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Homicide Offenses Under UCMJ Articles 118, 119, and 134

Homicide Offenses Under UCMJ Articles 118, 119, and 134

Facing a court-martial, UCMJ action, Administrative Separation Board, or other Adverse Administrative Action for Homicide? Call our experienced military defense lawyers at 1-800-921-8607 for a free consultation.

“Your career, reputation, and even your freedom hang in the balance. A single misstep could derail everything you’ve worked for. This isn’t just a legal matter; it’s a fight for your future.” (Michael Waddington, Military Defense Lawyer).

Homicide is One of the Most Serious Crimes Under the CUMJ

Homicide Offenses Under The Ucmj Articles 118 119 And 134 Military Defense AttorneysHomicide is one of the most severe offenses under the Uniform Code of Military Justice (UCMJ), and it encompasses a range of unlawful killings, each with its specific elements and degrees of seriousness. The UCMJ outlines various types of homicide offenses, including premeditated murder, unpremeditated murder, manslaughter, and negligent homicide.

These offenses are primarily covered under Articles 118, 119, and 134. Understanding these offenses, their seriousness, and the importance of legal representation is crucial for anyone facing such charges in the military justice system.

Homicide Offenses Under UCMJ Article 118 Murder

Article 118 of the UCMJ covers the crime of murder, which is divided into two main categories: premeditated murder and unpremeditated murder. Both offenses are grave, but they differ in terms of intent and planning. Manual for Courts-Martial, United States (2024 ed.)

Elements of Article 118(1) UCMJ Premeditated Murder

Premeditated murder involves the intentional and unlawful killing of another person with premeditation and malice aforethought. This means the accused planned or deliberated on the act before committing it. The key elements of premeditated murder are:

Premeditation indicates a conscious decision to commit murder, making this offense one of the most serious crimes under military law. Convictions for premeditated murder can result in the death penalty, life imprisonment without parole, dishonorable discharge, and forfeiture of all pay and allowances.

Article 118(2) UCMJ Unpremeditated Murder

Unpremeditated murder, while still a severe offense, differs from premeditated murder in that it lacks planning or deliberation. It involves the unlawful killing of another person with intent but without premeditation. The elements of unpremeditated murder are:

Although unpremeditated murder does not involve premeditation, it is still a grave offense due to the intent to kill. Penalties for unpremeditated murder can include life imprisonment, dishonorable discharge, and forfeiture of all pay and allowances.

Article 119 UCMJ Manslaughter

Article 119 of the UCMJ addresses the offense of manslaughter, which is categorized into voluntary manslaughter and involuntary manslaughter. Both types involve unlawful killings, but they differ in terms of intent and circumstances.

Elements of Article 119(a) UCMJ Voluntary Manslaughter

Voluntary manslaughter occurs when a person unlawfully kills another in the heat of passion caused by adequate provocation. The key elements are:

Voluntary manslaughter acknowledges that the accused acted in the heat of the moment, driven by strong emotions such as anger or fear, which the victim provoked. Despite the lack of premeditation, this offense is still serious, with potential penalties including imprisonment, dishonorable discharge, and forfeiture of all pay and allowances.

Article 119(b) UCMJ Involuntary Manslaughter

Involuntary manslaughter involves the unlawful killing of another person without intent, typically resulting from reckless or negligent behavior. The elements of involuntary manslaughter are:

Involuntary manslaughter is less severe than voluntary manslaughter due to the absence of intent. However, it remains a significant offense with potential penalties such as imprisonment, dishonorable discharge, and forfeiture of all pay and allowances.

Article 134 UCMJ Negligent Homicide

Elements of Article 134 UCMJ Negligent Homicide

Article 134 of the UCMJ covers the offense of negligent homicide, which involves the unlawful killing of another person through gross negligence. This type of homicide is characterized by the lack of intent to kill and the presence of grossly negligent behavior. The elements are:

Negligent homicide is considered the least severe form of homicide under the UCMJ, as it lacks intent and premeditation. However, it still carries significant consequences, including imprisonment, bad-conduct discharge, and forfeiture of pay and allowances.

The Seriousness of Military Homicide Offenses

Homicide offenses under the UCMJ are among the most serious crimes, reflecting the gravity of unlawfully taking another person’s life. The severity of these offenses is demonstrated by the harsh penalties associated with convictions, including long-term imprisonment, dishonorable discharge, and the loss of military benefits and pay. The nature of these crimes also carries significant collateral consequences, such as:

  • Social Stigma: Convicted individuals may face lifelong social ostracism and damage to their reputation within and outside the military community.
  • Employment Challenges: A dishonorable discharge and a felony conviction can severely hinder future employment opportunities, particularly in sectors requiring security clearances or clean criminal records.
  • Loss of Benefits: Convictions can result in the loss of military benefits, including pensions, healthcare, and educational assistance, impacting the individual’s and their family’s financial stability.
  • Legal Restrictions: Convicted individuals may lose certain civil rights, such as voting or owning firearms, and may be subject to continuous legal monitoring and restrictions.

