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UCMJ Legal Defenses – Legal Defenses in a Military Court-Martial

Legal Defenses Available in a Military Court-Martial

Affirmative Defenses in a Military Court-Martial under the UCMJ

Affirmative Defenses in a Military Court Martial under the UCMJ Gonzalez & Waddington - Attorneys at LawIn the context of a military court martial, an affirmative defense is a legal defense used by the accused to negate criminal liability. These defenses acknowledge the commission of the alleged acts but provide justifications or excuses that, if proven, can lead to acquittal or mitigation of punishment. Under the Uniform Code of Military Justice (UCMJ), several affirmative defenses are available to service members facing court martial.

Types of Affirmative Defenses


Self-defense is one of the most commonly invoked affirmative defenses. It allows service members to justify using force to protect themselves from imminent harm. To successfully claim self-defense, the accused must demonstrate:

  • Imminence: The threat of harm was immediate and not speculative or distant.
  • Proportionality: The force used in self-defense was reasonable and proportional to the threat faced.
  • Necessity: The use of force was necessary to prevent the harm.

For more detailed information on self-defense in military law, refer to Navy JAG and Army Judge Advocate General’s Corps.

Defense of Others

Similar to self-defense, the defense of others permits using force to protect another person from imminent harm. The criteria for this defense mirror those of self-defense:

  • Imminence: The threat to the other person was immediate.
  • Proportionality: The force used was reasonable and proportional to the threat.
  • Necessity: The force was necessary to protect the other person.


Duress is an affirmative defense used when the accused committed the offense because they were coerced by the threat of immediate death or serious bodily harm. To successfully claim duress, the following must be established:

  • Immediate Threat: The threat was of immediate death or serious bodily harm.
  • Reasonable Fear: The accused had a well-founded fear that the threat would be carried out.
  • No Reasonable Escape: There was no reasonable opportunity to avoid harm.


The insanity defense asserts that the accused was unable to understand the nature and quality or the wrongfulness of their actions due to a severe mental disease or defect at the time of the offense. To prove insanity, the defense must show:

  • Severe Mental Disease or Defect: The accused suffered from a severe mental disorder at the time of the offense.
  • Impairment: The mental disorder impaired the accused’s ability to understand the nature or wrongfulness of their actions.

Involuntary Intoxication

Involuntary intoxication is a defense when the accused was unknowingly or forcibly intoxicated, impairing their ability to understand the nature of their actions or distinguish right from wrong. The defense must prove:

  • Involuntary Intoxication: The accused was intoxicated against their will or knowledge.
  • Impairment: The intoxication significantly impaired the accused’s mental state at the time of the offense.

Mistake of Fact

Mistake of fact is an affirmative defense where the accused had a reasonable and honest belief in a fact that, if true, would negate criminal liability. The key elements are:

  • Reasonableness: The belief was reasonable under the circumstances.
  • Honest Belief: The accused genuinely held the mistaken belief.

Mistake of Law

While generally not a defense, in limited circumstances, a mistake of law may be a valid defense if the accused reasonably relied on an official statement of the law that was later determined to be incorrect. To establish this defense, the accused must show:

  • Official Statement: The accused relied on an official statement of the law.
  • Reasonable Reliance: The reliance on the statement was reasonable.


Consent can be a defense in cases involving certain crimes, such as assault, where the victim’s voluntary and informed consent negates the criminality of the accused’s actions. The defense must establish:

  • Voluntary Consent: The victim willingly consented to the conduct.
  • Informed Consent: The consent was given with full knowledge of the nature of the act.


Entrapment occurs when law enforcement officials induce a person to commit a crime they would not have otherwise committed. To prove entrapment, the defense must show:

  • Inducement: The government induced the accused to commit the offense.
  • Lack of Predisposition: The accused was not predisposed to commit the offense before the inducement.

Unlawful Command Influence

Unlawful command influence (UCI) is a defense that argues that the accused’s trial was unfairly influenced by the improper actions of a superior officer. To establish UCI, the defense must demonstrate:

  • Improper Influence: There was an attempt by a superior to influence the outcome of the trial.
  • Prejudice: The improper influence had a prejudicial effect on the accused’s right to a fair trial.


