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: Death or mandatory minimum of confinement for life with eligibility for parole. (Category 6)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (while (perpetrating) (attempting to perpetrate) __________) 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 was engaged in the (attempted) perpetration of (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
The killing of a human being is unlawful when done without legal justification or excuse.
To find that the accused was participating in the (attempted) commission of the offense of (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson), you must be satisfied beyond a reasonable doubt:
NOTE 2: Elements of the felony offense. The military judge should state here the elements of the offense alleged to have been perpetrated or attempted. This statement should be based upon the pertinent instruction that lists the elements of that offense, but should be tailored to serve the purpose for which the statement is intended. When the offense committed is an attempted perpetration of the above stated crimes, the military judge should refer to Instruction 3a-4-1, Attempts - Other than Murder and Voluntary Manslaughter, which will prove helpful in drafting necessary instructions.
NOTE 3: Causation. Should an issue arise with regard to the lack of a relationship between the felony and the death, use the following instruction. See also Instruction 5-5, Causation (Lack of), Intervening Cause, or Contributory Negligence.
In order to find that the killing, if any, was committed while the accused was engaged in the (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson), you must find beyond a reasonable doubt that an act of the accused which caused the victim’s death and the (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson) occurred at substantially the same time and place. Additionally, you must find a causal connection between the commission of the (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson) and the act which caused the victim’s death.
NOTE 4: Specific intent as an element of the felony offense. While felony murder, as such, does not involve premeditation or specific intent, some of the crimes of (burglary) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (aggravated sexual contact) (sexual abuse of a child) (robbery) (aggravated arson) do involve a specific intent. Also, the crime of aggravated arson involves an element of knowledge. Thus, when appropriate, you should consult Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, or Instruction 5-21, Voluntary Intoxication, for instructions bearing on specific intent or knowledge.
NOTE 5: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of spontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See US v. Gomez, 15 MJ 954 (ACMR 1983); US v. Jefferson, 22 MJ 315 (CMA 1986); and US v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24 Brain Death, may be adapted for this circumstance.
NOTE 6: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), may also be applicable.