In a pair of recent published decisions, the Army CCA addresses the standard of review to be applied when an appellant asserts for the first time on appeal that a military judge should have given a certain instruction to the members.

First, sitting en banc in United States v. Davis, 75 M.J. 537, No. 20130996 (A. Ct. Crim. App. Nov. 25, 2015) (link to slip op.), the CCA holds that the failure of the defense to request an instruction forfeits the issue absent plain error. Writing for the majority, Judge Wolfe explains that:

Accordingly, for mandatory instructions under R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on defenses raised by some evidence. For non-mandatory instructions under R.C.M 920(e)(7) a military judge possesses substantial discretion in deciding what instructions to give. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993). While a military judge “has wide discretion” as to the “form” of the instruction, United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012), whether an instruction is a correct statement of the law is reviewed de novo. United States v. Ivey, 53 M.J. 685 699 (Army Ct. Crim. App. 2000) aff’d on other grounds, 55 M.J. 251 (C.A.A.F. 2001). Nevertheless, in the case of any unpreserved error, the failure to request or object to an instruction on a defense forfeits the matter, absent plain error.

Slip op. at 9. A concurring opinion authored by Judge Penland concludes that plain error review is the appropriate standard in the absence of an objection, but that “an appellant does not forfeit the benefit of this instruction by failing to request it or failing to object to a list of instructions which omits it.” Slip op. at 14.

Notably, Rule for Courts-Martial 920(f) specifically permits plain error review of a missing instruction:

(f) Waiver. Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error. The military judge may require the party objecting to specify of what respect the instructions given were improper. The parties shall be given the opportunity to be heard on any objection outside the presence of the members.

Judge Wolfe’s majority opinion explains why the use of the term waiver in the Rule is wrong:

We start our analysis with the promulgation of the rules for court-martial in the 1984 Manual for Courts-Martial, United States (1984 ed.) [hereinafter MCM, 1984]. Rule for Courts-Martial 920(f) states that “[f]ailure to object to an instruction or to an omission of an instruction before the members close to deliberate constitutes [forfeiture] of the objection in the absence of plain error.” The drafter’s analysis to R.C.M. 920(f) indicates a specific intent to adopt the federal practice in this area. See MCM, 1984, R.C.M. 920(f) Analysis at A21-61 (stating that the rule is based on Federal Rule of Criminal Procedure (Fed. R. Crim. P.) 30). Notably, such a rule is in accordance with the mandate of Article 36, UCMJ, that the President may prescribe rules which shall, as far as practicable, “apply the principles of law generally recognized in the trial of criminal cases in the United States district courts.”

Slip op. at 5-6 (modifications in original) (emphasis added). A footnote explains:

Rule for Courts-Martial 920(f) continues to use the word “waiver.” For consistency, and in fidelity to the analytical construct set forth by our superior court, we will use the correct term of “forfeiture.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.”) (internal citations and quotations omitted).

Slip op. at 6 n.6.

The issue in Davis was whether the military judge erred in failing to sua sponte give a mistake of fact as to consent instructions, and the CCA unanimously finds that the judge did not err in part because:

the entire defense case was directed not at claiming that the sexual act was consensual (or that appellant mistakenly believed it to be so). Rather, the overwhelming thrust of the defense case was that the sexual act never happened at all.

Slip op. at 12.

But a three-judge panel of the CCA reaches a different conclusion when considering whether a military judge should have given self-defense and defense of property instructions, in United States v. Viers, __ M.J. __, No. 20130847 (A. Ct. Crim. App. Nov. 30, 2015) (link to slip op.).

The appellant in Viers was convicted of communicating a threat in violation of Article 134 for what he said to his wife during a fight:

Appellant and his wife, J.V., were engaged in a verbal altercation in the upstairs bedroom and hallway of their home. As they quarreled, the argument turned physical. Toilet bowl cleaner and suntan lotion were doused about the upper floor by one or both of them. A glass vase was also broken during the exchange. At trial, each spouse accused the other of breaking the vase. Both parties agree, however, that after these items were tossed about the bedroom, bathroom, and hallway, J.V. went downstairs and returned upstairs, wielding a capped bottle of liquid bleach. Appellant grabbed J.V. by the wrist and hand in which she held the bleach and uttered words to the effect of: “if you don’t put down the bleach, I will break your f***ing hands.” J.V. ultimately let go of the bleach and the scuffle came to an end. Appellant then went downstairs and was taken into custody by police who arrived on the scene. Despite appellant’s threat during the struggle, appellant did not actually break or injure J.V.’s hands.