The Importance of Military Defense Lawyers for UCMJ Homicide Offense

Given the grave nature of homicide charges under the UCMJ and the severe consequences of a conviction, it is imperative for those accused of such crimes to seek experienced legal representation. Civilian military defense lawyers can provide invaluable assistance in these complex cases with their comprehensive understanding of military law and court-martial procedures. Here are key reasons why contacting a civilian military defense lawyer is crucial:

Experience in Military Homicide Cases

Civilian military defense lawyers deeply understand the UCMJ and the specific procedures of military courts. This knowledge is essential in navigating the unique aspects of court-martial cases, such as the rules of evidence, pretrial motions, and the rights of the accused.

Military Defense Lawyers Can Conduct a Thorough Investigations

A defense lawyer can meticulously investigate the allegations, gather evidence, interview witnesses, and identify inconsistencies in the prosecution’s case. This thorough approach is vital in building a strong defense and challenging the prosecution’s evidence.

Military Defense Lawyers Can Build a Defense Strategy

Crafting an effective defense strategy requires legal and procedural expertise in military law. A civilian military defense lawyer can develop a tailored defense strategy, whether it involves disputing the elements of the offense, presenting mitigating factors, or negotiating plea agreements to reduce charges and penalties.

Military Defense Lawyers Can Advocate in Court

Having a skilled advocate in court can significantly affect the outcome of a case. Civilian military defense lawyers can effectively represent the accused during court-martial proceedings, ensuring their rights are protected and they receive a fair trial.

Collateral Consequences of a Military Homicide Conviction

Beyond the immediate legal penalties, a conviction can have long-term impacts on various aspects of life. A defense lawyer can help the accused navigate these collateral consequences, such as employment challenges, social stigma, and loss of benefits, helping them plan for the future.

Military Homicide Lawyers

Homicide offenses under the UCMJ, including premeditated murder, unpremeditated murder, manslaughter, and negligent homicide, are among the most serious crimes in the military justice system. Each offense carries severe penalties and long-term consequences that can profoundly impact an individual’s life. Understanding the elements and seriousness of these offenses is crucial for anyone facing such charges.

Given the gravity of the situation, it is essential for those accused of homicide under the UCMJ to seek experienced legal representation. Civilian military defense lawyers play a critical role in protecting the accused’s rights, conducting thorough investigations, and developing effective defense strategies. Their advocacy and support are indispensable in navigating the complexities of the military justice system and striving for the best possible outcome.

If you or someone you know is facing homicide charges under the UCMJ, do not hesitate to contact a civilian military defense lawyer. The stakes are high, and having knowledgeable legal representation can make a crucial difference in defending against these serious charges and mitigating the impact on your future.

Maximum Punishments for Military Homicide Offenses Manual for Courts-Martial, United States (2024 ed.)

Article 118(2) UCMJ: Unpremeditated Murder – Maximum Punishments

  • Offenses committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, life without eligibility for parole, E-1
  • Offenses committed after 27 Dec 2023: Category 5 Offense – Confinement from 240-480 months (20 to 40 years), a DD, TF, and E-1

Article 118(3) UCMJ: Murder while engaging in an act inherently dangerous to another – Maximum Punishments

  • Offenses committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, life without eligibility for parole, E-1
  • Offenses committed after 27 Dec 2023: Category 5 Offense – Confinement from 240-480 months (20 to 40 years), a DD, TF, and E-1

Article 118(4) UCMJ: Murder – Felony Murder – Maximum Punishments

  • That, at the time of the killing, the accused was engaged in the (attempted) perpetration of:
    • burglary
    • rape
    • rape of a child
    • sexual assault
    • sexual assault of a child
    • aggravated sexual contact
    • sexual abuse of a child
    • robbery
    • aggravated arson
  • Offenses committed from 1 Jan 2019 to 27 Dec 2023: Death or mandatory minimum of confinement for life with eligibility for parole.
  • Offenses committed after 27 Dec 2023: Category 6 Offense – Confinement for life with eligibility for parole, a DD, TF, and E-1

Article 119 UCMJ: Voluntary manslaughter – Maximum Punishments

  • Offenses committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, 15 years, E-1
  • Offenses committed after 27 Dec 2023: Category 4 Offense – Confinement from 120-240 months (10 to 20 years), a DD, TF, and E-1

Article 119 UCMJ: Voluntary manslaughter of a child under 16 years of age – Maximum Punishments

  • Offenses committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, 20 yrs, E-1
  • Offenses committed after 27 Dec 2023: Category 4 Offense – Confinement from 120-240 months (10 to 20 years), a DD, TF, and E-1

Article 119 UCMJ: Involuntary manslaughter – Maximum Punishments

  • Offenses committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, 10 years, E-1
  • Offenses committed after 27 Dec 2023: Category 3 Offense – Confinement from 30-120 months (2 years and 6 months to 10 years), a DD, TF, and E-1

Article 119 UCMJ: Involuntary manslaughter of a child under 16 years of age – Maximum Punishments

Article 119 UCMJ: Involuntary manslaughter of a child under 16 years of age – Maximum Punishments

  • Offenses committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, 15 years, E-1
  • Offenses committed after 27 Dec 2023: Category 3 Offense – Confinement from 30-120 months (2 years and 6 months to 10 years), a DD, TF, and E-1

Article 134 UCMJ: Homicide, negligent – Maximum Punishments

  • Offenses committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, 3 years, E-1
  • Offenses committed after 27 Dec 2023: Category 2 Offense – Confinement from 1-36 months (1 month to 3 years), a DD, TF, and E-1

Common Law Classifications of Homicide

At common law, homicides are classified as justifiable, excusable, or criminal. Justifiable homicides are those commanded or authorized by law; they are not punishable. Excusable homicides are those in which the killer is to some extent at fault but where circumstances do not justify the infliction of full punishment for criminal homicide; i.e., the killing remains criminal, but the penalty is reduced. Any killing that is not justifiable or excusable is criminal homicide — either murder, manslaughter, or negligent homicide.

