tag:blogger.com,1999:blog-34853720.post1937661205447591684..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: Two new published ACCA opinionsDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-34853720.post-74189583084087429792007-12-04T23:08:00.000-05:002007-12-04T23:08:00.000-05:00I agree with ACCA that it's time to get rid of the...I agree with ACCA that it's time to get rid of the "contraband nature" language in the 112a instruction. The instruction does seem to call on members to find the accused not guilty if he made a mistake of law. Even worse from the standpoint of an accused, the phrase "contraband nature" is probably a hangover from the pre-Brewer days when there was a presumption (not just a permissive inference) that use of a controlled substance was wrongful. I trace the phrase back to the Court of Military Appeals' statement that "narcotic drugs constitute contraband, and their very nature requires the imposition of the strictest controls. But there are, of course, circumstances, under which possession of narcotics is not unlawful, although the contrary is presumed, in the absence of any explanation." United States v. West, 34 C.M.R. 449, 452 (C.M.A. 1964). This presumption that the use of a substance is wrongful goes a long way toward explaining the awkward notion that a substance can be contraband just by its very nature.<BR/><BR/>After United States v. Brewer, 61 M.J. 425 (2005), the presumption is no more. The government has to prove the wrongful character of the use. The phrase "contraband nature of the substance" isn't very helpful to members, who have to decide whether a use is wrongful, not whether a substance is "illegal."<BR/><BR/>We should replace the ponderous and confusing "contraband nature" instruction with one that can be tailored to the facts surrounding a particular mistake of fact defense. If the state of the evidence suggests that an accused thought cocaine was sugar, he gets an instruction that says that this belief would constitute a defense. If the state of evidence suggests that an accused thought cocaine was heroin, there's no reason to give any instruction on mistake at all. This is the only way I can think of to prevent the military judge from seeming to ask members to decide whether an accused made a mistake of law, and to keep them focused on whether a use was wrongful in a given circumstance.Marcus Fultonhttps://www.blogger.com/profile/14070796580668712006noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-50630555674936513242007-12-04T22:57:00.000-05:002007-12-04T22:57:00.000-05:00This comment has been removed by the author.Marcus Fultonhttps://www.blogger.com/profile/14070796580668712006noreply@blogger.com