Slip op. at 2. The opinion notes that at trial J.V. testified that she was threatening the appellant with the bleach, and that “she intended to destroy appellant’s property with the bleach.” Slip op. at 2.

When instructing the members, the military judge did not “define the concept of ‘wrongfulness’ or further explain that threats made for a legitimate purpose are not wrongful,” nor did the military judge instruct the members on the defenses of self-defense and defense of property. Slip op. at 3.  The defense neither requested such instructions nor objected. The CCA finds plain error and reverses the appellant conviction:

To the extent that it has not explicitly been stated previously, we hold threats made in self-defense are not “wrongful” within the statutory meaning because the words are spoken for a legitimate purpose. We further hold that threats made in defense of property may not be “wrongful” as they may be spoken for a legitimate purpose. These two defenses constitute “special defenses” to the crime of communicating a threat, thus requiring a judge to sua sponte instruct if the defenses are raised by some evidence, as was the case here.

Applying the plain error standard to the facts of this case, we find the military judge committed error when he failed to instruct on the special defenses reasonably raised by the evidence related to a legitimate purpose. We find the error to be plain, obvious, and substantial as illustrated by the evidence reasonably raising the defenses as well as counsel’s arguments implicating the defenses. Lastly, we find the error “had an unfair prejudicial impact” on the panel’s deliberation. See United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986). As a result, we are left to speculate as to whether a panel would have found appellant’s threatening declaration to be justified. We are convinced that appellant stated to J.V., “I will break your hands” or words to that effect. Whether that language was wrongful, however, remains in question.

Slip op. at 6.

13 Responses to “The ACCA tackles the standard of review for instructions not given”

  1. Silky says:

    I don’t understand the Davis concurrence.  If “plain error is the appropriate standard in the absence of an objection” in the instructions context, how is that different than forfeiture?  Isn’t that what forfeiture is?  E.g. no objection = forfeiture (not waiver) = PE review?    

  2. Zachary D Spilman says:

    Indeed, Silky.

    But perhaps Judge Penland’s point is that the appellant should not bear the burden to show the existence of prejudice in the case of instructional error, but that instead the Government should bear the burden to show any error harmless.

    As I wrote in The Hazard of Humphries, American jurisprudence penalizes the failure to object at trial:

    When the defendant has made a timely objection to an error and Rule 52(a) [preserved error] applies, a court of appeals normally engages in a specific analysis of the district court record-a so-called “harmless error” inquiry-to determine whether the error was prejudicial. Rule 52(b) [plain error] normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. . . . This burden shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error “does not affect substantial rights” (emphasis added), Rule 52(b) authorizes no remedy unless the error does “affec[t] substantial rights.”

    United States v. Olano, 507 U.S. 725, 734-735 (1993) (citations omitted) (emphasis added). 

  3. Silky says:

    But if the government has to show harmlessness, that’s not “plain error review.”  Is it? 

  4. Zachary D Spilman says:

    One could ask the same question about whether the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. See Puckett v. United States, 556 U.S. 129, 135 (2009).

    But CAAF has repeatedly rejected application of the fourth prong.

  5. Silky says:

    Saying Olano’s prong 4 doesn’t apply (which normally collapses into prong 3 anyway) is a far cry from saying, in the plain-error context, that it’s the government’s burden to prove harmlessness.  If the harmlessnes burden is on the government, you can no longer plausibly claim to be in plain-error land in my view. 