Case Law on Military Homicide Cases

“Born Alive” Rule. United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000). The UCMJ does not define “human being” for Articles 118 and 119, but Congress intended those articles to be construed concerning the common law. A child is “born alive” if it: (1) was wholly expelled from its mother’s body, and (2) possessed or was capable of existence using a circulation independent of that of the mother. Even if the child never breathed air from its lungs, the child’s capability to do so is sufficient. But see UCMJ, Article 119a, Death or Injury to an Unborn Child.

Causation in a Military Homicide Case

Death From Multiple Causes in a Military Homicide Case

    1. United States v. Gomez, 15 M.J. 954 (A.C.M.R. 1982) (adopts two-part time of death standard: either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of total brain functions).
    2. United States v. Schreiber, 18 C.M.R. 226 (C.M.A. 1955) (accused held responsible for death even if his gunshot wound, following a severe beating of the victim by another, only contributed to the death by causing shock).
    3. United States v. Houghton, 32 C.M.R. 3 (C.M.A. 1962) (in child abuse death, contributing to or accelerating the death of the victim sufficient to establish responsibility).

The Fragile Victim in a Military Homicide Case

    • If the wound, though not ordinarily fatal, causes the death of the victim, the accused is responsible. United States v. Eddy, 26 C.M.R. 718 (A.B.R. 1958).
  • Negligent or improper medical treatment of the victim will not excuse the accused unless it constitutes gross negligence or intentional malpractice. United States v. Baguex, 2 C.M.R. 424 (A.B.R. 1952) (death by asphyxiation from aspiration into lungs of blood from facial injuries); United States v. Eddy, 26 C.M.R. 718 (A.B.R. 1958).
  • The Accused’s act need not be the sole cause of death or the latest/most immediate cause of death. United States v. Romero, 1 M.J. 227 (C.M.A. 1975) (accused guilty of negligent homicide in overdose death after helping victim position syringe); see also United States v. Mazur, 13 M.J. 143 (C.M.A. 1982) (accused guilty of involuntary manslaughter by culpable negligence when assisted victim who could no longer inject self with heroin).
  • The accused is responsible if his act caused the victim to kill herself unintentionally or by her negligence. See United States v. Schatzinger, 9 C.M.R. 586 (N.B.R. 1953).

Intervening Cause in a Military Homicide Case

  • An unforeseeable, independent, intervening event that causes the victim’s death may negate causation by the accused. See United States v. Riley, 58 M.J. 305 (2003) (holding doctors’ failure to diagnose appellant’s pregnancy was not an intervening cause of the baby’s death sufficient to relieve appellant of criminal liability (negligent birthing of child)).
  • Contributory negligence by the victim must loom so large compared to the accused’s conduct as an intervening cause. United States v. Oxendine, 55 M.J. 323 (2001) (victim’s voluntary participation in a dangerous joint venture, being held outside a third-story window by his ankles, was not an intervening cause).
  • When an accused’s wrongful acts set in motion an unbroken, foreseeable chain of events resulting in another’s death, his conduct is the proximate cause of the death. United States v. Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week-old infant, who was resuscitated at the emergency room but remained in a persistent vegetative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability); see also United States v. Markert, 65 M.J. 677 (N-M. Ct. Crim. App. 2007) (weapon horseplay resulted in Marine being shot in head; removal of life support was not an intervening cause).

Case Law on Military Premeditated Murder UCMJ Article 118(1)

Intent in an Article 118(a) UCMJ Premeditated Murder Case.

  1. Requires a specific intent to kill and consideration of the act intended to bring about death. The intent to kill need not be entertained for any particular or considerable length of time, and the existence of premeditation may be inferred from the circumstances surrounding the killing. MCM, pt. IV, 43c(2)(a). See generally United States v. Eby, 44 M.J. 425 (1996).
    1. The “premeditated design to kill” does not have to exist for any particular or measurable length. United States v. Sechler, 12 C.M.R. 119 (C.M.A. 1953).
    2. Intent only to inflict grievous bodily harm is insufficient. United States v. Mitchell, 7 C.M.R. 77 (C.M.A. 1953).
    3. The distinction between premeditated murder and unpremeditated murder is sufficiently clear to withstand constitutional challenge. United States v. Curtis, 44 M.J. 106, 147 (C.A.A.F. 1996); United States v. Loving, 41 M.J. 213 at 279- 80 (C.M.A. 1994), aff’d, 517 U.S. 748 (1996).
    4. Premeditation is not a question of time but of reflection. United States v. Cole, 54 M.J. 572 (Army Ct. Crim. App. 2000), aff’d, 55 M.J. 466 (C.A.A.F. 2001).
    5. Instructions. Because of the potential confusion to panel members in making the distinction between premeditated and unpremeditated murder, counsel should consider requesting instructions in addition to the pattern instruction in the Military Judges Benchbook. See United States v. Eby, 44 M.J. 425 (C.A.A.F. 1996); United States v. Hoskins, 36 M.J. 343 (C.M.A. 1993), cert. Denied, 513 U.S. 809 (1994).

