Findings and Instructions: How a Court-Martial Panel Decides Guilt
Key takeaways
- The law assumes members hear, understand, and follow the instructions — which is why the fight over their wording matters so much. United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001).
- The judge must instruct on the elements of every contested offense, every lesser included offense raised by the evidence, and every special defense in issue. Art. 51(c); R.C.M. 920(e).
- Either side may request instructions, and a requested instruction is required when the issue is reasonably raised, not covered elsewhere, and the proposal states the law correctly. R.C.M. 920(c), (e)(7).
- Members may consider only matters properly before the court — no outside research, no specialized knowledge, no contact with witnesses. R.C.M. 918(c).
- In a judge-alone trial there are no instructions; the defense’s counterpart tool is a request for special findings under R.C.M. 918(b).
Why instructions decide cases
Instructions are the law of your case — the military judge’s oral statement to the members of what the government must prove, what defenses apply, and how to deliberate. The entire system rests on three working presumptions: that the panel hears the instructions, understands them, and follows them. United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001).
Because members are presumed to follow whatever they are told, the wording matters enormously. Instructions must be tailored to the specific facts of the case (United States v. Harrison, 41 C.M.R. 179 (C.M.A. 1970)) and must give the panel meaningful legal principles to apply, not boilerplate. United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006). They are delivered orally on the record with all parties present, and written copies may go back to the deliberation room with the members. R.C.M. 920(d).
This page covers the second half of the trial: how the panel is instructed and how it decides. How the accusation itself is drafted — charges, specifications, and pleading rules — is covered separately in charges and specifications, and the trial stage overview shows where instructions fall in the full sequence.
Where instructions come from: the Benchbook
Nearly every instruction read in an American court-martial traces to one book: the Military Judges’ Benchbook, Department of the Army Pamphlet 27-9. Although it is an Army publication, judges of every service work from it, adapting its pattern instructions to each case.
| Benchbook chapter | What it contains |
|---|---|
| Chapter 2 | Preliminary, procedural, and sentencing instructions |
| Chapters 3 and 3A | Elements of the offenses — the core findings instructions |
| Chapter 5 | Special and other defenses |
| Chapter 6 | Lack of mental responsibility and partial mental responsibility |
| Chapter 7 | Evidentiary instructions (credibility, uncharged misconduct, variance, and more) |
The Benchbook is a starting point, not a ceiling. Pattern instructions exist to be tailored — and when a standard instruction fits your facts badly, the defense can and should propose something better.
Counsel’s role: requesting and drafting instructions
The judge owns the instructions, but the parties shape them. At the close of the evidence, or earlier if the judge permits, any party may ask the judge to instruct the members on the law as set out in the request. R.C.M. 920(c). Competent defense counsel treat this as a standing obligation: whenever a proposed instruction would be more favorable than the standard one, propose it.
A requested instruction is not optional for the judge when three things are true. United States v. Damatta-Olivera, 37 M.J. 474 (C.M.A. 1993); R.C.M. 920(e)(7):
- The issue is reasonably raised. A matter is “in issue” when some admitted evidence — regardless of its source or credibility — could support it. United States v. Terry, 64 M.J. 295 (C.A.A.F. 2007). Whether an issue is raised is the judge’s call; the judge may not punt that question to the members. United States v. Jones, 7 M.J. 441 (C.M.A. 1979).
- The point is not adequately covered elsewhere. The judge need not use counsel’s exact words if the substance is covered by other instructions. United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007).
- The proposal accurately states the law as applied to the facts of the case.
When counsel request instructions that are not otherwise required, the judge’s ruling is reviewed only for abuse of discretion — but if the instruction was required, a defective defense draft does not excuse the judge from instructing correctly. Dearing. The military judge carries the ultimate duty either way.
The required instructions: elements, defenses, reasonable doubt
Article 51(c), UCMJ and R.C.M. 920(e) fix a mandatory core that must be given in every contested members case:
| Instruction | Authority | When required |
|---|---|---|
| Elements of each charged offense | R.C.M. 920(e)(1) | Always, unless the accused pled guilty to that offense |
| Elements of lesser included offenses | R.C.M. 920(e)(2) | Whenever an LIO is reasonably raised by the evidence and not time-barred |
| Special defenses under R.C.M. 916 | R.C.M. 920(e)(3) | Whenever the defense is in issue — sua sponte, no request needed |
| Presumption of innocence, reasonable doubt, burden on the government | R.C.M. 920(e)(4)–(6) | Every contested case |
| Deliberation and voting procedures | R.C.M. 920(e)(6) | Every members case |
| Other necessary instructions | R.C.M. 920(e)(7) | As properly requested by a party |
Elements. The judge must describe the elements of every contested offense — and has a sua sponte duty to instruct on every lesser included offense reasonably raised by the evidence, with any doubt about the evidence resolved in the accused’s favor. United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000). What the elements of each offense actually are is fixed by the punitive articles; see how military crimes are defined.