  6. Imaginary Burden says:

    I think it’s silly to get hung up on who bears what burden before a CCA.  This is a case before a CCA, which is not a traditional appellate court reviewing only for legal error.  No, this is a CCA performing Art 66(c) review.  Therefore, the question is not whether the appellant or the government has met some academic burden to prove that some supposed error is or is not harmless.  The questions really are only: 1) does the CCA itself see some error from its review of the record.  If so, then 2) the error is plain because, well, the CCA saw it and they weren’t even sitting in the courtroom when the error was committed.  Then, 3) does the record show that the error the CCA spotted materially prejudiced a substantial right of the accused.  When CCAs review cases through their special de novo review Art 66(c) eyes, empowered as they are under that statute to approve only findings or sentences which they find “should be” approved, neither party really has any burden of persuasion to bear.  There is no burden of production since the only evidence which the CCA can use when making the decision is whatever is already in the record.  Further, if, despite Art 66(c) placing the burden squarely on the CCA, there is going to be a burden of persuasion placed on one of the parties, it certainly can’t be the appellant that gets saddled with that chore.  “[D]uring review under Article 66(c), UCMJ, an appellant does not bear the burden of raising doubts about the trial-level finding of guilty.”  Washington, 57 M.J. at 400.  Regardless of whether an error is preserved at trial or not, indeed, even regardless of whether an error is raised on appeal or not, a CCA is statutorily required to review the entire record and remedy any error that, from its review of the record, appears to be materially prejudicial to a substantial right of the accused.  The way harmlessness comes in is that if the CCA sees an error, it cannot find that error to be “materially prejudicial” if it is also harmless.  Basically, harmless error can’t materially prejudice anything.  In turn, if the CCA finds a constitutional error, even a minor one, then that error is already touching on a “substantial right.”  It then just depends on whether that constitutional error is “materially prejudicial,” and it will be unless it is harmless beyond a reasonable doubt.   That’s the standard of review CCAs should be applying for all error, including instructional error – CCA’s should use the standard Congress prescribed – de novo.  This gnashing of teeth and wringing of hands over which party bears the burden of persuasion is nonsense.  There is no burden of persuasion before a CCA – there’s just work for the CCA to do de novo, hopefully with the assistance of learned counsel for both sides.  Congress has given the CCA water to carry and work to do, and the CCA needs to carry that water and perform that labor even if counsel for the parties see their jobs as being little more than the opportunity to write snide, unhelpful, pleadings back and forth at one another arguing over who should bear what imaginary burden.  

  7. Silky says:

    Imaginary Burden,
    Good point re:  the difference between CCAs and “traditional appellate courts” because of Article 66(c).  In my view your post demonstrates well why Article 66(c) is an anachronism that harkens back to a time when courts-martial were not presided over by military judges.  This incredibly paternalistic appellate review scheme– and particularly its interplay with concepts like “plain-error review” — sets up some bad incentives.  Example:  defense counsel sees an issue reasonably raised by the evidence, which should be instructed on, but realizes that the trial judge is not planning to instruct on it, for whatever reason.  Defense counsel also is reading the tea leaves and seeing a likely conviction.  If the CCA is going to consider the instructional error de novo either way, what incentive does the defense counsel have to ask for the instruction?  Doesn’t he actually have an incentive to say nothing?  This is the whole point of the plain-error review penalty in (as you say)”traditional” appellate courts; that is, if you fail to tee an issue up for the trial judge to consider, you do so at your own peril.  This seems like the much more sensible approach to me.  If we need to change 66 (c) to get there, let’s change it. 

  8. Imaginary Burden says:

    I’m all for changing Art 66(c) if we also change the structure of courts-martial in a way that would better ensure reliable verdicts.  Congress created Art 66(c) on the theory that giving the CCAs factfinding power would act as a counterbalance to the danger of wrongful convictions that necessarily gets increased by having trial verdicts rendered by panels that are not required to be unanimous and are selected by the convening authority.  The CCAs represent a chance for learned JAGs to look at the evidence without as much danger of UCI influencing their decisions.  (One might argue that the number of charges which end up being reversed by judge advocates who are sitting on the CCAs, largely insulated from UCI, tends demonstrate that the traditional duo who are supposed to perform a dispassionate review of the evidence – members and then staff judge advocates – are not capable of breaking free from UCI, at least not sufficiently to ensure a reliable system of justice.)  As the Supreme Court has said repeatedly, in Solario, Middendorf, and Weiss, the military justice system protects the interests of justice through a delicate balance that differs significantly from the way the civilian justice system has historically tried to accomplish that task.  Principally, federal civilian criminal justice relies upon unanimous juries to ensure that the government’s evidence is being subjected to appropriate scrutiny.  The military justice system opted for a different method: less exacting “juries” who are checked by extraordinary convening authority and CCA review power.   By reducing convening authority discretion, we’ve already gutted the first counterbalance.  CCA factual sufficiency review is all that remains to keep the system constitutional under the Fifth Amendment.  If we’re going to reduce an accused’s Art 66(c) rights, then the government’s prerogatives elsewhere are going to have to adjusted to maintain balance.  Otherwise, we’ll start seeing the Art III courts intervening in the military justice system just as they have with the commissions.  We are doing this to ourselves in an effort to look tough on sexual assault.  The result will be the abolishment of this separate system of justice altogether.  That will not serve the needs of military commanders well at all.