Proof of Premeditation in an Article 118(a) UCMJ Premeditated Murder Case.

  1. The existence of premeditation may be inferred from the circumstances. MCM, pt. IV, 43c(2)(a).
  2. Inferred from the viciousness of the assault. United States v. Ayers, 34 M.R. 116 (C.M.A. 1964).
  3. Inferred from the number of blows and the nature and location of injuries. United States v. Teeter, 12 M.J. 716 (A.C.M.R. 1981), aff’d in part, 16 M.J. 68 (C.M.A. 1983); United States v. Williams, 39 M.J. 758 (A.C.M.R. 1994).
  4. Inferred from prior anger and threats against the victim. United States v. Bullock, 10 M.J. 674 (A.C.M.R. 1981), aff’d, 13 M.J. 490 (C.M.A. 1982).
  5. This is inferred from the fact that the weapon was procured before killing. United States v. Mitchell, 2 M.J. 1020 (A.C.M.R. 1976).
  6. Inferred from the accused’s elaborate preparations preceding the murder, elaborate precautions to avoid detection, and the brutal nature of the attack on the victim. United States v. Matthews, 13 M.J. 501 (A.C.M.R. 1982), rev’d as to sentence, 16 M.J. 354 (C.M.A. 1983).
  7. Inferred from lack of provocation, disadvantage of the victim, and nature, extent, and duration of the attack. United States v. Viola, 26 M.J. 822 (A.C.M.R. 1988), cert. Denied, 490 U.S. 1020 (1989).
  8. Other circumstances. United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (after clearly premeditated murder of first victim accused stabbed victim’s wife who came to his aid and then indecently assaulted her); United States v. Curry, 31 M.J. 359 (C.M.A. 1990) (violent shaking of child victim, coupled with the accused’s demeanor at the hospital, prior abuse of child, and incredible explanation of injuries); United States v. Levell, 43 M.J. 847 (N-M. Ct. Crim. App. 1996) (opening gun case, walking to victim laying on the ground, saying “what do you think of this,” then firing fatal shots showed accused reflected with a cool mind on killing victim); United States v. Shanks, 13 M.J. 783 (A.C.M.R. 1982) (homicidal act the part of conspiracy); see also United States v. Cooper, 28 M.J. 810 (A.C.M.R. 1989), aff’d, 30 M.J. 201 (C.M.A. 1990); United States v. Nelson, 28 M.J. 553 (A.C.M.R. 1989).

Transferred Intent in an Article 118(a) UCMJ Premeditated Murder Case. See MCM, pt. IV, 43c(2)(b).

  1. United States v. Black, 11 C.M.R. 57 (C.M.A. 1953) (where the accused shot the first victim with intent to murder and the bullet passed through his body, striking a second, unintended victim, the accused was properly convicted of murder as to both victims).
  2. United States v. Willis, 46 M.J. 258 (C.A.A.F. 1997) (accused’s act of pulling the trigger three times at near point blank range, moving the pistol between each shot with the evident intent of covering a small area occupied by intended victim and her husband was sufficient to infer accused’s intent to kill intended victim’s husband under the doctrine of transferred intent).

State of Mind Defenses in Article 118(a) UCMJ Premeditated Murder Cases.

  1. All state-of-mind defenses apply to reduce premeditated murder to unpremeditated murder; however,
    1. Voluntary intoxication may reduce premeditated murder to unpremeditated murder or murder by murder by inherently dangerous act. Still, it may not reduce premeditated or unpremeditated murder to manslaughter or any other lesser offense. United States v. Morgan, 37 M.J. 407 (C.M.A. 1993); M.C.M. pt. IV, 43c(2)(c). The accused can still be convicted of premeditated murder even though the accused drank alcohol if his behavior established that he fully appreciated what he was doing before, during, and after the murder. United States v. Glover, No. 9901132 (Army Ct. Crim. App. Nov. 7, 2002) (unpublished).
    2. Rage or personality disorder do not necessarily reduce to unpremeditated murder. United States v. Roukis, 60 M.J. 925 (Army Ct. Crim. App. 2005) aff’d, 62 M.J. 212 (2005) (“The fact that appellant may have been enraged at the time of the killing, whether as a result of his particular personality disorder or the circumstances of his marriage, ‘does not necessarily mean that he was deprived of the ability to premeditate or that he did not premeditate.’”).

Punishment in Article 118(a) UCMJ Premeditated Murder Cases.

  1. Maximum: Death. Capital case procedures are outlined in R.C.M. 1004. The M.C.M. capital procedures were held to be constitutional in Loving v. United States, 517 U.S. 748 (1996).
  2. Mandatory Minimum: Imprisonment for life with eligibility for parole. M.C.M., pt. IV, 43d(2)(e).

