Opinion Analysis: The failure to object to a military judge’s instructions is waiver (even with well-settled precedent and a Rule for Courts-Martial to the contrary), in United States v. Davis
CAAF decided the Army case of United States v. Davis, 79 M.J. 329, No. 19-0104/AR (CAAFlog case page) (link to slip op.), on February 12, 2020. After granting reconsideration in order to consider whether the Supreme Court’s decision in United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), affects the meaning of the word knowingly in the offense of indecent recording in violation of Article 120c(a)(2), CAAF does not actually answer that question. Rather, the court finds that the issue was waived when the defense did not object to the military judge’s instructions at trial.
Chief Judge Stucky writes for a unanimous court. Judge Maggs also writes a separate concurring opinion.
The granted issue asked:
Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).
A general court-martial composed of officer members convicted Private (E-2) Davis of indecent recording in violation of Article 120c(a)(2) for videorecording part of a sexual encounter involving himself and two other soldiers. Indecent recording occurs when a person “knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” 10 U.S.C. § 920c(a)(2). The question CAAF granted review to decide is whether the word knowingly applies to the consent element. In other words, whether the prosecution had to prove that Davis actually knew that the person recorded did not consent to the recording.
The military judge did not instruct the members that the prosecution had to prove actual knowledge, and Davis’ defense counsel did not object to the instructions when the military judge asked if there was any objection (a routine question found in paragraphs 2-5-8 and 2-5-14 of the Military Judge’s Benchbook). CAAF has consistently treated such a failure to object as – at most – merely forfeiting any objection to the instructions (making it harder to win on appeal) rather than waiving the issue (meaning that there is no error to correct on appeal). See, e.g., United States v. Haverty, 76 M.J. 199, 208 (C.A.A.F. 2017) (CAAFlog case page) (citing United States v. Payne, 73 M.J. 19, 22-23 (C.A.A.F. 2014) (CAAFlog case page) (citing United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) (CAAFlog case page) (citing United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012) (CAAFlog case page) (citing United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011))))).
Such treatment was in accordance with the Rules for Courts-Martial, which stated:
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.
R.C.M. 920(f), Manual for Courts-Martial (2016 ed.) (emphasis added). Plain error is the standard for forfeited error, and CAAF acknowledges that the reference to plain error in the rule made it a forfeiture rule and not a waiver rule (despite the rule’s use of the word waiver). See United States v. Davis, 76 M.J. 224, 227 n.1 (C.A.A.F. 2017) (CAAFlog case page) (R.C.M. 920(f) uses the word ‘waiver,’ but it is clearly referring to ‘forfeiture.'”). But if there were any doubt that the rule applies forfeiture and not waiver, the President made it clear in the 2019 edition of the Manual:
(f) Forfeiture and objections. Failure to object to an instruction or to omission of an instruction before the members close to deliberate forfeits the objection. The parties shall be given the opportunity to be heard on any objection to or request for instructions outside the presence of the members. When a party objects to an instruction, the military judge may require the party objecting to specify in what respect the instructions given were improper.
R.C.M. 920(f), Manual for Courts-Martial (2019 ed.) (emphasis added). CAAF’s precedent actually goes quite a bit further, explaining that instructions on the elements of the offense (like the mens rea issue presented in this case) are required instructions, and that they are not waived by a failure to object. Davis, 76 M.J. at 225. That is so because:
R.C.M. 920(e) lists “Required instructions” on findings, meaning instructions that “shall” be given. This list of required instructions includes the elements of the offense . . . Relatedly, Article 51(c), UCMJ, requires that members be instructed, inter alia, “as to the elements of the offense.” 10 U.S.C. § 851(c) (2012).
Davis, 76 M.J. at 228.
Nevertheless, Chief Judge Stucky’s opinion for the unanimous CAAF abandons all of that precedent (without a single mention of stare decisis or the court’s own test for whether precedent should be abandoned) and undermines the President’s new rule (without even acknowledging it) by declaring that:
By “expressly and unequivocally acquiescing” to the military judge’s instructions, Appellant waived all objections to the instructions, including in regards to the elements of the offense. As Appellant has affirmatively waived any objection to the military judge’s findings instructions, there is nothing left for us to correct on appeal.
Slip op. at 5 (citations omitted). It’s a breathtaking conclusion not just because of the court’s lackadaisical approach, but also because it invites claims of ineffective assistance of counsel in future cases in an effort to “escape rules of waiver and forfeiture and raise issues not presented at trial.” Harrington v. Richter, 562 U.S. 86, 105 (2011).