Affirmative defenses in a military court martial under the UCMJ allow service members to present justifications or excuses for their actions, potentially leading to acquittal or mitigation of punishment. Understanding these defenses and the requirements to assert them successfully is crucial for any service member facing court-martial proceedings.

For more information on military law and the UCMJ, visit Navy JAG and Army Judge Advocate General’s Corps.

Self-Defense in a Military Court-Martial Under the UCMJ


Self-defense is a well-recognized legal principle that allows individuals to use reasonable force to protect themselves from imminent harm. In the Uniform Code of Military Justice (UCMJ) context, self-defense can serve as a defense against charges of assault, battery, or other violent offenses. Understanding how self-defense is interpreted and applied in a military court-martial is crucial for service members facing such charges.

Legal Framework

The UCMJ provides the legal framework for addressing criminal conduct within the military. Self-defense is not explicitly outlined in the UCMJ but is a recognized defense under military law. The Manual for Courts-Martial (MCM) outlines the circumstances under which self-defense can be invoked, incorporating principles from military and civilian legal traditions.

Elements of Self-Defense

The accused must successfully establish certain elements to claim self-defense in a military court-martial. These elements are evaluated based on the facts and circumstances of each case:

  • Imminent Threat: The accused must have faced an imminent threat of unlawful harm. This means the threat must have been immediate and not speculative or distant.
  • Reasonable Belief: The accused must have believed that the force used was necessary to protect themselves from harm. This belief is judged from the perspective of a reasonable person in the same situation.
  • Proportional Force: The force used in self-defense must be proportional to the threat faced. Excessive force beyond necessary to neutralize the threat cannot be justified as self-defense.
  • Unlawful Aggressor: The threat must have come from an unlawful aggressor. Self-defense cannot be claimed if the accused was the initial aggressor or provoked the confrontation.

Application in Military Courts

Military courts consider the context and environment in which the alleged offense occurred. Factors such as the operational setting, the accused’s duties, and the threat’s nature are all considered. Service members may face unique situations, such as combat scenarios, where the perception of threat and response can differ significantly from civilian contexts.

Burden of Proof

In a court-martial, the prosecution bears the burden of proving the accused’s guilt beyond a reasonable doubt. However, once self-defense is raised as an issue, the defense must provide evidence supporting their claim. The burden then shifts to the prosecution to disprove self-defense beyond a reasonable doubt. This ensures that the accused is given a fair opportunity to present their case and that all relevant factors are considered.

Case Law and Precedents

Military courts often rely on precedents and case law to interpret and apply self-defense principles. Notable cases and decisions guide how self-defense is evaluated and what constitutes a reasonable belief and proportional force. Reviewing these cases can help understand how military courts approach self-defense claims.

Defending Against Charges

When facing charges, the accused should work closely with their defense counsel to build a robust self-defense argument. This includes gathering evidence, such as witness testimonies, expert opinions, and any available video or photographic evidence. A thorough understanding of the specific circumstances and the context of the incident is essential.

Challenges and Considerations

Claiming self-defense in a military court-martial can present unique challenges. The military environment, with its hierarchical structure and specific duties, may complicate the assessment of reasonable belief and proportional force. Additionally, military operations’ intense and often dangerous nature can influence perceptions of threat and response.

Self-defense is a critical legal defense for service members facing charges under the UCMJ. Understanding the elements of self-defense, the burden of proof, and the application of military law is essential for a fair and just outcome. By working closely with legal counsel and presenting a well-supported defense, service members can effectively navigate the complexities of a court-martial and protect their rights.

Authoritative Resources

For more information on military law and the UCMJ, visit the following authoritative websites:

Crimes in which an injury is inflicted upon the victim. Two separate standards of self-defense exist depending on the nature of the injury inflicted on the victim. In the case of the United States v. Thomas, 11 M.J. 315 (C.M.A. 1981); In the case of the United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977); In the case of the United States v. Jackson, 36 C.M.R. 101 (C.M.A. 1966).


