, sua sponte, regarding all special defenses raised by the evidence. United States v. Williams, 21 M.J. 360 (C.M.A. 1986); United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977); United States v. Graves, 1 M.J. 50 (C.M.A. 1975); R.C.M. 920(e)(3).
If the military judge summarizes the evidence when instructing a jury on a defense, the judge must do so in a fair and adequate manner. United States v. Nickoson, 35 C.M.R. 312 (C.M.A. 1965).
While there is a requirement that the military judge instruct upon every special defense in issue, there is no requirement that the military judge instruct upon every fact that may support a given defense. United States v. Sanders, 41 M.J. 485 (C.A.A.F. 1995).
Consistency of Defenses
Generally, conflicting defenses may be raised and pursued at trial. R.C.M. 916(b) (discussion); see also United States v. Viola, 26 M.J. 822, 827-28 (A.C.M.R. 1988), aff’d 27 M.J. 456 (C.M.A. 1988); Nagle, Inconsistent Defenses in Criminal Cases, 92 Mil. L. Rev. 77 (1981). E.g. United States v. Garcia, 1 M.J. 26 (C.M.A. 1975)-alibi and entrapment; United States v. Walker, 45 C.M.R. 150 (C.M.A. 1972)- lack of mental responsibility and self-defense; United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967)- accident and self-defense; United States v. Snyder, 21 C.M.R. 14 (C.M.A. 1956)- heat of passion/voluntary manslaughter and self-defense; United States v. Ravine, 11 M.J. 325 (C.M.A. 1981)- entrapment and agency. Conversey, in United States v. Ducksworth, 33 C.M.R. 47 (C.M.A. 1963), the Court held that the defense of self-defense is eviscerated by the defendant’s testimony that he did not inflict the injury, and in United States v. Crabtree, 32 C.M.R. 652 (A.B.R. 1962), the Court held that both duress and denial may not be raised.
Burden of Proof
Lack of mental responsibility
The defendant has the burden of proving this defense by clear and convincing evidence. UCMJ Art. 50a(b); R.C.M. 916(b).
Mistake of fact as to age of victim of carnal knowledge
The defendant has the burden of proving this defense by a preponderence of the evidence. The mistake must be both honest and reasonable. UCMJ Art. 120(d). The Court explains in United States v. Strode, 43 M.J. 29 (1995) that the defendant’s honest and reasonable mistake of fact as to age of victim of indecent acts with child may be a defense if acts would otherwise be lawful if victim was over age 16.
All other defenses
If a defense is raised, the prosecution then has the burden of proving beyond a reasonable doubt that the defense does not exist. R.C.M. 916(b); United States v. Verdi, 5 M.J. 330 (C.M.A. 1978).