Case Law on Military Unpremeditated Murder UCMJ Article 118(2)

Nature of Act in Unpremeditated Murder UCMJ Article 118(2)

  1. The offense can be based on an act or omission to act where there is a duty to act; United States v. Valdez, 35 M.J. 555 (A.C.M.R. 1992) (parent’s deliberate failure to provide medical and other care to his child which resulted in child’s death supported the charge of murder), aff’d, 40 M.J. 491 (C.M.A. 1994).
  2. See also United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000)(holding that a mother who chose to give birth without medical assistance and failed to check on the health of her newborn for over an hour, resulting in the child’s death, could be guilty of involuntary manslaughter based on culpable negligence in her duty to care for the child).
  3. See United States v. Riley, 47 M.J. 603 (A.F. Ct. Crim. App. 1997) (murder conviction set aside and finding of involuntary manslaughter of an accused who sought no medical attention during pregnancy or delivery), modified and aff’d, 58 M.J. 305 (C.A.A.F. 2003) (involuntary manslaughter conviction set aside in favor of negligent homicide conviction because accused’s failure to seek medical care was not culpably negligent).

Intent in Unpremeditated Murder UCMJ Article 118(2)

  1. The accused must have either a specific intent to kill or inflict great bodily harm.
    1. The inference of intent. A permissive inference is recognized that a person intends the natural and probable consequences of an act purposely done by him. United States v. Owens, 21 M.J. 117 (C.M.A. 1985); United States v. Varraso, 21 M.J. 129 (C.M.A. 1985); see United States v. Wilson, 26 M.J. 10 (C.M.A. 1988).
    2. Great bodily harm. A serious injury does not include minor injuries such as a black eye or bloody nose. Still, it includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries. MCM, pt. IV, 43c(3)(b).
    3. All state-of-mind defenses apply except voluntary intoxication. MCM, pt. IV, 43c(2)(c). Voluntary intoxication cannot defeat the capacity of the accused to entertain intent to kill or inflict great bodily harm required for unpremeditated murder; one who voluntarily intoxicates himself or herself cannot be heard to complain of being incapable, by that intoxication, of intentionally committing acts leading to the death of another person. United States v. Morgan, 37 M.J. 407 (C.M.A. 1993).
  2. The heat of passion defense reduces unpremeditated murder to voluntary manslaughter. See paragraph H below.
  3. The heat of passion must be caused by adequate provocation. The provocation must be adequate to excite uncontrollable passion in a reasonable person. MCM, pt. IV, 44c(1)(b).
  4. Transferred intent also applies to unpremeditated murder. MCM. Pt. IV, 43c(3)(a)(“The intent need not be directed toward the person killed”). See United States v. Willis, 43 M.J. 889 (A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 258 (C.A.A.F. 1997).

Case Law on Military Murder While Doing An Inherently Dangerous Act UCMJ Article 118(3)

UCMJ Article 118(3) in General.

  1. An alternative theory to unpremeditated murder.
  2. Specific intent is not required. United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (firing a weapon indiscriminately in an inhabited area during a sham firefight in Panama during Operation JUST CAUSE).Intent.

Knowledge in UCMJ Article 118(3)

  1. The accused must have known that the probable consequence of his act would be death or great bodily harm. United States v. Berg, 30 M.J. 195 (C.M.A. 1990), aff’d on reconsideration, 31 M.J. 38 (C.M.A. 1990). MCM, pt. IV, 43c(4)(b).
  2. The death-causing act must be intentional. United States v. Hartley, 36 C.M.R. 405 (C.M.A. 1966).
  3. The act must evidence wanton heedlessness of death or great bodily harm. MCM, pt. IV, 43c(4)(a).

Nature of Act in UCMJ Article 118(3)

  1. The accused’s conduct must be inherently dangerous to“another”, i.e., at least one other person. This is a change Congress made in the law under the National Defense Authorization Act for Fiscal Year 1993 in response to United States v. Berg, 31 M.J. 38 (C.M.A. 1990), in which the Court of Military Appeals required the accused’s conduct to endanger more than one other person.

Malice Requirement in UCMJ Article 118(3)

  1. For a discussion of the malice required, see United States v.Vandenack, 15 M.J. 230 (C.M.A. 1983) (no defense that the accused did not intend to cause death or great bodily injury, provided the act showed wanton disregard of human life).

Voluntary intoxication is not a defense in UCMJ Article 118(3). MCM, pt. IV, 43c(3)(c).

Examples of Inherently Dangerous Conduct under UCMJ Article 118(3)

  1. United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (firing a weapon indiscriminately in an inhabited area during a sham firefight in Panama during Operation JUST CAUSE).
  2. United States v. Hartley, 36 C.M.R. 405 (C.M.A. 1966) (shooting into a crowded room).
  3. United States v. Judd, 27 C.M.R. 187 (C.M.A. 1959) (shooting into a house trailer with two others present).
  4. United States v. Vandenack, 15 M.J. 230 (C.M.A. 1983) (speeding and intentionally running red light after a prior accident).

