Pattern Instructions in Military Courts: Possible Origins of the Military Judge’s Benchbook

Military judges and practitioners rely heavily on the Military Judge’s Benchbook, which contains the pattern instructions used in the military justice system. However, not a lot of attention is paid on the history of this publication and its role in the development of military criminal law. In nearly five years of using this publication, I too never really wondered where it came from, or why it was initially produced. But after reading the decisions the Court of Military Appeals (now the United States Court of Appeals for the Armed Forces) issued in its initial term for my current project on the Court’s experience as a court of last resort, I came across a series of decisions that may serve as the early foundation for the development of the Benchbook.

Though pattern instructions have been around American law since the 1930s, military courts began wrestling with this concept after the enactment of the Uniform Code of Military Justice (UCMJ) in 1950. This revolution in the administration of military criminal law (courts-martial predate the founding of the country) included removing the “law member” from the “panel,” the name given to the military version of a jury. Article 51 of the UCMJ (10 U.S.C. § 851) required this individual, now referred to as the law officer, to instruct the panel on the elements of the offense, the presumption of innocence, the burden of proof, and other matters. But early law officers struggled with this new responsibility, as instructions were new. Thus, law officers routinely relied on sections of the Manual for Courts-Martial, a substantive and procedural guide given the force and effect of law (unless it conflicts with the UCMJ or Constitution), for guidance. Over the course of the Court’s first year, early decisions demonstrated the Court’s patience with the military’s transition. Toward the end, however, failure to properly instruct became obvious and unacceptable error. Thus, I believe, the eventual publication of the Benchbook. In demonstrating this, I think the Court’s own words best describe this evolution.

In an early decision, the Court announced the basic principles governing instructions in military criminal law:

With the hope that we can carve out principles which will afford maximum protection to the accused, and at the same time not unduly burden the government in its prosecution of the guilty, we shall set out two basic principles governing instructions, and thereafter deal with the specific problems in this case . . . The first principle involves the duty of the law member to instruct on the essential elements of the offense . . . The second principle for determination is whether the accused waives the mandatory requirement of the Act by failure either to submit requested instruction or except to the failure to give instructions.

United States v. Rhoden, 1 U.S.C.M.A. 193, 196-97 (1952).

In a subsequent decision, the Court reinforced the principle that the UCMJ sought to align military practice with civilian practice to the extent practical:

The necessity of instructions by the law officer on affirmative defenses is a novel issue . . . Congress . . . has endeavored, whenever possible, to bring courts-martial procedure into conformity with that obtaining in civilian criminal courts . . . This is especially true as to the functions and duties of the law officer . . . [W]e have tempered this principle with a realization of the practical factors inherent in court-martial trials, as well as the newness of the instruction concept to military justice in general, and law officers in particular.

United States v. Ginn, 1 U.S.C.M.A. 453, 455-56 (citations omitted).

But by the Court’s decision in Gilbertson later in the term, one can tell that it began to get frustrated with the continuing failure of law officers to properly instruct the panel:

We have made clear, in previous opinions, the basic position of this Court in relation to instructions by the law officer on the elements of the offense charged
. . . It should be obvious from these decisions that we consider it vital that the court be informed, in accordance with the mandate of Congress, of the law as it relates to the offenses charged . . . We have previously condemned instructions which merely refer to the acts alleged in the specification . . . We note that an Air Force board of review has held that reference to the Manual discussion of an offense does not constitute an adequate substitute for full oral instructions . . . In commenting on Article 51, supra, during legislative consideration, Senator Kefauver had this to say . . . it seems to me that following the jury concept in the matter is a pretty safe thing to do. The law officer is distinguished from a member of the court, and he must be a lawyer. He instructs the court on the record
. . . This is merely getting a little closer to the civilian approach in court-martial proceeding. It approaches the judge idea . . . while not going overboard in attempting to adopt civilian technique, is an attempt to bring the system a little further into harmony with civilian methods . . . It is appropriate, therefore, that we should give respectful consideration to civilian procedure on instructions . . . If the law officer merely refers to a Manual discussion of the offense, we have no guarantee that the members will read the pertinent parts . . . Further, they may not understand it and may well be confused by additional matter appearing in the text, not applicable to the case before them . . . The law officer of a general court and the president of a special court must endeavor to fulfill their responsibility to act as near like a civilian judge as possible . . . We therefore conclude that referral to the Manual does not constitute an adequate instruction and cannot cure an otherwise inadequate instruction.

United States v. Gilbertson, 1 U.S.C.M.A. 455, 466-68 (1952) (citations and internal quotations omitted).

Eventually, the Court had had enough:

The Uniform Code . . . in clear and unmistakable terms, commands that the law officer of a general court-martial shall, in the presence of the accused and counsel, instruct the court as to the elements of the offense . . . This constitutes one of the most significant respects in which the current dispensation of military justice differs from the old . . . Had Congress deemed a mere reference to the applicable paragraph or subparagraph of the Manual an acceptable procedure, it would have been a comparatively simple matter to have provided to this effect . . . We are certainly not unmindful of the fact that under the older practice a professionally certified law member sat with the court during its deliberations . . . Under the present scheme no such legal advisor is near its members at these crucial moments . . . So far as we can believe with assurance, all of the law applicable to the case before it with which the court-martial’s members are familiar is that upon which they are explicitly instructed by the law officer . . . We, therefore, conclude, as we did in Gilbertson that referral to the Manual does not constitute an adequate instruction and cannot cure an otherwise inadequate instruction.

United States v. Strong, 1 U.S.C.M.A. 627, 632-33 (1952) (citations and internal quotations omitted).

As the Court continued to clarify the importance of appropriate instructions by the law officer, members of the panel continued to have access to the MCM during deliberations. But the Court soon turned its attention to this practice too, in light of the requirements of the UCMJ. After an extensive analysis, the Court once and for all prohibited the reliance on outside sources, including the MCM, beyond the instructions provided by the law officer. See United States Rinehart, 8 U.S.C.M.A. 402, 406-10 (1957).

After reading these cases, I performed a quick search to see what, if any, histories exist of the Benchbook to no avail. This would be an interesting endeavor but, at least from the Court’s first term, it seems that the Benchbook might have been a response to the ongoing struggle to bring courts-martial closer to civilian practice, to the extent practical.

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