See In the case of the United States v. Clayborne, 7 M.J. 528 (A.C.M.R. 1979) (court set aside a conviction for unpremeditated murder because it “was not convinced beyond a reasonable doubt that the accused did not act in self-defense” in using a knife against a victim who attacked the accused with only his hands when the accused knew 1) the victim was an experienced boxer, 2) with a reputation for fighting anyone, 3) who had defeated three men in a street fight, and 4) had choked and beaten a sleeping soldier once before). But see the case of the United States v. Ratliff, 49 C.M.R. 775 (A.C.M.R. 1975) (reaching the opposite result in a knife scenario). R.C.M. 916(e)(3). Standard applied when simple assault or battery is charged. The accused may justifiably inflict injury short of death or grievous bodily harm if:

He apprehended, upon reasonable grounds, that bodily harm was about to be inflicted on him, and he believed that the force he used was necessary to avoid that harm, but that the force actually used was not reasonably likely to result in death or grievous bodily harm. See In the case of the United States v. Jones, 3 M.J. 279 (C.M.A. 1977) (one may respond to a simple fistic assault with similar force); In the case of the United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966).

Other legal defenses:

Legal Defense of  Loss of Self-Defense by Aggressor / Mutual Combatant

A provoker, aggressor, or one who voluntarily engages in a mutual affray is not entitled to act in self defense unless he first withdraws in good faith and indicates his desire for peace. R.C.M. 916(e)(4). In the case of the United States v. Marbury, 50 M.J. 526 (Army Ct. Crim. App. 1999) aff’d 56 M.J. 12 (C.A.A.F. 2001) (after the victim struck the accused in the face, the accused retreated from her room, unsuccessfully sought assistance from fellow NCOs, grabbed a knife, reentered her room, and then started a confrontation by threatening the victim with the knife). In the case of the United States v. Brown, 33 C.M.R. 17 (C.M.A. 1963); In the case of the United States v. O’Neal, 36 C.M.R. 189 (C.M.A. 1966); In the case of the United States v. Green, 33 C.M.R. 77 (C.M.A. 1963).

Legal Defense of Retreat or Withdrawal

The accused is not required to retreat when he is at a place where he has a right to be. The presence or absence of an opportunity to withdraw safely, however, may be a factor in deciding whether the accused had a reasonable belief that bodily harm was about to be inflicted upon him. R.C.M. 916(e)(4) (discussion); In the case of the United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967); In the case of the United States v. Smith, 33 C.M.R. 3 (C.M.A. 1963); In the case of the United States v. Adams, 18 C.M.R. 187 (C.M.A. 1955); In the case of the United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004) (holding when an aggressor, provoker, or mutual combatant who becomes unconscious and ceases resistance effectively withdraws, entitling another to exercise self-defense on his behalf).

Legal Defense of  Escalation

An accused who wrongfully engages in a simple assault and battery may have a right to use deadly force if the victim first uses deadly force upon the accused. In the case of the United States v. Cardwell, 15 M.J. 124 (C.M.A. 1983); In the case of the United States v. Dearing, 63 M.J. 478 (2006) (citing Cardwell); In the case of the United States v. Lewis, 65 M.J. 85 (2007); see In the case of the United States v. Winston, 27 M.J. 618 (A.C.M.R. 1988) (self-defense not raised where the accused aggressively participated in an escalating mutual affray);

Termination of Self-Defense

The right to self-defense ceases when the threat is removed. In the case of the United States v. Richey, 20 M.J. 251 (C.M.A. 1985) (ejecting a trespasser).

Legal Defense of Voluntary Intoxication

The accused’s voluntary intoxication cannot be considered in determining the accused’s perception of the potential threat, which led him to believe that a battery was about to be inflicted, as this is measured objectively. In the case of the United States v. Judkins, 34 C.M.R. 232 (C.M.A. 1964).

Requirement to Raise

Self-defense need not be raised by the accused’s testimony, even if he testifies. In the case of the United States v. Rose, 28 M.J. 132 (C.M.A. 1989); see TJAGSA Practice Note, Self-Defense Need Not Be Raised by the Accused’s Testimony, ARMY LAW., Aug. 1989, at 40 (discusses Rose). See In the case of the United States v. Reid, 32 M.J. 146 (C.M.A. 1991).