Case Law on Military Felony Murder. UCMJ Article 118(4)

  1. Statutory Penalty: death or life imprisonment.
  2. In General. Homicide must be committed during the perpetration or attempted penetration of burglary, sodomy, rape, robbery, or aggravated arson. United States v. Jefferson, 22 M.J. 315 (C.M.A. 1986).
  3. Intent. No specific intent is required except that of an underlying felony. United States v.Hamer, 12 M.J. 898 (A.C.M.R. 1982).
  4. Causation. The causal relationship between felony and death must be established. United States v. Borner, 12 C.M.R. 62 (C.M.A. 1953).
  5. Multiplicity. Felony murder is multiplicious with premeditated murder, UnitedStates v. Teeter, 16 M.J. 68 (C.M.A. 1983), and with unpremeditated murder. United States v. Hubbard, 28 M.J. 27 (C.M.A. 1989).
  6. Capital Punishment.
    1. In Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court of the United States Supreme Court held that to impose the death penalty for felony murder, the accused must have killed or have had the intent to kill.
    2. Tison v. Arizona, 481 U.S. 137 (1987) (expands Enmund, holding that the Eighth Amendment does not prohibit the death penalty where the accused is a major participant in a felony that results in murder and “the mental state is one of reckless indifference”).
    3. R.C.M. 1004(c)(8) allows the death penalty only if the accused was the actual perpetrator of the killing. CAAF has held that this factor requires proof of an intent to kill or reckless indifference to human life. Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998).
    4. The accused’s pleas of guilty to unpremeditated murder and robbery using force and violence were, in context, pleas to the capital offense of felony murder. United States v. Dock, 28 M.J. 117 (C.M.A. 1989).
  7. Instructions. Where members could have reasonably found that the accused formed the intent to steal from the victim either before the infliction of the death blows or after rendering him helpless, he was not entitled to an instruction that, to be convicted of felony murder, he had to have the intent to commit the felony at the time of the actions which caused the killing. United States v. Fell, 33 M.J. 628 (A.C.M.R. 1991).

Attempted Murder. UCMJ art. 80

Attempted murder requires a specific intent to kill.

  1. Although a service member may be convicted of murder if he commits homicide without an intent to kill but with an intent to inflict great bodily harm (UCMJ art. 118(2)) or while engaged in an act that is inherently dangerous to others and evinces a wanton disregard of human life (UCMJ art. 118(3)), those states of mind will not suffice to establish attempted murder. United States v. Roa, 12 M.J. 210 (C.M.A. 1982).
  2. Beyond mere preparation. Where the purported co-conspirator was acting as a government agent at all relevant times, the court would consider only the acts of the accused in determining whether the planned murder-for-hire went beyond mere preparation to constitute attempted murder. United States v. Owen, 47 M.J. 501 (Army Ct. Crim. App. 1997).

Case Law on Military Voluntary Manslaughter UCMJ Article 119(a)

  1. Defined. An unlawful killing done with an intent to kill or inflict great bodily harm done in the heat of sudden passion caused by adequate provocation.
    1. Article 119(a) as a lesser-included offense. When the evidence places heat of passion and adequate provocation at issue in the trial, the military judge must instruct the members, sua sponte, on the lesser included offense of voluntary manslaughter. United States v. Wells, 52 M.J. 126 (C.A.A.F. 1999).
    2. Objective requirements.
      1. Adequate provocation to excite uncontrollable passion in a reasonable man. Adequate provocation is an objective concept. United States v. Stark, 17 M.J. 519 (A.C.M.R. 1984) (insulting, teasing, and taunting remarks are inadequate provocation). But cf. United States v. Saulsberry, 43 M.J. 649 (Army Ct. Crim. App. 1995) (finding adequate provocation after sustained taunting and simple assault), aff’d, 47 M.J. 493 (C.A.A.F. 1998).
      2. Provocation not sought or induced.
      3. Unspent at the moment killing occurs. United States v. Bellamy, 36 M.R. 115 (C.M.A. 1966) (whether a particular provocation has spent its force & what constitutes a reasonable time for cooling off are questions of fact for the panel/fact-finder). The rage must continue throughout the attack. United States v. Seeloff, 15 M.J. 978 (A.C.M.R. 1983).
    3. Subjective requirements. The accused must have acted under such a heat of passion, fear, or rage. See United States v. Staten, 6 M.J. 275 (C.M.A. 1979); United States v. Jackson, 6 M.J. 261 (C.M.A. 1979).
    4. Sufficiency of proof. Despite the defense claim that the accused acted in the sudden heat of passion, the conviction of premeditated murder of the wife’s lover was supported by sufficient evidence, including the obtaining of a special knife, decapitation of the victim, and comment to onlookers that “this is what happens when you commit adultery.” United States v. Schap, 44 M.J. 512 (Army Ct. Crim. App. 1996), aff’d, 49 M.J. 317 (C.A.A.F. 1998) (once raised at trial, Gov’t must disprove its existence beyond a reasonable doubt).
    5. Marital infidelity alone is not enough to justify voluntary manslaughter; it still needs to show that the accused was deprived of the ability to premeditate or that the accused did not premeditate. United States v. Roukis, 60 M.J. 925 (Army Ct. Crim. App. 2005) aff’d, 62 M.J. 212 (2005).
  2. Attempted Voluntary Manslaughter. The offenses of attempted voluntary manslaughter and assault with intent to commit voluntary manslaughter require a showing of the accused’s specific intent to kill. A showing only of a specific intent to inflict great bodily harm will be insufficient to establish these offenses. United States v. Barnes, 15 M.J. 121 (C.M.A. 1983).

