QUESTION: WHAT IF THE ACCUSED DOES REPORT THE PROBLEM, AND THE CHAIN OF
COMMAND IS NOT RESPONSIVE?
ANSWER: UNDER SUCH FACTS, THE COURT CONCLUDED THAT THE ACCUSED DID NOT
HAVE A REASONABLE OPPORTUNITY TO AVOID THE UNAUTHORIZED ABSENCE. U.S. V
ROBERTS, 14 MJ 671 (NMCMR 1982), AFF'D 15 MJ 106 (CMA 1983).
F. Alibi. The accused "is entitled to an acquittal if on all the evidence, including the evidence
relating to an alibi, there is a reasonable doubt as to his guilt." In the case of an alibi defense, the
accused seeks "to create in the mind of the triers of fact a (reasonable) doubt concerning the accused's
whereabouts at the time in question." U.S v. Davis, 22 MJ 829 (NMCMR 1986). The accused claims
"that he was at another place when the crime was committed." The actual distance is not controlling "so
long as it is sufficient to show that the defendant was too far away to have committed the offense. Even
if the government evidence shows that a crime has occurred in one room of a two-room building, the
defense of alibi would be raised if there is evidence that the accused was in the other room." U.S. v.
Brooks, 25 MJ 175 (CMA 1987). Note that " 'alibi'...(is) not a special defense, as (it) operates to deny
that the accused committed one or more of the acts constituting the offense." RCM 916(a).
1. Homicide or assault cases involving deadly force. It is a defense to a homicide, assault
involving deadly force, or battery involving deadly force that the accused:
a. Apprehended, on reasonable grounds, that death or serious bodily harm was about to
be inflicted wrongfully on the accused; and
b. Believed that the force the accused used was necessary for protection against death or
grievous bodily harm. Further, the term "involving deadly force" describes the factual circumstances of
the offense, not specific assault offenses. The test for self-defense is objective. The accused's
apprehension of death or serious bodily harm must be one which a reasonable, prudent person would
have held under the circumstances. RCM 916e(1).
QUESTION: MUST THE ACCUSED RETREAT?
ANSWER: NO, BUT IT IS A RELEVANT CIRCUMSTANCE IN DETERMINING IF THE
ACCUSED REASONABLY APPREHENDED THAT DEATH OR GRIEVOUS BODILY HARM
WAS ABOUT TO BE INFLICTED ON HIM. U.S. V. CLAYBORNE, 7 MJ 528 (ACMR 1979).
QUESTION: WHAT IF THE ACCUSED IS ATTACKED, AND HE RESPONDS WITH A WEAPON
HE IS CARRYING IN VIOLATION OF A POST REGULATION (GUN, SWITCHBLADE KNIFE,
ANSWER: HE MAY, OF COURSE, BE PROSECUTED FOR VIOLATING THIS PRESUMABLY
PUNITIVE REGULATION BY CARRYING THE WEAPON. THIS FACTOR DOES NOT,
HOWEVER, DEFEAT A CLAIM OF SELF-DEFENSE. U.S. V. CLAYBORNE, 7 MJ 528 (ACMR,