  9. Silky says:

    Of course in the mj system 2/3 – 1 is an acquittal, so you could actually have an acquittal where the majority votes for guilty.   That’s a pretty big protection not available to defendants in civilian courts, where such a vote would just be a mistrial. Presumably if we went to unanimous verdicts they would have to be unanimous either way. 

  10. Imaginary Burden says:

    The research on this subject, discussed extensively by the Supreme Court in Ballew v. Georgia and Burch v. Louisiana, proves that a unanimity requirement favors more reliable verdicts and that, conversely, a lack of a unanimity requirement, especially when coupled with not requiring a panel of at least 6 members, results in an increase in wrongful convictions.  So, while there surely are occasional accused who receive the benefit of an acquittal under our system rather than a mere hung jury, there are also certainly more who suffer wrongful convictions under our non-unanimous system.  I would gladly saddle that one accused with a hung jury rather than an acquittal if it meant saving others from wrongful convictions.  That’s not even a close question.  Further, I don’t know that there is much difference to an accused between an acquittal and a mistrial due to a hung jury.  An acquittal means certainly not going to jail, and a hung jury means almost certainly not going to jail.  There’s a difference, sure, but it’s not very significant.  The stats for the federal courts seem to show that once declared, mistrials are seldom retried.  In 2009, the district courts heard over 97k criminal cases, while only 133 of those were reopened/reinstated cases, and only 35 were retrials after a mistrial.  In 2010, the numbers were 99k/114/25.   2011: 102k/122/28.  2012: 93k/135/46.  90k/109/45.  So, the stats seems to say that a hung jury gives most defendants the same benefit as a full acquittal .  Further, a hung jury appears to be quite rare – about 2.5 percent – in the federal jurisdiction. last stat makes me think we should be wary of making the hung jury bogeyman out to be scarier than evidence suggests it is.  Civilian federal juries overwhelmingly tend to hammer out a verdict, even in close cases.  I see no reason to believe military panels would be any different.

  11. stewie says:

    Silky, this is what we’ve been doing since 2007…
    On the one hand, whenever we take rights/protections away from the accused, we say well we are just making it look like the civilian side.
    On the other hand, when there are rights/protections from the civilian side that would benefit the accused, we say, ah well, we don’t want to do that…and besides, who needs unanimous verdicts anyways, it probably doesn’t even help the accused much.
    Lather, rinse, repeat, and that delicate balance gets changed quite a bit dont you think?
    Add in that we assign junior attorneys to be defense counsel (who get good training but are still junior attorneys), and the fact that we assign plenty of folks as military judges who have only a little more military justice experience than the counsel, and it boggles my mind that people still question the “paternalistic” nature of the MJ system.
    And do you really think, in the heat of the moment, when deciding whether to object or ask for an instruction or not (knowing way too many counsel on both sides literally wait to think about instructions until the moment the MJ asks them for them) that DC are engaging in a complex analysis of whether to object to an instruction or not based on what they think might happen in appellate review?
    If they recognize the problem, they will ask for the instruction, unless they don’t want the instruction for some tactical reason.

  12. Silky says:

    Stewie– I would be in favor of the combo of unanimous verdicts and a re-vamp of Article 66 (c).  I confess that I have never really understood the non-unanimous verdict idea; my thought was always that the military maybe didn’t know what to do with an accused after a mistrial, so we wanted finality one way or the other.  I still think the 2/3-1 acquittal is a big benefit for accuseds.  I’m a bit surprised by Imaginary Burden’s stats above regarding retrials after a mistrial; I know of at least one civilian jurisdiction where this is done routinely.        
    My point regarding defense counsel and instructions goes to the incentives that the current system arguably sets up for counsel to object or not object. I think you are selling counsel a bit short in this regard; I think some would be savvy enough to lie in the weeds, particularly if they think they are going to lose anyway.

  13. stewie says:

    Counsel aren’t looking to lie in the weeds generally speaking. Any good counsel knows that the vast majority of the time, getting it right at trial is the best shot at getting the best result for the client.
    There may be a couple of areas where you lie in the weeds but those are usually only when the only possible result of doing so is the case/evidence goes away past some trigger point.  A possible instructional error isn’t one of those things, particularly if they are going to “lose anyway ”
    And even if you were right, and some DC might decide not to object…so what? What’s the huge harm to the system?