Case Law on Military Involuntary Manslaughter Resulting From A Culpably Negligent Act UCMJ Article 119(b)(1)

  1. Intent. The standard of culpable negligence applies. MCM, pt. IV, 44c(2).
  2. Culpable negligence. “A degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others.” MCM, pt. IV, 44c(2)(a)(i).
    1. Consequences are “foreseeable” when a reasonable person, because of all the circumstances, would have realized the substantial and unjustifiable danger created by his acts. United States v. Oxendine, 55 M.J. 323 (2001) (holding a drunk victim by his ankles out of a third-story window without safety devices as part of a game of trust).
    2. Applications:
      1. Horseplay with Weapon. United States v. Markert, 65 M.J. 677 (N- M. Ct. Crim. App. 2007).
      2. Drug overdose death of another. United States v. Henderson, 23 M.J. 77 (C.M.A. 1986) (providing the drug, encouraging use, providing private room, presence); United States v. Mazur, 13 M.J. 143 (C.M.A. 1982) (assisting fellow soldier in injecting heroin into his vein); generally see Milhizer, Involuntary Manslaughter and Drug Overdose Death: A Proposed Methodology, Army Law., Mar. 1989, at 10.
      3. Child Abuse. United States v. Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week-old infant, who was resuscitated at the emergency room but remained in a persistent vegetative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability); United States v. Brown, 26 M.J. 148 (C.M.A. 1988) (violently shaking a child); United States v. Baker, 24 M.J. 354 (C.M.A. 1987) (violently throwing child to an unpadded floor); United States v. Mitchell, 12 M.J. 1015 (A.C.M.R. 1982) (beating a child who would not stop crying).
      4. Participating in a dangerous joint venture. United States v. Oxendine, 55 M.J. 323 (C.A.A.F. 2001) (accused helped hang a drunk Marine out of a third-story window during the thrill-seeking game with other Marines; drunk Marine fell to his death).
      5. Giving car keys to a drunk. United States v. Brown, 22 M.J. 448 (C.M.A. 1986).
      6. Failing to follow safety rules and driving after brakes failed. United States v. Cherry, 22 M.J. 284 (C.M.A. 1986).
      7. Culpably negligent surgical procedures. United States v. Ansari, 15 M.J. 812 (N.M.C.M.R. 1983); but see United States v. Billig, 26 M.J. 744 (N.M.C.M.R. 1988).
      8. Failure of parents to seek medical child care. United States v. Martinez, 48 M.J. 689 (Army Ct. Crim. App. 1998), aff’d, 52 M.J. 22 (1999); United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000); but see United States v. Riley, 58 M.J. 305 (2003) (intentionally unassisted delivery of a baby where medical care was readily available was not culpably negligent in supporting a finding of involuntary manslaughter; found negligent homicide).
  3. Proximate Causation.
    1. To be proximate, an act need not be the sole cause of death, nor must it be the immediate cause–the latest in time and space preceding the death. But a contributing cause is deemed proximate only if it plays a material role in the victim’s [death]. United States v. Cooke, 18 M.J. 152, 154 (C.M.A. 1984) (quoting United States v. Romero, 24 C.M.A. 39, 1 M.J. 227, 230, 51 C.M.R. 133 (C.M.A. 1975)).
    2. United States v. Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week-old infant, who was resuscitated at the emergency room but remained in a persistent vegetative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability).
  4. Effect of Contributory Negligence. The deceased’s or a third party’s contributory negligence may exonerate the accused if it “looms so large” compared with the accused’s negligence that it is no longer a substantial factor in the final result. United States v. Cooke, 18 M.J. 152 (C.M.A. 1984).
  5. A charge of involuntary manslaughter based upon the culpably negligent failure to requires, as a threshold matter, proof of a legal duty to act.United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995).
  6. Involuntary manslaughter by culpable negligence is not raised when death is the result of an intentional assault. United States v. Wilson, 26 M.J. 10 (C.M.A. 1988).
  7. Pleading. When charged under a culpable negligence theory, an involuntary manslaughter specification must allege that death was a reasonably foreseeable consequence of the accused’s misconduct. United States v. McGhee, 29 M.J. 840 (A.C.M.R. 1989); see generally TJAGSA Practice Note, The Scope of Assault, Army Law., Apr. 1990, Oct. 67, 68-70 (discusses McGhee ). After United States v. Jones.

Case Law on Military Involuntary Manslaughter While Perpetrating An Offense Directly Affecting The Person Of Another UCMJ Article 119(b)(2)

  1. It requires an act affecting some particular person to be distinguished from an offense that generally affects society. MCM, pt. IV, 44c(2)(b).
  2. Applications.
    1. Assault. United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Wilson, 26 M.J. 10 (C.M.A. 1988); United States v. Madison, 34 C.M.R. 435 (C.M.A. 1964); see generally TJAGSA Practice Note, Involuntary Manslaughter Based Upon an Assault, Army Law., Aug. 1990, at 32 (discusses Jones ); but see United States v. Richards, 56 M.J. 282 (2002) (insufficient evidence to necessitate involuntary manslaughter instruction).
    2. Drug Overdose Death of Another. United States v. Sargent, 18 M.J. 331 (C.M.A. 1984) (mere sale of drugs is not an offense “directly affecting the person of another”); see also United States v. Dillon, 18 M.J. 340 (C.M.A. 1984); see generally Milhizer, Involuntary Manslaughter and Drug-Overdose Deaths: A Proposed Methodology, Army Law., Mar. 1989, at 10.

