In United States v. Davis, 75 M.J. 537 (A. Ct. Crim. App. Nov. 25, 2015) (en banc) (discussed here), the Army CCA held that the failure of the defense to request an instruction on an affirmative defense (mistake of fact as to consent) forfeited the issue absent plain error.

Yesterday CAAF granted review:

No. 16-0306/AR. U.S. v. Joshua C. Davis. CCA 20130996. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN REFUSING TO APPLY DE NOVO REVIEW FOR FAILURE TO INSTRUCT ON AN AFFIRMATIVE DEFENSE RAISED BY THE EVIDENCE, AND INSTEAD FOUND FORFEITURE AND APPLIED A PLAIN ERROR ANALYSIS, CONTRARY TO THIS COURT’S PRECEDENTS IN UNITED STATES v. TAYLOR, 26 M.J. 127 (C.M.A. 1988); UNITED STATES v. DAVIS, 53 M.J. 202 (C.A.A.F. 2000); AND UNITED STATES v. STANLEY, 71 M.J. 60 (C.A.A.F. 2012).

Briefs will be filed under Rule 25.

As the Army CCA’s site is still inaccessible to the public, the CCA’s slip op. is available here.

4 Responses to “CAAF to consider the standard of review for instructions not given”

  1. Concerned Defender says:

    Ouch.  That’s gotta sting.  Seems though it would be plain error if the defense put on evidence of mistake of fact and hopefully argued mistake of fact.  As long as the defense put on some evidence of MoF, the MJ has to sua sponte offer the instruction if it’s a mandatory instruction.  I’m not immediately sure if it’s a mandatory or non-mandatory instruction, but goodness you’re having a bad day as a lawyer if you miss that one…  it’s not a finer detail, it’s the theory of your case!  
    Introduce evidence – check 
    Impeach the vic – check
    Accused testimony about mistake of fact – check (we did great on that one)
    Killer closing argument – high fives!
    Hmmm… seems like we’re forgetting something…. 

  2. Zachary D Spilman says:

    Well, concerned defender, as discussed in my prior post, the CCA found no plain error 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.

  3. k fischer says:

    Of course the instruction should have been read, ZS.  She was mistaken about the fact that a sexual act occurred……Duh!!!!!!

  4. Zeke says:

    If, based off of Zach’s posts, I’m understanding this case correctly, I find it hard to fault the CCA.  I don’t see a problem with the CCA finding no plain error when the party with the burden of raising the affirmative defense at trial did not ask for the instruction for that affirmative defense, and did not argue the affirmative defense.  It’s the defense’s affirmative defense to raise or not raise, as they see fit.  I could see arguing on appeal that not raising the affirmative defense was IAC (good luck winning that one), but I don’t think a trial court could/should force a defendant to raise an affirmative defense that goes against their theory of the case.  It’s hard to find plain error in a trial court not doing something that it couldn’t/shouldn’t do.