relevant in determining whether the conduct is indecent, service discrediting, or prejudicial to good
order and discipline.
J. Claim of right. The defense of mistake of fact as to justification is often considered in
tandem, or confused, with the defense of claim of right. The traditional rule of law in military practice
was that a taking, obtaining, or withholding of property was not wrongful if done by a person who has a
right to the possession of the property either equal to or greater than the right of the one from whose
possession the property is taken, obtained, or withheld. See MCM, 1984 (Rev.Ed), pt.IV, Section 46c(l)
(d), at IV-67. This claim of right also allowed a service member to seize another service member's
property to satisfy a debt or acquire security for it. This rule was modified by the Court of Appeals for
the Armed Forces in United States v. Gunther, 42 MJ 292 (1995). In Gunter, the CAAF held that a
service member has no legal right to seize his debtor's property without the agreement of the debtor.
In conclusion, to be an effective criminal investigator, you must understand the elements of
the offense which the accused may have committed. Also, you must understand the elements of
defenses the accused may raise to avoid criminal liability. Then you can focus your investigation on
evidence which will support or defeat the elements of the offenses and will support or refute the
potential defenses in each case.
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