CAAF and ACCA agree, a failure to object to a missing instruction means forfeiture.
If you or your loved one is facing a court-martial, it is crucial that you hire an attorney with experience. It takes a very experienced attorney to know exactly when to object and what objections to make at your court-martial. Even if an objection is overruled at the court-martial, you may have success on appeal. However, in order to have a valid appeal, it is crucial that your defense attorney preserve the issue for appeal at the court-martial. Recently, the Court of Appeals for the Armed Forces (CAAF) affirmed a decision made by the Army Court of Criminal Appeals (ACCA) in United States v. Davis that highlighted the importance of making valid objections during a court-martial. In Davis, a female soldier alleged that Private Davis raped her in a barracks room. During the court-martial, Private Davis raised some evidence that he mistakenly believed that the sexual intercourse that he had with the female soldier was consensual. Mistake of fact as to consent is an affirmative defense to rape. It requires that the accused show that he had a reasonable, mistaken belief that the sexual activity was consented to by the alleged victim. In Davis, when it reached the stage where the military judge provided instructions to the panel, the military judge did not provide an instruction regarding mistake of fact as to consent. Private Davis’ defense counsel failed to object to the fact that this instruction was missing. Later, Private Davis tried to raise this issue on appeal. However, the ACCA found that Private Davis and his defense team committed forfeiture when they failed to object at the court-martial. Private Davis argued that this was a required instruction and that the appellate courts must review the issue de novo. However, both the ACCA and CAAF agreed that if defense fails to object to the omission of an affirmative defense, this constitutes forfeiture. Therefore, the issue is only reviewed to see if there was plain error committed by the military judge. In Davis, because there was very little evidence presented regarding mistake of fact as to consent, the appellate courts found there was no plain error. This case makes it clear that in order to not waive or forfeit your ability to appeal issues, your attorney must make timely objections during your court-martial. It takes experience to know when to object and what to object to. I have the experience that you need both at the court-martial level and at the appellate level. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.