Paragraph 2-5-12 of the Military Judges’ Benchbook contains Closing Substantive Instructions on Findings to inform members how to decide whether an accused is guilty. Those instructions include:

“Proof beyond a reasonable doubt” means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. The rule as to reasonable doubt extends to every element of the offense, although each particular fact advanced by the prosecution which does not amount to an element need not be established beyond a reasonable doubt. However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.

(emphasis added).

Last week CAAF granted review of an Air Force case challenging a modified version of this instruction:

No. 16-0455/AF. U.S. v. Trentlee D. McClour. CCA 38704. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


Briefs will be filed under Rule 25.

(emphasis added).

The AFCCA’s decision is available here.

17 Responses to “CAAF to review the closing instructions given in Air Force cases”

  1. The Silver Fox says:

    Back when I was a MDC, I frequently argued that this Air Force instruction was improper (I’d like to claim it was my idea, but I got the motion from a fellow JAG), but only got relief one time and was able to use the Army’s instruction.  I know prosecutors will disagree with me here, but it’s a bad instruction, and one that pretty plainly lowers the burden of proof for the government.  And they don’t need any more help.  Question is, will CAAF kick all AF cases on direct appeal?   

  2. Tom Grieger says:

    “firmly convinced” sounds to me like the standard of clear and convincing.  How long have they been doing this?

  3. Dew_Process says:

    It not only lowers the burden of proof as SF says, but it also eviscerates the concept of reasonable doubt.
    The problem for cases in the “pipeline” would seem to be, if there was no objection at trial. Then you’ve got to contend with “plain error” and “harmless beyond a reasonable doubt.”
    Stay tuned, but it would seem that this is a good case for amici curiae participation.

  4. stewie says:

    Wow, yeah that’s a bad instruction on multiple levels.

  5. Bill Cassara says:

    Arguing the same issue, so it will be good to see what happens.  Isn’t it easy enough for the government already?

  6. The Silver Fox says:

    Without applying its fourth prong, CAAF has made the plain error standard of review virtually meaningless.  And, in the past, CAAF has only given perfunctory reflection to the second, “plain error,” prong.  So, what will happen here is anyone’s guess.       

  7. And Then There is That says:

    The Air Force instruction is the one that the Court of Military Appeals recommended in United States v. Meek, 41 M.J. 150, 157 fn 2 (C.M.A. 1994). The Air Force’s version of the script was presumably modified shortly thereafter and Air Force judges have used it ever sense with regularity. See US v. Sanchez, 50 MJ 506, 509 (AFCCA 1999). 
    Of course, CAAF has demonstrated a willingness of late to re-visit issues previously viewed as settled (i.e. Fosler …).

  8. The Silver Fox says:

    As Justice Thomas recently opined (about his own court):  “Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy driven value judgments until the last shreds of its legitimacy disappear.” 

  9. The Silver Fox says:

    If this comes down to only the “jury” nullification issue (and not having anything to do with the modification “firmly convinced”), however, then the Air Force should win. 

  10. Tom says:

    The Air Force is completely lost with respect to Standards of Proof.  I obtained the FOIA report mentioned in this blog.  Thousands of people are being capriciously found guilty as Commanders are falsely informed on the Standard of Proof.  The Standard of Proof is clearly very high in a USAF Art 15.  The USAF IG has come out and said in fact it “should be” “Beyond a Reasonable Doubt”.

  11. Tami a/k/a Princess Leia says:

    I don’t see the USAF instruction as lowering burden of proof, but to tell panel members they must find someone guilty?  Yikes!  That’s a whole ‘nother kind of UCI, akin to telling commanders they must refer charges to courts-martial in sexual assault cases.

  12. DCGoneGalt says:

    IMO, the “must” language accompanying BARD eliminates the instructions leaving open the possibility of jury nullification.  The “should” allows members to be convinced of guilt BARD but still acquit.  I once entertained writing a law review article on the history of jury nullification and how it can serve as a check on runaway government prosecutions but never got it past the first five pages of so as I was eventually distracted by a shiny object being carried by a squirrel that passed by my window.