Defenses. Special defenses — those that admit the act but deny criminal responsibility, like self-defense or duress — must be instructed on sua sponte whenever some evidence raises them, and the judge may not weigh the credibility of the defense evidence in deciding. United States v. Brooks, 25 M.J. 175 (C.M.A. 1987). The description must cover the defense concepts fully enough for the panel to fairly consider the defense theory. Dearing. Failure-of-proof defenses such as alibi and good character sit outside the mandatory list but have their own Benchbook instructions. The full landscape is mapped in defenses in courts-martial.
Preserving error. R.C.M. 920(f) says failure to object before deliberations forfeits the objection absent plain error — but CAAF has long held that required instructions on elements, defenses, and due-process principles are not extinguished by mere silence; affirmative waiver on the record is required, and review of a preserved claim is de novo. United States v. Davis, 76 M.J. 224 (C.A.A.F. 2017). If the judge omits an element entirely, the error is prejudicial per se. United States v. Mance, 26 M.J. 244 (C.M.A. 1988).
Evidentiary instructions
A second family of instructions polices how members may use particular evidence. The judge ordinarily has no sua sponte duty to give them — but when the evidence touches a central issue, silence can be plain error, as when the government elicited “human lie detector” testimony and no curative instruction followed. United States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003). The recurring ones:
- Failure to testify. If the accused does not testify, the defense chooses whether the members are told to draw no adverse inference — and that election binds the judge unless a case-specific interests-of-justice balancing says otherwise. Mil. R. Evid. 301(f)(3); United States v. Forbes, 61 M.J. 354 (C.A.A.F. 2005).
- Uncharged misconduct. On timely request, the judge must instruct on the limited use of M.R.E. 404(b) evidence — ideally immediately when the evidence comes in and again before deliberations. Mil. R. Evid. 105.
- Spillover. When unrelated but similar offenses are tried together, the panel should be told to keep the proof separate — a refusal to give a requested spillover instruction has been treated as constitutional error. United States v. Myers, 51 M.J. 570 (N-M. Ct. Crim. App. 1999).
- Credibility and variance. A credibility instruction must be given when a principal government witness has been impeached; a variance instruction is given when the proof shows the offense happened but at a different time, place, or amount than charged.
The judge may also summarize and comment on the evidence — but only accurately, impartially, and with a clear reminder that fact-finding belongs to the members alone. United States v. Figura, 44 M.J. 308 (C.A.A.F. 1996).
The possible findings under R.C.M. 918
After instructions and argument, the panel returns a general finding on each specification. R.C.M. 918(a) allows five outcomes: guilty; not guilty; guilty by exceptions (with or without substitutions); guilty of a lesser included offense; and not guilty only by reason of lack of mental responsibility. In a non-capital case the panel returns only the general verdict — the judge cannot direct the members to accept any fact as proven or to convict, even if the evidence seems overwhelming. United States v. Hardy, 46 M.J. 67 (C.A.A.F. 1997).
Exceptions and substitutions let members convict of what the evidence actually showed — striking charged language, sometimes substituting new language — but the device has sharp limits, and misusing it produces ambiguous or fatally varied findings. The mechanics, the “divers occasions” trap, and the case law are covered in lesser included offenses and findings by exceptions and substitutions. The insanity finding has its own special voting procedure; see mental responsibility and competence.
Voting itself is by secret written ballot, and a finding of guilty requires at least three-fourths of the members — anything less is an acquittal. The deliberation rules, the vote, and reconsideration are dissected in the three-fourths vote and deliberations.
What this means if your case is going to members
By the time the judge reads the instructions, most of the important choices have already been made in an R.C.M. 802 conference and on the record: which lesser included offenses will be in play, whether your defense theory gets its own instruction, what the panel will be told about the evidence that hurt you. Members will follow what they are told — so what they are told is worth fighting over, line by line. Make sure the lawyer beside you at that conference has drafted and litigated instructions before, not just received them.
What members may — and may not — consider
R.C.M. 918(c) confines the members to matters properly before the court: the testimony, the admitted exhibits, and the instructions. Into the deliberation room they may take their notes, the admitted exhibits, written instructions, and the findings worksheet; testimonial substitutes such as depositions and stipulations of expected testimony stay out. R.C.M. 921(b); United States v. Austin, 35 M.J. 271 (C.M.A. 1992). Everything else is off-limits:
- No outside investigation or specialized knowledge. A member may not visit the crime scene to check the lighting (United States v. Davis, 19 M.J. 689 (A.C.M.R. 1984)) — though a member’s in-room demonstration that merely examined evidence already admitted has been tolerated. United States v. Johnson, 23 M.J. 327 (C.M.A. 1987).
- No communication with witnesses, and no quizzing court personnel for facts or opinions not presented in open court — as when members repeatedly pressed a bailiff who was also an EMT for his medical opinion on bruising. United States v. Knight, 41 M.J. 867 (Army Ct. Crim. App. 1995). Contact is not automatically disqualifying, but it always draws scrutiny. United States v. White, 36 M.J. 284 (C.M.A. 1993).
- No knowledge of partial guilty pleas. In a mixed-plea case, members ordinarily may not be told the accused pled guilty to other offenses unless the defense asks or the offenses stand in a greater-LIO relationship (United States v. Kaiser, 58 M.J. 146 (C.A.A.F. 2003)) — and the judge ordinarily defers informing them until the contested findings are in. R.C.M. 913(a). How partial pleas are entered and tested is covered in the providence inquiry.