Case Law on Military Death or Injury to an Unborn Child UCMJ Article 119a

  1. Implementing Executive Order signed 18 April 2007. ISSUES:
    1. Article 119a exempts the following individuals from prosecution:
      1. Any person authorized by state or federal law to perform abortions for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
      2. Any person for any medical treatment of the pregnant woman or her unborn child; or
      3. Any woman concerning her unborn child.
    2. Intentional Killing of an Unborn Child or Attempts. UCMJ art. 119a specifically states that an individual who intentionally kills an unborn child or attempts to kill an unborn child will be punished under Articles 80, 118, or 119. Nonetheless, Part IV, 44a.b.(3) &
    3. provide elements for an offense involving the intentional killing of an unborn child as well as elements for an offense involving attempts to do so. These elements require the specific intent to kill the unborn child.
    4. Scienter. For injuring or killing an unborn child, the government need not prove: 1) that the accused knew the victim was pregnant, nor 2) that the accused should have known that the victim was pregnant. Additionally, for these two offenses, the government need not prove that the accused specifically intended to cause the death of, or bodily injury to, the unborn child.
    5. Punishment. Such punishment, other than death, as a court-martial may direct, but shall be consistent with the offense had it occurred to the unborn child’s mother.
  2. No reported cases of this offense. But see United States v. Robbins, 52 M.J. 159(1999) (prosecuting accused for involuntary manslaughter by terminating the pregnancy of his wife, in violation of § 2903.04 of the Ohio Revised Code, as assimilated by the Assimilative Crimes Act (ACA)).

Case Law on Military Negligent Homicide UCMJ Article 134

  1. Intent. The standard is simple negligence—the absence of due care. An intent to kill or injure is not required. MCM, pt. IV, 85c(1).
  2. Simple Negligence Standard.
    1. See United States v. Gargus, 22 M.J. 861 (A.C.M.R. 1986).
    2. United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003) (giving birth in a hospital bathroom in a manner creating an unreasonable risk of injury, resulting in the death of the newborn). The Riley case demonstrates the comparison between involuntary manslaughter (culpable negligence) and negligent homicide (simple negligence). An inexperienced, immature layperson giving birth for the first time could not foresee the potential for explosive and unexpected birth and the likelihood of the baby’s resultant death. Nevertheless, the appellant’s simple negligence was the proximate cause of the baby’s death and was sufficient to sustain a conviction for negligent homicide because some injury was foreseeable.
  3. Relationship with Other Homicide Offenses.
    1. Negligent homicide is not an LIO of premeditated murder. United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011).
    2. Negligent homicide is not an LIO of involuntary manslaughter. United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011).
  4. Applications.
    1. United States v. McDuffie, 65 M.J. 631 (A.F. Ct. Crim. App. 2007) (accused diagnosed with sleep apnea, drove the vehicle, fell asleep, and drifted into oncoming traffic; involuntary manslaughter conviction set aside and affirmed as negligent homicide).
    2. United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995) (allowing the fellow soldier to drive the accused’s vehicle while under the influence of alcohol).
    3. United States v. Robertson, 37 M.J. 432 (C.M.A. 1993) (failure to obtain medical treatment for child).
    4. United States v. Spicer, 20 M.J. 188 (C.M.A. 1985) and United States v. Romero, 1 M.J. 227 (C.M.A. 1975) (conviction affirmed where accused helped another “shoot up” with heroin, resulting in that person’s death by overdose).
    5. United States v. Greenfeather, 32 C.M.R. 151 (C.M.A. 1962) (vehicle homicide).
    6. United States v. Cuthbertson, 46 C.M.R. 977 (A.C.M.R. 1972) (aircraft homicide).
    7. United States v. Zukrigl, 15 M.J. 798 (A.C.M.R. 1983) (failure to check on safety measures for a water crossing exercise).
    8. United States v. Perez, 15 M.J. 585 (A.C.M.R. 1985) (negligently entrusting a child to a babysitter who had a history of assaulting the child).
    9. United States v. Gordon, 31 M.J. 30 (C.M.A. 1990) (horseplay on a rowboat with a nonswimmer); generally see TJAGSA Practice Note, Negligent Homicide and a Military Nexus, Army Law., Mar. 1991, at 28 (discusses Gordon ). j) United States v. Billig, 26 M.J. 744 (N.M.C.M.R. 1988) (offense may not be available for negligent surgical procedures). k) United States v. Kick, 7 M.J. 82 (C.M.A. 1979) (offense of negligent homicide is a proper basis for criminal liability. Furthermore, it has not been preempted by other specified punitive articles, i.e., UCMJ arts. 118 and 119).
  5. Military courts have refused to use res ipsa loquitur to prove negligence in criminal cases. United States v. Ryan, 14 C.M.R. 153 (C.M.A. 1954); United States v. Bryan, 41 C.M.R. 184 (C.M.A. 1970); United States v. Thomas, 11 M.J. 315, 317 n. 2 (C.M.A. 1982).
  6. Proximate Cause. The negligence must be the proximate cause of the death. Although proximate cause does not mean sole cause, it does mean a material and foreseeable cause. United States v. Perez, 15 M.J. 585 (A.C.M.R. 1983) (death of child foreseeable where mother left the child with a boyfriend who had twice previously seriously injured child).

Death From Multiple Causes.

Relationship with Other Homicide Offenses.

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