Chapter 4: Article 79, UCMJ Lesser Included Offenses
§ 4:1
Text of Statute
§ 4:2
Discussion
§ 4:3
Article 134 Offenses
§ 4:4
Practice Pointers
§ 4:5
Standard Instructions
§ 4:1 – Text of Statute
“An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charge or an offense necessarily included therein.”
§ 4:2 – Discussion
Debate over the appropriate test for when an offense is necessarily included within the elements of a charged offense has been lengthy and confusing. Military courts have engaged in decades of debate over the meaning of that term. This book is only intended to be a practice guide.
The present rule to determine whether an offense is “necessarily included” in a charged offense is the elements test. In other words, if all of the elements of the proposed lesser included offense are also elements of the charged offense, then the panel can be properly instructed on the lesser included offense. [1] The listings of lesser included offenses contained in the Manual for Courts-Martial are not binding on the courts. Though they are a useful guide, counsel should rely on the elements defined by Congress.
§ 4:3 – Article 134 Offenses
Simply stated, Article 134 offenses are not lesser included offenses under Articles 82 through 132. Article 134 offenses have terminal elements – a requirement that they be prejudicial to good order and discipline or service discrediting. Because of the terminal element, the Court of Appeals for the Armed Forces has held that Article 134 offenses would fail the elements test when applied to Articles 82 through 132.[2] For example, involuntary manslaughter is found under Article 119. Negligent homicide is an Article 134 offense. Under the elements test, negligent homicide is not a lesser included offense to involuntary manslaughter.[3]
§ 4:4 – Practice Pointers
The law in the military gives the military judge expansive discretion instructing the jury. If some evidence is admitted at trial that reasonably raises a lesser included offense, than the military judge has a sua sponte duty to instruct the jury on that offense.[4] Failure to object, however, constitutes waiver, absent plain error.[5]
The issue of lesser included offenses becomes agonizing in high stakes cases – like premeditated murder. The question as to whether the evidence raises the lesser included offense of manslaughter can be difficult. Sometimes, the military judge will defer to defense counsel’s view in ruling on a lesser included offense. The judge, however, is under no obligation to take the defense view, nor is the government required to defer to the defense.[6]
On the one hand, in a murder case defense counsel may believe that there is no evidence of premeditation and that the panel will acquit. On the other hand, defense counsel may believe that if the panel is given the option of convicting on a lesser included offense, they will spare the client the conviction to premeditated murder.
The problem arises when defense counsel fails to object to a judge’s sua sponte instruction on a lesser included offense. It’s a high stakes gamble in a premeditated murder case where there is a minimum mandatory sentence of life. This is an area where defense counsel must, well in advance, consider possible lesser included offenses and discuss them with the client.
The standard benchbook instructions provides a helpful guide. Counsel should also careful scrutinize the judge’s proposed instructions, because they can become confusing when there are multiple possible lesser included offenses. The benchbook recommend the following order:
Standard Instructions
DA Pamphlet 27-9
3-3-1 – Conviction of Lesser Included Offenses
7-15 - Variance
7-16 – Exceptions and Substitutions
[1] United States v. Jones, 68 MJ 465 (CAAF 2010).
[2] United States v. Jones, 69 MJ 465 (CAAF 2010)
[3] United States v. McMurrin, 69 MJ 591 (NM Ct Crim App 2010).
[4] United States v. Miergrimado, 66 MJ 34 (CAAF 2008).
[5] RCM 920 (f).
[6] United States v. Swemly, No. 200900359 (NM Ct Crim App Apr 29 2010)(unpub)
Text of Statute
§ 4:2
Discussion
§ 4:3
Article 134 Offenses
§ 4:4
Practice Pointers
§ 4:5
Standard Instructions
§ 4:1 – Text of Statute
“An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charge or an offense necessarily included therein.”
§ 4:2 – Discussion
Debate over the appropriate test for when an offense is necessarily included within the elements of a charged offense has been lengthy and confusing. Military courts have engaged in decades of debate over the meaning of that term. This book is only intended to be a practice guide.
The present rule to determine whether an offense is “necessarily included” in a charged offense is the elements test. In other words, if all of the elements of the proposed lesser included offense are also elements of the charged offense, then the panel can be properly instructed on the lesser included offense. [1] The listings of lesser included offenses contained in the Manual for Courts-Martial are not binding on the courts. Though they are a useful guide, counsel should rely on the elements defined by Congress.
§ 4:3 – Article 134 Offenses
Simply stated, Article 134 offenses are not lesser included offenses under Articles 82 through 132. Article 134 offenses have terminal elements – a requirement that they be prejudicial to good order and discipline or service discrediting. Because of the terminal element, the Court of Appeals for the Armed Forces has held that Article 134 offenses would fail the elements test when applied to Articles 82 through 132.[2] For example, involuntary manslaughter is found under Article 119. Negligent homicide is an Article 134 offense. Under the elements test, negligent homicide is not a lesser included offense to involuntary manslaughter.[3]
§ 4:4 – Practice Pointers
The law in the military gives the military judge expansive discretion instructing the jury. If some evidence is admitted at trial that reasonably raises a lesser included offense, than the military judge has a sua sponte duty to instruct the jury on that offense.[4] Failure to object, however, constitutes waiver, absent plain error.[5]
The issue of lesser included offenses becomes agonizing in high stakes cases – like premeditated murder. The question as to whether the evidence raises the lesser included offense of manslaughter can be difficult. Sometimes, the military judge will defer to defense counsel’s view in ruling on a lesser included offense. The judge, however, is under no obligation to take the defense view, nor is the government required to defer to the defense.[6]
On the one hand, in a murder case defense counsel may believe that there is no evidence of premeditation and that the panel will acquit. On the other hand, defense counsel may believe that if the panel is given the option of convicting on a lesser included offense, they will spare the client the conviction to premeditated murder.
The problem arises when defense counsel fails to object to a judge’s sua sponte instruction on a lesser included offense. It’s a high stakes gamble in a premeditated murder case where there is a minimum mandatory sentence of life. This is an area where defense counsel must, well in advance, consider possible lesser included offenses and discuss them with the client.
The standard benchbook instructions provides a helpful guide. Counsel should also careful scrutinize the judge’s proposed instructions, because they can become confusing when there are multiple possible lesser included offenses. The benchbook recommend the following order:
- Instructions and definitions of the charged offense.
- Introduction of the lesser included offense.
- Elements and definitions of the lesser included offense.
- Comparison between the offense charged and the lesser included offense.
- If more than one lesser included offense is raised by the evidence, follow the instructions pattern above for each lesser included offense.
Standard Instructions
DA Pamphlet 27-9
3-3-1 – Conviction of Lesser Included Offenses
7-15 - Variance
7-16 – Exceptions and Substitutions
[1] United States v. Jones, 68 MJ 465 (CAAF 2010).
[2] United States v. Jones, 69 MJ 465 (CAAF 2010)
[3] United States v. McMurrin, 69 MJ 591 (NM Ct Crim App 2010).
[4] United States v. Miergrimado, 66 MJ 34 (CAAF 2008).
[5] RCM 920 (f).
[6] United States v. Swemly, No. 200900359 (NM Ct Crim App Apr 29 2010)(unpub)
