Legal Defense of Voluntary Abandonment in a Military Court-Martial

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The defense of accident is defined by R.C.M. 916(f).

Special defense to a charge of attempted commission of a crime. M.C.M., pt. IV, paragraph4c(4); United States v. Byrd, 24 M.J. 286 (C.M.A. 1987). Not available as a defense to an attempt crime where the acts committed have caused substantial harm to the victim. United States v. Smauley, 42 M.J. 449 (C.A.A.F. 1995); United States v. Thornsbury, 59 M.J. 767 (A. Ct. Crim. App. 2004).

Available for a consummated attempt only when the accused has a genuine change of heart that causes her to renounce the criminal enterprise. United States v. Schoof, 37 M.J. 96 (C.M.A. 1993); United States v. Walther, 30 M.J. 829 (N.M.C.M.R. 1990).

Legal Defenses Available in a Military Court-Martial

Not raised when: Not raised as a defense to attempted breaking restriction where the accused abandoned his efforts because of a fear of being detected or apprehended. United States v. Miller, 30 M.J. 999 (N.M.C.M.R. 1990).

Not raised as a defense where the accused merely postpones his criminal enterprise until a more advantageous time or transfers his criminal effort to another objective or victim, or where his criminal purpose is frustrated by external forces beyond his control. United States v. Rios, 33 M.J. 436 (C.M.A. 1991).

Mistake of Fact as a Defense in Sexual Assault Cases

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Amnesia as a Defense

Inability to recall past events or the facts of one’s identity is loosely described as amnesia. An accused who suffers from amnesia at the time of the trial is at a disadvantage. Failure to recall a past event may prevent the accused from disclaiming the possession of a particular intent, the existence of which is essential for conviction of the offenses charged. Similarly, inability to recall identity can prevent the accused from obtaining evidence of good character from friends and family. Amnesia, however, is, by itself, generally “a relatively neutral circumstance in its bearing on criminal responsibility.” United States v. Olvera, 15 C.M.R. 134 (C.M.A. 1954). See generally United States v. Boultinghouse, 29 C.M.R. 537 (C.M.A. 1960); United States v. Buran, 23 M.J. 736 (A.F.C.M.R. 1986); United States v. Barreto, 57 M.J. 127 (C.A.A.F. 2002).

When Amnesia May be a Defense

Military offenses requiring knowledge of accused’s status as a service person. Inability to recall identity might include loss of awareness of being a member of the armed forces; in that situation, amnesia might be a defense to a charge of failing to obey an order given before the onset of the condition, as it would show the existence of a mental state which would serve to negate criminal responsibility. United States v. Olvera, supra paragraph XIV.

An accused cannot be convicted of AWOL if he was temporarily without knowledge that he was in the military during the period of his alleged absence. United States v. Wiseman, 30 C.M.R. 724 (N.B.R. 1961).

Drug/alcohol induced amnesia.

Lack of memory or amnesia resulting from drugs or alcohol has never constituted a complete defense. United States v. Luebs, 43 C.M.R. 315 (C.M.A. 1971); United States v. Butler, 43 C.M.R. 87 (C.M.A. 1971); United States v. Day, 33 C.M.R. 398 (C.M.A. 1963). Drug/alcohol induced amnesia in and of itself does not constitute a mental disease or defect which will excuse criminal conduct under the defense of lack of mental responsibility. United States v. Olvera, supra at paragraph XIV.A.; United States v. Lopez-Malave, 15 C.M.R. 341 (C.M.A. 1954)

Under earlier law, in order to require an insanity instruction, the evidence must show that accused’s alcoholism constitutes a mental disease or defect so as to impair substantially his capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. United States v. Brown, 50 C.M.R. 374 (N.C.M.R. 1975); United States v. Marriott, 15 C.M.R. 390 (C.M.A. 1954). With the passage of UCMJ art. 50a, the standard for lack of mental responsibility is now complete impairment. For a complete discussion of Article 50a, see Chapter 6, infra.

Amnesia as Affecting Accused’s Competency to Stand Trial

The virtually unanimous weight of authority is that an accused is not incompetent to stand trial simply because he is suffering from amnesia. Thomas v. State, 301 S.W.2d 358 (Tenn. 1957); Commonwealth v. Hubbard, 371 Mass. 160 (1976). The appropriate test when amnesia is found is whether an accused can receive, or has received, a fair trial. The test, as stated in Dusky v. United States, 362 U.S. 402 (1960), is “whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding–and whether he has a rational as well as factual understanding of the proceedings against him.”

The problem when the accused suffers from amnesia is not his ability to consult with his attorney but rather his inability to recall events during a crucial period. Where the amnesia appears to be temporary, an appropriate solution might be to defer trial for a reasonable period to see if the accused’s memory improves.

