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Do I Have a Defense? Common Defenses Under the UCMJ

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There are all types of charges under the Uniform Code of Military Justice (UCMJ) and therefore all types of potential defenses. Whether a defense applies depends on the specific facts of the case, the offenses alleged, and the law. Here we discuss some of the most common court-martial defenses and when they might apply.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the Uniform Code of Military Justice (UCMJ). If you are facing court-martial, you need an experienced law firm that will fight for you. Contact one of our military defense lawyers today for a free consultation.


Rule for Court-Martial (R.C.M.) 916 describes a “defense” as an explanation for conduct which the accused engaged in but denies criminal responsibility for that conduct. R.C.M. 916 lists the following defenses:

Justification. Not every act resulting in an injury to another is criminal. A death, injury, or other act done in the proper performance of a legal duty is justified and not unlawful. For example, the use of force by a law enforcement officer in the line of duty, or the killing of an enemy combatant in battle, are justified acts. Act act performed pursuant to a lawful order is also considered justified.

Obedience to orders. This defense only applies to lawful orders, not war crimes. Obedience to orders is not a defense if the accused “knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.”

Self-defense. Every person has the inherent right to protect themselves against death or serious injury. Self-defense applies in cases of homicide or assaults/battery involving deadly force if the accused either: (1) reasonably believed that death or grievous bodily harm was about to be inflicted wrongfully on him; and (2) believed that the force he used was necessary for protection against death or grievous bodily harm.

R.C.M. 916(e) explains that the “first element of self-defense is objective. Thus, the accused’s apprehension of death or grievous bodily harm must have been one which a reasonable, prudent person would have held under the circumstances. Because this test is objective, such matters as intoxication or emotional instability of the accused are irrelevant.”

In contrast, “the test for the second element is entirely subjective. The accused is not objectively limited to the use of reasonable force. Accordingly, such matters as the accused’s emotional control, education, and intelligence are relevant in determining the accused’s actual belief as to the force necessary to repel the attack.”

An accused who is the aggressor, engaged in mutual combat, or provoked the attack can lose the right to self-defense unless the accused had withdrawn in good faith after the aggression and before the offense occurred.

Defense of another. The principles of self-defense also apply to the defense of another. When protecting another, the accused may not, however, use more force than the person defended was lawfully entitled to use under the circumstances. For example, a service member cannot use deadly force to protect another person unless that person would have been entitled to use deadly force on their own behalf.

Accident. This defense of “accident” applies when a death, injury, or other event “occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner is an accident and excusable.” A death or injury that occurs unintentionally while engaged in an unlawful act or a lawful act in an unlawful manner (e.g. speeding – driving is a lawful act but speeding is unlawful) would not trigger the defense of “accident”.

Entrapment. When the suggestion to commit a criminal offense comes from a Government agent and the accused had no predisposition to commit the offense, the defense of “entrapment” applies. “The fact that persons acting for the Government merely afford opportunities or facilities for the commission of the offense does not constitute entrapment. Entrapment occurs only when the criminal conduct is the product of the creative activity of law enforcement officials.”

Coercion or duress. Except for the crime of murder, it is a defense to any crime “that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act.” If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense does not apply.

Inability. If an accused refuses or fails to perform a duty that he was, through no fault of the accused, not physically or financially able to perform the duty, then the defense of “inability” applies. An objective test applies to determine whether an accused was truly unable to perform the duty he was ordered to do. There is no defense of inability if the accused is physically or financially unable to perform the duty as a result of his own fault or design. For example, if the accused is ordered to get a haircut but spends the money on other nonessential items, his inability to pay for the haircut would not be a defense.

Ignorance or mistake of fact. Mistake of fact is one of the most important defenses available to service members, particularly in sexual assault case. It is a defense if the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. For example, in a sexual assault case, it is a defense if an accused reasonably believed that the other person consented to the sexual activity. This defense does not apply to certain offenses involving children.

Lack of mental responsibility. An accused may raise the defense of lack of mental responsibility, either total or partial, if at the time of the offense the accused was “unable to appreciate the nature and quality or the wrongfulness of his or her acts” as a result of a severe mental disease or defect. This is an extremely difficult defense to prove and requires expert testimony as to the accused’s mental condition.


Defense of property. A servicemember has a legal right to eject a trespasser from his military bedroom and to protect his personal property from imminent danger of theft. This right is limited, however, and requires that only reasonable force be used. A service member does not have the right to use deadly force–or any force not reasonably necessary-to protect their property.

Double jeopardy. This is legal and constitutional prohibition and not really a defense raised at trial on the merits. Double jeopardy prohibits the federal government from trying a person for the same crime twice. Double jeopardy does not apply when prosecutions are brought by separate sovereigns (e.g. state and military) and does not apply to nonjudicial punishments under Article 15, UCMJ.

Innocent ingestion. In a case involving drug use, an accused may present evidence that he somehow unknowingly and innocently ingested a controlled substance. While the prosecution can rely on a permissive inference of wrongfulness, the government must disprove innocent ingestion if evidence of such is raised at trial.

Innocent / inadvertent possession. In a case involving drug possession charges, the defense of innocent possession arises when there is evidence that drugs were “planted” of left in the accused’s possession without his knowledge of the drug.

Necessity. Necessity is a “choice of evils” defense based on the specific situation. The defense of necessity applies when an accused believes that his actions were necessary under the circumstances. To apply, this belief must be reasonable and there must have been no alternative that would have caused lesser harm.


Ignorance or mistake of law. You’re probably heard it said that ignorance of the law is no excuse. And it’s true. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense. For example, ignorance that it is a crime to possess marijuana is not a defense to wrongful possession of marijuana.

Ignorance or mistake of law could be a defense in some limited circumstances. For example, a mistake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency. In contrast, reliance on the advice of an attorney that a certain course of conduct is legal is not a defense.

Voluntary Intoxication. Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. However, evidence that an accused was voluntarily intoxicated may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, willfulness, or a premeditated design to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the offense.

For example, evidence of intoxication may reduce premeditated murder to unpremeditated murder, but it will not reduce murder to manslaughter or any other lesser offense. Although voluntary intoxication is not a defense, evidence of voluntary intoxication may be admitted as evidence in extenuation to explain what happened.

Impossibility. Factual impossibility is not a defense to the charge of attempt (Article 80) and conspiracy (Article 82). For example, if a person points a gun at someone and pulls the trigger without legal justification of excuse that person is guilty of attempted murder even if, unknown to the person, the gun was defective and would not fire.

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you are represented by an experienced military attorney.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ and stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

The post Do I Have a Defense? Common UCMJ Defenses appeared first on Military Justice Attorneys.

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