In a court-martial the “jury” is the panel of members, and a point of procedure shapes everything: the military judge, not the attorneys, actually instructs the members. So an attorney does not deliver instructions; the attorney shapes them, by proposing the ones that favor a fair reading of the case and objecting to the ones that do not. Preparing instructions is really preparing requests and objections.
What the instructions must contain
The judge’s instructions on findings carry mandatory content, and knowing it tells counsel what to work with. The members must be told:
- The elements of each offense that must be proved beyond a reasonable doubt.
- How they may consider the evidence presented.
- The voting procedures to follow in closed deliberations.
And the instructions must close with mandatory advice on the burden of proof, reasonable doubt, and the presumption of innocence. These required pieces form the backbone that every set of instructions must include.
The standard source, and where counsel adds value
Military judges work from a standard reference, the Military Judges’ Benchbook (Department of the Army Pamphlet 27-9), which contains pattern instructions: the elements of offenses and the procedural and burden-of-proof language. Because the pattern instructions are well established, an attorney’s preparation focuses on the case-specific additions, the matters that the benchbook does not supply on its own:
- Defenses raised by the evidence. When the record raises an affirmative defense, the judge must generally instruct on it, so counsel identifies it and requests the instruction.
- Lesser included offenses, special evidentiary cautions, and other tailored points that fit the particular facts.
Under the rules, instructions on findings include such additional explanations as are properly requested by a party or that the judge decides to give. That request mechanism is the attorney’s main lever.
How counsel actually prepares
Where the evidence raises a defense the standard instructions omit, the attorney requests a tailored instruction, since the judge gives the instructions but counsel shapes them.
The core point is that preparing panel instructions is advocacy by precision. The judge gives the instructions and a benchbook supplies the standard language, so the attorney’s job is to ensure the elements, the reasonable-doubt framework, and every defense and nuance the evidence raises are correctly and fairly put before the members.
Frequently Asked Questions
Who actually gives the instructions to the panel?
The military judge instructs the members. The attorneys prepare and request instructions and object to improper ones, but they do not deliver the instructions themselves.
What must the instructions include?
The elements of each offense to be proved beyond a reasonable doubt, how to consider the evidence, voting procedures, and mandatory advice on the burden of proof, reasonable doubt, and presumption of innocence.
Where do the standard instructions come from?
From the Military Judges’ Benchbook (DA Pam 27-9), with counsel requesting case-specific additions such as instructions on defenses raised by the evidence.
This article is general information about court-martial instructions. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Anyone facing a court-martial should consult qualified defense counsel.
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