Commonwealth v. Lombardi, 393 N.E.2d 346 (Mass. 1979). Where the amnesia is apparently permanent, the fairness of proceeding to trial must be assessed on the basis of the particular circumstances of the case.

A variety of factors may be significant in determining whether the trial shall proceed, to include:

  1. the nature of the crime,
  2. the extent to which the prosecution makes a full disclosure of its case and circumstances known to it,
  3. the degree to which the evidence establishes the accused’s guilt,
  4. the likelihood that an alibi or some defense could be established but for the amnesia,
  5. the extent and effect of the accused’s amnesia.

A pretrial determination of whether the accused’s amnesia will deny him a fair trial is not always possible. In such a case, the trial judge may make a determination of fairness after trial with appropriate findings of fact and rulings concerning the relevant criteria.

Automatism / Unconsciousness

Seizures attendant to epilepsy may render the accused unable to form the mens rea required for assault. United States v. Rooks, 29 M.J. 291 (C.M.A. 1989). See generally TJAGSA Practice Note, Epileptic Seizures and Criminal Mens Rea, ARMY LAW., Feb. 1990, at 65 (discusses Rooks).

Evidence was sufficient to convict accused of offenses of willfully disobeying and assaulting an NCO, notwithstanding accused’s contention that he lacked required mens rea due to automatic and uncontrollable behavior brought on by claustrophobia. United States v. Campos, 37 M.J. 894 (A.C.M.R. 1993), aff’d, 42 M.J. 253 (C.A.A.F. 1995).

United States v. Axelson, 65 M.J. 501 (A. Ct. Crim. App. 2007). The ACCA concluded that the accused’s plea to aggravated assault was knowing and no additional instructions on defenses were required because aggravated assault is a general intent crime to which partial mental responsibility is not a defense. Further, automatism is not a defense under R.C.M. 916 or other caselaw, and there was no evidence of automatism raised either in the providence inquiry or on the merits. For an interesting survey of the law in this area, see Michael J. Davidson & Steve Walters, United States v. Berri: The Automatism Defense Rears Its Ugly Little Head, ARMY LAW., Oct. 1993, at 17.

Due Process Fair Warning

The touchstone of the fair warning requirement is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that defendant’s conduct was criminal. United States v. Lanier, 117 S.Ct. 1219 (1997).

Selective Prosecution

Accused was not subjected to selective or vindictive prosecution in regard to handling or adultery allegations, though charges were not preferred against two others alleged to have committed adultery, where charges were preferred against accused only after he violated a “no-contact” order. United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997).

Jury Nullification

Because there is no right to jury nullification, military judge did not err either in declining to give a nullification instruction or in declining to otherwise instruct the members that they had the power to nullify his instructions on matters of law. United States v. Hardy, 46 M.J. 67 (C.A.A.F. 1997). See generally Lieutenant Colonel Donna M. Wright & Lieutenant Colonel (Ret.) Lawrence M. Cuculic, Annual Review of Developments in Instructions – 1997, ARMY LAW., Jul. 1998, at 39, 48 (discussing Hardy).

Religious Convictions

United States v. Webster, 65 M.J. 936 (A. Ct. Crim. App. 2008). The accused pled guilty to missing movement to Iraq by design and disobeying orders from two superior commissioned officers to deliver his bags for deployment. The accused had converted to Islam in 1994 and had doubts about whether he should participate in a war against Muslims.

After consulting Islamic scholars on the Internet, the accused determined that the consensus was that Muslims are not permitted to participate in the war in Iraq. By participating as a combatant, the accused believed that he would be placed “in an unfavorable position on the Day of Judgment.” The accused filed a conscientious objector packet prior to the deployment, but withdrew it. He filed another conscientious objector packet on the same day that he missed movement.

During the guilty plea inquiry, the military judge ruled that his religious beliefs would not provide a defense to disobeying orders. The ACCA first held that the accused’s guilty plea was knowing, voluntary, and provident. First, the accused confirmed that the defense of duress did not apply to him. Second, there is no authority for the proposition that conscientious objector status provides a defense for missing movement or violating lawful orders. Third, under AR 600-43, conscientious objector requests made after an individual has entered active duty will not be favorably considered when the objection is to a certain war, which was the case here.

Finally, it is irrelevant that the offenses involving missing movement and failure to obey orders were based on religious motives where such motives and beliefs did not rise to the level of a duress defense and did not constitute any other defense. The court then held that the First Amendment does not require anything more to accommodate the accused’s free exercise of religion than was offered here, and the accused’s rights were not violated. The ACCA first identified the applicable standard for analyzing alleged government infringement on the free exercise of religion. Under the Religious Freedom Restoration Act of 1993, the state must have a “compelling state interest” before it can burden the free exercise of religion.

Additionally, courts are enjoined to apply judicial deference when strictly scrutinizing the military’s burden on the free exercise of religion. See Goldman v. Weinberger, 475 U.S. 503 (1986). Applying these two standards, the ACCA concluded that the government had a compelling interest in requiring soldiers to deploy with their units. The government furthered this compelling interest using the least restrictive means.

