NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-1. (Category 5)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, murder __________ by means of (shooting (him) (her) with a rifle) (__________).
c. ELEMENTS:
(1) That (state the name or description of the alleged victim) is dead;
(2) That his/her death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);
(3) That the killing of (state the name or description of the alleged victim) by the accused was unlawful; and
(4) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal justification or excuse.
The intent to kill or inflict great bodily harm may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, it may be inferred that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in death or great bodily harm, it may be inferred that (he) (she) intended to inflict death or great bodily harm. The drawing of this inference is not required. The intent need not be directed toward the person killed, or exist for any particular time before commission of the act, or have previously existed at all. It is sufficient that the intent to kill existed at the time of the act or omission.
“Great bodily harm” means serious injury. “Great bodily harm” does not mean minor injuries, such as a black eye or bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries.
NOTE 2: Intent to kill or inflict great bodily harm in issue. When the accused denies the intent to kill or inflict great bodily harm, an instruction on involuntary manslaughter must ordinarily be given.
NOTE 3: Sudden passion caused by adequate provocation in issue. When killing in the heat of sudden passion caused by adequate provocation is placed in issue, the judge must instruct substantially as below. Do not use Instruction 3a-57-1 to instruct on the lesser included offense of voluntary manslaughter; use the instruction below:
The lesser offense of voluntary manslaughter is included in the crime of unpremeditated murder. “Voluntary manslaughter” is the unlawful killing of a human being, with an intent to kill or inflict great bodily harm, done in the heat of sudden passion caused by adequate provocation. Acts of the accused which might otherwise amount to murder constitute only the lesser offense of voluntary manslaughter if those acts were done in the heat of sudden passion caused by adequate provocation. “Passion” means a degree of anger, rage, pain, or fear which prevents cool reflection. The law recognizes that a person may be provoked to such an extent that in the heat of sudden passion caused by adequate provocation, (he) (she) strikes a fatal blow before (he) (she) has had time to control (himself) (herself). A person who kills because of passion caused by adequate provocation is not guilty of murder. Provocation is adequate if it would cause uncontrollable passion in the mind of a reasonable person. The provocation must not be sought or induced as an excuse for killing or doing harm.
If you are not satisfied beyond a reasonable doubt that the accused is guilty of murder, but you are satisfied beyond a reasonable doubt that the killing, although done in the heat of sudden passion caused by adequate provocation, was done with the intent to kill or inflict great bodily harm, you may still find (him) (her) guilty of voluntary manslaughter.
NOTE 4: Defenses. When an issue of self-defense, accident, or other legal justification or excuse is raised, tailored instructions must be given.
NOTE 5: Transferred intent. When the issue of transferred intent is raised by the evidence, the judge should instruct substantially as follows:
When a person with intent to kill or inflict great bodily harm attempts unlawfully to kill or inflict great bodily harm upon a certain person, but, by mistake or inadvertence, kills another person, the individual is still criminally responsible for a killing with intent to kill or inflict great bodily harm because the intent to kill or inflict great bodily harm is transferred from the intended victim of (his) (her) action to the actual victim. If you are satisfied beyond a reasonable doubt that the victim named in the specification is dead and that his/her death resulted from the unlawful (act) (omission) of the accused in (state the act or omission alleged) with intent to kill or inflict great bodily harm upon (state the name or description of the individual other than the alleged victim), you may still find the accused guilty of the unpremeditated murder of (state the name of the alleged victim).
NOTE 6: Timing of the formulation of intent. If an issue is raised with respect to the time of the formulation of the intent to kill or inflict great bodily harm, the military judge may instruct as follows:
The intent to kill or inflict great bodily harm does not have to exist for any measurable or particular time before the (act) (omission) which causes the death. All that is required is that it exist at the time of the (act) (omission) which caused the death.
NOTE 7: Voluntary intoxication raised. If there is some evidence of voluntary intoxication, but no issue of insanity, the following instruction may be appropriate, provided there were no other factors that may have combined with the accused’s alcohol consumption to affect his/her mental capacity to form the requisite intent:
Although the accused must have had the intent to kill or inflict great bodily harm, voluntary intoxication, by itself, is not a defense to unpremeditated murder. Voluntary intoxication, standing alone, will not reduce unpremeditated murder to a lesser degree of unlawful killing.
NOTE 8: Brain death instruction. The standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of brain function. See US v. Gomez, 15 MJ 954 (ACMR 1983) and US v. Jefferson, 22 MJ 315 (CMA 1986). Instruction 7-24, Brain Death, may be adapted for this circumstance.
NOTE 9: Causation. When causation is in issue, see Instruction 5-5, Causation (Lack of), Intervening Cause, or Contributory Negligence.