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.