The Army offers soldiers an opportunity to apply for conscientious objector status, and in this case, his command offered the accused the opportunity to deploy in a non-combat role. In applying the duly required judicial deference, the ACCA concluded that the Army furthered its compelling interest in the least restrictive manner possible. The accused “had no legal right or privilege under the First Amendment to refuse obedience to the orders, and the orders were not given for an illegal purpose.” (citing United States v. Barry, 36 C.M.R. 829, 831 (C.G.B.R. 1966) (internal brackets omitted).

Legal Defense Of Voluntary Abandonment

This means that the accused must give up to defend the attempted crime he has committed. It is not possible to renounce if one tries to complete such a defense.

The renunciation is voluntary if an accused does not carry out the attempted crime and decides to postpone criminal conduct for some time by replacing another victim with a similar goal. Thus, the accused takes the final step towards completing the attempted crime, but is powerless to prevent its completion or, for any other reason, fails to commit the ultimate crime until it is too late and then abandons the criminal purpose to escape liability for the crime. It may seem that the defense of abandonment does not apply to second-degree murder or manslaughter. Still, we can say that the defense is only available when one has given up the intention to kill the victim, which is not an element of the completed crime.

A common denominator between states is that the accused must demonstrate that he has given up his criminal intention to prevent others from committing the crime. Remember that several states do not criminalize attempted violations of the law but regard them as attempted crimes of common law (Grill v. State, 2010). The crux of an attempted case is how close to completing the defendant’s offense to fulfilling the requirement for an attempted offense.

Voluntary abandonment is a defense against theft committed during the attempt to commit theft, as long as the theft is not charged as an attempt under the law. The prosecutor put forward the defense of the renunciation to prove that the renunciation was not voluntary and happened because someone else came along and made it difficult to plan the execution of the crime. On the other hand, the task may be voluntary and may have occurred during the commission of the intended crime.

When a person reveals a voluntary and complete renunciation of their criminal purpose, abandons their efforts to commit a crime, or otherwise prevent the commission of a crime, this is considered a task. It is not necessary to commit theft when an accused abandons himself or tries to commit a crime to prevent his committing. The circumstances indicate a complete and voluntary abandonment of a criminal purpose by the accused. Assuming that the accused has committed the overt acts necessary for the concrete intention, the accused may argue that he is not guilty because he abandoned his criminal enterprise before committing the attempted offense.

Under the common law in defense of the withdrawal of criminal offenses, the accused must show that he has voluntarily given up or given up his intention to kill the victim. In addition, he has notified his withdrawal to two accomplices with sufficient time to consider abandoning the criminal plan.

Jurors in Florida argued before the judge that the statutory defense of abortion is an affirmative defense, acknowledging that the crime of theft must be proved by attempting to gain the video game and that the defendant bears the burden of proof for the defense. In some cases, it could not be established that the accused had given up the crime, but the state considered this. The court did not find that the task was an attempt by the accused to abandon the crime because he believed he would be caught, but because what happened instead made it more difficult to commit the crime.

If the defendant pleads not guilty, the government must prove that the defendant is innocent. The defense of voluntary renunciation may be brought if an injured worker breaches written labor rules defining prohibited conduct which the employee knew or should have known would be identified as a criminal offense by the employer. In one case, it can be established that an injured worker’s incapacity to work at the time of dismissal precludes defense because the worker did not leave the job properly when he or she was incapacitated.

House Bill 81, which contains a provision seeking to codify the doctrine of voluntary abandonment, deals with benefits that are no longer paid when a worker returns to work after being discharged from medical records when the worker has returned to his or her former job, when he or she has achieved the maximum medical improvement, or when further improvements are expected. The bill does not specify the total temporary benefits to be paid. Still, it does specify that the disability must be a direct result of an approved injury or occupational illness.

The doctrine based on jurisprudence is not mentioned in any Ohio law. Still, in the revised Ohio Administrative Code of Rules, which governs employee compensation in the State of Ohio, it is the court-created defense of a valid compensation claim. Jurisdictions are divided in their common view of the law regarding whether the task constitutes a defense of an attempted crime.

Despite this intention, it remains unclear whether the case law stipulates that the principle of voluntary renunciation has expired. Whether Ohio General Assembly intended to clarify the doctrine or to remove or create an exemption for voluntary renunciation remains to be seen. Section 501 (4) of the model criminal code recognizes a defense against abandonment of an attempted crime as an attempt to commit an attempted crime in circumstances that reveal complete and voluntary renunciation for a criminal purpose. The Model Code states that “A person is guilty of trying to commit a crime if his action or omission constitutes an essential step in the course of his conduct or plan culminating in the commission of a crime” (Model Criminal Code SS 501 (1) c).

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