  13. Zeke Kennen says:


    This isn’t even close.  The law is clear that a judge may not instruct the members that they “must” convict, under any circumstances, regardless of whether the government meets its burden of proof:
    “[A] trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, regardless of how overwhelmingly the evidence may point in that direction.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) (internal quotations omitted). A “trial judge is . . . barred from attempting to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused.” Id., 430 U.S. at 573. “Although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).
    It is “the right of a jury, as a buffer between the accused and the state, to reach a verdict despite what may seem clear law[.]” United States v. Hardy, 46 M.J. 67, 70 (C.A.A.F. 1997). It is “[t]he undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence[.]” Hardy, 46 M.J. at 71, citing United States v. Moylan, 417 F.2d 1002, 1006 (4th. Cir. 1969).

    “By instructing the jurors that they must find the defendant guilty if they determined that the evidence placed him at the scene of the crime, [a trial] court [takes] from the jury an essential element of its function.” United States v. Hayward, 420 F.2d 142, 145 (D.C. Cir. 1969) (emphasis in original). Judges “should avoid the use of language that suggests to the jury that it is obliged to return a guilty verdict.” United States v. Mejar-Matrecios, 618 F.2d 81, 85 (9th Cir. 1980). 


  14. Concerned Defender says:

    Never understand why each service feels like it needs to re-invent the wheel.  Nor how these things go un-fixed for eons.  It’s plainly a bad instruction.  

  15. DCGoneGalt says:

    Zeke:  I agree with you but the Air Force “must” not agree with you.

  16. Tami a/k/a Princess Leia says:

    @Zeke, excellent analysis.  Thanks!
    1.  We have a conviction on abusive sexual contact for making the AV touch his penis, after he allegedly raped her in the same incident (which he was acquitted of).  And her behavior is consistent with a rape victim’s behavior (whatever that means).
    2.  A panel member who stated during voir dire that SAPR training instructs them to always listen to the victim.
    3.  Reliance on a footnote in a CAAF case from 1994 (referring to a proposed federal jury instruction from 1987), for the proposition that this USAF instruction was pre-approved by higher military appellate court authority.  And a plain error standard (which is correct since defense did not object), which of course AFCCA finds no error.  And even if they found error, not one of constitutional magnitude.
    And considering how much scrutiny the USAF has received of handling sexual assault cases…..
    Don Christiansen and the POD people would be proud of AFCCA.

  17. Joseph Wilkinson says:

    I’m a little late to the party here, but I don’t see this as a bad instruction.
    The cases cited above are for the ancient and noncontroversial position that the judge can’t tell the jury, “This guy is guilty.  And you have to find him guilty.”  But what the instruction at issue says is that if the evidence convinces you beyond reasonable doubt, then you have a duty to find him guilty.   That is no different from the typical civilian instruction that “This case must not be decided for or against anyone because you feel sorry for anyone or are angry at anyone.”  In other words, acquit if you have doubts, but not out of pity or anger.
    Hardy …cited by Zeke…does not say otherwise.  The language about the Jury servings a “buffer” is NOT the opinion of the court.  It is a quote from a discussion in a Sixth Circuit opinion at the beginning of a long discussion of “jury nullification,” citing cases for and against the proposition.   This is what the CAAF actually says on the subject:
    “The fact that the jury has the power to acquit (as well as convict) by disregarding the instructions of the judge on matters of law does not mean that the panel must be told it is permissible for them to ignore the law. . . That raw power, however, does not equate to a legal right.” 46 M.J. at 74.    They go further to say: “[W]e hold that a court-martial panel does not have the right to nullify the lawful instructions of a military judge.”  Id. at 75.  (emphasis mine)
    In other words, by the plain meaning of the court’s actual opinion, the panel has no right to “jury nullification”…even if, as a practical matter, they have that power.  (Just as they have the power but not the right to convict innocent men by ignoring the law.)   The instruction here is not, “find this man guilty,” but, “don’t issue juridicial pardons.”   I think it’s legally fine.