Violations of these limits are among the few grounds on which a verdict can later be impeached — the narrow post-trial doors are covered in deliberations and reconsideration.
Announcement and defective findings
Findings are announced in open session, in the presence of all parties. R.C.M. 922. Slips happen, and the law distinguishes clerical error from substance: where a judge misspoke and announced guilt on the wrong specification, the conviction stood because the record made the true finding obvious (United States v. Perkins, 56 M.J. 825 (Army Ct. Crim. App. 2001)), and a judge who forgot to announce findings on pled-to offenses was commended for fixing the oversight in a post-trial Article 39(a) session. United States v. Jones, 46 M.J. 815 (N-M. Ct. Crim. App. 1997).
Substantive defects are another matter. A finding must be clear enough to support the judgment and to protect the accused against double prosecution — and findings that except “divers occasions” language without saying which incident supported the conviction have been held ambiguous, unreviewable on Article 66 appeal, and dismissed with prejudice. United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). A variance between pleading and proof that changes the nature of the offense is fatal to the finding. United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003).
Special findings in judge-alone trials
When the accused elects trial by military judge alone, there are no instructions — the judge is presumed to know the law. The defense counterpart is the request for special findings: in a judge-alone trial, the judge shall make special findings on request of any party, on any matter of fact reasonably in issue as to an offense of which the accused was convicted. R.C.M. 918(b). A party gets one set of requests per case, made any time before general findings are announced, orally or in writing.
“Special findings enable the appellate court to determine the legal significance attributed to particular facts by the military judge, and to determine whether the judge correctly applied any presumption of law, or used appropriate findings.”United States v. Hussey, 1 M.J. 804 (A.F.C.M.R. 1976)
Special findings are to a bench trial what instructions are to a members trial: they force the legal theory of the conviction onto the record where an appellate court can test it. Judges must already state essential findings when ruling on motions with factual issues (R.C.M. 905(d)) and on confession and search motions (M.R.E. 304, 311) — a defense team litigating court-martial motions should be invoking those rules by habit.
Practitioner’s note
We draft proposed instructions before the trial starts, not after the evidence closes — because the defense theory should dictate the instructions, and the instructions should dictate the cross-examinations. In our experience the highest-leverage hour of a contested court-martial is the instructions conference: it is where we fight to keep a bad lesser included offense out, to get the defense theory instruction in, and to put every refusal on the record with our proposed language attached as an appellate exhibit. A denied instruction, properly preserved, is one of the cleanest appellate issues that exists.
Frequently asked questions
Who decides what instructions the court-martial panel receives?
The military judge. But any party may request instructions, and the judge must give a requested instruction when the issue is reasonably raised by some evidence, the point is not covered by other instructions, and the proposal correctly states the law. Refusals are made on the record and can be appellate issues.
What instructions must be given in every contested court-martial?
The elements of each contested offense, the elements of any lesser included offense raised by the evidence, any special defense in issue, the presumption of innocence, the requirement of proof beyond a reasonable doubt, the government's burden, and the procedures for deliberation and voting. Article 51(c), UCMJ and R.C.M. 920(e) make these mandatory.
Does the military judge have to instruct on a defense if we don't ask?
Yes, for special defenses. The judge has a sua sponte duty to instruct on any special defense reasonably raised by some evidence, whatever its source, and may not weigh credibility in deciding whether it was raised. Failure-of-proof defenses like alibi generally require a defense request.
What happens if the judge gives a wrong instruction?
It depends on the error and the objection. Omitting an element entirely is prejudicial per se. Other errors on required instructions are reviewed de novo, with constitutional errors tested for harmlessness beyond a reasonable doubt. Silence alone does not waive a required instruction, but an affirmative waiver on the record does.
What is a general finding in a court-martial?
A verdict of guilty or not guilty on each specification without any statement of reasons. R.C.M. 918 also permits findings of guilty by exceptions and substitutions, guilty of a lesser included offense, and not guilty only by reason of lack of mental responsibility. In non-capital cases the panel returns only this general verdict.
What are special findings and when should the defense request them?
In a judge-alone trial, special findings are the judge's on-the-record findings of fact on matters reasonably in issue, mandatory on request of either party under R.C.M. 918(b). Request them whenever the legal theory of a conviction matters for appeal — they do for a bench trial what instructions do for a members trial.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has spent more than 25 years litigating contested courts-martial before members, where instructions decide what a panel is even allowed to consider. A former Army prosecutor and defense counsel and a published author on cross-examination, he builds his trial strategy backward from the instructions conference — drafting defense-theory instructions, fighting unwanted lesser included offenses, and preserving every refusal for appeal in cases from Article 120 prosecutions to war crimes tried worldwide.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has defended service members in members trials for more than 20 years — sexual assault, violent offense, domestic violence, and murder cases in which a single defense instruction framed the entire deliberation. She has litigated instruction requests and preserved instructional error across every branch of the armed forces, and she legally reviewed this guide against R.C.M. 918, R.C.M. 920, and current CAAF precedent.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.