The “Egg-Shell” Victim

R.C.M. 916(e)(3) (discussion). If an accused is lawfully acting in self-defense and using less force than is likely to cause death or grievous bodily harm, the death of the victim does not deprive the accused of the defense, if:

  • The accused’s use of force was not disproportionate, and
  • The death was unintended, and
  • The death was not a reasonably foreseeable consequence. In the case of the United States v. Jones, 3 M.J. 279 (C.M.A. 1977).

Self-Defense Laws In The United States

A self-defense claim is a common rule in situations where a person defends himself, but the level of violence a person may use is complicated. A defendant invoking self-defense must admit that he or she used force against a victim of violence, but must also claim that he or she was the victim and not the attacker, that he or she did so to protect someone else from injury, and that the level of violence they used was proportional to the threat.

Some states have self-defense laws that allow people to defend themselves or others who are threatened with reasonable force to avoid criminal liability for their use of force. Each state has its own rules on when and how to use force in self-defense and whether the user can be made within the limits of these laws without leading to a criminal conviction. Such laws may apply in states where a person is attacked in a public place and has the right to stand until the ground or force is struck.

Standing-your-ground laws (also known as withdrawal obligations) are legal justifications for a person to assert himself and to use force or withdrawal to protect or defend himself or others from a threat or perceived threat. A “stand your ground” law means that a person can use force, normally called lethal force, to defend himself or try to retreat from imminent danger.

An emergency law allows someone to use deadly force in public if they know that they can avoid the need for violence by walking away from the incident without retreating. Stand-Your-Ground enables individuals to defend themselves by force, if necessary, against an immediate threat of serious bodily harm or death.

American self-defense laws largely require that the defendant has the right to withdraw to protect his or her safety to avoid harm or injury without resorting to force. Under these laws, people have a duty to retreat or use lethal force in self-defense when they are physically present at a place. These laws require a person to de-escalate the situation clearly and safely, but they do not require a person to attempt to do so unless it would put him or her at risk.

An exception arose to the disengagement requirement in the United States, but it was a broader set of ideas about who can fight.

A time-honored legal principle codified in US self-defense laws states that people can use reasonable physical force to defend themselves and others from imminent violence.

Self-defense laws in the US justify the use of lethal force in situations where it is reasonable for them to think that lethal force is necessary to prevent imminent death or disproportionate bodily harm to another person or person. Stand-your-ground laws, also known as line-in-the-sand laws, permit people to use lethal force if they deem it necessary to defend themselves against grievous bodily harm, kidnapping, rape and robbery, and other serious crimes, and have the right to self-defense. These laws also extend to people who use lethal force in self-defense when they try to retreat.

Since the 1980s, a handful of state laws, nicknamed ” Make My Day,” have provided immunity from prosecution for the use of deadly force on entry into a home. Under these laws, 25 states provide for a duty of withdrawal if the attacker is in a place where no one is present.

The common law principle of the castle doctrine states that individuals have the right to use appropriate force, including lethal force to defend themselves from intrusions in their homes. The doctrine means that homeowners can claim self-defense in some states who use deadly force in their homes, businesses, or cars in the event of egregious bodily harm or death. Some states require a person to retreat when there is an imminent danger to his life to defend himself or to use lethal force when someone enters his home.

In California, there are no specific “stand your ground” laws. Still, in California, the castle doctrine means that a person can use deadly force on himself or herself if he or she has a reasonable fear of imminent danger of immense bodily harm. Castle Doctrine and Stand Your Ground laws provide a legal defense for a person charged with various violent crimes against another person, such as murder, manslaughter, grievous bodily harm, illegal discharge or carrying a weapon, or attempting to commit such crimes.

Certain initiatives to expand self-defense laws raised serious concerns from a human rights perspective since the “stand your ground” laws allow the use of deadly force despite the existence of safe retreats. Several states have enacted “heinous shoot-first” laws, which permit, among other things, the use of deadly force when a property crime committed by a fugitive is committed.

By lowering the threshold for the justifiable use of lethal force for self-protection, robust laws can increase the use of defensive weapons, and the deterrent effect is to reduce crime and violence rates. The more likely it is to be confronted with a citizen who is willing to use a firearm, the more laws can encourage criminals to carry firearms and increase the proportion of violent and property crimes involving firearms. They can also reduce the likely legal costs of using defensive weapons by reducing the likelihood that they will be held criminally or civilly liable for lethal or non-lethal injuries.

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