In United States v. McClour, No. 16-0455/AF (grant discussed here), and United States v. Taylor, No. 16-0482/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that they must (as opposed to the more-common instruction that members should) find the accused guilty if the prosecution has proven the offense beyond a reasonable doubt.
Both McClour and Taylor are Air Force cases.
But the problematic instruction has also been used by military judges in the Naval service, and yesterday CAAF granted review of this issue in a Marine Corps case:
No. 16-0565/MC. U.S. v. Dalton C. Nickens. CCA 201500142. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:
WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF A CHARGED OFFENSE, YOU MUST FIND HIM GUILTY OF THAT OFFENSE,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO, 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.
No briefs will be filed under Rule 25.